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
Website 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.
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
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
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
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
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
This time of year, people often seek extra work opportunities to make some spare cash. Job applicants flock to websites to find employment. This also attracts scam artists who impersonate legitimate companies to hook victims. While a variety of phishing schemes use imitation to provide a look of legitimacy to the scam, one of the more common scams that we have seen is use of a fake job posting.
The fake job posting lures an applicant into sending personal information to the phishing entity. Or the “job” might consist of the applicant receiving a large check to deposit into a personal bank account and then writing checks from that account to pay “invoices,” all of which are fake. Only after the large check bounces and the personal checking account is emptied does the applicant realize it’s a scam. Continue Reading
By now, few would argue that blockchain, the technology behind bitcoin, has not broken new ground. In fact, the success of blockchain has extended to an array of other fields as companies adapt its use in ways that best suit their individual needs. Whether interfacing with bitcoin or using blockchain technology in the Internet of Things (IoT), blockchain has become a compelling value proposition across many industries. This is due, in large part, to the fact that blockchain can be used to record not just financial transactions but everything of value. The incorruptible digital ledger originally developed to underpin bitcoin is now employed in many other ways. Because digital ledgers are just a method of recording data digitally, they can be applied to anything that needs to be independently recorded and verified as having occurred, such as financial transactions, agreements, contracts and ownership. Continue Reading
In what appears to be the first instance of an express recognition of a “making available” right under the U.S. Copyright Act, a D.C. district court in Spanski Enters. v. Telewizja Polska S.A., Civ. Action No. 12-cv-957 (TSC), 2016 U.S. Dist. LEXIS 166506 (D.D.C. Dec. 2, 2016) found a foreign defendant liable for copyright infringement for allowing video content stored in Poland to be accessed in the United States. The Plaintiff was a Canadian company that held an exclusive license to some 51 Polish television show episodes. In something of a twist, the Defendant was the producer and original owner of the episodes, but granted exclusive North and South American distribution rights to Plaintiff. Despite granting the license, the Defendant stored the episodes on servers in Poland and allowed users of its website to view the programs via streaming. The court found after a five-day bench trial that the Defendant intentionally disabled geoblocking technology that would have prevented access to the programs from North and South America. Continue Reading