Posts in Copyright Litigation

The U.S. Supreme Court today invited the Solicitor General’s views in a copyright case that asks the High Court to grant a petition on the question of whether the Copyright Act’s preemption clause allows a business “to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?” The petition was brought by ML Genius Holdings (Genius), an online platform for transcribing and annotating song lyrics, against Google and LyricFind, which Genius claims breached its website Terms of Service by “stealing Genius’s work and placing the lyrics on its own competing site, drastically decreasing web traffic to Genius as a result.”

Anna Pasternak is the Claimant in a recent copyright case at the UK High Court of Justice and author of Lara: The Untold Love Story That Inspired Doctor Zhivago (“Lara”). Lara is a non-fiction, historical book that was published in the United Kingdom in August 2016. It is a love story of Pasternak’s great uncle, Boris Pasternak, poet and author of the book Doctor Zhivago, and his mistress and muse, Olga Ivinskaya, who is portrayed as Lara Antipova in Doctor Zhivago. The Claimant is also the owner of the copyright in a translation of extracts from a book called Légendes de la Rue Potapov” (“the Légendes Translation”). Lara Prescott is the Defendant in the case at issue and author of The Secrets We Kept (“TSWK”), a historical, fictional account of a late 1950s CIA operation, which used copies of Doctor Zhivago as propaganda against the Soviet Union. Prescott, who is named after Lara Antipova, has always been fascinated by the novel. TSWK was published both in the United States and the United Kingdom in September 2019.

On November 23, sportswriter Michael Bynum and his publishing label Epic Sports filed a motion for leave  to file a second amended complaint and a proposed second amended complaint in the Southern District of Texas. The filings seek to revive copyright infringement claims filed by Bynum against employees at Texas A&M University for their roles in unauthorized distributions of Bynum’s biography of E. King Gill, a former Texas A&M student who inspired the 12th Man tradition at Texas A&M, by adding several new defendants who were actually responsible for the unauthorized copying at issue in the case.

On November 10, the U.S. Court of Appeals for the Ninth Circuit ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. following remand from the U.S. Supreme Court, which clarified the knowledge standard required for invalidating copyright registrations based on inaccuracies in the registration application. In light of that ruling, the Ninth Circuit upheld Unicolors’ ability to maintain its copyright infringement action against H&M because the plaintiff did not have the requisite knowledge of the legal inaccuracy on its registration application to invalidate the registration. While the Ninth Circuit dismissed most of H&M’s arguments on remand, the appellate court did agree with H&M that the district court’s post-remittitur damages were improperly calculated, leading to a significant reduction in the amount awarded to Unicolors in the case.

Johnny Depp and guitarist Jeff Beck filed a lawsuit last Friday against folklorist and SUNY Buffalo professor Bruce Jackson, who accused the pair of plagiarizing a song on their latest album, “18”. In two demand letters the folklorist sent in August, Jackson alleged that Depp and Beck infringed the copyright of the poem “Hobo Ben” by copying entire passages. However, in their lawsuit filed in the U.S. District Court for the Western District of New York, Depp and Beck’s lawyers argue that Jackson never owned the copyright to “Hobo Ben,” as it was “part of an oral tradition passed down for generations and performed by an unidentified individual.” Therefore, they are asking the judge for a declaration of noninfringement, so the pair can “preserve their rights, defend their good names, and protect their business and business relationships.”

The Supreme Court today heard oral arguments in The Andy Warhol Foundation v. Lynn Goldsmith, a case asking the nation’s highest court to determine whether Warhol’s unlicensed use of Goldsmith’s photographs of pop superstar Prince was a fair use of that copyright-protected photo. Many of the Supreme Court’s questions focused on the scope of the use at issue in the case, as well as the extent of the new meaning or message that a purportedly derivative work must take on before it is considered transformative under factor one of the four-factor fair use test.

This week, the U.S. Supreme Court docketed a petition for certiorari filed on September 17 by hip-hop producer Gary Frisby, who performs under the name G-Money, asking the Court to revive his musical composition copyright case that alleged infringement of Frisby’s 2013 beat track “Shawty So Cold.” Frisby’s appeal challenges the U.S. Court of Appeals for the Ninth Circuit’s ruling that the appellate court lacked subject matter jurisdiction over Frisby’s appeal from U.S. district court because he failed to file a notice of appeal, despite the fact that the court failed to inform Frisby that the ruling on summary judgment was filed.

The petitioner in a case challenging the U.S. Court of Appeals for the Fifth Circuit’s ruling that affirmed a Texas court’s dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of his manuscript filed a reply brief Monday, arguing that the opposition provides “no escape hatch… for states’ particularly egregious intellectual property violations.” Michael Bynum, a sports writer and editor, and publishing company Canada Hockey L.L.C., doing business as Epic Sports, said that the Texas Attorney General’s August 19 brief in opposition was “bristling with aggressive and controversial legal positions” and that the Fifth Circuit’s decision “undermines federal copyright protection from state predation.”

While Prince might have written the song “Nothing Compares 2 U,” Sinéad O’Connor transformed the tune, made it her own and it became a mega hit. In a similar vein, photographer Lynn Goldsmith took a photograph of Prince in 1981 that artist Andy Warhol used as a basis for his 1984 “Prince Series” silkscreen prints. Did Warhol infringe Goldsmith’s copyright by using her photograph as the basis for his prints or was his work sufficiently transformative to be protected as “fair use”? That is the question at the heart of the case that the United States Supreme Court will hear in its fall 2022 term. This case may prove to be the most significant Supreme Court fair use case to date.

The U.S. Court of Appeals for the Eleventh Circuit on Wednesday affirmed a district court’s comprehensive order finding that Day to Day Imports, Inc. (DDI) acted with willful blindness in submitting a fifth Takedown Notice to Amazon asking that auto stickers it alleged infringed its licensed artwork be removed from the site. DDI took a license in 2016 to the copyright for artwork created by Harold Walters for a set of replacement stickers for the dashboard climate controls for certain General Motors vehicles. In 2018, Alper Automotive, Inc. began selling a sticker that DDI alleged infringed the licensed copyright. DDI sent Takedown Notices to Alper on May 8, 2018; May 15, 2018; August 2, 2018; and November 1, 2018.

The Copyright Claims Board (CCB), established by the CASE Act passed in December 2020, is now up and running and taking cases. The CCB is an alternative to federal court. Just like patents, copyrights are bound by federal law. Previously, a copyright owner would have to take their case to federal district court to in order to seek damages or relief. But the CCB allows a claimant to bring a copyright suit before a tribunal at the Copyright Office instead.

On August 3, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in McGucken v. Pub Ocean Ltd. that reversed a Central District of California’s sua sponte grant of summary judgment to Pub Ocean on McGucken’s copyright infringement claims. The case involved Pub Ocean’s unauthorized use of photos of a lake that formed in Death Valley, California, in March 2019. The Ninth Circuit found that all of the fair use factors weighed against a determination that Pub Ocean’s unlicensed use of the photographs were transformative.

In a recently filed suit involving the popular videogame Fortnite, the Central District of California faces an important question regarding copyright law: does a copyright in a registered choreographic work extend protection to a smaller portion of the work when that portion is copied by a third party and implemented as a dance move in a video game? Owned and developed by Epic Games, Inc. (“Epic”), Fortnite is a “battle royale” style videogame where players fight to be the last person standing. Fortnite players can purchase “emotes,” which are dance moves or other gestures performed by their avatar. Plaintiff Kyle Hanagami owns a copyright registration for a choreographic work called “How Long Choreography.” Hanagami alleges that an emote called “It’s Complicated” copies “the heart” of his work, as it is the only section of the How Long Choreography that occurs ten times throughout the original.

Following a denial of rehearing en banc by the U.S. Court of Appeals for the Fifth Circuit in February, publishing company Canada Hockey L.L.C., doing business as Epic Sports, and Michael Bynum, a sportswriter and editor, have now filed a petition for writ of certiorari with the U.S. Supreme Court in their appeal of a copyright case against both Texas A&M University and a pair of school officials. The petition claims the Fifth Circuit’s decision leaves copyright holders “at the mercy of state infringers.” In their petition, the plaintiffs argue that the Fifth Circuit’s ruling affirming the Southern District of Texas’ dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of Bynum’s manuscript on the nearly 100-year history of the famed “12th Man” tradition at Texas A&M erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment. The Texas ruling followed the U.S. Supreme Court’s March 2020 decision in Allen v. Cooper, which declared that Congress’ abrogation of state sovereign immunity under the Copyright Remedy Clarification Act was unconstitutional.

Headline-grabbing copyright infringement complaints are nothing new – especially recently. Robin Thicke, Ed Sheeran, and Dua Lipa have all faced copyright infringement lawsuits seeking eye-popping damages claims. At a quick glance, the $20 million lawsuit filed this month by Andy Stone against Mariah Carey, co-writer Walter Afanasieff, and Sony Music is just one more in a string of these cases. But a closer look at the Complaint, and a comparison of the 1989 Vince Vance & The Valiants song, “All I Want for Christmas is You,” with Mariah Carey’s 1994 song of the same name, raises more questions than answers.