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The Intellectual Property Strategist
The Difference Between ‘Covenant’ and ‘Condition Precedent’ In Song Licensing Agreements
Stan Soocher
A question of law arose for a District Judge when a songwriter sued YouTube, claiming she never approved licensing her works to YouTube — whether the administration agreement’s notice-and-consent clause was a condition precedent to the administrator’s ability to license the songwriter's songs.
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The Intellectual Property Strategist
Fair Use of Embedded Content on Social Media
Stephen M. Kramarsky and John Millson
The change in character of social media, from purely social communication to a mixture of the social and commercial, has had knock-on effects for courts applying traditional legal principles, notably, the application of copyright law.
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Entertainment Law & Finance
What Is the Difference Between ‘Covenant’ and ‘Condition Precedent’ In Song Administration Agreement?
Stan Soocher
A question of law arose for a District Judge when a songwriter sued YouTube, claiming she never approved licensing her works to YouTube — whether the administration agreement’s notice-and-consent clause was a condition precedent to the administrator’s ability to license the songwriter's songs.
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Entertainment Law & Finance
Copyright Claims Board: Now Entering the “Active Phase"
Michelle Davis
2023 is shaping up to be a big year for small claims. Since making its debut in June of 2022, the Copyright Claims Board (CCB) has received over 250 claims, and at least 11 have made it to the “active phase,” with more on the way. Active phase means a respondent was served, failed to “opt out,” and now the esteemed three-member tribunal of copyright experts may finally get a chance to make some rulings.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
COVID-19 Insurance Coverage Affirmed for Cancellation of Tina Turner Musical
MTV Floribama Shore Overcomes Trademark Infringement Claim
New York Appellate Division Reinstates Lawsuit Alleging Misappropriation of Reality TV Concept
Ninth Circuit Affirms Film Clip In Talent Acting Reel Was Fair Use
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The Intellectual Property Strategist
Copyright Claims Board: A New Stage for Copyright Infringement Claims
Robert E. Browne and Michael D. Hobbs
Copyright holders would be well advised to familiarize themselves with the Copyright Claims Board for resolving copyright infringement claims and to consider its benefits and potential downsides in bringing or defending copyright infringement actions.
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Entertainment Law & Finance
Conn. Fed. Court Distinguishes Funny Girl Lyrics Royalty Rights from Copyright
Allison Dunn
A federal judge in the U.S. District Court for the District of Connecticut sided with the family of a production company executive in finding that the wife of late Broadway lyricist Bob Merrill had no right, under §304(c) of the U.S. Copyright Act, to cancel a more than 50-year-old royalty agreement between the executive and Merrill.
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Cybersecurity Law & Strategy
A New Stage for Online Copyright Infringement Disputes
Robert E. Browne and Michael D. Hobbs
Copyright holders would be well advised to familiarize themselves with the Copyright Claims Board for resolving copyright infringement claims and to consider its benefits and potential downsides in bringing or defending copyright infringement actions.
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Entertainment Law & Finance
Second Circuit Addresses Significant Music Compulsory Licensing Issues In Bill Graham Archives Dispute
Stan Soocher
In 2015, a group of music publishers sued the purchaser of the Bill Graham Archives — a repository that includes live performances staged by the late, legendary concert promoter of an array of musical artists beginning in the 1960s. Now, the Second Circuit has handed down its appellate opinion in the litigation, addressing the important compulsory licensing concerns as well as some of the additional issues in the case.
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Entertainment Law & Finance
Fight Stream Distributor Can Pursue Claim Against TN Grill
Allison Dunn
In a matter of first impression, the Sixth Circuit sided with a third-party sporting events distributor by finding the distributor has standing to sue a Kingsport, TN, bar under the U.S. Copyright Act for livestreaming a 2017 boxing match between Floyd Mayweather and Conor McGregor without the proper licensing.
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Entertainment Law & Finance
Copyright Attorney Fees Ruling in Friday the 13th Termination Case
Mason Lawlor
The U.S. District Court for the District of Connecticut granted Friday the 13th screenwriter Victor Miller partial attorney fees totaling more than $886,564, in his long-running fight against the 1980 horror film’s production outfit Manny Co. over proceeds from the film.
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Entertainment Law & Finance
Report on Oral Arguments At Supreme Court In 'Warhol' Case
Scott Graham
During the recent oral arguments before it, the U.S. Supreme Court sounded open to extending more fair use protection to an Andy Warhol painting of rock icon Prince than the U.S. Court of Appeals for the Second Circuit did.
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Entertainment Law & Finance
Pondering AI Machine Learning and Copyright Fair Use
Cassandre Coyer
By feeding machine-learning models hundreds of copyrighted pictures to train them to identify and “read” certain concepts, companies could face violating copyright laws.
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The Intellectual Property Strategist
Supreme Court Set to Hear Transformativeness Fair Use 'Warhol' Case
Eric Alan Stone and Catherine Nyarady
In the October 2022 Term, the Supreme Court is set to decide whether courts assessing transformativeness under the first fair-use factor of the Copyright Act may consider “the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material.” The case may profoundly affect the fair use analysis, and in turn, the scope of copyright protection for many works.
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Entertainment Law & Finance
Fresh Filings
ELF Staff
A look at moves among attorneys, law firms, companies and other players in entertainment law.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Brian Wilson’s Ex-Wife Wins Remand Back to State Court of Her Claim to Share of Revenues from Sale of His Song Catalog
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Entertainment Law & Finance
Ninth Circuit Says Copyright Plaintiffs Can Reach Back More Than Three Years In Seeking Infringement Damages
Stan Soocher
How far back from accrual of a claim may a plaintiff reach for copyright damages?
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Entertainment Law & Finance
‘Banana’ Artwork Dispute Presents Slippery Slope for Copyright
Robert W. Clarida and Thomas Kjellberg
In July, the U.S. District Court for the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, a decision that began by posing the question: “Can a banana taped to a wall be art?”
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The Intellectual Property Strategist
One Banana, Two Banana: Can a Banana Taped to a Wall Be Copyright Protected Art?
Robert W. Clarida and Thomas Kjellberg
On July 7, 2022, the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, which began by posing the following question: “Can a banana taped to a wall be art?”
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The Intellectual Property Strategist
Copyright Plaintiffs Can Reach Back More Than Three Years In Seeking Infringement Damages, Ninth Circuit Rules
Stan Soocher
How far back from accrual of a claim may a plaintiff reach for copyright damages?
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The Intellectual Property Strategist
IP News
Howard Shire and Stephanie Remy
Copyright Standing and Fifth Circuit Trade Dress Factors
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Entertainment Law & Finance
'To Kill a Mockingbird'’s State Adaptation Rights Results In Ambiguity Battle
Stan Soocher
A current dispute over contract language in grants to different parties for theatrical adaptations of the classic 1960 novel "To Kill a Mockingbird" is an apt example of what can happen if contract language isn’t specific enough.
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Entertainment Law & Finance
State Law Requiring Offer to License Conflicts With Copyright Act
Allison Dunn
A federal judge has sided with the Association of American Publishers (AAP), finding in June that a recently enacted Maryland library e-book law conflicts with federal copyright laws.
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Entertainment Law & Finance
Second Circuit Interprets ‘Executed By the Author’ In Copyright Act’s §203 Grant Termination Provision
Stan Soocher
Composers of pre-1978 works often assigned both the initial and renewal copyright terms in their works when signing songwriter agreements with music publishers. But what happens when a grant of the copyright renewal term of a pre-1978 work has been made post-1977?
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The Intellectual Property Strategist
‘Executed By the Author’ In Copyright Act’s §203 Grant Termination Provision Interpreted By Second Circuit
Stan Soocher
Composers of pre-1978 works often assigned both the initial and renewal copyright terms in their works when signing songwriter agreements with music publishers. But what happens when a grant of the copyright renewal term of a pre-1978 work has been made post-1977?
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The Intellectual Property Strategist
Commentary: What 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
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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