In October 2016, the creators of the classic mockumentary film This Is Spinal Tap filed suit against a group of defendants including the French mass media conglomerate Vivendi S.A. alleging that Vivendi engaged in anticompetitive business activities to defraud the Spinal Tap creators of profits earned from the movie. On August 28th of this year, U.S. District Judge Dolly Gee of the Central District of California allowed the case to move forward by denying a motion filed by defendants to dismiss the case based on the economic loss rule, a rule that otherwise operates to require recovery of damages under contract rather than for an action for fraud. Judge Gee also determined that copyright reversion claims presented a sufficiently ripe controversy for consideration by the court.
Nintendo’s complaint targets the operator of LoveROMS.com and LoveRETRO.co who has made thousands of Nintendo titles available online for free from platforms including the Game Boy, the original Nintendo Entertainment System, Super NES, Nintendo 64 and Nintendo DS, among others. Nintendo alleges that just the top 10 games on the LoveROMs site in which Nintendo is a copyright claimant and trademark owner have been downloaded more than 60 million times. Further, the LoveROMs website allegedly receives more than 17 million visits each month.
While registration is required in order to file a lawsuit for copyright in federal court, there is currently a circuit split with regard to what part of the process must be complete in order to meet the “registration” standard. According to 17 U.S.C. §411(b), “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” The question that circuit courts seem to be divided on is whether “registration” is satisfied when a Copyright Registration is received, or when an application has been filed. On June 28, 2018, the Supreme Court agreed to weigh in. The case at issue is Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, which arises out of the Eleventh Circuit.
As of 2012, one in five adults in the United States have at least one tattoo. While some designs are simple, many are incredibly complex, original works of art. However, since tattoos are designed to be permanent, and often placed to be seen, the question arises – who owns the copyright to that artwork? And how can, and can’t, the owner display it? Unfortunately, there are no cases to date that definitively answer the questions around copyright infringement and tattoos. With a new case filed by a tattoo artist in April 2018, concerning a tattoo he placed on WWE wrestler Randy Orton, which appeared in the WWE 2K16, 2K17 and 2K18 video games, it is important to determine what we do know about whether tattoos can be copyrighted, and who owns what rights with regard to their use and reproduction.
On June 20th, U.S. District Judge Mark Walker of the Northern District of Florida issued an order on summary judgment which terminated Pohl v. Officite, a copyright infringement case, before it headed to trial. The order, which contains about as much legal precedent as it does puns and wordplay, reflects the judge’s determination that before-and-after images of dental work do not meet the threshold of creativity required to establish copyright protection for the photos.
The Federal Circuit recently decided the case of Oracle America v. Google Inc. To “attract Java developers to build apps for Android,” Google copied the declaring code, but wrote its own implementing code for the 37 Java API packages. Id at 1187. Previously, the Federal Circuit held that “[the] declaring code and the structure, sequence, and organization (‘SSO’) of the Java API packages are entitled to copyright protection.” . On the other hand, the Federal Circuit also recognized that a reasonable jury could find that “the functional aspects of the packages” are “relevant to Google’s fair use defense.” In this key decision that has the potential to rock the software industry, the Court of Appeals for the Federal Circuit rejected the jury verdict and found that “Google’s use of the 37 Java API packages was not fair as a matter of law.
While existing graffiti may indeed provide a tempting edge for a new marketing campaign, or as the backdrop for a great commercial, companies will need to decide if it is worth the legal or public relations risk. If the original graffiti artist cannot be found, or is unwilling to allow their art to be used, it may end up being less expensive to start from scratch than to manage the fallout from an allegation of stolen artwork, damaged reputation, and a lawyer for the lawsuit that follows.
On Friday, May 11th, U.S. District Judge Edward Davila entered an order deciding motions made in a copyright case involving competing musical productions based on the fictional story of the fictional folk hero Zorro. Judge Davila’s orders allows copyright infringement claims asserted by a writer who developed a Zorro musical in the 1990s to move forward against Zorro Productions, the entity which had licensed the Zorro character to entertainment companies going back to the late 1940s. This case is in the Northern District of California.
In early February, a copyright complaint was filed in the Southern District of New York against comedian Jerry Seinfeld and a series of companies involved with the production and distribution of the web series Comedians in Cars Getting Coffee. The plaintiff, director Christian Charles, claims that he created the proof-of-concept and pilot episode upon which the web series is based and that he has been shut out from the production, profits and royalties in violation of his copyright.
The case is interesting, however, not just because it involved famous subjects – a “renowned photographer” (as the Plaintiff was described in the court’s first sentence), a famous brand (Nike) and one its most well-known logos (“Jumpman”), and a photo of one of the most famous people in the world (Michael Jordan) – although these items alone perhaps merit some attention. But for lawyers and those who deal with copyright protection in the business world, perhaps more interesting is the court’s explication of the classic copyright concept of the idea-expression dichotomy, as well as its holding that the photograph at issue, while not infringed, was entitled to broad protection.
On Wednesday, March 21, 2018, a panel of the United States Court of Appeals for the Ninth Circuit ruled that the song Blurred Lines infringed the copyright in Marvin Gaye’s song Got To Give It Up. See Williams v. Gaye, No. 15-56880. Affirming most of the decision of the district court, the Ninth Circuit also held that the award of actual damages and infringers’ profits, and a running royalty, were all proper. The panel did, however, reverse a piece of the district court ruling, finding that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts.
If our legal system worked properly, it would be easy enough for her to file for copyright infringement. But under our current claims system, high litigation costs make it almost impossible for authors, writers and artists to protect their livelihoods in court. Independent creators are frequent victims of piracy and other forms of copyright infringement. But without the resources of a record company or publisher, pursuing small claims is financially impossible… Fortunately, there’s a bipartisan policy fix pending in Congress. It’s called the CASE Act (H.R. 3945), and it creates a system that makes pursuing small claims financially and logistically feasible.
The lawsuit is the latest example of content creators chasing down a third party that does not directly infringe content but rather facilitates infringement through a combination of its own hardware and third-party software… Currently, the increasingly proposed solution for safeguarding digital information is blockchain technology. Blockchain is being implemented in various industries to solve inefficiencies in areas from identity protection to supply chain management… To understand blockchain technology as a potential solution to the problems posed in the digital rights management space, one must first understand what the technology is and how it operates.
Some IP commentators love to hate the Blurred Lines music copyright decision. A primary critique has stoked unnecessary fear in musicians that the decision blurs the line between protectable expression and unprotectable style or genre. Much of the animosity, however, is based on misunderstanding or misconstruing the law or facts. This post clarifies this aspect of the case to show why the district court decision was reasonable and should be affirmed in the current appeal at the Ninth Circuit.
Like other opinions in the IP arena, the Supreme Court’s decision in Star Athletica v. Varsity Brands has created a new legal rule with limited practical guidance that will inevitably lead to less predictability in an already-murky area of copyright law. Its new “imaginative separability” test for copyright eligibility for useful articles, such as footwear, clothing, and furniture, may be so easy that few designs will fail to qualify. Yet, ultimately, Star Athletica may have the unimagined consequence of making copyright protection less desirable for qualifying designs. For those who seek the benefits of the Court’s undeniable expansion of potential copyright protection for useful designs, a bit of caution may be the appropriate response.