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Cybersecurity Law & Strategy
Legal Issues and Monetization Strategies In a Quarantine-Streaming Music World
Gwendolyn Seale
Part One of a Two Part Article
While the livestreaming of music performances is not an entirely new phenomenon, the COVID crisis has transformed the live performance landscape, compelling artists from around the world to reach their fanbase by producing “quarantine streams,” in which they livestream their sets on social media platforms. Given this sudden pivot to livestreaming over social media, unsurprisingly many questions have arisen.
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Cybersecurity Law & Strategy
To Embed, or Not to Embed, that is the Question
Shaleen J. Patel and Mike Hobbs
Would Shakespeare Post Hamlet on Instagram in 2020?
While the sound distracting you hear from this article may well be William Shakespeare rapidly turning in his grave like the Mad Hatter Teacup Ride at Disneyworld, recent legal and procedural developments associated with the ubiquitous Instagram social media site have created significant practical and legal risks for both copyright owners and account holders that would have even vexed the Bard himself.
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Entertainment Law & Finance
Legal Issues and Monetization Strategies In a Quarantine-Streaming Music World
Gwendolyn Seale
Part One of a Two Part Article
While the livestreaming of music performances is not an entirely new phenomenon, the COVID crisis has transformed the live performance landscape, compelling artists from around the world to reach their fanbase by producing “quarantine streams,” in which they livestream their sets on social media platforms. Unsurprisingly many questions have arisen.
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Entertainment Law & Finance
Fair Use Applied to Embedded Photograph
Stephen M. Kramarsky
The extremely flexible character of social media has required equal flexibility in courts’ intellectual property analysis. Happily, under U.S. copyright law, that kind of flexibility is possible.
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Entertainment Law & Finance
What 11th Circuit Ruled in Copyright Suit Over Netflix’s Narcos Series
Michael A Mora
The U.S. Court of Appeals for the Eleventh Circuit ruled in favor of Netflix in finding that one of its shows didn’t infringe the copyright of a Colombian journalist who wrote a memoir about her affair with drug kingpin Pablo Escobar and the rise of the Colombian drug trade.
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Entertainment Law & Finance
Fifth Circuit’s Decision in Sampling Case Considers Automatic Liability Controversy
Stan Soocher
The U.S. Court of Appeals for the Fifth Circuit ruled in favor of internationally successful hip-hop duo Macklemore & Ryan Lewis in a music sampling suit brought against them by New Orleans jazz musician Paul Batiste.
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Entertainment Law & Finance
‘Asserted Truths’ Doctrine Used to Decide Jersey Boys Copyright Dispute
Robert J. Bernstein and Robert W. Clarida
In a recent decision, the Ninth Circuit held that materials taken from an autobiography of Tommy DeVito — an original member of The Four Seasons music group — and used in the Broadway musical Jersey Boys depicting the band’s history and hits, comprised facts and other noncopyrightable expression.
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The Intellectual Property Strategist
To Embed, or Not to Embed, that is the Question
Shaleen J. Patel and Mike Hobbs
Would Shakespeare Post Hamlet on Instagram in 2020?
Recent legal and procedural developments associated with the ubiquitous Instagram social media site have created significant practical and legal risks for both copyright owners and account holders.
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Entertainment Law & Finance
Are Rule 12(b)(6) Dismissals In Copyright Infringement Lawsuits In Danger?
Alan Friedman
Until recently, the Second and Ninth Circuits have both been receptive to dismissals under Rule 12(b)(6) if the court determines the plaintiff cannot plausibly state a claim of copyright infringement because the two works are not substantial similar. However, a pair of recent “unpublished” Ninth Circuit reversals involving prominent motion pictures stand in contrast to a recent Second Circuit decision affirming such a dismissal.
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Entertainment Law & Finance
In Decision of First Impression, Court Decides ‘Gap Grants’ Can Be Terminated Under §203 of U.S. Copyright Act
Stan Soocher
In the 1976 Copyright Act, Congress inserted a termination right for authors or their successors for pre-January 1, 1978, assignments of copyrighted works. However, the legislators didn’t directly address a key issue: how to determine termination rights for what are known as “gap grant” works — that is, those created post-1977 under copyright assignments made before then.
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Entertainment Law & Finance
FL Federal Court Rules ‘Despacito’ Doesn’t Infringe on ‘Despasito’
Raychel Lean
Federal Judge Kathleen Williams recently analyzed the hit song “Despacito” in a copyright lawsuit in the U.S. District Court for the Southern District of Florida, when she found its writers had not copied an earlier Spanish song with the same name.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Film Clips Included in Talent’s Acting Reel Are a Copyright Fair Use
Ninth Circuit Finds Judd/Weinstein Meeting Within Scope of California Sexual Harassment Statute
Personal Manager’s Lawsuit in New York Against Former In-House Counsel Can Move Forward
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The Intellectual Property Strategist
States Win Some and Lose Some on Copyright Front at Supreme Court This Term
Jason Bloom
The Supreme Court decided two copyright cases this term, both involving states. This article discusses the cases and their likely impact on copyright law going forward.
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Entertainment Law & Finance
Copyright Considerations In Artificial Intelligence
Shaleen J. Patel and Sushmitha Rajeevan
In the process of creating new content, AI, which has moved into the entertainment industry, may create copies of copyrighted works in memory storage as a byproduct of its overall output sequence. This article explores authorship and ownership of such AI-generated content, and to what extent, if any, can copyrights be infringed upon when AI reproduces copyrighted works for machine learning.
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The Intellectual Property Strategist
Weighing the Benefits: How Much Weight Will Your Survey Have in Court?
Rene Befurt, Marie Warchol and Anthony Nasr
As consumer surveys become increasingly common forms of evidence in matters involving copyright, patent or trademark infringement, so too do Daubert challenges that attempt to disqualify that evidence. However, getting admitted into court is no guarantee of success — you are not over the entire Daubert hurdle just yet. The next step is ensuring that your survey is convincing the fact finders that your survey’s results are dependable and useful.
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Entertainment Law & Finance
Recent Court Views on “Making Available” Controversy in Copyright Infringement
Stan Soocher
Federal courts have long disagreed over whether the unauthorized “making available” of a plaintiff’s works to the public is sufficient to constitute copyright infringement under the U.S. Copyright Act. Two June District Court decisions demonstrated the differences between the views of the Fourth and Ninth Circuits.
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The Intellectual Property Strategist
Statute of Limitations In Copyright Ownership Disputes: Questions from the Everly Brothers Case
J. Alexander Lawrence
Don and Phil Everly’s flawless harmonies that resulted in a string of hits in the 1950s and '60s regrettably ended in acrimony. The Sixth Circuit recently issued a decision in a dispute between Phil’s heirs and Don over copyright ownership of the No. 1 hit “Cathy’s Clown,” in which concurring Judge Eric E. Murphy raised important questions about when the statute of limitations should begin to run in copyright cases and whether courts have been correctly applying the law.
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Entertainment Law & Finance
Commentary: Claims Filing Time Issues on Copyright Ownership from Everly Bros. Case
J. Alexander Lawrence
Don and Phil Everly’s flawless harmonies that resulted in a string of hits in the 1950s and '60s regrettably ended in acrimony. The Sixth Circuit recently issued a decision in a dispute between Phil’s heirs and Don over copyright ownership of the No. 1 hit “Cathy’s Clown,” in which concurring Judge Eric E. Murphy raised important questions about when the statute of limitations should begin to run in copyright cases and whether courts have been correctly applying the law.
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The Intellectual Property Strategist
Recent Court Views on “Making Available” Controversy In Copyright Infringement
Stan Soocher
Federal courts have long disagreed over whether the unauthorized “making available” of a plaintiff’s works to the public is sufficient to constitute copyright infringement under the U.S. Copyright Act. Two June District Court decisions demonstrated the differences between the views of the Fourth and Ninth Circuits.
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Entertainment Law & Finance
Defense Counsel Discuss Outcome in Dance Steps Case
Jenna Greene
Kirkland & Ellis has notched a win in cutting-edge litigation that questions the protectability of dance steps, what constitutes choreography and the relationship between copyright, and right of publicity and trademark law.
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Entertainment Law & Finance
Federal Appeals Courts Weight in On Accruals for Copyright Infringement vs. Ownership Claims
Stan Soocher
The U.S. Copyright Act states that a civil copyright action must be filed within three years of its accrual. How this applies to copyright infringement and to copyright ownership claims, including in the same case, isn’t always clear. But two recent federal appeals courts decisions have provided guidance on the differences in accrual for each of these copyright claims.
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Entertainment Law & Finance
9th Circuit Says Copyright Attorney Fees Available in Declaratory Suits
Scott Graham
A declaratory judgment action for copyright abandonment can give rise to fee shifting under the Copyright Act, the U.S. Court of Appeals for the Ninth Circuit ruled in a case of first impression.
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The Intellectual Property Strategist
Artificial Intelligence and Copyright: Ownership and Fair Use
Shaleen J. Patel and Sushmitha Rajeevan
Machine learning allows certain AI to create entirely new content based upon the materials it used to learn. In the process of creating new content, AI may create copies of copyrighted works in memory storage as a byproduct of its overall output sequence. This article explores authorship and ownership of such AI-generated content, and to what extent, if any, can copyrights be infringed upon when AI reproduces copyrighted works for machine learning.
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The Intellectual Property Strategist
IP News
Howard Shire and Shaleen Patel
Article III Inter Partes Review Decision Precluded By Congress, SCOTUS Rules
SDNY: Video Game Makers Not Violating Copyright with NBA Player Tattoos
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The Intellectual Property Strategist
Supreme Court Rules States Cannot Be Involuntarily Liable for Copyright Infringement
Shaleen J. Patel
The U.S. Supreme Court has ruled that individual states are free to commit copyright infringement. The Court held that Congress attempted to abrogate states’ sovereign immunity in an unconstitutional manner when enacting the Copyright Remedy Clarification Act of 1990 (CRCA).
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Entertainment Law & Finance
Defending Suits Brought By Copyright Trolls
Nancy J. Mertzel
An overview of copyright troll litigation and explores potential litigation strategies for responding to troll cases.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Copyright Termination Claims Found Timely, But Loan-Out Companies Can’t Terminate Copyright Assignments
Judge Unhappy With Damon Dash’s Trial Behavior
New York Federal Court Sees No Copyright Infringement or False Endorsement in Use of Mural in Film
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The Intellectual Property Strategist
Swedish Music Industry Views: Part Two
Stan Soocher
Part Two of a Two Part Article
This article discusses, among other things, the Swedish music industry perspective on the European Union’s Copyright Directive, the growth of multi-country music licensing hubs and the impact of Brexit.
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The Intellectual Property Strategist
Kozinski Angle In 9th Circuit’s Led Zeppelin Ruling
Scott Graham
Defendants Led Zeppelin and its music labels were the winners in the copyright decision by the Ninth Circuit over the song “Stairway to Heaven.” But the estate of songwriter Randy Wolfe (p/k/a California) wasn’t the only one who got the short end. Among the collateral damage from the ruling was a 2002 precedent written by former Chief Judge Alex Kozinski that endorsed the so-called “inverse-ratio” rule.
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The Intellectual Property Strategist
IP News
Shaleen J. Patel
VARA Lives On: A $6.75M Lesson on Respecting Moral Rights
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Entertainment Law & Finance
“Potentially Monumental” Ninth Circuit En Banc Decision in Infringement Case Over Led Zeppelin’s “Stairway to Heaven”
Robert W. Clarida and Robert J. Bernstein
For the past five years, the copyright bar and the music industry have carefully followed the many twists and turns of the potentially monumental infringement case that asserted that the opening of the iconic Led Zeppelin song “Stairway to Heaven” was copied from the introduction of a little-known 1967 instrumental “Taurus,” written by the late Randy California. In March 2020, a unanimous en banc panel of the entire Ninth Circuit affirmed portions of a prior three-judge appellate ruling that “Stairway” did not infringe the Spirit song — and in the process resolved some thorny issues involving substantial similarity and copyright scope that will be important for future litigants
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Entertainment Law & Finance
Kozinski Angle In 9th Circuit’s Led Zeppelin Ruling
Scott Graham
Defendants Led Zeppelin and its music labels were the winners in the copyright decision by the Ninth Circuit over the song “Stairway to Heaven.” But the estate of songwriter Randy Wolfe (p/k/a California) wasn’t the only one who got the short end. Among the collateral damage from the ruling was a 2002 precedent written by former Chief Judge Alex Kozinski that endorsed the so-called “inverse-ratio” rule.
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Entertainment Law & Finance
CASE Act Explained
Ryan W. Morris
The Copyright Alternative in Small Claims Enforcement Act is a proposed congressional amendment to the current copyright statute that would create an alternative dispute resolution program for copyright small claims and other legal proceedings.
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Entertainment Law & Finance
A Primer on Rights in Video Game Avatars
Andrea Perez
Recent lawsuits have grappled with the fair use of one’s likeness in video games, attempting to apply established order to a changing field.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Los Angeles Federal Judge Tosses Out Jury’s Infringement Verdict Against Katy Perry in “Dark Horse” Song Case
Sales Agreement for Film Assets of Distributor in Bankruptcy Doesn’t Affect Separate Lender for One of Debtor’s Movies
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The Intellectual Property Strategist
Swedish Music Industry Views as European Union Countries Work on Drafting Home Laws for Enacting EU Copyright Directive
Stan Soocher
This article is Part One of a two-part article
This article examines the Copyright Directive and music-industry structure issues through the lens of Sweden, which has both a robust music business and a strong technology sector, two divergent perspectives in the development of the directive.
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Entertainment Law & Finance
Exercising the Extraterritorial Limitation on U.S. Copyright Law
Robert J. Bernstein and Robert W. Clarida
A necessary element of secondary liability claims is an underlying infringement of U.S. copyright law by a third party. If the activities abroad are not subject to the law, the predicate direct infringement required for the imposition of secondary liability cannot be established.
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Entertainment Law & Finance
‘Vanicorn’ Lawsuit Filed over Pixar, Disney Film
Scott Graham
A unicorn-loving tattoo artist alleges that Pixar and Disney have tricked her into letting them use her “Vanicorn” in the upcoming film Onward. Her suit accuses the companies of copyright infringement, and violations of state and federal laws protecting artwork.
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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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