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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

Digital Copyright Directive published…and already the subject of complaint

The Directive on Copyright in the Digital Single Market (the Directive), has now been published in the Official Journal, and entered into force on Friday 7 June 2019. EU member states have two years in which to transpose the Directive (which is now officially Directive (EU) 2019/790 on copyright and related rights in the Digital … 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

European Parliament Adopts the Copyright Directive

Despite the consistent and continuous opposition to the controversial Article 13, the European Parliament has adopted the ‘Directive on copyright in the Digital Single Market’ (the Directive). MEPs debated and subsequently voted in favour of the Directive, 348 votes to 274 (36 MEPs abstained). The Final Wording of the Directive The latest version of the … Continue Reading

Continued Progress in Developing the Digital Marketplace for Copyrighted Works

The Copyright Act often seems to lag behind technology, with infringements rampant on the Wild Internet.  Not so, as was evidenced by the robust discussions at the third public meeting on Developing the Digital Marketplace for Copyrighted Works, hosted by the US Department of Commerce’s Internet Policy Task Force on March 28, 2019. The Internet … Continue Reading

Supreme Court Clarifies That, Yes, You Have to Register Your Copyright, and No, You Cannot Recover Your Expert Witness Fees in Copyright Cases

In a pair of unanimous rulings on March 4, 2019, the Supreme Court clarified (1) that the U.S. Copyright Office must issue a registration certificate before a plaintiff can commence suit and (2) that a prevailing plaintiff cannot recover fees for expert witnesses, jury consultants or other “costs” that are not specifically called for in … Continue Reading

The Supreme Court Tackles Defining “registration has been made” in §411(a) of the Copyright Statute

Enforcement of a copyright requires that “a registration of the copyright claim has been made.” But what does this mean? On January 8, the U.S. Supreme Court heard arguments in Fourth Estate Public Benefit Corp. v. Wall-Street.com to decide the meaning of this phrase and, in particular, whether submission of the registration application is sufficient.… Continue Reading

The EU’s Digital Copyright Directive – where are we now?

In 2016 the EU proposed the “Directive on copyright in the Digital Single Market” (the Directive). Since then, the Directive has been widely debated at EU level and has been the subject of intense campaigning and lobbying, with various interested parties writing numerous open letters to the EU Council’s Working Party on Intellectual Property, the … Continue Reading

Anti-counterfeiting operations plan to tackle intellectual property crime

Counterfeit goods now account for up to 2.5% of world trade and 5% of imports in the EU and are a significant problem for many industries in a rapidly evolving digital world. As businesses are aware, tackling IP infringements in counterfeit goods by law enforcement alone is not always effective. Therefore, it will be welcome … Continue Reading

New Jurisprudence Rendered By Spanish Courts Facilitates Closing Of Websites

Recent jurisprudence rendered by Spanish Courts establishes that in the case of copyright infringement over the internet, it is not necessary to sue the infringer, but rather the IT intermediaries that host the website. The Court of Appeal in Barcelona has now dismissed an appeal filed by several IT companies against the first instance Judgment … Continue Reading

Zazzle And Other Print-On-Demand Websites Can Breathe A Sigh Of Relief . . . For Now

Last month, in a February 8, 2018 Order, the Central District of California vacated its injunction in Greg Young Publishing, Inc. v. Zazzle, Inc., 2:16-cv-04587-SVW-KS, in which Zazzle was “permanently enjoined from infringing any of the exclusive rights in 17 U.S.C. § 106 with respect to Plaintiff’s copyrighted works…”  See Permanent Injunction and Order, October 27, 2017.  … Continue Reading

Key Intellectual Property Enforcement Mechanism or Toothless Tiger? – The US Department of Justice and Department of State Launch Intellectual Property (IP) Law Enforcement Coordinator Network

On Friday, December 15, 2017, the US Department of Justice and Department of State announced the launch of an IP Law Enforcement Coordinator Network.  The Network focuses on international trademark counterfeiting, copyright piracy and other forms of intellectual property rights infringement across the world, spanning all industry sectors.  Though the components of the Network are … Continue Reading

‘Minute Winner’ loses out in TV format copyright claim

Can copyright subsist in the format of a television show? Until recently, the only judicial decision on this question was back in 1989 in a case concerning the well-known talent show ‘Opportunity Knocks’. In that case, Hughie Green, the show’s author, producer and compere, argued that certain distinctive features repeated in every show, including the … Continue Reading

Brexit – how will my IP rights be affected?

The two year countdown to Brexit has begun. With the clock ticking, there is now a more urgent need for businesses to plan for the impact that Brexit will have on their operations. We have produced an updated briefing for intellectual property owners explaining the likely implications for their EU-wide IP protection, particularly where there … Continue Reading

Supreme Court Resolves Split on Design Copyright Eligibility

On Wednesday, the U.S. Supreme Court issued its ruling in Star Athletica LLC v. Varsity Brands Inc., which, in the Court’s words “resolve[s] widespread disagreement over the proper test” for determining when “the design of a useful article is eligible for copyright protection.”  Slip Op. at 1.  Varsity Brands, a cheerleading uniform manufacturer, filed the … Continue Reading
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