Posts Tagged: "copyright"

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.

The right-to-repair movement has been making strides in recent years, as many states are now contemplating bills that would require electronic device manufacturers to make their parts, tools and know-how available to device owners and independent repair shops. While the goal of expanding repair opportunities for consumers is certainly laudable, repair advocates are pulling a fast one when it comes to the federal copyright law implications of their preferred state legislative solutions. As Professor Adam Mossoff and I explain in a new Hudson Institute policy memo, these proposed state right-to-repair bills are unconstitutional on their face because they directly conflict with the rights secured to authors under the federal Copyright Act. They are also the wrong policy since they would upset the legal and policy foundations that have led to the unprecedented success of today’s thriving digital marketplace. States should not waste valuable time and resources on harmful right-to-repair bills that will be struck down when they are inevitably challenged.

On October 28, Kristina Kashtanova, an artist and artificial intelligence (AI) consultant and researcher, received notice from the U.S. Copyright Office (USCO) that the registration for the first issue of her partially AI-generated graphic novel, Zarya Of The Dawn, may be canceled. A month earlier, on September 15, the USCO issued a registration for Kashtanova’s work, which was subsequently widely publicized as the first known instance of an AI-generated work being successfully registered with the USCO. In the USCO’s recent communication, “I was asked to provide details of my process to show that there was substantial human involvement in the process of creation of this graphic novel,” Kashtanova explained by email. When asked to confirm the potential cancellation for Kashtanova’s registration, the USCO provided a written statement saying…“Copyright under U.S. law requires human authorship. The Office will not knowingly grant registration to a work that was claimed to have been created solely by machine with artificial intelligence.”

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.”

On October 25, the U.S. Copyright Office issued a notice of proposed rulemaking (NPRM) in the Federal Register to clarify the application of the derivative works exception to copyright termination rights within the context of blanket licenses administered under the Music Modernization Act (MMA). The Office is hoping to correct what it sees as a legally erroneous dispute resolution policy established by the Mechanical Licensing Collective (MLC), which administers the MMA’s blanket licenses to digital music providers, regarding the payment of royalties after songwriters exercise their termination rights to regain copyright ownership from music publishers.

Yesterday, the United States Intellectual Property Alliance (USIPA) issued the results of a nationwide survey designed to determine the level of intellectual property awareness among American adults. Perhaps unsurprisingly, USIPA’s survey found that, while most American believed they understood IP, seven out of 10 survey respondents could not identify examples of intellectual property when asked. This new research should add new urgency to the efforts of IP advocates who are trying to increase participation in the U.S. IP system.

The International Center for Law and Economics (ICLE) released a white paper on Thursday arguing that Section 512 of Title 17 of the Copyright Act has been a failure, and it should be reevaluated and overhauled. Congress passed Section 512 as part of the Digital Millennium Copyright Act (DMCA), and authors Kristian Stout and Geoffrey Manne argue the federal courts have written out key provisions in the law. Stout and Manne write that Section 512 has succeeded in allowing online service providers (OSPs) such as social media companies to grow and thrive by providing a safe harbor provision as long as they take down infringement promptly. However, the authors argue that the law has failed to provide proper incentives and systems to prevent digital piracy

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.

This morning, the full U.S. Senate Committee on the Judiciary convened an executive business meeting during which the committee advanced S. 673, the Journalism Competition and Preservation Act (JCPA). Though the bill was reported favorably with an amendment drawing support from the Republican members of the committee, others on the Senate Judiciary raised concerns that could presage further debate after it hits the floor of the Senate. The JCPA was first introduced into both houses of Congress last March, with Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) sponsoring the Senate version and Representatives David Cicilline (D-RI) and Ken Buck (R-NY) sponsoring the version introduced into the House of Representatives.

On August 18, 2022, Albert Pujols hit a grand slam against Austin Gomber for his 690th career home run. A clip of that home run was posted on Reddit before the official Major League Baseball (MLB) app was updated. Three years ago, the post would have been taken down quickly. Today, it has thousands of fans commenting on it instead. In 2020, MLB reversed course on a long-established content policy by going beyond simply allowing fans to post clips and highlights of MLB games. They introduced Film Room, a product that lets fans search clips, make reels, and post them to social media. This decision was made with intent – to take back control over how its media was being used online. “I think we’re at the point now where we believe that making our content available for our fans, particularly our younger fans, in a way that’s easy for them to consume, is really important,” Chris Marinak, MLB’s chief operations and strategy officer told Sporting News.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property yesterday held a hearing on “Oversight of the U.S. Copyright Office,” with Register of Copyrights and Director of the Copyright Office, Shira Perlmutter, as the sole witness. Perlmutter updated the senators on a number of projects in process, including how the Copyright Claims Board (CCB), a small copyright claims tribunal implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act, is working so far.

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.