Court Holds Vicarious Copyright Liability Claim Can Move Forward Against Major ISP

Written by Marc E. Mayer, Leo M. Lichtman, and Orly Ravid

Last week, the music industry enjoyed a high profile victory in its efforts to combat music piracy allegedly facilitated by Internet service providers (ISPs), including cable and telecommunications companies that provide Internet access to members of the public.  In Warner Records Inc. et al. v. Charter Comm’ns, Inc., No. 1:19-cv-00874, Judge R. Brook Jackson in the U.S. District Court of Colorado adopted a Magistrate’s Judge’s ruling from October 2019 allowing claims of vicarious copyright infringement against Charter Communications, one of this country’s largest ISPs, to proceed beyond the pleading stage.

The Charter Communications lawsuit was initiated last year by Warner Records and a group of several dozen record companies and music publishers, who collectively have produced or control the rights to millions of sound recordings and musical compositions.  In their Complaint, the plaintiffs allege that Charter is contributorily and vicariously liable for the infringement of thousands of copyrighted works that were unlawfully reproduced and distributed by its subscribers via peer-to-peer (P2P) file sharing programs such as BitTorrent.  According to the Complaint, Charter has known for years that subscribers were using its network to pirate music—including particular customers that were repeatedly infringing the plaintiffs’ copyrights—by virtue of the thousands of infringement notices that were sent to Charter detailing specific instances of infringement on its network.  The plaintiffs claim that despite those notices, Charter nonetheless failed to take appropriate action to curb the infringement in order to avoid the loss of subscriber revenue. Continue reading “Court Holds Vicarious Copyright Liability Claim Can Move Forward Against Major ISP”

A De Minimis Defense Grows in Brooklyn: Display of Street Art in Action Movie Not Infringement

Written by Eleanor M. Lackman and Theresa B. Bowman 

On March 30, 2020, in Blaney, et al., v. XYZ Films, et al., the U.S. District Court for the Eastern District of New York dismissed copyright infringement and false endorsement claims arising out of the depiction of a well-known Brooklyn mural in the dystopian, thriller motion picture Bushwick.  While the defendants undeniably filmed, and thus reproduced, the mural in the motion picture, the court held that such copying was both de minimis and fair use and therefore not copyright infringement.  In dismissing the false endorsement claims, the court determined that the defendants’ use of the mural created little risk of confusion that the murals’ creator and subject, both peace activists, endorsed the defendants’ motion picture.

The decision bolsters the ability of movie and TV production companies to depict, accurately and briefly, iconic or well-known community sites as part of background “establishing shots.”  Meanwhile, the outcome might inject some uncertainty into whether artists can pursue licensing revenue for works depicted in those films and TV shows.

Continue reading “A De Minimis Defense Grows in Brooklyn: Display of Street Art in Action Movie Not Infringement”

Copyright Office Accepting Electronic Applications

Copyright Offices Announces Temporary Changes to Deposit Copy Requirements Written by Alesha M. Dominique and Marissa B. Lewis The United States Copyright Office has announced that it will temporarily accept electronic deposit copies to facilitate remote examination of electronic applications which ordinarily must be accompanied by physical deposits during the COVID-19 pandemic.  This measure, effective as of April 2, 2020, is optional and does not … Continue reading Copyright Office Accepting Electronic Applications

Supreme Court Rules in Favor of North Carolina, Applies Sovereign Immunity

Written by Bradley J. Mullins and Adé T.W. Jackson

On Monday, the U.S. Supreme Court ruled that a provision of the Copyright Act that allows for lawsuits against state governments for copyright infringement is unconstitutional.  The justices were considering Allen, et al. v. Cooper, et al., Case No. 18-877 (Mar. 23, 2020), a case where North Carolina was being sued by a filmmaker for using his videos and photos of the wreck of Queen Anne’s Revenge — the flagship of the pirate Blackbeard.  The justices unanimously ruled that North Carolina was shielded from the lawsuit by state sovereign immunity.

Although the Eleventh Amendment gives states broad sovereign immunity against such lawsuits, the plaintiff relied on the Copyright Remedy Clarification Act (CRCA) — a statue enacted by Congress in 1990 expressly to permit infringement claims against the States.  However, Monday’s ruling invalidates the statute, with the justices determining that Congress lacked the constitutional authority required to abrogate state sovereign immunity in this way. Continue reading “Supreme Court Rules in Favor of North Carolina, Applies Sovereign Immunity”

Pirates Find New Shelter

Demand for Pirated Content Surges as the Public Stays Home

Written by Eleanor M. Lackman

At a time where theaters are shut down and productions are on hold, the entertainment industry is facing another challenge: the sudden surge in demand for pirated audiovisual and game content.  According to anti-piracy firm MUSO, the number of people illegally streaming the movie Contagion increased by over 5600%.  As lockdowns and stay-home orders keep people at home in an increasing number of countries, online searches for local pirate sites have ballooned, even despite studios’ in-home release of films that were slated to premiere this month in theaters.

Apparently taking advantage of the situation, well-known piracy app Popcorn Time, which launched in 2015 and was quickly shut down thereafter, has just reemerged in a new version.  In its own words, Popcorn Time announced in a tweet on Tuesday: “Love in the Time of Corona Version 0.4 [sic] is out!” Popcorn Time offers an easy-to-use system that uses BitTorrent to stream movies and television shows without needing to download them.  This time, the instructions for the app include a suggestion for users to use VPNs to avoid detection by users’ ISPs, which may be held responsible for repeated acts of infringement by their users if the ISP fails to take appropriate steps to curtail it.  See, e.g., BMG Rights Management (US) LLC v. Cox Communications, Inc., 881 F.3d 293 (4th Cir. 2018). Continue reading “Pirates Find New Shelter”

MSK Wins Reversal of “Dark Horse” Copyright Verdict

Written by Christine Lepera, Jeffrey M. Movit and Gabriella Nourafchan

Last July, a team of MSK attorneys represented Defendants in a copyright infringement trial involving allegations that the ostinato (a musical phrase that repeats) in Katy Perry’s 2013 song “Dark Horse” infringed the ostinato in Plaintiffs’ Christian rap song entitled “Joyful Noise.”  After the jury returned a verdict in favor of Plaintiffs, MSK filed a motion seeking reversal, or in the alternative, a new trial.

This week, the Court granted MSK’s motion, overturned the jury verdict, and entered judgment in Defendants’ favor.  The Court found that Plaintiffs’ copyright claim failed because the ostinato in “Joyful Noise” was commonplace expression that no music creator can monopolize.  Continue reading “MSK Wins Reversal of “Dark Horse” Copyright Verdict”

Ninth Circuit Ends Lawsuit Involving Copyright Protection for Characters, Leaving Plaintiffs in a Bad Mood

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Written by Robert H. Rotstein

On March 16, 2020, the Ninth Circuit ended a lawsuit alleging that Disney’s Inside Out infringed plaintiffs’ alleged copyright in characters known as “The Moodsters.” Daniels, et al., v. The Walt Disney Company, et al., Case No. 18-55635 (9th Cir. Mar. 16, 2020). The Court elaborated on the standards governing character protection and enunciated a rigorous standard for pleading “idea submission” claims in federal court.

Plaintiffs’ five characters are color-coded anthropomorphic emotions, each representing a different emotion. Between 2007 and 2009, Plaintiffs allegedly pitched The Moodsters to Disney. In 2015, Disney released Inside Out, a film that centers on five anthropomorphized emotions that live inside the mind of an eleven-year-old girl. Continue reading “Ninth Circuit Ends Lawsuit Involving Copyright Protection for Characters, Leaving Plaintiffs in a Bad Mood”

Ninth Circuit Rules in Favor of Led Zeppelin, Clarifies Standards for Copyright Infringement

By David A. Steinberg and James Berkley

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On March 9, 2020, the Ninth Circuit issued its en banc decision­­­ in the long-running and closely watched copyright case concerning the rock group Led Zeppelin’s 1971 song “Stairway to Heaven.” Skidmore v. Led Zeppelin et al., Case No. 16-56057, 16-56287 (9th Cir. Mar. 9, 2020).  A 2014 lawsuit in the Central District of California alleged that “Stairway to Heaven” infringed portions of an instrumental composition titled “Taurus” that had been recorded and released in 1967 by the group Spirit.  Capping off several years of uncertainty, the Court’s en banc opinion reversed the previous 2018 ruling of a three-judge panel and reinstated the judgment entered at the district court, where a jury found that “Stairway to Heaven” does not infringe the “Taurus” musical composition.

Among many topics covered, the Ninth Circuit’s en banc opinion contains three sets of holdings that, absent a successful petition to the U.S. Supreme Court, should have continuing implications for copyright litigation in the Ninth Circuit.  These holdings may be summarized as follows: Continue reading “Ninth Circuit Rules in Favor of Led Zeppelin, Clarifies Standards for Copyright Infringement”

I’ll Need a Copy of Your Copyright

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By Eric Schwartz

On March 4, 2019, the Supreme Court issued a unanimous decision in Fourth Estate Public Benefit Corp. v. LLC holding that, under §411(a) of the Copyright Act, a copyright claimant may file an infringement suit only after the Copyright Office renders a final decision on a copyright application, subject to limited exceptions. Prior to this ruling, circuit courts were split on whether the text of §411(a) granted standing to sue based on the so-called “application approach” (adopted in the 5th, 6th and 8th circuits) or the “registration approach” (adopted in the 10th and 11th circuits). The “application approach” permitted a copyright claimant to commence a lawsuit once a completed application with all three elements (i.e., the application, fee and deposit copy) was properly filed with the Copyright Office. The “registration approach” requires the Copyright Office to render a final decision (either to register or deny a registration) before a claimant may file suit. Justice Ginsburg, writing for the Court, concluded that the plain text of §411(a) “permits only one sensible reading”: the “registration approach.”

Continue reading “I’ll Need a Copy of Your Copyright”

Intellectual Property Tips

By Emily F. Evitt

Here are 10 ways to build a rock-solid foundation for your new company and avoid constructing a masterpiece on top of quicksand:

  1. Make sure your company’s name isn’t already taken. As a starting point, search the name on Google and other Internet search engines. Then search the U.S. Patent and Trademark Office website ( Important: repeat this process each time you pick the name of a new product or service.
  2. Check if the domain name you want is available – if so, get it. Create Twitter, Facebook and Instagram accounts for your company, and start using them. Continue reading “Intellectual Property Tips”