Category Archives: Copyrights

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Eleventh Circuit Joins Split Court Decisions on Registration Precondition for Copyright Suits

Section 411(a) of the Copyright Act generally requires copyright registration, or a refusal of registration, before a copyright action may be filed. This has led to a variety of decisions from the Circuit and District Courts interpreting the meaning of “registration.” It has even led to an intriguing gloss from the Supreme Court, Reed Elsevier, … Continue Reading

Important Open Source Ruling Confirms Enforceability of Dual-Licensing and Breach of GPL for Failing to Distribute Source Code

A recent federal district court decision denied a motion to dismiss a complaint brought by Artifex Software Inc. (“Artifex”) for breach of contract and copyright infringement claims against Defendant Hancom, Inc. based on breach of an open source software license. The software, referred to as Ghostscript, was dual-licensed under the GPL license and a commercial … Continue Reading

New York Court of Appeals Says No Common Law Public Performance Right For Pre-1972 Sound Recordings

On December 20, 2016, the New York Court of Appeals, the highest court in the state, held that no common law public performance right exists for pre-1972 sound recordings. The issue of whether a common law public performance right exists for pre-1972 sound recordings in New York was an issue of first impression. Although this … Continue Reading

Don’t Lose Your DMCA Safe Harbor Protection!

The U.S. Copyright Office’s new electronic system for copyright-agent registration and maintenance goes into effect on December 1, 2016, and with it comes new rules. Beginning December 1, all online service providers must submit new designated-agent information to the Copyright Office through the online registration system. Electronic designations should be filed on December 1, 2016, … Continue Reading

Sixth Circuit Rules in Favor of Songwriter’s Heirs in Copyright Termination Decision in Jackson Brumley et al. v. Albert Brumley & Sons Inc. et al.

In its May 16, 2016 decision in Jackson Brumley et al. v. Albert Brumley & Sons Inc. et al., the Sixth Circuit expressed skepticism of the Second Circuit’s and Ninth Circuit’s interpretation of the 304(c) termination provisions of the Copyright Act, despite ultimately deciding the case on an issue of contractual interpretation.  The Court handed … Continue Reading

Copyright Is Nothing To Joke About

Last summer, comedian Robert Kaseberg filed a copyright infringement suit against Conan O’Brien, among others, alleging that O’Brien incorporated four jokes written by Kaseberg in the opening monologues of his television show “Conan.” According to the complaint,  Kaseberg published each of the jokes – all of which were based on then-current events and news stories … Continue Reading

Conan Doyle Estate’s Quixotic Attempt to Protect Sherlock Holmes

Led by Judge Richard Posner, the Seventh Circuit Court of Appeals recently refused what Posner called a “quixotic” attempt to extend copyright law.  While the holding was perhaps to be expected, the opinion introduced a mystery of its own: If not copyright, what will stop today’s public-domain derivatives from sullying the eccentric detective’s hard-earned reputation?… Continue Reading

Laches, Statutes of Limitations and Raging Bull: The Supreme Court Re-Emphasizes The Pitfalls Of Delay In Copyright Cases

In Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. __ (2014), the United States Supreme Court addressed the role that the equitable defense of laches – i.e., a plaintiff’s unreasonable and prejudicial delay in commencing suit – plays in relation to a claim of copyright infringement filed within the Copyright Act’s three-year statute of limitations period.  There … Continue Reading

DOMA goes down – Copyright goes up – U.S. v. Windsor, Supreme Court, No. 12-307, decided June 26, 2013

The Supreme Court today handed down a far reaching decision throwing out an attempt by Congress to deny the benefits conferred by federal law on same sex couples legally married under state law holding that the Defense of Marriage Act (“DOMA”), as so applied, constituted a deprivation of the equal liberty of persons protected by … Continue Reading

Thin Copyrights – Protected But Not Infringed

Blehm v. Jacobs, 10th Cir., No. 11-1479, December 27, 2012 Some appellate decisions are worth examining because they plow new ground. Others serve to explain the ground that was plowed. This decision – dealing with substantial similarity (or lack thereof) between two sets of stick figures – is among the latter.… Continue Reading

Are Formats The Floor Mats Of Copyright?

By Edwin Komen On Friday afternoon, June 15, 2012, U.S. District Court Judge Gary Allen Feess, Central District of California in Los Angeles, denied CBS Broadcasting’s application for a temporary restraining order that would have prevented ABC from airing the premier broadcast of its new reality series “Glass House”. CBS complained that “Glass House” infringed … Continue Reading

A Copyright Office Double-Header

By Edwin Komen The Copyright Office recently published two little-noticed, but potentially far-reaching, announcements in the Federal Register. Collectively they tend to restrict the definitions of “claimant” and “compilation” for purposes of copyright registration. The first, noticed as a rulemaking subject to public comment, issued on May 17, 2012, 77 Fed. Reg. 29257 with written comments … Continue Reading

The Relevance of ‘Reasonable Royalties’ to Copyright Infringement

By Robert Gerber and Michael Murphy Recent cases reveal that seeking a reasonable royalty as a copyright remedy can be an uncertain endeavor. Courts have differed regarding which evidentiary factors are relevant and necessary. Parties seeking to apply the reasonable royalty analysis frequently used in the patent litigation arena have sometimes found themselves successful, and … Continue Reading

Tweet Me! – The Southern District of New York Answers Copyright Questions Raised By Twitter and Twitpic Use

Social media has become a part of everyday life. As Shakespeare has written: "This news is not old enough, yet it is every day news." The minutiae of every moment is narrated through status updates. Digital photographs are taken and instantaneously posted minute-by-minute on the Internet for the world to see. This lightning fast use of social media … Continue Reading

Trademarks In The Veldt: Do Virtual Lawyers Dream Of Electric Trademarks?

In Neal Stephenson’s 1992 science fiction novel, Snow Crash, humans interact as avatars in the “Metaverse,” the collective product of online shared three-dimensional space.[1] As imagined by Stephenson, this “Metaverse” has been created by all virtual worlds[2] – it is an augmented and enhanced physical reality, a physically persistent virtual space.[3] The novel is set … Continue Reading

China Revamps Its Outdated Copyright Pledges System

The State Copyright Bureau recently released a new set of copyright pledges registration rules to replace its current system. The "Measures for Registration of Copyright Pledges" (the "Measures") will become effective on January 1, 2011. Copyrights, like other property rights, can be pledged as a financial security. China has not updated its current copyright pledges registration … Continue Reading

The Innovative Design Protection and Privacy Prevention Act: Will Design Protection Be In Vogue in Congress?

On August 6, 2010 Senator Charles Schumer (D-NY), introduced a bill entitled the Innovative Design Protection and Piracy Prevention Act ("IDPPPA") (S. 3728), which represents a compromise between the American Apparel & Footwear Association ("AAFA") and the Council of Fashion Designers of America ("CFDA") in an effort to afford protection to American designers for new … Continue Reading

Sublicenses By Exclusive Licensees Of Copyrights – Copyright “Clarification” May Change The Law

A change in the rules on copyright licensing may be coming in the near future and from an unexpected and unanticipated source. The rules deal with whether the owner of an exclusive copyright license may sublicense such right without the approval of the licensor. The clear and unequivocal answer in the Ninth Circuit has long … Continue Reading

It’s Not Over For MGA’s Bratz Doll Line Yet

The Ninth Circuit recently stayed an injunction entered against MGA Entertainment, Inc., that would have otherwise required MGA to ensure that none of its popular Bratz dolls, the subject of a copyright dispute with toy giant, Mattel, Inc., are available on store shelves as of January 21, 2010. The injunction’s requirement that MGA also turn … Continue Reading

What Is the Jurisdictional Pre-Requisite for Copyright Litigation?: Do Denim v. Fried Denim

On June 17, 2009, Judge Laura Taylor Swain of the Southern District of New York dismissed the copyright claims of jeans maker Do Denim against rival manufacturer Fried Denim Inc., holding that the mere filing of the copyright applications, fees and deposits did not satisfy the jurisdictional requirement that a copyright be registered before a … Continue Reading

Copyrights: First Amendment Trumps Copyright Restoration

On April 3, 2009, the District Court for Colorado entered a groundbreaking copyright decision, treading on new judicial territory by directly applying the First Amendment to invalidate a provision of the Copyright Act. The case, Golan v. Ashcroft, Civil Case No. 01-cv-01854-LTB, found that, at least as applied to the plaintiffs, the copyright restoration provisions … Continue Reading
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