UGC Uncertainty Consternation Continues

Amended 9th Circuit Decision Does Not Clarify the Extent to Which Service Providers Can Manually Screen for Inappropriate User Content

In April 2017, the 9th Circuit Court of Appeals startled online service providers that allow users to post content (known as UGC, or user-generated content), by holding that the use of moderators to screen out inappropriate UGC before the UGC becomes publicly available could cause the service provider to lose the Digital Millennium Copyright Act (DMCA) safe harbor under 17 U.S.C. Section 512(c), which insulates service providers from third-party copyright infringement claims arising out of the UGC. This is a common practice, especially for brands that run UGC contests and children’s or family sites. Service providers have long understood that, unlike the immunity granted them for most non-intellectual property claims other than certain federal law violations arising out of UGC under the Section 230(c)(1) of the Communications Decency Act (CDA), content curation would cause it to lose the DMCA safe harbor. However, they had relied on decisions like that of the 4th Circuit in the 2004 CoStar Group vs. LoopNet, which permitted cursory manual screening to weed out content that was infringing or clearly inappropriate for the venue, including content topic venue rules – in this case, that only real estate listing photos would be posted on a real estate listing service. On Aug. 30, 2017, the 9th Circuit amended its opinion in Mavrix Photographs v. LiveJournal, available here, but did not provide any more helpful guidance than did the initial April 2017 opinion on where the line should be drawn as to how much manual moderator intervention would result in the failure to meet the law’s requirement that the UGC be stored at the direction of the user, not the service provider. Continue Reading

Determining Fair Use Under the Copyright Act: Judge Versus Jury

When the Supreme Court ruled in 1998 that copyright infringement lawsuits were subject to the Seventh Amendment’s right to jury trial, the natural consequence of that ruling was that fair use would likewise become a jury issue. However, at the time Congress enacted the Copyright Act’s fair use provision, 17 U.S.C. § 107, copyright infringement lawsuits were still considered “equitable actions” and thus the exclusive province of federal judges. Indeed, Congress expressly noted that its adoption of four factors set forth in Section 107 was intended in part to reflect the criteria that courts themselves had developed under the judicial doctrine of fair use. The final result of this Congressional action was a fair use statute that vested the trier of fact with broad discretion over the circumstances under which an author’s exclusive rights must give way to other societal interests. Now that such broad discretion has been given to juries, are there any circumstances in which trial judges may overturn the jury’s fair use determination because the court would have decided the issue differently?

The district court in Nevada was confronted with precisely this issue in Donna Corbello v. Thomas Gaetano DeVito, et al., Case No. 2:08-cv-00876, a copyright infringement case involving the screenplay for the musical Jersey Boys, which is based on the lives and music of the rock and roll vocal group The Four Seasons. In an order handed down this week, the district court judge Robert C. Jones overturned a portion of a jury’s verdict for the plaintiff on the ground that the defendants were “entitled to a judgment of fair use as a matter of law.” At issue was whether those involved in the development of the screenplay for Jersey Boys had infringed the plaintiff’s unpublished manuscript about his life as a member of The Four Seasons. Following a 15-day trial, the jury found in relevant part that (1) the Jersey Boys screenplay infringed the manuscript, (2) the defendants’ use of portions of the manuscript was not fair use, and (3) the plaintiff was entitled to 10 percent of the screenplay’s profits.  Continue Reading

Started From the Bottom, Now We’re Real: Drake’s Use of Jimmy Smith’s Commentary on ‘Real Music’ Considered Fair Use

On May 30, 2017, Judge William H. Pauley III, in the Southern District of New York, ruled that rapper-singer-songwriter Drake was permitted to use a sample of jazz artist Jimmy Smith based on the fair use doctrine, even though Drake and his record label did not license the publishing rights to the song. The court found that Drake’s use of the track was “transformative” because it changed Smith’s critique that jazz is the only “real” music into a suggestion that Drake’s hip-hop music was also real.

In 2013, Drake released a track titled “Pound Cake/Paris Morton Music 2,” which includes a sample of Jimmy Smith’s spoken-word track “Jimmy Smith Rap.” Smith reminisces about “the old days,” and expresses his joy and gratitude in creating the record. The track also contains a commentary on jazz. Continue Reading

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

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