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Preview: LexisNexis® Mealey's™ Copyright Legal News

LexisNexis® Mealey's™ Copyright Legal News

Headline Copyright Legal News from LexisNexis®


2nd Circuit Deems Online Media-Monitoring Service To Not Be Fair Use
NEW YORK - Although a Second Circuit U.S. Court of Appeals panel majority on Feb. 27 found certain functions of a web-based media monitoring and archiving service to be somewhat transformative, the service's effect on the potential market for Fox News Network LLC to offer a similar service defeated the service provider's fair use defense against copyright infringement claims, the majority ruled (Fox News Network LLC v. TVEyes Inc., No. 15-3885, 2nd Cir., 2018 U.S. App. LEXIS 4786).

Copyright Claims Against Nike Properly Dismissed, 9th Circuit Rules
SAN FRANCISCO - An Oregon federal judge did not err in dismissing allegations that Nike Inc. infringed a copyrighted photograph of Michael Jordan when it commissioned its own photograph of Jordan in a similar pose, according to a Feb. 27 decision by the Ninth Circuit U.S. Court of Appeals (Jacobus Rentmeester v. Nike Inc., No. 15-35509, 9th Cir., 2018 U.S. App. LEXIS 4817).

Divided 2nd Circuit: Assignment Did Not Confer Standing In Copyright Case
NEW YORK - Allegations that John Wiley & Sons Inc. exceeded the terms of its license to use certain photographs in textbooks and other educational materials were properly rejected on summary judgment because the plaintiff in the action - a purported assignee of the photographers' rights to sue - lacks standing to maintain an infringement action, a divided Second Circuit U.S. Court of Appeals ruled Feb. 16 (John Wiley & Sons Inc. v. DRK Photo, No. 15-1134, 2nd Cir., 2018 U.S. App. LEXIS 3758).

New York Federal Judge Denies Attorney Fee Award In Copyright Case
NEW YORK - A voluntary dismissal by a copyright infringement plaintiff two months after filing suit did not render a defendant in the action a prevailing party, a New York federal judge ruled Feb. 22 (Matthew McDermott v. Monday Monday LLC, No. 17-9230, S.D. N.Y., 2018 U.S. Dist. LEXIS 28664).

Costs Awarded In New York Copyright Case; Judge Says Both Sides Unreasonable
ALBANY, N.Y. - A New York federal judge on Feb. 7 awarded two prevailing copyright infringement defendants $38,247.89 in costs but deferred a ruling on the amount of attorney fees to be reimbursed and instead ordered additional briefing (Universal Instruments Corporation v. Micro Systems Engineering Inc., No. 13-831, N.D. N.Y., 2018 U.S. Dist. LEXIS 19662).

9th Circuit Affirms Dismissal Of 'Ballers' Copyright Case Against HBO
SAN FRANCISCO - In a Feb. 22 memorandum, the Ninth Circuit U.S. Court of Appeals ruled that a California federal judge did not abuse his discretion in taking judicial notice of the actual accused episodes of "Ballers" when assessing the merits of a copyright infringement action involving the HBO series (Everette Silas, et al. v. Home Box Office Inc., et al., No. 16-56215, 9th Cir., 2018 U.S. App. LEXIS 4417).

Efforts To Save Lee Statue With Copyright Claim Fail In Texas Federal Court
DALLAS - In a Feb. 7 ruling, a Texas federal judge rejected an attempt to prevent the city of Dallas from removing a statue of Gen. Robert E. Lee from city property on grounds that the removal would constitute copyright infringement (Hiram Patterson, et al. v. Mike Rawlings, No. 17-2361, N.D. Texas, 2018 U.S. Dist. LEXIS 19873).

Judge Refuses To Grant Preliminary Injunction In Dispute Over Infringement Claims
SYRACUSE, N.Y. - A New York federal judge on Feb. 21 denied a manufacturer insured's motion for a preliminary injunction seeking to require an insurer to pay its defense in an underlying copyright, trademark and patent infringement lawsuit brought by GoPro Inc. (360Heros, Inc. v. Mainstreet America Assurance Company, No. 17-549, N.D. N.Y., 2018 U.S. Dist. LEXIS 27443).

Judge Refuses To Dismiss Support Wear Maker's UCL, Infringement Claims
SAN FRANCISCO - A California federal judge on Feb. 15 denied a maternity wear company's motion for judgment on the pleadings, finding that it would be premature to dismiss another company's claims for trademark infringement and that its claim for violation of California's unfair competition law (UCL) was not preempted (Blanqi LLC v. Bao Bei Maternity, et al., No. 3:17-cv-05759, N.D. Calif., 2018 U.S. Dist. LEXIS 26069).

Plaintiff Partly Prevails In New York Copyright Dispute Over Embedded Tweets
NEW YORK - Breitbart News Network, Time Inc. and other online publishers were dealt a blow Feb. 15 when a New York federal judge ruled that tweets embedded in news stories can form the basis of a copyright infringement claim (Justin Goldman v. Breitbart News Network Inc., et al., No. 17-3144, S.D. N.Y., 2018 U.S. Dist. LEXIS 25215).

9th Circuit: Dolphin Drawing Is An Unprotectable Idea 1st Found In Nature
SAN FRANCISCO - A California federal judge properly granted a defendant summary judgment on allegations that a pen and ink depiction of two dolphins crossing underwater was infringed, the Ninth Circuit U.S. Court of Appeals ruled Feb. 2 (Peter A. Folkens v. Wyland Worldwide LLC, et al., No. 16-15882, 9th Cir., 2018 U.S. App. LEXIS 2768).

2nd Circuit Affirms: Forum Non Conveniens Dooms Copyright Claim
NEW YORK - In a summary order released Feb. 26, the Second Circuit U.S. Court of Appeals agreed with a New York federal judge that Singapore is the proper forum for adjudicating allegations of copyright infringement stemming from the unauthorized display of photographs by Singapore resident Lee Kar Yin (The Wave Studio LLC v. General Hotel Management Ltd., et al., No. 17-1018, 2nd Cir., 2018 U.S. App. LEXIS 4596).

Kentucky Federal Judge Denies Universal Music Bid To Dismiss Copyright Case
LOUISVILLE, Ky. - Assertions by Universal Music Group Inc. that personal jurisdiction over it is lacking in Kentucky were rejected Feb. 13 by a Kentucky federal judge, who instead ruled that the copyright case against the music publisher can proceed for now (Leroy Mitchell v. Capitol Records LLC, et al., No. 15-174, W.D. Ky., 2018 U.S. Dist. LEXIS 23351).

VidAngel Defends UCL, Antitrust Claims Against Studios To 9th Circuit
SAN FRANCISCO - In its third appeal to the Ninth Circuit U.S. Court of Appeals in a copyright dispute with several movie studios, video-filtering service provider VidAngel Inc. argues in a Feb. 12 brief that a trial court improperly dismissed its counterclaims under the Sherman Act and California's unfair competition law (UCL), despite its ample pleadings of the studios' collusive actions (Disney Enterprises Inc., et al. v. VidAngel Inc., No. 17-56665, 9th Cir.).

Composer's Assignee Tells 2nd Circuit Italian Film Scores Were Not Works For Hire
NEW YORK - Arguing about differences in Italian and U.S. copyright law, a composer's copyright assignee tells the Second Circuit U.S. Court of Appeals in a Feb. 14 brief that a trial court incorrectly concluded that film scores written on commission in Italy are equivalent to works for hire in the United States (Ennio Morricone Music Inc. v. Bixio Music Group Ltd., No. 17-3595, 2nd Cir.).

Photo Licensor Asserts Standing To Bring Copyright Suit To Supreme Court
WASHINGTON, D.C. - In a Feb. 2 petition for certiorari, a licensor of stock photos asks the U.S. Supreme Court to review the standards by which a copyright assignee may sue for infringement on behalf of the copyright holder (DRK Photo v. McGraw-Hill Global Education Holdings LLC, et al., No. 17-1170, U.S. Sup.).

Jay-Z Asks 2nd Circuit To Affirm Dismissal Of Logo Copyright Suit
NEW YORK - Shawn Carter, better known as rapper Jay-Z, and related parties ask the Second Circuit U.S. Court of Appeals in a Feb. 20 brief to affirm a trial court's disposal of a Bronx man's copyright infringement and contract related to his purported designing of a logo more than 20 years ago, citing a lack of evidence and timeliness (Dwayne D. Walker, Jr. v. Shawn Carter, et al., No. 17-2483, 2nd Cir.).

4th Circuit: Contributory Copyright Infringement Requires Proof Of Willful Blindness
RICHMOND, Va. - In a Feb. 1 ruling, the Fourth Circuit U.S. Court of Appeals upheld a Virginia federal judge's determination that two internet service providers (ISPs) are not entitled to a safe-harbor defense to allegations of contributory copyright infringement, but vacated and reversed a jury's $25 million statutory damage award upon finding that jurors were presented with erroneous instructions (BMG Rights Management [US] LLC, et al. v. Cox Communications Inc., et al., No. 16-1972, 17-1352 and 17-1353, 4th Cir., 2018 U.S. App. LEXIS 2487).

9th Circuit Partly Affirms, Partly Reverses In Oracle, Rimini Copyright Case
SAN FRANCISCO - In a Jan. 8 decision, the Ninth Circuit U.S. Court of Appeals upheld a Nevada federal judge's determination that a third-party software support company committed copyright infringement when it relied on a license granted to one customer to copy software from the Oracle USA Inc. website to provide services to other customers who had no such license (Oracle USA Inc., et al. v. Rimini Street Inc., et al., Nos. 16-16-832 & 16-16905, 9th Cir., 2018 U.S. App. LEXIS 463).

Government Stance On Registration Vs. Application Sought By Supreme Court
WASHINGTON, D.C. - In its Jan. 8 orders list, the U.S. Supreme Court moved one step closer to resolving a circuit split on whether a copyright infringement lawsuit may commence only upon receipt of a copyright registration or earlier, when an application for copyright is filed (Fourth Estate Public Benefit Corp. v. LLC, et al., No. 17-571, U.S. Sup.).

5th Circuit Affirms: Assignment Extinguishes Standing In Copyright Case
NEW ORLEANS - A Texas federal judge did not err in dismissing, on standing grounds, counterclaims of copyright infringement by various Tejano recording artists, the Fifth Circuit U.S. Court of Appeals ruled Jan. 4 (Hacienda Records L.P. v. Ruben Ramos, et al., No. 16-41180, 5th Cir., 2018 U.S. App. LEXIS 211).

Kansas Federal Judge Won't Refer Case To Register Of Copyrights
KANSAS CITY, Kan. - In a Jan. 17 ruling, a Kansas federal judge denied a motion to refer to the Register of Copyrights allegations by an infringement defendant that a copyright registration for the Oil Daily publications is invalid (Energy Intelligence Group Inc., et al., v. CHS McPherson Refinery Inc., No. 16-1015, D. Kan., 2018 U.S. Dist. LEXIS 7048).

California Federal Judge Orders YouTube, Google To Show Cause For Removal
LOS ANGELES - A recent removal by YouTube LLC and Google Inc. of a purported copyright action to California federal court and subsequent request for dismissal prompted a California federal judge on Jan. 22 to enter an order to show cause for why the case should not be returned to Los Angeles County Superior Court (Akiko Kijimoto v. YouTube LLC, et al., No. 17-8184, C.D. Calif., 2018 U.S. Dist. LEXIS 9918).

Fee Award Recommended In Copyright Dispute Over Beatles Footage
NEW YORK - In a Jan. 25 report and recommendation, a New York federal magistrate judge found that a copyright infringement dispute over footage of the Beatles performing at Shea Stadium in 1965 was unreasonable (Sid Bernstein Presents LLC v. Apple Corps Limited, et al., No. 16-7084, S.D. N.Y., 2018 U.S. Dist. LEXIS 13335).

10-Year MP3tunes Copyright Suit Settles For $39 Million
NEW YORK - A New York federal judge on Jan. 26 approved an agreement and consent judgment, settling a decade-long copyright infringement lawsuit brought by a group of record labels and music publishers against the founder of now-defunct online music-sharing service MP3tunes LLC, assessing an agreed-upon $39 million judgment against the defendant and adjourning the case (Capitol Records LLC, et al. v. MP3tunes LLC, et al., No. 1:07-cv-09931, S.D. N.Y.).

U2 Wins Dismissal Of New York Copyright Dispute Over Guitar Solo
NEW YORK - A composer and musician's allegation that the band U2 infringed his copyright during a guitar solo on the song "The Fly" is both "vague and sweeping," a New York federal judge ruled Jan. 30 (Paul Rose v. Paul David Hewson, p/k/a Bono, et al., No. 17-1471, S.D. N.Y., 2018 U.S. Dist. LEXIS 14840).

BitTorrent Copyright Case Rejected In Oregon On Standing Grounds
PORTLAND, Ore. - The author of the screenplay for the motion picture "Fathers & Daughters" is not the "legal owner" of the film, with standing to sue for infringement, because the exclusive rights to the work were transferred in a license granted within a distribution agreement, an Oregon federal judge ruled Jan. 17 (Fathers & Daughters Nevada LLC v. Lingfu Zhang, No. 16-1443, D. Ore., 2018 U.S. Dist. LEXIS 7435).

Counterclaim Of Copyright Invalidity Stricken As Redundant By Federal Judge
CHICAGO - A counterclaim seeking a declaration of copyright invalidity is "unnecessary" in light of affirmative defenses of fair use, first sale, acquiescence and license raised in response to allegations of copyright infringement, an Illinois federal judge ruled Jan. 23 (Maui Jim Inc. v. SmartBuyGlasses Optical Limited, No. 16-9788, N.D. Ill., 2018 U.S. Dist. LEXIS 10093).

Insurer Has No Duty To Pay For Independent Counsel In Copyright Suit, Panel Says
CHICAGO - An Illinois appeals panel on Jan. 22 affirmed a lower court's ruling that a commercial general liability insurer has no obligation to reimburse its insured for more than $16,000 in independent counsel fees incurred in an underlying copyright infringement dispute, rejecting the insured's contention that a conflict of interest entitled it to independent counsel (Bean Products, Inc. v. Scottsdale Insurance Co., No. 1-17-0421, Ill. App., 1st Dist., Div. 1, 2018 Ill. App. Unpub. LEXIS 89).

Fair Use Finding In Copyright Case Appealed By Dr. Seuss Enterprises
NEW YORK - In a Dec. 21 appellant brief to the Second Circuit U.S. Court of Appeals, Dr. Seuss Enterprises L.P. (DSE) - owner of the rights to the Dr. Seuss literary works - argues that a New York federal judge erred in deeming a play featuring the popular Seuss character Cindy-Lou Who a fair use of DSE's "How the Grinch Stole Christmas" copyright (Matthew Lombardo, et al. v. Dr. Seuss Enterprises L.P., No. 17-2952, 2nd Cir.).

Jay-Z, Others Erroneously Prevailed In Copyright Case, Appellant Tells 2nd Circuit
NEW YORK - Claims of copyright infringement surrounding the "Roc-A-Fella" logo should have proceeded but were instead disposed of on summary judgment, the alleged creator of the logo told the Second Circuit U.S. Court of Appeals on Nov. 20 (Dwayne D. Walker, Jr. v. Shawn Carter, et al., No. 17-2483, 2nd Cir.).

Oksana Baiul Petitions High Court Over Copyright Act Preemption
WASHINGTON, D.C. - In a Jan. 22 petition for certiorari, Olympic figure skater Oksana Baiul asks the U.S. Supreme Court to consider whether the complete preemption doctrine of Section 301 of the Copyright Act can be applied to state law claims that merely touch on copyright law (Oksana Baiul, et al. v. NBC Sports, et al., No. 17-1033, U.S. Sup.).

Architectural Firm Seeks Review Of Copyright Law Protecting Building Designs
WASHINGTON, D.C. - In a Jan. 19 petition for certiorari, an architectural firm asks the U.S. Supreme Court to review the rights and affections provided to authors of architectural works under the Architectural Works Copyright Protection Act (AWCPA), asserting that lower court rulings failed to enforce its rights by finding that a former client had an implied license in disputed design plans (Frost-Tsuji Architects v. Highway Inn Inc., et al., No. 17-1025, U.S. Sup.).

Adult Site Owner's Petition Over Vicarious, Direct Copyright Infringement Denied
WASHINGTON, D.C. - In its Dec. 4 order list, the U.S. Supreme Court denied certiorari to the operator of an adult website that had appealed a Ninth Circuit U.S. Court of Appeals ruling that a usenet provider was not liable for direct or vicarious infringement of its copyrighted images due to a lack of volitional conduct (Perfect 10 Inc. v. Giganews Inc., et al, No. 17-320, U.S. Sup., 2017 U.S. LEXIS 7259).

Copyright Plaintiff Partly Prevails In Dispute Over Streaming TV Content
MIAMI - A Florida federal judge on Dec. 11 entered summary judgment on behalf of a producer of Colombian television and its distributor, amid allegations that a defendant created a website to stream the plaintiffs' copyrighted content in the United States without permission (Caracol Television S.A., et al. v. TVmiaInternational Corp., et al., No. 16-23486, S.D. Fla., 2017 U.S. Dist. LEXIS 204575).

Adult Film Firm May Subpoena ISP For File Sharer's Identity
SAN DIEGO - An adult entertainment firm has sufficiently established a prima facie copyright infringement case against a John Doe online file sharer, a California federal magistrate ruled Dec. 7, granting the plaintiff's motion to conduct expedited discovery on the Doe's internet service provider (ISP) to identify the defendant for litigation purposes (Strike 3 Holdings LLC v. John Doe, No. 3:17-cv-02312, S.D. Calif.).

Heightened Standard Applied To Fraud-Based Lanham Act Claims
CHICAGO - Allegations of copyright infringement and common-law trademark infringement survived a motion to dismiss Dec. 21, but an Illinois federal judge deemed dismissal of the remainder of the complaint - including causes of action for unfair competition and false advertising - warranted (VitalGo Inc., et al. v. Kreg Therapeutics Inc., et al., No. 16-5577, N.D. Ill., 2017 U.S. Dist. LEXIS 210362).

Copyright Claim To Proceed In South Carolina Federal Court
CHARLESTON, S.C. - A copyright infringement plaintiff on Jan. 2 not only defeated a defense motion for summary judgment but also prevailed on its request for sanctions when a South Carolina federal judge agreed that a defendant failed to comply with two interrogatories (Sinclair and Associates of Greenville, LLC v. CresCom Bank, et al., No. 16-465, D. S.C., 2018 U.S. Dist. LEXIS 303).

Copyright Claims Over Chanukah-Themed Party Accessories Survive In Part
NEW YORK - In a Dec. 8 ruling, a New York federal judge found that although menorahs and dreidels depicted on Chanukah-themed paper cups and plates are "indisputably unprotectable," a comparison in a copyright infringement case of competing cups and plates shows that the items share "virtually identical expressions of those" unprotectable features pursuant to Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 124 (2d Cir. 1994) (King Zak Industries Inc. v. Toys 4 U USA Corp., No. 16-9676, S.D. N.Y., 2017 U.S. Dist. LEXIS 202784).

9th Circuit Affirms: Subaru Did Not Infringe Copyright, Trademarks
SAN FRANCISCO - In a Dec. 12 ruling decided without oral argument, the Ninth Circuit U.S. Court of Appeals upheld a California federal judge's dismissal of copyright and trademark infringement allegations stemming from Subaru of America Inc.'s use of "Share the Love" as a slogan in television advertisements (Marilyn Mintz v. Subaru of America Inc., No. 16-3384, 9th Cir.).

6th Circuit Remands Refusal To Unmask Blogger In Copyright Case
CINCINNATI - In what it deemed an issue of first impression, a divided Sixth Circuit U.S. Court of Appeals on Nov. 28 held that a general presumption in favor of unmasking anonymous defendants exists when a judgment has been entered in favor of a plaintiff (Signature Management Team LLC v. John Doe, No. 16-2188, 6th Cir., 2017 U.S. App. LEXIS 23974).

9th Circuit Reverses As 'Unreasonable' Fee Award In Copyright Case
SAN FRANCISCO - In a Dec. 19 holding, the Ninth Circuit U.S. Court of Appeals upheld a California federal judge's denial of summary judgment on copyright infringement claims but vacated and remanded an award of attorney fees on behalf of a prevailing defendant (Anthony Johnson v. Storix Inc., No. 16-55439, 9th Cir., 2017 U.S. App. LEXIS 25682).

9th Circuit Upholds Fee Award In Favor Of Copyright Defendants
SAN FRANCISCO - Two sons of the late concert promoter Bill Graham were properly ordered by a California federal judge to reimburse the attorney fees incurred by four copyright infringement defendants, the Ninth Circuit U.S. Court of Appeals ruled Dec. 13 (Alexander Graham-Sult, et al., v. Nicholas Clainos, et al., Nos. 15-17204, 16-16768, - 17083, 9th Cir., 2017 U.S. App. LEXIS 25187).

Music Publisher Sues For $1.6 Billion For Unpaid Songwriter Royalties
LOS ANGELES - A music publishing firm on Dec. 29 sued Spotify USA Inc. for $1.6 billion in California federal court, asserting that the online music-streaming provider has failed to obtain proper licenses to cover royalties to songwriters who hold the copyrights in the compositions for songs that Spotify users have streamed billions of times (Wixen Music Publishing Inc. v. Spotify USA Inc., No. 2:17-cv-09288, C.D. Calif.).

News Service Asks High Court To Decide If Copyright Suit Requires Registration
WASHINGTON, D.C. - A news content provider argues in a Dec. 13 brief that a copyright infringement suit may be filed for an unregistered work if a copyright application has been filed for the work, asking the U.S. Supreme Court to resolve a circuit split on the matter (Fourth Estate Public Benefit Corp. v. LLC, et al., No. 17-571, U.S. Sup.).

Photographer, Publisher Debate Copyright Pleadings Standard In 2nd Circuit
NEW YORK - With a Feb. 2 oral argument date approaching, the Second Circuit U.S. Court of Appeals has been fully briefed by a photographer who alleges that a license to use his copyrighted pictures was exceeded and a publisher that says the infringement claim against it was properly dismissed for failure to plead with specificity (Michael Yamashita, et al. v. Scholastic Inc., No. 17-1957, 2nd Cir.).

Criminal Copyright Infringement As A RICO Predicate Act: The Makings Of A District Court Split
By Scott P. Ceresia I. Criminal Copyright Infringement and Civil RICO The impact of a party in a civil litigation asserting a claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO") can hardly be overstated. Courts warn that the mere assertion of a RICO claim, with its quasi-criminal character and onerous treble damages, "has an almost inevitable stigmatizing effect on those named as defendants,"1 and have even likened such claims to "the litigation equivalent of a thermonuclear device."2