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Entertainment Law & Finance
Commentary: How the Music Industry Can Learn from Cable When It Comes to ISPs and Infringement
Keith Hauprich
In the last two decades, the music industry and, more specifically, songwriters, producers and recording artists have been losing the value of their efforts to online piracy. Perhaps a business-to-business solution can be found between the music industry and cable providers.
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Entertainment Law & Finance
Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers
Stan Soocher
There’s current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.
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Entertainment Law & Finance
Supreme Court’s Breyer Ruling on Mistakes In Copyright Registrations
Scott Graham
The Ninth Circuit had ruled in 2020 that §411(b)(1)(A) of the federal Copyright Act excuses inadvertent mistakes of fact on copyright registrations but not mistakes of law. The Supreme Court has now ruled 6-3 that the provision covers both mistakes of facts and law.
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The Intellectual Property Strategist
Comic Legends’ Estates Say Pandora Streamed Routines Without License
Thomas Kjellberg and Robert W. Clarida
In dual lawsuits, the estates of Robin Williams and George Carlin accuse Pandora Media of willfully infringing the legendary comedians’ registered copyrights in their “spoken word compositions” — their standup routines — by streaming the sound recordings that embody those routines without a license to use these works.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Both Sides’ Summary Judgment Motions Denied in Copyright Infringement Suit Over Jimi Hendrix Photo
Summary Judgment Granted for Defendant in Copyright Infringement Suit Over “Gimme Some Lovin’”
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The Intellectual Property Strategist
Issues Addressed In Supreme Court ‘Unicolors’ Argument
Robert W. Clarida and Thomas Kjellberg
Some of the major issues the court addressed in the Unicolors oral argument, and some questions that are likely to remain open no matter the outcome.
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The Intellectual Property Strategist
Ninth Circuit Finally Resolves Pre-1972 Sound Recordings Royalties Issue
Robert W. Clarida and Robert J. Bernstein
The Ninth Circuit ruling in Flo & Eddie may turn out to be last stop on the long and winding road the owners of pre-1972 recordings have traveled in their efforts to obtain compensation for public performances through platforms like Sirius.
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The Intellectual Property Strategist
Recent Rulings on ‘Embedding’ Foreshadow Circuit Split: What Does That Mean For Content Use Now?
Tamerlin Godley and Kiaura Clark
When and how can you display someone else’s visual content on your website without running afoul of copyright law? When and how can someone else display your visual content? A recent ruling out of the Southern District of New York may upend the current paradigm.
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Cybersecurity Law & Strategy
Where Does Content Use Stand Now After Recent Rulings on ‘Embedding’ Foreshadow Circuit Split?
Tamerlin Godley and Kiaura Clark
When and how can you display someone else’s visual content on your website without running afoul of copyright law? When and how can someone else display your visual content? A recent ruling out of the Southern District of New York may upend the current paradigm.
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Entertainment Law & Finance
U.S. Supreme Court Considers Copyright Registration of Multiple Works
Rex A. Donnelly
The 'Unicolors' case highlights the value of copyright registration, not only for creators who rely on the exclusivity of their content for making a living, but also for anyone with copyright eligible works in their IP portfolio.
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Entertainment Law & Finance
Litigation Over Skater Girl Film Transferred to CA
Cedra Mayfield
When Atlanta filmmaker-turned-plaintiff Raymond Pirtle Jr. filed a copyright infringement suit against CA-based Netflix in the U.S. District Court for the Northern District of Georgia, he pitted him against seasoned attorneys, representing a corporate giant in a case that has both sides claiming early incremental victories.
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Entertainment Law & Finance
11th Circuit Rules On Who Controls Copyright Case
Michael A. Mora
The U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court ruling that its judges said could have come straight out of a telenovela, or Spanish soap opera.
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Entertainment Law & Finance
California Federal Court Sorts Out Ownership Issues In Dispute Over Record Albums
Stan Soocher
Approval of all the co-owners of a copyrighted work is needed to grant exclusive rights to third parties. Despite that, any co-owner can sell that co-owner’s exclusive ownership share to third parties without the permission of the others The U.S. District Court for the Eastern District of California recently released an opinion that considered the interplay of these copyright issues.
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The Intellectual Property Strategist
How NY Courts Find Copyright Preemption of State Law Right of Publicity Claims
Stan Soocher
To survive preemption under §301 of the Copyright Act, courts consider whether a state law claim in a lawsuit has an “extra element” that qualitatively distinguishes it from a federal copyright claim. Courts typically find that state law claims, such as breach of contract, have an extra element. Other state law claims, such as conversion, get varying court determinations as to whether they are preempted.
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Entertainment Law & Finance
Newberg, McCabe, Carson Will Preside Over Copyright Claims Board
Scott Graham
The U.S. Copyright Office has found some big names for its Copyright Claims Board.
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The Intellectual Property Strategist
U.S. Supreme Court Could Make Copyright Officer Significant Player In Copyright Infringement Litigation
Robert W. Clarida and Robert J. Bernstein
The U.S. Supreme Court granted certiorari in Unicolors v. H&M Hennes & Mauritz to address the following question: “Did the Ninth Circuit err in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. §411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration?”
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Intermediate Access Theory Rejected in Copyright Infringement Lawsuit Over Home-Renovation TV Show
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Entertainment Law & Finance
New Report Finds Declines In Copyright, Trademark Suits
Tom McParland
Copyright lawsuit filings declined significantly over the last two years, according to a new report by Lex Machina, which found that overall cases had dipped from a 2018 peak that was driven primarily by surges in file-sharing litigation.
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Entertainment Law & Finance
Rehearing Sought In 2d Circuit Finding of No Fair Use In Warhol Work
Scott Graham
Maybe the U.S. Court of Appeals for the Second Circuit should have been a little more patient.
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The Intellectual Property Strategist
TikTok Dances Around Another Copyright Infringement Suit
Angela Morris
The Texas lawsuit alleged that the social video app and parent company ByteDance Ltd. copied software code, and deleted or altered copyright management information in the code, and then used the code in the app that has 175 million downloads.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Don Everly Prevails Over Late Brother Phil’s Family Following Trial on Authorship of Everly Brothers’ 1960 Hit “Cathy’s Clown”
Split Decision on Secondary Liability Claims Against Harry Fox Agency in Music Licensing Lawsuit Over Spotify Streaming of Eminem Compositions
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Entertainment Law & Finance
Supreme Court on APIs and Fair Use
Scott Graham
Google didn’t get an answer from the U.S. Supreme Court on whether the Java Application Programming Interfaces (APIs) it copied from Sun Microsystems were copyrightable. But it got just about everything else it could have hoped for in a decision that ended its 11-year copyright clash with Sun's successor, Oracle.
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The Intellectual Property Strategist
Supreme Court Leaves As Many Questions As It Answers In 'Google v. Oracle'
Shaleen Patel
The Court cleared Google of copyright infringement in terminating a 16-year long dispute as to whether Google’s Android mobile platform had infringed Oracle’s Java programming language’s copyright. However, the Court did not answer the question of whether specific components of computer software qualifies for copyright protection at all.
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Entertainment Law & Finance
2d Cir. Issues Two Notable Copyright Fair Use Decisions
Tom McParland
The U.S. Court of Appeals for the Second Circuit recently issued decisions in two closely watched copyright fair use cases involving photographs. In the…
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The Intellectual Property Strategist
Not Your Property, Your Business: When Customized Products Become the Business of Rights Holders and Courts
Chidera Anyanwu and Chloe Delehanty
In some instances the appearance of third-party intellectual property on items purchased, owned and customized by the purchaser may be legal under the doctrines of first sale and fair use.
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Entertainment Law & Finance
11th Circuit Rules for Stephen King In Suit Over Dark Tower Series
Michael A. Mora
Vincent Cox of Ballard Spahr in Los Angeles and Scott Ponce of Holland & Knight in Miami prevailed recently in the U.S. Court of Appeals for the Eleventh…
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Entertainment Law & Finance
Litigation Over Tom Clancy Works Involves Fundamental, But Complex Copyright Elements
Stan Soocher
Current copyright litigation in the U.S. District Court for the District of Maryland involving Clancy’s widow Alexandra and his former wife Wanda King is complex, but involves fundamental issues of copyright ownership.
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Entertainment Law & Finance
'Stranger Things' Copyright Claim Survives Motion to Dismiss
Alan R. Friedman
In response to a copyright claim in the U.S. District Court for the Central District of California that the Netflix series Stranger Things infringed on Irish Rover Entertainment’s unpublished screenplays, Netflix and the other defendants filed a Rule 12(b)(6) motion to dismiss, arguing that the works were not substantially similar as a matter of law.
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The Intellectual Property Strategist
New COVID Relief Bill Brings Changes to Trademark and Copyright Practice
Eugene Y. Mar, Nate A. Garhart and Ashleigh Nickerson
The new, more than 5,000-page spending bill, which includes the latest COVID-19 relief, had a few surprises under its cover. Two of those surprises focus directly on intellectual property and amount to sea changes in the trademark and copyright infringement realms.
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The Intellectual Property Strategist
Copyright and Internet Content
Jonathan Bick
Online publication impacts the duration of copyright protection among other purposes, including optimizing creative and ownership rights and the availability of statutory damages and attorney fees. Thus, it is important to determine when Internet distribution constitutes publication.
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Entertainment Law & Finance
New Small Claims Procedure for Copyright Disputes
Scott Graham
The CASE Act fulfills the longstanding goal of the U.S. Copyright Office to establish a small claims court. The measure tasked the office with establishing the Copyright Claims Board and adopting governing regulations.
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Cybersecurity Law & Strategy
Copyright Issues In Online Content
Jonathan Bick
Publication of content online impacts the duration of copyright protection among other purposes, including optimizing creative and ownership rights and the availability of statutory damages and attorney fees. Thus, it is important to determine when Internet distribution constitutes publication.
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Entertainment Law & Finance
9th Cir. Finds No Fair Use In Dr. Seuss/Star Trek “Mashup”
Robert J. Bernstein and Robert W. Clarida
In Dr. Seuss Enterprises L.P. v. ComicMix LLC, a unanimous three-judge panel of the Ninth Circuit held in December that ComicMix’s illustrated book combining elements of several Dr. Seuss children’s books with characters, themes and other features of the popular sci-fi series Star Trek was not a fair use of the Seuss material from which it had admittedly been “slavishly” copied.
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Cybersecurity Law & Strategy
Legal Issues and Monetization Strategies In a Quarantine-Streaming Music World, Part Two
Gwendolyn Seale
Part Two 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
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.
Read More ›
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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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