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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.
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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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