Copyright

Subscribe to Copyright RSS Feed

Supreme Court Holds Warhol’s “Orange Prince” Not Transformative, Not Fair Use

The Supreme Court recently upheld an appellate court’s ruling that Andy Warhol’s use of a photograph of Prince as a reference for a collection of screen prints is not fair use – to the extent his foundation decided to license them at least. In the weeks that followed, the Supreme Court’s decision in Andy Warhol … Continue Reading

Federal Circuit Holds that Software Plaintiff Bears Evidentiary Burden of Copyrightability Where Defendant’s Evidence Shows Some Elements Not Copyrightable

In a case that could have some lasting impact, the Federal Circuit recently affirmed a 2020 ruling by Judge Rodney Gilstrap in the Eastern District of Texas dismissing claims that a competitor infringed non-literal elements of the plaintiff’s software. Because defendant World Programming Limited (“WPL”) had shown that some elements of plaintiff SAS Institute’s (“SAS”) … Continue Reading

Automating Entertainment: Writers Demand that Studios Not Use AI

When the Writers Guild of America (WGA) came with their list of demands in the strike that has already grinded production on many shows to a halt, chief among them was that the studios agree not to use artificial intelligence to write scripts. Specifically, the Guild had two asks: First, they said that “literary material,” … Continue Reading

Ghostwriter in the Machine: Copyright Implications for AI-Generated Imitations

A track called “Heart on My Sleeve” went viral recently on social media with lead vocals sounding eerily similar to a certain crooner known for his lovelorn lyrics. The pantomimed artist was Drake, no stranger to thirsty pining, backed by R&B artist The Weeknd. The song, however, was credited to Ghostwriter977, the alias of an … Continue Reading

The Subvertising Movement: Protecting your Brand from “Brandalism”

The authors would like to thank Eben Kurtz for his valuable contribution to this post. Heard of the climate activists defacing advertisements, billboards and bus shelters? Brandalism is a recent anti-advertising movement which uses a brand’s own assets and marketing channels against the brand itself, through replacing legitimate advertisements with spoofs and parodies (known as “subvertising”). … Continue Reading

World IP Day 2023: Accelerating Inclusivity of our IP Systems

Every year, on April 26, intellectual property organizations around the world observe “World IP Day” – an event established by the World Intellectual Property Organization (WIPO) to raise awareness of patents, copyrights, designs, and trademarks, and to celebrate the creativity and contributions of inventors, authors, artists and entrepreneurs. The theme for 2023 is “Women and … Continue Reading

District Court Rules Internet Archive’s Open Library Project is Not Fair Use

A federal district court in New York held that the Internet Archive’s Open Library project was engaging in copyright infringement by publishing digital copies of millions of books online. Even though the Internet Archive and participating libraries purchased print copies of the books and, for the most part, made them available to borrowers on a … Continue Reading

IP Protection of NFTs: A Comparative Look at the US and China

The author would like to thank John Hodges and Elisa Li for their contributions to this post. The emergence of blockchain-supported Non-Fungible Tokens (NFTs) has captured the interest of the entertainment and business worlds in the past couple of years. Large digital transactions like that of Beeple NFT that sold for $69 million and the ever-mounting numbers … Continue Reading

ISPs and Anonymous Users Rejoice: DMCA 512(h) Subpoena Subjected to First Amendment Scrutiny

Last month, in an important ruling for Internet service providers, and anonymous users alike, a new defense is taking shape to subpoenas issued pursuant to the “unmasking” provisions of the Digital Millennium Copyright Act (“DMCA”). Specifically, in In re DMCA § 512(h) Subpoena to Twitter, Inc., N.D. Cal. Case No. 20-mc-80214, district judge Vince Chhabria … Continue Reading

Server Test Showdown? The Conflicting Rulings Over Whether Embedding a Social Media Post Violates the Copyright Act

Last year, I wrote about a ruling in the Southern District of New York, Sinclair v. Ziff Davis, 18-CV-790 (KMW), that refused to dismiss claims against a media company for embedding an Instagram post into one of its articles online. This ruling and others in federal trial courts in the Second Circuit conflict with the … Continue Reading

New from China: Light Administrative Injunctions Now Available for Patents, Designs, and Copyrights

On June 21, 2021, the Shenzhen Administration for Market Regulation (Shenzhen AMR) issued the first ever administrative injunction against the alleged infringement of a design patent. The decision was based on a set of local IP regulations implemented in 2019 to increase protection of intellectual property (IP) rights associated with the booming local innovation in … Continue Reading

Beauty and the Little Pig: French Judges Find Jeff Koons Guilty of Copyright Infringement Once Again

The Paris Court of Appeal confirmed a previous decision that found Jeff Koons guilty of copyright infringement for one of his “Banality” sculptures. The Paris Court of Appeal even increased the amount of damages and costs that were initially awarded in the first instance. Beyond the fact that, fortunately, it is quite rare that a … Continue Reading

Alternative Forum for Copyright Owners Finally Available

Copyright owners seeking damages under $30,000 now have the choice of adjudicating their claims outside of federal court. Passed as part of the December 2020 COVID-19 relief bill, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“CASE Act”) created an alternative small claims tribunal system that can adjudicate certain copyright infringement claims.… Continue Reading

Ninth Circuit: Under the “Asserted Truth Doctrine” (f/k/a “Copyright Estoppel”) Authors of Nonfiction Cannot Later Claim a Work is Fictional to Pursue a Copyright Case

In an opinion that will be of particular interest to writers, the Ninth Circuit has confirmed that authors of non-fiction works cannot later claim that elements of their work were, in fact, fictional in order to extend the scope of copyright protection. The plaintiff in Corbello v. Valli et al., Case No. 17-16337 (9th Cir., … Continue Reading

Are Changes to the DMCA on the Horizon?

On June 2, technology companies and copyright holders testified before Congress about the effectiveness of the Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision. These testimonies came after the U.S. Copyright Office released its long-anticipated May 21 report, which studied and discussed DMCA’s effectiveness and the safe harbor provision.… Continue Reading

To Embed or Not to Embed?: A New Challenge to Embedding Images From Social Media

Embedding content from a social media site in one’s website initially seemed to be a safe harbor from a copyright infringement claim. In 2007, the Ninth Circuit adopted the so-called “server test,” ruling that in-line linking of images – now more commonly referred to as embedding – did not violate the exclusive display, copying or … Continue Reading

Brompton Bicycle: European Court of Justice Unfolds Requirements for Copyright Protection of Functional Shapes

Protection of functional shapes is not just a matter of patent law. If patent protection does not exist or has already expired, the question arises whether shapes with a technical function may be eligible for protection by trade marks, designs, copyright or unfair competition law/passing-off. In order to prevent monopolies on technical solutions prolonging the … Continue Reading

Copyright Defenses When a Copyright Infringement Claim Gets Under Your Skin

On March 26, a federal district court in New York held that the publishers of the popular NBA 2K videogame did not infringe on plaintiff’s tattoo copyrights when the publishers depicted those tattoos on basketball players in NBA 2K. The publishers, 2K Games and Take-Two Interactive Software, were successful in asserting multiple copyright defenses, including … Continue Reading

ATB Sales Limited v Rich Energy: A ‘Staggering’ Use of Court time?

The recent judgment in ATB Sales Limited v Rich Energy Limited [2019] EWHC 1207 (IPEC) illustrates the difficulties parties will have in defending copyright infringement claims over artistic works, if they can only provide limited documentary proof of the creative design process. Background ATB Sales Limited (“Claimant”) brought the action against three Defendants: Rich Energy … Continue Reading

Scripts and Copyright: Application ‘Pitched’ Out of Court

Seeking an interim injunction to protect against copyright infringement can often run into difficulties, as demonstrated by the recent judgment in Happy Camper Productions Ltd v British Broadcasting Corporation [2019] EWHC 558 (Ch). The dispute centred on the script for an episode of ‘Pitching in’, a comedy-drama programme by the BBC about a widower in … Continue Reading
LexBlog