Posts in Copyright Litigation

On June 14, a series of 17 music publishers, members of the National Music Publishers’ Association (NMPA), filed a lawsuit in the Middle District of Tennessee against the social media platform, Twitter. The music publishers’ suit alleges claims of direct, vicarious and contributory copyright infringement by Twitter involving about 1,700 copyrighted songs, many of which continue to remain accessible in…

On May 18, 2023, the U.S. Supreme Court answered an exceedingly narrow question of copyright law with potentially sweeping impact: did the purpose and character of Andy Warhol’s below ‘Orange Prince’ work—as used on a 2016 Condé Nast magazine cover—support fair use of Lynn Goldsmith’s photograph of famed musician Prince Rogers Nelson a/k/a Prince?  In a 7-2 decision, the Court found that it does not, calling into question nearly 30 years of fair use jurisprudence, arguably narrowing the scope of that doctrine, and potentially threatening disciplines that rely on it, e.g., appropriation art. The decision is also sure to impact generative artificial intelligence (“AI”), an emerging technology that is also likely to rely heavily on fair use.

The Supreme Court ruled today in Andy Warhol Foundation v. Goldsmith, Lynn, et. al. that the U.S. Court of Appeals for the Second Circuit was correct in holding that the Andy Warhol Foundation’s (AWF’s) licensing of an orange silkscreen portrait of the musician Prince, created by Andy Warhol using photographer Lynn Goldsmith’s photo, was not fair. Justices Gorsuch and Jackson authored a concurrence, while Justice Kagan, joined by Chief Justice Roberts, filed a 35-page dissent from Justice Sotomayor’s opinion, calling out the majority’s contradictory interpretation of similar facts in the recent Google v. Oracle case.

Real estate data firm CoStar and real estate digital marketplace CREXi are currently engaged in a high-profile intellectual property fight. Costar, which runs Apartments.com, alleges that CREXi is violating the Digital Millennium Copyright Act (DMCA) by using its images on Crexi.com without regard to its terms of service. The company has gone so far as to say that “CREXi is attempting to build its own online commercial real estate marketplace and auction platform by free-riding on CoStar’s billions of dollars of investments and the thirty-plus years of hard work by CoStar’s employees.” CrEXi, on the other hand, argues that all the images on the site are uploaded at brokers’ (not CrEXi’s) direction and thus the company can’t be held liable for IP violations. 

On May 3, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) in the Federal Register amending final rules promulgated for infringement proceedings conducted by the Copyright Claims Board (CCB). The proposed rule changes would impact how respondents in CCB actions can assert counterclaims arising out of previous contractual agreements between parties to the action, as well as document production requests related to those counterclaims.

Journalist Bob Woodward interviewed President Trump on numerous occasions during his 2019 and 2020 presidency. Trump granted consent to be recorded for Woodward’s upcoming book. Woodward later released segments of these recordings, along with one recording made with Trump during his presidential campaign in 2016, as part of an audiobook, The Trump Tapes. Trump claims that Woodward did not have his permission to release these audiotapes as a separate audiobook and sued Woodard and his publisher for, among other claims, copyright infringement.

Last week, the United States Court of Appeals for the Ninth Circuit issued a ruling in a copyright dispute between Erickson Productions and Kraig Kast, ultimately reversing and remanding the case back to the district court for a jury trial. The appeals court ruled that the district court erred by not conducting a jury trial after a first appeal by Kast. The case began when Jim Erickson of Erickson Productions accused Kast of the unauthorized use of three copyrighted photos on his developmental website. The case was heard before a jury in the United States District Court for the Northern District of California, which awarded Erickson $450,000 in damages after finding that Kast willfully infringed on the copyright.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday issued a precedential decision holding that SAS Institute , Inc. failed to establish copyrightability of its asserted software program elements. Judge Newman dissented, arguing the ruling “contravenes the Copyright Act and departs from the long-established precedent and practice of copyrightability of computer programs” and that it represents a “far-reaching change.”

Several carefully watched copyright developments are combining to have a significant impact on the invention as well as the content landscape. A judgment from the Supreme Court of the United States is expected any day that will address the potentially shape-shifting Warhol Foundation “fair-use” suit against rock photographer, Lynn Goldsmith. This decision is also of concern to inventors and patent holders, few of whom see the writing on the IP wall: weaker intellectual property rights are gaining momentum, and lawmakers and the public don’t know enough to care.

The Copyright Claims Board (CCB) has issued its first final decision since it was established by law in December 2020, finding in favor of a photographer who claimed a lawyer infringed his copyright by displaying one of his photographs on his law firm website. David Oppenheimer’s case against Douglas Prutton was referred to the CCB by the U.S. District Court for the Northern District of California in April 2022, two months before the Board opened to receive claims. Oppenheimer said he discovered his aerial photograph of the Ronald V. Dellums Federal Building and U.S. Courthouse in Oakland, California on Prutton’s website in 2018, on a page titled “Where We Work.” Oppenheimer admitted that he copied and displayed the photograph without permission, but said his adult daughter actually found the photo and placed it on his site, and also argued fair use and unclean hands in defending his use of the work.  

Companies rely on copyright protections to shield their software, data sets, and other works that are licensed to their customers; however, a reframing of what constitutes a “transformative use,” and the extent a license can restrict such fair uses, may whittle away all avenues of protections. On October 22, 2022, the Supreme Court of the United States heard arguments for Andy Warhol Foundation v. Goldsmith. The question before the Court is where does a copyright holder’s right to create derivative works stop and “fair use” of the work begin? Companies that license data sets or data feeds should pay close attention, as the Court’s decision could narrow contractual remedies. 

In Allen v. Cooper, the U.S. Supreme Court held that the Copyright Remedy Clarification Act of 1990 (CRCA) (codified at 17 U.S.C. §§ 501(a) & 511) did not abrogate a state’s sovereign immunity from copyright infringement liability. A casual reading of that decision might have led one to reasonably believe that it ended the plaintiffs’ copyright case. After all, the Supreme Court indicated that it affirmed a holding that the CRCA was “invalid.” But, as with so many other issues encountered in the legal realm, much lies below the surface. The aftermath of the Supreme Court’s decision cast light on the realization that the Court addressed only “prophylactic” abrogation, which seeks to deter constitutional harm before it occurs. On remand, the plaintiffs convinced the district court to consider whether the state’s sovereign immunity could be negated via a “case by case” type of abrogation, which requires actual violation of both a federal statute and the Fourteenth Amendment.

Last week, artificial intelligence (AI) systems developer Dr. Stephen Thaler filed a motion for summary judgment in the U.S. District Court for the District of Columbia in a lawsuit over copyright eligibility for artwork created by AI systems. Thaler’s motion for summary judgment argues that AI-generated works are copyrightable under U.S. federal law and that the copyright should vest in Thaler under common law property principles and the work made for hire doctrine.

Tattoos have been around for millennia, but their popularity is increasing significantly. According to 2021 data, roughly 13% of Baby Boomers had at least one tattoo, compared to 32% of Generation X and 41% of Millennials. Other than disagreements about the appropriateness of visible tattoos in certain workplaces, tattoos generally cause few headaches for their owners, and certainly not legal headaches. That may no longer be the case, however, as tattoos become more common among celebrities and other high-profile individuals whose likenesses are commonly portrayed in digital media. While there has been relatively little litigation concerning tattoo copyrights, 2023 could be the year that changes.

The Constitution empowers Congress to enact federal copyright laws because the Founders recognized that the best way to advance the public interest is by enabling creators to pursue their own private interests. The copyright system secures uniform property rights to creators across the nation as a reward for their productive labors and as incentive for them to profit in the marketplace. The incredible selection of creative works available to consumers today, in terms of quantity and quality, shows that copyright law is working well. Of course, that doesn’t stop the detractors from throwing as many monkey wrenches as they can. However, looking back over this past year, there’s good reason to think that the naysayers are becoming less relevant. There’s cause to be hopeful that the plight of all creators, big and small, is improving and will continue to get better in the years to come.