Dumb Mistake in Copyright Registration Leads to Brutal and Unjust Consequences

24 05 2021

LexBlog/99 park row
June 26, 2020
Rick Sanders

Americans assume copyright is something you have to register for. The rest of the world assumes either registration is voluntary or honestly doesn’t know what you’re talking about.

The truth about copyright registration, in the United States, is a little more complicated. Or, more accurately, a little more mystical. You do not need to register a work to have copyright in it. Copyright attaches itself (“vests in”) the author as soon as it’s “fixed in a tangible medium.” As a result, almost everything you’ve ever written, doodled, painted in an art class, sculpted out of Play-Doh®, sketched out, etc. is protected by copyright.1For the rest of your life, plus another 70 years, so your heirs can benefit from those notes, doodles, emails, finger-paintings, etc.

BUT: Unless and until you register your work, you cannot enforce the copyright.

Having an unregistered copyright is a bit like having only the blueprints for a house, then trying to live in it.

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Jonas Brothers Sued for Copyright Infringement

23 05 2021

Orange County – Nick Jonas – along with Jonas Brothers Enterprises, LLC – have been sued by Joshua Wong Photography, LLC for copyright infringement. The complaint was filed yesterday June 22, 2020 in the U.S. District Court in the Southern District of New York.  The claim stems from a photograph of Priyanka Chopra that was shared by Nick Jonas on both Instagram and Twitter. Joshua Wong Photography claims the use was unauthorized and thus a violation of the Copyright Act.

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Supreme Court Says Georgia’s ‘Official Code’ Is Public Domain — Including Annotations

27 12 2020

Tech Dirt
Mike Masnick
Apr 27th 2020

The long saga of Georgia locking up its laws under copyright is (hopefully) officially over, with a Supreme Court ruling that says pretty explicitly that the law must be in the public domain.

….

Earlier today, the Supreme Court ruled mostly in favor of Carl Malamud and free access to our laws, though there is a bit of weirdness in the overall ruling. The key part is the most important though. You just can’t copyright the law.

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Another Terrible Copyright Ruling on IAPs’ Liability for Users’ File-Sharing–Warner v. Charter

27 12 2020

Technology & Marketing Law Blog
Eric Goldman
April 17, 2020

This is a copyright infringement lawsuit against Charter, an Internet access provider, for users’ copyright infringements by file-sharing. I comprehensively blogged the magistrate report in this case back in October. In that blog post, I described the magistrate’s report as “a major win for copyright owners in their irrepressible quest to deputize IAPs as their copyright sheriffs.” Charter objected to the magistrate report’s analysis of vicarious copyright infringement. The district court judge’s response opinion is…UGH.

Conclusion

In my prior post, I wrote: “copyright owners aren’t going to stop until they turn IAPs into their copyright cops. This has their dream for decades, and this ruling moves one step closer to it.”

In particular, the opinion highlights how we desperately need a well-functioning 512(a) safe harbor for Internet access providers. Over and over again, the court cites facts that just show Charter offered Internet access, which the court treats as enough to establish a prima facie case of vicarious copyright infringement. That can’t be right.

The damage in this case can be traced to prior rulings requiring that IAPs “terminate repeat infringers” based on notices of claimed infringement rather than judicial findings of actual user infringement. By creating that bypass, copyright owners can work around 512(a), which opens up a Pandora’s box of liability that does not bode well for the future of Internet access.

The Senate is currently undertaking a 20 year review of the DMCA. It would be wise for Congress to figure out why 512(a) failed to achieve its purported purpose–and how it might be rehabilitated.

Finally, this ruling shows how far the vicarious copyright infringement doctrine has strayed from its roots. Vicarious copyright infringement started as a branchoff of agency law. The IAP-subscriber relationship bears absolutely no resemblance to a principal-agent relationship, yet here we are. We need better limiting principles to the vicarious copyright infringement doctrine so that it does not extend, illogically, to typical vendor-customer relationships.

Case citation: Warner Records Inc. v. Charter Communications, Inc., No. 19-cv-00874-RBJ-MEH (D. Colo. April 15, 2020)

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Publishers And Authors Misguided Freakout Over Internet Archive’s Decision To Enable More Digital Book Checkouts During A Pandemic

18 12 2020

It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it’s calling a National Emergency Library — a very useful and sensible offering, as we’ll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we’ll get there.

As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold — basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.
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Judge smacks down copyright suit over Instagram embedding

16 04 2020
ars technica
Timothy B Lee
4/15/2020A New York federal judge has ruled that the tech news site Mashable did not violate copyright law when it embedded an Instagram photo from photojournalist Stephanie Sinclair in an article.

James Grimmelmann, a copyright law expert at Cornell University, said that the ruling will provide a firmer legal footing for sites that embed third-party content. “It gives you a very clear basis for throwing out most of these cases quickly,” he told Ars in a phone interview.

The dispute began in 2016, when Mashable published an article highlighting the work of 10 female photojournalists whose work focuses on social justice. Mashable included Sinclair among the 10 featured photographers and initially offered her $50 for the rights to one of her photos. When Sinclair declined to license the photo, Mashable embedded the photo from Sinclair’s official Instagram account instead. Sinclair sued, arguing that Mashable had infringed her copyright.

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Court Manages To Get NBA2K Tattoo Copyright, Trademark Case Exactly Right

14 04 2020

Tech Dirt
Timothy Geigner
April 1, 2020

Somehow, it’s been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game’s faithful representation of several stars’ tattoos was copyright infringement. The company claimed to own the copyright on the design of several players’ tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K’s faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak’s IP rights.

Put another way, it could be said that by branding the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.

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7th Circuit Upholds Trademark ‘Fair Use’ Doctrine

14 04 2020

LexBlog
John Mueller
April 11, 2020

[ed: this is not a new media case. However, it clarifies aspects of fair use as they relate to trademark, so is included here]

In an August 2019 decision, the 7th U.S. Circuit Court of Appeals upheld the earlier finding by the Northern District of Illinois of summary judgment that PepsiCo’s Gatorade division’s use of the phrase “Gatorade The Sports Fuel Company” on its Gatorade family of products did not infringe SportFuel Inc.’s SPORTFUEL trademark because the use of the “Sports Fuel” term by Gatorade was descriptive, not used in a source-indicative manner and thus a “fair use” of that term.

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U.S. Supreme Court Confirms that States Have Sovereign Immunity from Copyright Infringement Suits–Allen v. Cooper

14 04 2020
Technology & Marketing Law Blog
Tyler Ochoa
April 13, 2020
On March 23, the U.S. Supreme Court unanimously held in Allen v. Cooper,  No. 18-877, that states have sovereign immunity from claims of copyright infringement, and that 17 U.S.C. § 511, which purports to waive that immunity, is unconstitutional.The result was not unexpected, but the unanimity was.  I previously wrote about the case at the time certiorari was granted.  In that post I wrote: “If the Justices vote along conventional political lines, one can predict a 5-4 decision affirming the Fourth Circuit at the Supreme Court level, following the opinions in Seminole Tribe and Florida Prepaid and holding that § 511 was not a valid waiver of sovereign immunity under § 5 of the Fourteenth Amendment.”  Instead, the Court reached unanimity by relying on stare decisis.

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Copyright Defenses When a Copyright Infringement Claim Gets Under Your Skin

10 04 2020

LexBlog
Joseph Grasser & Raisa Dyadkina
April 6, 2020

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 implied license, fair use, and the rarely successful de minimis use.

The decision was issued in Solid Oak Sketches, LLC v. 2K Games, Inc., 1:16-CR-00724-LTS-SDA (S.D.N.Y. March 26, 2020). Solid Oak Sketches sued 2K Games and Take-Two Interactive Software (“Take-Two”) over the use of tattoo designs for which Solid Oak owned licenses. Solid Oak alleged copyright infringement based on Take-Two’s use of the tattoo designs, as depicted on three basketball players, in its NBA 2K videogames. However, the court ruled that Take-Two did not infringe on Solid Oak Sketches’s rights based on the three independent copyright defenses.

De Minimis Use Defense.

Implied License Defense.

Fair Use Defense.

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The content in this post was found at https://www.lexblog.com/2020/04/06/copyright-defenses-when-a-copyright-infringement-claim-gets-under-your-skin/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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