Written by Leo M. Lichtman A few weeks ago, we reported on Nicklen v. Sinclair Broad. Co., a case out of the Southern District of New York that expressly rejected the “server test” established by the Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007). The server test sets forth a limitation for when a copyrighted work is … Continue reading To Link or Not to Link: Embedding Content and Copyright Infringement
Written by Timothy M. Carter On September 8, 2020 in Corbello v. Valli, the Ninth Circuit reaffirmed the principle that copyright law does not protect facts and that authors who characterize their statements as fact are estopped from claiming that the statements were actually fiction. 974 F.3d 965 (9th Cir. 2020). The Court’s opinion reaffirms basic principles that have not recently come up in Ninth … Continue reading ‘Big Litigants Don’t Cry’: Ninth Circuit Finds That Musical About Four Seasons Used Only Unprotected Facts
Written by Aaron D. Johnston and Orly Ravid SUMMARY The Ninth Circuit recently decided a copyright infringement case that pitted fabric designer Unicolors against clothing retail giant H&M regarding an artwork design that H&M used on a jacket and skirt in its fall 2015 collection. The dispute involved one fabric design in a copyright registration containing 31 designs as a “single-unit registration.” In Unicolors, Inc. … Continue reading When the Jacket Fits but the Copyright Registration (Maybe) Doesn’t: Ninth Circuit Clarifies Requirement to Determine Validity of Knowingly Filed Incorrect Copyright Registration
In VIP Products v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. March 31, 2020), the Court of Appeals for the Ninth Circuit held this week that a rubber dog toy designed to resemble a bottle of Jack Daniel’s Black Label Tennessee Whiskey — the “Bad Spaniels Silly Squeaker” — is an “expressive work” and therefore entitled to interpose a First Amendment defense against the whiskey company’s trademark infringement claims.
The lawsuit began in 2014 when Jack Daniel’s demanded that VIP Products stop selling the Bad Spaniels on trademark infringement grounds. The manufacturer filed suit asking an Arizona District Court to weigh in and determine whether the whiskey bottle was entitled to trademark protection at all. Jack Daniel’s responded with trademark infringement and trademark dilution claims, arguing that the dog toy diluted the commercial power, meaning and value of its brand by tarnishing what the image of the iconic whiskey bottle represents. The District Judge agreed with Jack Daniel’s that there was a high likelihood of consumer confusion between the products and ordered VIP Products to stop making and selling the Bad Spaniels toy. Continue reading “Freedom of Squeak: The Ninth Circuit Finds First Amendment Protection For Parody Dog Toy”
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”
By David A. Steinberg and James Berkley
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”
Why This Matters
On Thursday, May 2, in Vazquez v. Jan-Pro Franchising International, Inc., a three-judge panel of the Ninth Circuit Court of Appeals held that the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court applies retroactively. In Dynamex, the Supreme Court adopted a new standard for determining whether a California worker is an employee or independent contractor under the California Industrial Welfare Commission’s (“IWC”) wage orders. As we have previously discussed (see here, here, and here), Dynamex’s reach continues to grow and the Ninth Circuit’s ruling in Vazquez should be of particular concern to employers, who now face potential liability for their past decisions to classify workers as independent contractors rather than employees under a standard that did not exist at the time. Continue reading “Dynamex Goes Back in Time”