A Supreme Court Without RBG May Impact Hollywood's Grip on Intellectual Property; Billboard, September 21, 2020

Eriq Gardner, Billboard; A Supreme Court Without RBG May Impact Hollywood's Grip on Intellectual Property

 

[Kip Currier: This is a note I posted for my Intellectual Property and Open Movements course I'm teaching this term...

Timely and fascinating article regarding the recent passing of U.S. Supreme Court Justice Ruth Bader Ginsburg and her "copyright hawk" impact on many landmark Intellectual Property cases, like some we have already examined this term, e.g. Golan v. Holder (public domain) and Eldred v. Ashcroft (20 year extension of U.S. copyright protection period to Life of the Author plus 70 years.) In noting Ginsburg's judicial philosophy that tended to favor copyright maximalism, while a staunch civil rights defender and advocate for the equal rights of marginalized persons to the end, this article reminds us that people are often much more complex and less easily-defined than the boundaried labels that are often ascribed to them. And Justices are no different in that regard.]

 

 "Ginsburg gravitated to intellectual property disputes almost from the moment the Brooklyn, NY-born attorney was appointed to the Supreme Court by President Bill Clinton in 1993. More often than not, when a big ruling on the subject was on the table, it was she who carried the big pen. Notably, in 2003, Ginsburg wrote the majority opinion in Eldred v. Ashcroft that blessed an extension of the copyright term over a free speech challenge. Almost a decade later, she reached a similar conclusion in Golan v. Holder, which dealt with works taken from the public domain to comply with an international treaty. Ginsburg also shaped who could sue for copyright infringement — and when — with her majority opinions in Petrella v. MGM (2013) and Fourth Estate Pub. Benefit Corp. v. Wall-Street.com (2019). She also wrote a concurring opinion in MGM Studios v. Grokster, the case which apportioned secondary copyright liability in the file-sharing age.

Ginsburg was certainly hawkish when it came to copyright. And her view can be most sharply contrasted with those of Justice Stephen Breyer, demonstrating that there's more to judicial philosophy than a conservative-liberal divide...

Now comes Google v. Oracle, which has been hailed for good reason as the "copyright case of the century." It concerns Oracle's efforts to punish Google for allegedly infringing computer code to build the Android operating system. At issue in the case is the scope of copyright. Does the structure, sequence, and organization of application programming interfaces get protected? And separately, does Google have fair use to whatever is copyrighted? The movie industry is backing Oracle in the case —and the high court's conclusions will surely have an outsized influence both on the development of technology as well as how future copyright cases get adjudicated. Ginsburg's passing is probably bad news for Oracle's chances here. Of all the justices, she was least likely to read limits to copyright protection."

Judge Rules in Favor of Nicki Minaj in Tracy Chapman Copyright Dispute; Variety, September 16, 2020

Gene Maddaus , Variety; Judge Rules in Favor of Nicki Minaj in Tracy Chapman Copyright Dispute

"A judge handed a significant win to Nicki Minaj on Wednesday, finding that she did not commit copyright infringement when she created a song based on Tracy Chapman’s “Baby Can I Hold You.”

The ruling protects the industry practice of developing a new song based on existing material, and then seeking a license from the original artist prior to release. U.S. District Judge Virginia A. Phillips ruled that Minaj’s experimentation with Chapman’s song constitutes “fair use” and is not copyright infringement."

Google v. Oracle: Fair Use and the Seventh Amendment; JD Supra, September 15, 2020

 Dorsey & Whitney LLP, JD Supra; Google v. Oracle: Fair Use and the Seventh Amendment

"On August 7, 2020, Google and Oracle submitted their final written arguments to the Supreme Court regarding their decade-long copyright battle over the source code animating the Android platform. Now, we focus on the second question presented to the Supreme Court: whether Google’s copying of Oracle’s Java source code is a non-infringing fair use.

Recall that in December 2019 we introduced “the copyright lawsuit of the decade.” In March 2020, we covered the first of two questions presented to the Supreme Court: whether Java software interfaces are protected by copyright. Before we could address the second question presented, however, the Supreme Court delayed oral arguments on the matter to the October 2020 term due to the COVID-19 pandemic. The Supreme Court also requested that Google and Oracle submit supplemental briefs addressing the standard of review relating to the fair use defense—i.e., whether the Federal Circuit gave the proper deference to the jury’s finding of fair use when it reviewed it de novo and reversed it...

Conclusion

The Supreme Court is finally set to resolve important questions regarding the scope of copyright protection and the fair use doctrine that could have huge ramifications for the software industry … or is it? As detailed above, the Supreme Court may lean on the standard of review applied by the Federal Circuit to delay further comment on whether Google’s copying constituted fair use. We will update you again after oral argument, which is scheduled for October 7, 2020."

Censoring Jon Hamm's Penis Doesn't Violate Copyright Law, Federal Judge Rules; Gizmodo, September 11, 2020

Matt Novak, Gizmodo; Censoring Jon Hamm's Penis Doesn't Violate Copyright Law, Federal Judge Rules

"The lesson for all you meme-makers out there? Make sure your images are transformative and put a black box over those bulging packages."

Nicki Minaj-Tracy Chapman copyright battle sets stage for future of music recording; Marketplace, September 14, 2020

Sabri Ben-Achour, Marketplace ; Nicki Minaj-Tracy Chapman copyright battle sets stage for future of music recording

"Tracy Chapman is suing Nicki Minaj for using part of one of her songs. The case has the potential to upend the way music is written and how artists borrow from one another.

Minaj’s song “Sorry” obviously takes from Chapman’s song “Baby Can I Hold You.”Nobody disputes that. Minaj and her people asked Chapman for permission during and after production of “Sorry,” and Chapman and her reps said no, multiple times. So Minaj didn’t release the song on her 2018 album.

“What complicates it in this case is that there was further redistribution,” said Eugene Volokh, a professor at UCLA School of Law."

When a Right Click Is Wrong; Comstock's Magazine, September 16, 2020

Lila Wallrich, Comstock's Magazine; When a Right Click Is Wrong

How to avoid creative copyright infringement in your promotion and presentations

"Check the Public Domain

When copyright expires or is voluntarily surrendered, work enters the public domain and becomes available for all. Exclusive rights are nonexistent, and no permission is needed. You just need to do some research to find what you need, starting here: 

• Wikimedia Commons is one of the largest public domain resources for free photographs. 
• Unsplash is a collective of photographers offering high-resolution images for free. 
• Magdeleine is another high-quality resource for free photography. 
• YouTube Audio Library offers free music and sound effects. Search by genre, mood or instrument and download as an MP3 file."

Historic Court Cases That Helped Shape Scope of Copyright Protections; Library of Congress, September 9, 2020

 Anandashankar Mazumdar, Library of Congress; Historic Court Cases That Helped Shape Scope of Copyright Protections

"As the Copyright Office celebrates its 150th birthday, we can look back more than 240 years through the history of copyright protections in the United States to see how the law has changed in response to changing technologies and economics.

The authors of the U.S. Constitution believed that copyright was important enough to explicitly grant the federal government the power to grant authors the exclusive right to their writings.

When the first U.S. Congress convened in 1789, it put enactment of the country’s first Copyright Act on its agenda. The Copyright Act of 1790 extended copyright protections to “maps, charts, and books.” But copyright protection in 2020 covers many more types of creative expression.

The federal courts have been crucial in looking at creative media and setting the boundaries of what is protected and what isn’t. This is a look back at some of the most important court rulings on what is and isn’t protectable throughout the years under U.S. copyright law.

These cases reflect some of the landmarks for American courts for defining the scope of copyright protection: (1) Is a system of accounting and its ledgers protected? (2) Is a photograph protected when the law doesn’t explicitly mention photographs? (3) Is an advertisement protected? And (4) Is a creative work incorporated into a useful article protected?"

Fair Use, "The Frankenstein," and the Mixed Up Files of Mrs. Basil E. Frankweiler; Lexology, August 9, 2020

Frankfurt Kurnit Klein & Selz PC - Brian Murphy, Lexology; Fair Use, "The Frankenstein," and the Mixed Up Files of Mrs. Basil E. Frankweiler

"Larry Marano is the professional photographer (and self-described dedicated fan of hard rock and heavy metal music) who snapped the above photo of Van Halen. Marano sued the Met in the Southern District of New York, alleging that the use of his photograph was unauthorized and infringed upon his copyright. Two days after Marano filed, Judge Valerie Caproni ordered him and his attorney (Richard Leibowitz - see this post) to show cause why the complaint shouldn't be dismissed on fair use grounds.

As a preliminary matter, the court noted that even though the case was at the pleading stage, dismissal on fair use grounds would be appropriate if "transformativeness [could] be determined by doing a side-by-side comparison of the original work and the secondary use." After the matter was briefed, the court concluded that such a determination was indeed possible in this case and that the complaint should be dismissed.

Here's a rundown of the court's analysis of the statutory factors:

Marano v. Metropolitan Museum of Art, 19-CV-8606 (VEC), 2020 WL 3962009 (S.D.N.Y. July 13, 2020)."

What I Wish They Taught Me about Copyright in Art School; Library of Congress, September 1, 2020

Holland Gormley, Library of Congress; What I Wish They Taught Me about Copyright in Art School

"I have a confession to make. I made it all the way through a BFA in photography without knowing what exactly copyright was or what it meant for me and my work. It’s not that my professors did anything wrong. They were inspiring, wonderful, and talented creators. It’s never too late to learn though. All of us creators need to understand copyright because it so closely affects us, our work, and our careers. So with classes starting back up both in person and remotely this fall, I wanted to take a moment to speak directly to young creators about what copyright is and how it can help YOU as you start your careers. Why? If it’s worth creating, it’s worth protecting."

A Spider-Man Comic Was Written By A.I. And The Result Is Madness; Screen Rant, August 31, 2020

Kevin Erdmann, Screen Rant; A Spider-Man Comic Was Written By A.I. And The Result Is Madness

"Some DC Comics fans may be familiar with the Batman script that's long been trending on the internet created by Keaton Patti. He wrote it using a bot he forced to watch 1,000 hours of Batman films, resulting in a wild and wacky script of epic proportions. Recently, Marvel Comics reached out to Keaton, asking him to have his bot create a Spider-Man story in the same vein as part of their 25th issue of the current Amazing Spider-Man series. The result is one of the greatest and most hilarious short Spidey stories of all time.

The story itself is featured at the end of Spider-Man #25. Titled "Robo-Helpers," it was written by Patti's bot, reportedly after having it read every Spider-Man comic ever, with the art coming from humans Dan Hipp and Joe Caramanga."

'Electric Avenue' Singer Files Suit Against Trump Campaign for Copyright Infringement: Exclusive; Billboard, September 1, 2020

Gil Kaufman, Billboard; 'Electric Avenue' Singer Files Suit Against Trump Campaign for Copyright Infringement: Exclusive

"Eddy Grant argues his signature hit was used without permission in a campaign video. "This is copyright 101," his lawyer tells Billboard.

Singer Eddy Grant filed a copyright lawsuit against Pres. Donald Trump's campaign on Tuesday (Sept. 1) over a campaign video that his lawyers say illegally uses the singer's iconic 1983 song "Electric Avenue."

The suit is tied to a bizarre animated ad posted on Twitter by Trump's campaign on Aug. 12 which depicts a cartoon version of Trump's White House rival, former Democratic Vice President Joe Biden, driving an old-fashioned train car while a speeding train that says "Trump Pence" and "KAG 2020" zips through a desolate town.

There is no context for the use of the song, which plays as the animated Biden hand-pumps his way through the empty streets in a handcar labeled "Biden President: Your Hair Smells Terrific" while random snippets of old quotes and interviews are played. The lyrics of the song, which include the lines, "Down in the streets there is violence/ And a lot of work to be done," were written by the Black Guyanese-British singer in reaction to the 1981 race riots in Brixton, England. The track spent five weeks at No. 2 on the Billboard Hot 100 chart in 1983."

Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?; IP Watchdog, August 18, 2020

Terry Campo ,  IP Watchdog; Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?

"As reported in IP Watchdog on August 4 by lawyer and professional lecturer Steven Tepp, the high court will hear Google v. Oracle, a landmark copyright case, in October. Legal experts have labeled it “the copyright case of the century,” and for good reason. Since the case revolves around fair use, it will allow the nine justices to provide judicial clarity over the doctrine the nation’s innovators have desperately needed for decades."

Pirated Versions of ‘Tenet,’ ‘New Mutants’ Appear Online; Variety, August 31, 2020

Brent Lang, Variety; Pirated Versions of ‘Tenet,’ ‘New Mutants’ Appear Online

"Poorly recorded, pirated versions of Christopher Nolan’s “Tenet” leaked online last week. Both are camcorded copies of negligible quality — at least one has Korean subtitles and another has German subtitles. It is unclear how widely seen the illegal copies of the sci-fi thriller were, but it comes as theaters are starting a major campaign to bring audiences back to cinemas, which have been largely closed for months due to coronavirus."