You Might Want to Turn Down for That: Lil Jon and DJ Snake Sued for Copyright Infringement

On May 4, 2017, Golden Crown Publishing, LLC, the publishing company behind Freddie GZ’s song Turn Down for What, sued Lil Jon and DJ Snake in the Southern District of New York, alleging that their hit song by the same name infringes on Golden Crown’s copyright. The plaintiff is seeking monetary damages and a permanent injunction.

A copyright in a musical work protects original, creative expression based on the sheet music filed with the copyright office. In order to prove that the defendant infringed the work, the plaintiff must show “access” and “substantial similarity.”[1] Access can be inferred if the plaintiff shows that the works are “strikingly similar,” achievable only by copying.[2] Continue Reading

FTC Turns Attention to Social Media Influencers Working for Advertisers

For years the Federal Trade Commission (FTC) has made clear to advertisers that they are responsible for messages on social media by their employers or by consumers and celebrities and other influencers with which they have a material connection (e.g., they are employed, paid or given anything of value, even discounts, samples, coupons and sweepstakes entries). We have blogged many times about how the FTC applies its deception authority to use of social media and native advertising to promote products and services, most recently here. However, the FTC has now turned its attention to the influencers themselves, recently sending almost a hundred warning letters to individuals who have apparently promoted brands for personal gain without disclosing that in their social media messages. Continue Reading

H.R. 1695 Introduces Major Reforms to the U.S. Copyright Office

A bill was formally introduced in Congress on March 23, 2017, that would, in effect, remove the Copyright Office from the oversight of the Librarian of Congress. Introduced by House Judiciary Chairman Bob Goodlatte of Virginia and Ranking Member John Conyers of Michigan, H.R. 1695 seeks to amend 17 U.S.C. § 701 and change the way the Register of Copyrights is appointed. Rather than continuing to be a direct hire of the Librarian of Congress, the Register of Copyrights would, under the new legislation, be nominated by the president and confirmed by the Senate. Continue Reading

Does Copyright Now Cover Functionality?

On March 22, 2017, the U.S. Supreme Court decided the case of Star Athletica, L.L.C. v. Varsity Brands, Inc. regarding the scope of copyright protection for “pictorial, graphic or sculptural features” that have been added to useful articles—in this case, cheerleading uniforms.   The case has mostly gained attention because its facts crystalize the tension between allowing copyright to subsist in designs applied to useful articles, while at the same time preventing copyright law from controlling the useful article’s functional aspects—which are not copyrightable.  Most observers thought the central issue would be how to define a useful article’s function: Is a cheerleading uniform’s function to clothe the body and absorb perspiration (in which case the design at issue has no real coverage on functionality), or to identify the wearer as a cheerleader (in which case the design has quite a lot to do with the uniform’s functionality)?  Many, including these authors, expected the Court to sift through the ten different functionality tests that had been developed by the circuit courts and to either adopt one of the ten or develop some synthesis combining elements from different tests.  What we received instead was a Gordian knot-slicing opinion by Justice Thomas that either will have little impact on what is currently considered copyrightable—or potentially will allow all manner of copyright “creep” over a useful article’s functionality. Continue Reading

FTC Warning to Website and Mobile App Publishers: Disclose Cross-device Tracking

people using cellphoneWebsite and app publishers rely on third parties that associate tracking technologies with their content to provide analytic and advertising data and services. Increasingly, this includes use of probabilistic and deterministic techniques to associate users across the many devices they may use to access the Internet and various sites and apps. This is known and cross-device tracking, and this data is used to build consumer profiles associated with multiple devices to help improve both content delivery and delivery of relevant or targeted advertising. However, this tracking and targeting is not transparent to consumers and in new guidance recently issued by the Federal Trade Commission, companies engaging or associated with these activities are counseled to provide consumers meaningful notice and choice. Click here for more details.

Is This the Beginning of the End of Flo & Eddie’s Quest to Establish a Public Performance Right under State Copyright Law?

Former recording artists Flo & Eddie’s three-and-a-half-year battle against Sirius XM Radio, Inc., for recognition of a public performance right under New York law for pre-1972 sound recordings has come to an end. On Feb. 16, 2017, the Second Circuit Court of Appeal issued an order directing the district court to grant Sirius XM Radio’s motion for summary judgment on the ground that no such state law right of public performance exists, and to dismiss the case with prejudice. The Second Circuit based its dismissal on the response it received following certification of this state law issue for determination by the state’s highest court. On Dec. 20, 2016, the New York Court of Appeals ruled that New York state copyright protection had never extended as far as recognizing a public performance right for sound recording copyright owners. 2016 N.Y. Slip. Op. 08480, 2016 WL 7349183.

Given the New York court’s determination, it was unsurprising that the Second Circuit dismissed Flo & Eddie’s state copyright claim with prejudice. However, the completeness of Sirius XM Radio’s victory may have surprised plaintiffs’ counsel, as the Second Circuit dismissed all of Flo & Eddie’s state law claims. Indeed, the court’s across-the-board dismissal with prejudice of all of Flo & Eddie’s state law claims represented the one area where the two courts disagreed.    Continue Reading

Is There Copyright Infringement in Whoville?

The name “Cindy-Lou Who” likely invokes thoughts of the holiday season and Dr. Seuss’s beloved How the Grinch Stole Christmas (“Grinch”), which reminds us that the holidays are not all about toys and trinkets. But what happened after the Grinch “carved the roast beast”?

Matthew Lombardo’s play Who’s Holiday! (the “Play”) tells us that story in a script he claims “humorously juxtaposes the rhyming innocence of Grinch with, among other things, profanity, bestiality, teen-age pregnancy, familial estrangement, ostracization and scandal, poverty, drug and alcohol abuse, the eating of a family pet, domestic violence and murder.” The Play is not, he claims in a suit filed in the Southern District of New York on December 27, 2016, “a perfect holiday outing for the family.” Lombardo and Who’s Holiday LLC’s lawsuit seek a declaratory judgment that the Play does not infringe Grinch’s copyright, owned by Dr. Seuss Enterprises, L.P. (“Dr. Seuss”). Lombardo asserts that the Play is a transformative parody, not an adaptation, and is thus a fair use under the Copyright Act, imbuing “Grinch with a character different from that for which Grinch was created.” For example, in the Play we find Cindy-Lou Who, now age 45, living in a broken-down trailer, having just been released from prison.     Continue Reading

Sir Paul Will Not Let It Be: McCartney Makes Preemptive Strike Against Music Publishers to Reclaim His Copyrights

On Dec. 20, 2016, we wrote about a decision out of England’s High Court of Justice finding that members of music group Duran Duran breached their agreements with a music publisher by filing notices to terminate assignments of copyrights in 37 of their songs under section 203 of the Copyright Act.  That decision shocked much of the legal community, given the inalienability of that termination right under the express terms of the Copyright Act.

As we now know from a complaint filed by Sir Paul McCartney earlier this week, the Duran Duran decision is also causing trouble for the legendary musician, who, himself, seeks to reclaim his copyrights.  Continue Reading

Ceci n’est pas une Prince*: Richard Prince Appropriates and Repurposes Himself

Richard Prince, the (in)famous appropriation artist—and not an infrequent subject of this blog—is once again in the news. This time, it’s not because he’s defending appropriating and repurposing other people’s work as his own, but rather the opposite: Prince, with more than a little ironic wit, recently declared his repurposed Instagram shot of Ivanka Trump to be “fake art,” stating, “[t]his is not my work. I did not make it” and returning the purchase price. In repurposing his own art, Prince may have gone a long way toward answering his critics by demonstrating the transformative power of repurposing a pre-existing work—but can he really disown his own work?  Continue Reading

Flo & Eddie, Inc. v. Sirius XM Radio, Inc.: The New York Court of Appeals Conducts an Inquiry Into the Past and the Future of State Copyright Law

Sirius XM Radio received an early present for the holidays: On Dec. 20, the New York Court of Appeals issued an opinion addressing a question certified by the U.S. 2d Circuit Court of Appeals regarding whether “there is a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?” (Opinion at 1) The New York court ruled that “New York common law does not recognize a right of public performance for creators of sound recordings.” (Opinion at 1-2) The decision was not unanimous, and two judges joined in a lengthy dissent. As a result of the New York court’s ruling, the plaintiffs in the federal class action lawsuit against Sirius XM Radio brought by two of the original members of the 1960s rock band The Turtles will not be able to pursue their claim that Sirius XM’s unlicensed broadcasts of their pre-1972 sound recordings infringed New York’s state copyright law.

The plaintiffs were pursuing state law copyright claims because federal copyright law provides limited public performance protection to copyright owners of sound recordings. As the New York Court of Appeals summarized the scope of federal copyright protection: “Essentially, the right to control performance [of a sound recording under federal copyright law] is now limited to digital radio services, and does not apply to AM/FM radio stations, nor to bars, restaurants or stores that play music in their establishments.” (Opinion at 7) As a result, led by the named plaintiffs here, lawsuits were initiated in California, New York and Florida seeking recognition of a public performance right for pre-1972 sound recordings under state copyright law.  Continue Reading

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