The U.S. Copyright Office is making changes to the Digital Millennium Copyright Act (DMCA) safe harbor agent registration process. The changes impact both new online service providers as well as existing online service providers who have already registered an agent. Read on for details about what you will need to do.
Continue Reading Deadline Approaching: Action Required by December 31 To Avoid Losing DMCA Safe Harbor Protection

Musical scores incorporated into films are usually produced with the specific film in mind. In the U.S., we call such works “works made for hire,” meaning that the artist does not retain authorship rights to the music. Instead, the commissioning party, which is typically the film producer or music publisher, is the author of the musical score for copyright purposes.

Internationally, however, most countries attribute authorship only to natural persons. To permit the exploitation of collaborative works, like motion pictures, the legal regimes of most of these countries grant the commissioning party the right to exclusively exercise the economic rights in the work. This does not, however, change the status of each individual creator as the “author” of his or her distinct contribution to the work.
Continue Reading The Southern District of New York Finds “Work Made For Hire” Under Italian Copyright Law

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, Inc., v. Muchnick, 559 U.S. 154 (2010), holding that Section 411(a) is not a jurisdictional requirement but merely a precondition. The Circuit Courts are now split into three groups, namely, “registration” (registration means what is says…a certificate or refusal in hand), “application” (all elements necessary for registration – an application, deposit copy and fee filed in the Copyright Office) and undecided. None of these positions can easily be harmonized potentially leading to inconsistent results and forum shopping.
Continue Reading Eleventh Circuit Joins Split Court Decisions on Registration Precondition for Copyright Suits

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 license. According to the Plaintiff, those seeking to commercially distribute Ghostscript could obtain a commercial license to use, modify, copy, and/or distribute Ghostscript for a fee. Otherwise, the software was available without a fee under the GNU GPL, which required users to comply with certain open-source licensing requirements. The requirements included an obligation to “convey the machine-readable Corresponding Source under the terms of this License” of any covered code. In other words, under the open source license option, certain combinations of proprietary software with Ghostscript are governed by the terms of the GNU GPL.
Continue Reading Important Open Source Ruling Confirms Enforceability of Dual-Licensing and Breach of GPL for Failing to Distribute Source Code

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 holding is only binding on New York state courts and federal cases decided under New York law, it is anticipated that, coming from a premier IP jurisdiction, it will also be highly influential for courts throughout the nation that are adjudicating or may adjudicate similar cases.
Continue Reading New York Court of Appeals Says No Common Law Public Performance Right For Pre-1972 Sound Recordings

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, or as soon as possible thereafter. Service providers who fail to timely submit electronic designations will be ineligible for the safe harbor from copyright-infringement liability provided by § 512(c) of the Digital Millennium Copyright Act.
Continue Reading Don’t Lose Your DMCA Safe Harbor Protection!

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 down a decision respecting the termination rights of songwriter Albert Brumley’s heirs in the famous gospel song “I’ll Fly Away,” concluding that those termination rights had not been bargained away via a contract that did not specifically address termination.  Although the outcome of the case hinged on contract interpretation, rather than the specifics of the 1976 Copyright Act’s termination provisions under 304(c), opinion author Judge Sutton took the time to express skepticism of previous circuit court interpretations of the 304(c) termination provisions of the Copyright Act.
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.

Last month, the Second Circuit Court of Appeals affirmed a New York judge’s decision to dismiss federal copyright and state tort law claims alleged against the hip-hop icon, Jay Z, and his affiliated companies. Mahan v. ROC Nation, LLC, et al., No. 15-1238-cv, 2016 U.S. App. Lexis 3182 (2d. Cir. Feb. 24, 2016).  The Second Circuit also directed the district court to calculate an award of attorneys’ fees and costs to award to the defendants for litigating what the court called a “baseless” appeal, adding to the more than $253,000 the lower court already awarded to the defendants.
Continue Reading Second Circuit Tosses Out Time-Barred Copyright Claims Against Jay Z

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 – on his personal blog and Twitter feed on various dates between January and June, 2015, only to have O’Brien feature the same jokes in his monologues on the same respective dates.
Continue Reading Copyright Is Nothing To Joke About

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 Conan Doyle Estate’s Quixotic Attempt to Protect Sherlock Holmes