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.
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 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.
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.
On September 30, the U.S. Court of Appeals for the Second Circuit issued a ruling in Horror Inc. v. Miller in which the appellate court affirmed a summary judgment ruling in the District of Connecticut which found that Victor Miller was an independent contractor when writing the script for the 1980 classic horror film Friday the 13th. The ruling enables Miller to move forward with copyright termination notices served on Horror, which became the successor-in-interest to the rights to Friday the 13th, so that Miller can claim copyright in the original screenplay.
With the value of his music catalogue still subject to an ongoing dispute between the trust managing his estate and the IRS, Prince, who died in 2016, has a new partner. Primary Wave, whose catalog includes songs by Nirvana, Bob Marley, Ray Charles and Smokey Robinson, has taken a roughly 50% stake in Prince’s estate, buying out the interests of three of the late musician’s siblings. Primary Wave is said to have $1.6 billion in investible assets. A highly creative and successful writer, producer and performer, Prince was also a savvy IP strategist, who sought to control his work, name and image. He was a fierce defender of his intellectual property rights, and was involved in a series of legal actions against businesses and individuals using his music and other IP without his authorization. He also railed against his record company, which sought to assert ownership rights over his catalogue and name.
On May 12, the U.S. Court of Appeals for the Second Circuit issued a decision in Sohm v. Scholastic in which the appellate court reversed in part a decision handed out by the U.S. District Court for the Southern District of New York (SDNY) granting partial summary judgment to Sohm for Scholastic’s infringement of copyright to six photographs and dismissing other claims by Sohm. Among the issues decided by the Second Circuit on appeal was an issue of first impression on group registrations. The Second Circuit decision aligned with case law from the Ninth Circuit, which has held that an individual can sue for copyright infringement covering individual works within a group registration even if that individual isn’t named as an author in the group registration.
In June 2019, five-years of legal proceedings between Microsoft and Zhytomyrgas PJSC in the Ukrainian courts came to an end. The parties began their battle in the context of criminal proceedings and ended the dispute in the economic court. Microsoft ultimately was successful. Ukraine has been among the countries on the U.S. Special 301 Report, prepared by the Office of the U.S. Trade Representative, for years due to its high rate of copyright violations. Ukrainian citizens, government agencies and enterprises are no exceptions. At the same time, Ukraine ranks second in Eastern Europe in the number of software developers and number one in the world in the number of developers per 1,000 inhabitants.
Let’s face it, intellectual property (IP) litigation is a very expensive and risky endeavor. For the accused infringer, the prospect of going to trial means high legal fees and, even worse, a substantial disruption to the business. Even in cases where an accused infringer has viable defenses, leaving a ruling in the hands of the judge or jury is nothing more than a Las Vegas roll-of-the-dice. Whether through informal settlement discussions, mediation, or court-mandated settlement conference, IP defense litigators must arm their clients with a bevy of effective, business-minded settlement strategies. Settling does not have to mean capitulating and paying the other side an arbitrary sum of money to go away. Instead, think of ways to put your client’s available settlement dollars to work. Here are a few practical concepts to set your client on a viable settlement path.
The Court of Justice of the European Union (CJEU) has ruled that a phonogram producer can prevent another person from taking a sample, even if it is very short, and including it in another phonogram, “unless that sample is included in a modified form unrecognisable to the ear.” The Court was interpreting certain provisions of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the 2001 Directive) in the light of the rights enshrined in the Charter of Fundamental Rights of the European Union. See Pelham GmbH, Moses Pelham, Martin Haas v. Ralf Hütter, Florian Schneider?Esleben (Case C-476/17, July 29 2019). The case concerned a two-second sample of the Kraftwerk track Metall auf Metall, which was used in the song Nur mir, composed by Pelham and Haas. Hütter and Schneider?Esleben, members of Kraftwerk, brought an action for copyright infringement in the German courts, and the Bundesgerichtshof (Federal Court of Germany) referred six questions to the CJEU.
On December 28, 2018, the limited liability company representing famed Seattle-area grunge rock band Nirvana sued clothing designer Marc Jacobs and fashion retailers Neiman Marcus and Saks Fifth Avenue in the U.S. Federal District Court for the Central District of California. At the center of the lawsuit are copyright and trademark infringement allegations regarding the use of Nirvana’s “smiley face” logo on a line of designer clothing made by Marc Jacobs. Nirvana alleges that Marc Jacobs has used the band’s common law trademarks and infringed the band’s copyright in the smiley face logo in a misleading way in order to make it appear that Marc Jacobs’ “Bootleg Redux Grunge” clothing line is endorsed by or somehow associated with Nirvana. Nirvana first licensed the use of the smiley face logo, designed by deceased Nirvana front man Kurt Cobain in 1992, and it has been continuously used to identify Nirvana’s music and licensed merchandise since.
Just after Capitol Records filed its complaint in this litigation, ReDigi launched a new service, called ReDigi 2.0. With ReDigi 2.0, customers would originally download iTunes music files directly from Apple onto a specific physical location on ReDigi’s server, from which they could then stream their music or download it for personal use on their own media devices. When a customer chose to sell a digital file, ReDigi would retain the file in the same server space and simply assign “title” to the new owner. Thus, there would be no duplication of files, and the content would be transferred along with the original physical media. For now, we don’t know the legal status of such a system because it was introduced too late for it to be reviewed in this litigation.
The Court of Appeals for the Second Circuit recently issued a decision in Capitol Records, LLC v. ReDigi Inc. affirming a previous finding out of the Southern District of New York that ReDigi’s digital music file reselling platform infringed upon the plaintiffs’ copyright to the music files being resold. The Second Circuit panel upheld the lower court’s decision over ReDigi’s arguments that its platform enabled the lawful resale of digital music files under the first sale doctrine.
The Court of Appeals for the Ninth Circuit recently issued an opinion in Skidmore v. Led Zeppelin, which vacated-in-part a judgment out of the Central District of California that Led Zeppelin’s hit classic rock song “Stairway to Heaven” was not substantially similar to “Taurus,” a song written by the late songwriter Randy Wolfe, a member of the band Spirit. The case was remanded back to the district court after the appellate court found that certain instructions given by the district court to the jury were erroneous and prejudicial.
On appeal, the Ninth Circuit panel found that the district court had properly dismissed both the direct and the contributory infringement claims with prejudice. Although Cobbler Nevada had established a connection between Gonzales and the offending IP address, establishing a claim of copyright infringement required the plaintiff to show that the defendant himself violated the plaintiff’s exclusive rights under the Copyright Act. Citing to the Supreme Court’s standards for pleading under Iqbal/Twombly, the Ninth Circuit determined that this claim involved a situation where the facts pled by the plaintiff stopped short of the line “between possibility and plausibility of entitlement to belief.”