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The Intellectual Property Strategist
When Are Short Phrases in Songs Protectable?
Robert W. Clarida and Robert J. Bernstein
It’s a common fact pattern: A songwriter alleges that another songwriter has infringed the lyrics of Song A by using a similar short phrase, frequently a current slang phrase, in the lyrics of Song B. Claims like this do not often succeed because “words and short phrases such as names, titles, and slogans” are “not subject to copyright.”
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Entertainment Law & Finance
How Judges Are Interpreting Supreme Court’s Copyright ‘Registration’ Ruling
Stan Soocher
In Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, the U.S. Supreme Court held that, under 17 U.S.C. §411(a), “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright” — that is, acts on a registration application, rather than when an applicant delivers the registration materials to the Copyright Office.
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Entertainment Law & Finance
Challenges to Evidence of Copyright Ownership
Stan Soocher
There has been a long-term debate over whether sound recordings can be copyright works made for hire. Sound recordings don’t appear in the list of works for hire set out in §101 of the Copyright Act of 1976, though record labels argue recordings can be deemed so as a “compilation” or a “contribution to a collective work,” per §101.
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Entertainment Law & Finance
Players on the Move
Dan Clark
Copyright Office General Counsel Moves to MPAA
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The Intellectual Property Strategist
Supreme Court, Finally, Takes Up Google v. Oracle
Scott Graham
The U.S. Supreme Court has jumped into a titanic copyright battle between Oracle Corp. and Google LLC with both barrels. The court’s involvement is sure to reignite a 50-year-old debate over how much, if any, software should be subject to copyright, and the contours of the fair use defense in the digital age.
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Entertainment Law & Finance
Photo Cases Test Copyright Law and Embedded Tweets
Raychel Lean
A New Yorker who settled a copyright lawsuit against several news outlets over a photo he took of star quarterback Tom Brady and Boston Celtics manager Danny Ainge has struck again. This time he’s suing a radio station owner in Florida federal courts in a case that could test the boundaries of an emerging area of copyright law, raising major questions about how media companies incorporate social media posts into online stories.
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Entertainment Law & Finance
Filers Beware: No Expedited Discovery in Copyright Suits
Charles Toutant
Litigation tactics employed by frequent filers of copyright infringement suits may face heavy criticism in light of a recent ruling by a federal judge in New Jersey.
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Entertainment Law & Finance
Sparks From En Banc Arguments In Song Suit Against Led Zeppelin
Scott Graham
There was much harmony along with a few discordant notes as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit took up the copyright case involving Led Zeppelin’s “Stairway to Heaven.”
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The Intellectual Property Strategist
Fourth Circuit Rules that Website’s Unauthorized Posting of Stock Photograph Was Not ‘Fair Use’
Michael W. Mitchell and Edward Roche
The decision in Brammer v. Violent Hues sheds some light on when re-posting will be a “fair use” and when it will give rise to liability.
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Entertainment Law & Finance
Analysis of Warhol Art Fair Use Ruling
Robert W. Clarida and Robert J. Bernstein
The U.S. District Court for the Southern District of New York held that a series of silkscreen paintings and prints by Andy Warhol based on a photograph of music legend Prince taken by Lynn Goldsmith constituted a transformative fair use.
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Entertainment Law & Finance
9th Circuit Says End Steinbeck Copyright Fight
Alaina Lancaster
In a nearly half-century-long legal dispute over the rights to John Steinbeck’s works, the Ninth Circuit affirmed a district court‘s $5 million compensatory damages award against the author’s daughter-in-law but vacated punitive damages against the heir.
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The Intellectual Property Strategist
Seeing Green: Protecting Brands In the Cannabis Industry
David S. Gold
Branding is not a new concept, nor are the various intellectual property laws that protect brands. What is new to most is how this burgeoning industry can take advantage of those laws within the context of state and federal restrictions.
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Entertainment Law & Finance
The Interaction of International Law and U.S. Copyright–Assignment Terminations
Stan Soocher
That U.S. copyright-assignment termination issues are among the most complex in the copyright field becomes even more apparent when attempts to reclaim copyrights involve aspects of international law. Few courts have ruled, however, on the impact of international law on U.S. copyright-assignment terminations. The most recent to do so is the U.S. Court of Appeals for the Second Circuit in Ennio Morricone Music Inc. v. Bixio Music Group Ltd.
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Entertainment Law & Finance
What’s Behind the U.S. Justice Department’s Latest Review of PRO Consent Decrees
Karen Hoffman Lent and Kenneth Schwartz
In June, the DOJ announced its plans to review the two music-licensing antitrust consent decrees that have been in place, in some shape or form, for almost 80 years. Due to this newly initiated review, the competitive mechanisms that dictate how music is broadcast, streamed or played live could drastically change.
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Entertainment Law & Finance
Third Circuit Clarifies View on Copyright Ownership, Injunctive Relief
Charles Toutant
The U.S. Court of Appeals for the Third Circuit tossed out an injunction against sales of a book by Commerce Bank founder Vernon Hill II even after finding that the work infringed on a manuscript copyright owned by TD Bank.
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The Intellectual Property Strategist
Photographs on the Internet: Circuit Courts Examine Copyright Infringement
Kyle-Beth Hilfer
Two recent circuit court cases clarified copyright infringement of photographs on the Internet. Both cases serve as cautionary tales for those who takes photographs for their websites from the Internet without investigating copyright rights.
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The Intellectual Property Strategist
IP News
Howard Shire and Christine Weller
Mercedes Benz USA LLC v. Bombardier
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The Intellectual Property Strategist
Hey! That’s My Move!
Erin Hennessy, Annie Allison and Logan Kotler
Copyright, Fortnite and the Ability to Protect How You Shake Your Groove Thing
The U.S. Supreme Court just crashed the copyright world’s latest dance party — stepping on the toes of a soiree of copyright infringement lawsuits against videogame developer Epic Games, the creator of Fortnite.
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Entertainment Law & Finance
High Court’s View of ‘Full Costs’ in Copyright Litigation
Scott Graham
A unanimous U.S. Supreme Court, led by Justice Brett Kavanaugh, held that the phrase “full costs” in §505 of the Copyright Act means all of the costs specifically enumerated in the general cost-shifting statutes, such as transcripts and fees for court-appointed experts and interpreters.
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Entertainment Law & Finance
U.S. Supreme Court’s Ruling on Copyright Registration
Robert J. Bernstein and Robert W. Clarida
The Supreme Court had granted cert in Fourth Estate to resolve a split in the federal circuit courts as to whether §411(a) of the Copyright Act could be read to allow commencement of an infringement action once a registration application filed with the Copyright Office is complete (the “application approach”) or, instead, only (subject to limited statutorily specified exceptions) upon issuance by the Copyright Office of the registration (the “registration approach”).
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The Intellectual Property Strategist
The Supreme Court Finally Resolves An Old, Vexing Question: Does “Registration” Mean “Registration”? Answer: “Yes.”
James A. Trigg and Bethany R. Nelson
In Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court resolved a circuit split decades in the making by holding that a copyright is not “registered” within the meaning of the Copyright Act unless and until a registration certificate actually has issued.
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The Intellectual Property Strategist
Monopolizing the Disruptive
Arthur Beeman
The Federal Circuit’s Threat to Software Innovation in the Oracle v. GoogleDecisions<
The Federal Circuit decisions in the Oracle v. Google copyright case rattled Silicon Valley not simply because the decisions upended software developers’ understandings of copyright law, but also because the decisions do not comport with the disruptive ethos of the technology industry.
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The Intellectual Property Strategist
IP News
Christine E. Weller
In celebration of International Women’s Day two years ago, State Street Global Advisors unveiled Fearless Girl at Bowling Green in the Financial District in Manhattan. Commissioned by State Street from the artist Kristen Visbal, the work has since become a part of the zeitgeist amidst global conversations about gender parity, diversity, and inclusion on a broader scale. Now, some two years later, Fearless Girl is raising additional intellectual property questions.
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Entertainment Law & Finance
25 Years After: Campbell v. Acuff-Rose and the State of Copyright Fair-Use Controversies
Stan Soocher
On March 7, 1994, the U.S. Supreme Court decided for the first time that a parody may be a copyright fair use. In the 25 years that followed, the High Court’s unanimous 9-0 ruling in Campbell v. Acuff-Rose Inc., has been cited in more than 500 court decisions. But the Supreme Court’s pronouncement left questions and controversies in its wake.
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Entertainment Law & Finance
Second Circuit Affirms ‘ReDigi’: No ‘Resale’ of Digital Music Files
Robert J. Bernstein and Robert W. Clarida
The U.S. Court of Appeals for the Second Circuit recently issued a long-awaited ruling in Capitol Records LLC v. ReDigi Inc., affirming summary judgment in favor of Capitol Records and its record label co-plaintiffs in a case that raised issues of first impression concerning first sale and fair use in the age of digital music distribution.
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The Intellectual Property Strategist
UMG v. Grande Communications: Another Victory for the Music Industry in Its Battle to Hold ISPs Liable for Peer-to-Peer File Sharing
J. Alexander Lawrence
Since the advent of the Internet, the music industry has been in a pitched battle to combat online piracy. Initially, the industry focused on shutting down services that offered peer-to-peer or other similar platforms, such as Napster, Aimster and Grokster. For a time, the industry also focused on filing claims against individual infringers to dissuade others from engaging similar conduct. In recent years, the industry seems to have shifted focus toward Internet Service Providers.
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The Intellectual Property Strategist
IP News
Howard Shire and Christine Weller
Kapoor v. National Rifle Association of America
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Entertainment Law & Finance
Perfecting Film Financiers’ Liens in Copyrights
Bruce Goldner
The law on how to perfect a lien in a copyright application is foggy at best. This article sketches out pitfalls of the current process for perfecting a lien on a copyright application, and potential steps that a financier may take to help perfect and protect a film investment.
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Entertainment Law & Finance
Decision of Note: 6th Cir. Says No ‘Magic Words’ to ‘Elect’ Copyright Statutory Damages
Stan Soocher
The U.S. Court of Appeals for the Sixth Circuit decided that §504 of the U.S. Copyright Act doesn’t require any “magic words incantation” for a copyright infringement plaintiff to choose a statutory damages award, that “[t]he word ‘elect’ does not by itself require formal procedures.”
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Entertainment Law & Finance
SCOTUS Hears Arguments on Copyright Registration Approvals
Scott Graham
While hearing January 2019 oral arguments before it, the U.S. Supreme Court sounded inclined to resolve a circuit courts’ split over copyright registration procedures against copyright holders.
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Entertainment Law & Finance
Making Sense of YouTube’s Monetization Policies
Gwendolyn Seale
This article delves into YouTube’s policies for channel monetization, explores the different streams of revenue an artist or creator may be entitled to receive for their works, and offer suggestions to indie creators and more established creators, so they can meet these new thresholds.
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Entertainment Law & Finance
How Will the Music Modernization Act’s Mechanical Licensing Collective Work?
Chris Castle
This article focuses on managing change for clients affected by the MMA’s government-mandated mechanical licensing collective. In my view, far from putting songwriters on a trajectory away from the government regulation that has oppressed them for generations, the collective imposes an entirely new bureaucracy with potentially significant costs that are not readily apparent.
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Entertainment Law & Finance
Abandonment Defense Stays in Copyright Suit on Filesharing
Zach Needles
Malibu Media LLC is by now well-known as a frequent filer of copyright infringement lawsuits nationwide against Web users alleged to have illegally downloaded and shared the company’s adult films. But a federal judge in Pennsylvania recently said it should be up to a jury to decide whether the company is entitled to stake a claim to those copyrights in the first place.
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Entertainment Law & Finance
DMCA Filmmakers Exemption Expanded
Scott Graham
Digital Millennium Copyright Act exemptions aren’t just for documentary filmmakers anymore. The U.S. Copyright Office and Library of Congress has broadened a DMCA exemption to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Phil Everly’s Family Time-Barred From Claiming Co-Ownership of “Cathy’s Clown” Song Copyright With Brother Don
Newsworthiness and Public Interest Exceptions in Indiana’s Right-of-Publicity Statute Apply to Fantasy Sports
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Entertainment Law & Finance
Upcoming Events
Annual Entertainment, Sports & Media Law Institute
Copyright Year in Review
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Entertainment Law & Finance
COUNSEL CONCERNS: Federal Judge Scolds Both Sides’ Lawyers In Labels/Spinrilla Copyright Dispute
R. Robin McDonald
A federal judge in Atlanta called out attorneys in a nationally watched copyright case for their role in an “an all-out, knock-down, drag-out fight between the ‘800-pound Gorilla’ of the recording industry in one corner of the room vs. ‘Spinrilla’, the self-proclaimed ‘800-pound Gorilla of free hiphop mixtapes’ in the other corner.”
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Entertainment Law & Finance
Usher Song Credit Suit Outcome; Suit Over Led Zeppelin Song Gets Retrial
Max Mitchell and Scott Graham
A man claiming to have been cheated out of credit for writing a song that was eventually recorded by R&B star Usher won a more than $40 million judgment in a combined verdict and settlement against two men he co-wrote the song with. And the copyright case against Led Zeppelin by the band Spirit over "Stairway to Heaven" will return for an encore after the U.S. Court of Appeals for the Ninth Circuit called for a retrial.
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The Intellectual Property Strategist
The ‘New NAFTA’ and How It Will Affect Intellectual Property Law
Lawrence E. Ashery
The stage is set for the 24-year-old north American Free Trade Agreement (NAFTA) to end and the U.S. Mexico Canada Agreement (USMCA), which has implications for intellectual property, to take its place.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Friday the 13th Screenplay Author’s Copyright Termination Notice Found Valid
Infringement Suit over Justin Timberlake’s “Damn Girl” Allowed to Proceed
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Entertainment Law & Finance
4 Takeways from EU Copyright Directive Vote
Dan Clark
In September, the European Parliament passed a new draft of the European Union (EU) Copyright Directive legislation championed by content creators and publishers, but decried by tech behemoths. The directive will have to go through more committee discussions and another parliamentary vote before it can become law, but this doesn’t mean the polarizing legislation isn’t already making in-house counsel nervous.
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Entertainment Law & Finance
Issues in Using Bots to Send Takedown Notices
Ian Lopez
We asked University of Idaho College of Law Professor Annemarie Bridy, one of the forefront experts in both DMCA and automated notice sending, about out of control bots, DMCA takedowns’ potential threat to freedom of speech and more.
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The Intellectual Property Strategist
Fair Use, First Sale and Marilyn Monroe
Robert W. Clarida and Robert J. Bernstein
Recently, the Southern District of New York resolved a question that neither the Southern District nor the Second Circuit had ever squarely faced: Can the lawful owner of an art object create and post a photograph of that object in connection with the sale of the object through an online platform such as eBay, without the permission of the owner of copyright in the object?
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Entertainment Law & Finance
Decision of Note: Sound Recordings Remasters Don’t Get Federal Copyright Protection
Scott Graham
With an assist from Toucan Sam and Tony Bennett, owners of pre-1972 sound recordings no longer have to worry about losing their common law…
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Entertainment Law & Finance
Commentary: Amended Opinion No Cause for Alarm in ‘Blurred Lines’ Case Outcome
Robert J. Bernstein and Robert W. Clarida
Over the summer, a divided panel of the Ninth Circuit affirmed the denial of a new trial motion and an order denying rehearing en banc in Williams v. Gaye. We now consider whether the final affirmance of the jury verdict in favor of Marvin Gaye’s heirs is likely to wreak havoc on musical creativity as some, including the dissent, have argued. For us, the short answer is no.
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The Intellectual Property Strategist
Patent Eligibility of User Interfaces
Lawrence H. Aaronson and James L. Korenchan
Advances in UI Design Can Provide Key Competitive Differentiation and Advantage, Which Makes Protecting Them Critically Important from a Business Perspective
Advances in UI design can also provide key competitive differentiation and advantage, helping to distinguish otherwise commoditized products and services such as computers, Web services, wearables, and appliances. Given this advantage, protecting advances in UI design can also be critically important from a business perspective.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Katy Perry Defendants Denied Summary Judgment in Copyright Infringement Action Over “Dark Horse”
Former Percussionist for The Roots Can Proceed with Lanham Act and Publicity Rights Claims Against the Band
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The Intellectual Property Strategist
“Registration” Means “Registration” … Or Does It?
James A. Trigg and Chris Bussert
Supreme Court Grants Cert to Resolve Circuit Split on Registration Prerequisite for Filing Suit under Copyright Act
Although the term “registration” as used in the Section 411(a) of the Copyright Act does not immediately appear to be ambiguous, courts have reached differing conclusions as to its meaning.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Jerry Lee Lewis Gets Extended Discovery Time in Management Litigation Against His Daughter
Three-Year Statute of Limitations Argument Doesn’t Bar Claims to Copyright Renewal Terms
Ticketmaster Prevails With “Striking Compatibility” Claim in Copyright Suit Over Ticket Bots
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Entertainment Law & Finance
Practical Impact of D.C. Circuit’s Ruling on Foreign Broadcasters and Copyright Liability
Scott D. Locke and Laura-Michelle Horgan
Broadcasters around the globe know that Americans want access to digital content and that they often ignore who provides it to them. For business reasons, tax reasons or to try to avoid liability under copyright law, many of these broadcasters intentionally do not set up operations in the United States. However, when these broadcasters transmit content for which they do not have authorization, they may be in violation of the copyright holder’s rights.
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