babyThe cherubic little fellow pictured on the right is at the center of a closely-watched case involving the “takedown” provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). His mom, Stephanie Lenz, posted a 30-second YouTube video of the tike “dancing” to Prince’s “Let’s Go Crazy,” which can be heard playing in the background. Universal Music, Prince’s publisher, notified YouTube that it had a “good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law” (magic language required by the DMCA) and demanded that the video be removed.  (Fisher-Price, apparently, had no objection to the product placement.)

Ms. Lenz did not take the matter lying down. Although the DMCA takedown provision is designed to protect  third-party internet content services like YouTube from liability for hosting infringing content, it also gives the users of the service who post material subject to a takedown notice certain rights, including the right to demand reinstatement and a cause of action for damages against the copyright owner for “knowingly materially misrepresenting . . . that material or activity is infringing.” Ms. Lenz demanded that the video be “put back” and sued Universal for damages on the ground that it had not, before demanding takedown, considered whether the video was protected under the doctrine of fair use.

Last week, in Lenz v. Universal Music, the Ninth Circuit handed Lenz an important—albeit provisional—victory, holding that a copyright owner is indeed required under the “good faith belief” standard to consider fair use before making a takedown demand.

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A little over two years ago we noted the filing of Good Morning to You Productions v. Warner/Chappell Music, a class action law suit which seeks a declaratory judgment that Warner’s putative copyright on the ubiquitous ditty “Happy Birthday to You” is invalid, along with the refund of millions of dollars in licensing fees collected by Warner over the past several years. Now, on the very week when we learned that convicted spy Jonathan Pollard will be set free after serving 30 years of a life sentence, there are developments in the “Happy Birthday to You” case that may lead to its release into the public domain long before the expiration of Warner’s copyright in 2030.

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When  last we checked in on Sir Arthur Conan Doyle’s posthumous intellectual property enforcement activities (“Conan Doyle Estate  Down for the Count“), his estate’s attempt to enjoin publication of a collection of original Sherlock Holmes stories, A Study in Sherlock, was rejected in an opinion written by Seventh Circuit Judge Richard Posner. In that case Doyle’s literary heirs argued that although only the final 10 Sherlock Holmes stories (first published after 1922) remain under copyright, while the remainder of the canon is in the public domain, any secondary work using characters and story elements that were not fully “rounded out” until those final installments–most notably Holmes and Dr. Watson–infringed the still-extant copyrights.

Judge Posner, however, ruled that the copyrights on the final 10 stories protected only those literary elements that were “original” to those stories, for example, Holmes’s late-life change of attitude toward dogs. Using the road map Judge Posner provided, the Conan Doyle Estate has now filed a complaint against Miramax Films seeking to enjoin release of its forthcoming film, Mr. Holmes, which allegedly uses story elements that were first introduced in the Conan Doyle stories that remain under copyright.

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Actress Cindy Lee Garcia unknowingly played a role in the allegedly blasphemous InnoceCindy-Lee-Garcia_Innocence-of-Muslimsnce of Muslims trailer that appeared on You Tube in the Summer of 2012, sparking violent unrest in parts of the Islamic world. A five-second, two-line performance that Garcia gave for a film entitled Desert Warrior (“Is George crazy? Our daughter is but a child?”) found its way into the Innocence of Muslims trailer with a different question over-dubbed by another actress: “Is your Mohammed a child molester?” A fatwa issued against everyone involved in the trailer, and Garcia received numerous death threats.

Garcia sued to have You Tube take down the trailer. For reasons that are unclear to me, out of the many legal theories that may have been available to them, Garcia’s lawyers chose to proceed on the grounds that You Tube was infringing a copyright that their client held in her Desert Warrior cameo. Under Section 102(a) of the Copyright Act, a copyright “subsists in original works of authorship fixed in any tangible medium of expression.”  Does Garcia’s five-second filmed performance meet this standard? Today the federal Court of Appeals for the Ninth Circuit ruled that it does not.  More about the spirited debate between the majority and the dissent after the jump.

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The jury has spoken in the Robin Thicke “Blurred Lines” copyright infringement case, finding that the song infringes the copyright on Marvin Gaye’s 1977 “Got to Give it Up” and awarding the Gaye estate  over 7 million dollars in damages. The case has been framed by music industry talking heads and the press as one which deals with the line between “plagiarism” and “homage.” It is true that this case, like most intellectual property cases that go to trial, is about blurry lines and whether they have been crossed, but neither “plagiarism” nor “homage” is a concept that has any legal significance.

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bgtankHere is a marketing conundrum. How do you brand a $575,000 specialty vehicle, built on a Ford truck chassis, that is designed to look like a tank? If you answered “Name it after General George S. Patton” give yourself a 21-gun salute. But here’s the rub—in one of the most astute tactical moves of his storied military career, Patton died in the State in the California which, as we have seen before, is especially solicitous of the eternal publicity rights of anyone who ever died on its soil. In a lawsuit filed the federal court in Los Angeles, the heirs and assigns of “Old Blood & Guts” have brought this heavy artillery to bear on U.S. Specialty Vehicles.

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floLast year the corporate alter ego of former Turtles frontmen Howard Kaylan and Mark Volman—Flo & Eddie, Inc.—filed a class action lawsuit against Sirius XM. Their claim is that pre-1972 sound recordings, such as the Turtles’s classics “Happy Together” and “Eleanore,” which have no federal copyright protection, are nonetheless protected against unauthorized use under California state law. In a post that included our attempt to summarize the byzantine labyrinth that is music copyright law, we noted the “ambitiousness” of the claim and predicted that the case could have “broad ramifications.” If a decision handed down in the their case this week (and see 11/17/14 update below the fold) holds up on appeal, that post will merit a spot in the pantheon of gross understatement.

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sconnieA recurring theme in our posts under the “Fair Use” tag has been the rise of “transformative use” as a litmus test that not only supplements, but often virtually supplants, the  four statutory fair use factors—the purpose and character of the secondary use, the nature of the original work, the amount of the original used, and the effect on the potential market for the original. This trend reached its apogee, at least for now, with the Second Circuit’s ruling in Cariou v. Prince, discussed here and here. Judge Frank Easterbrook of the Seventh Circuit has taken note of this trend, and in his ruling yesterday in Kienitz v. Sconnie Nationa case involving not appropriation art but the politically motivated t-shirt pictured herehe took a moment to register, in a somewhat gratuitous aside, his disapproval.

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We will likely never know whether a monkey, put in a room with typewriter and given sufficient time, will actually type out Hamlet, but we do know now that a monkey given a camera can take a pretty good selfie. Wildlife photographer David Slater found this out when, during a shoot in Indonesia, a crested black macaque stole his camera and, apparently among other random exposures, captured a winning likeness of himself. The photo is now the subject of a copyright dispute between Slater, who claims ownership of the copyright, and Wikimedia Commons, which believes it belongs in the public domain. Out of respect for Slater’s claim, which I do not find frivolous, I will not reproduce the selfie, but you have got to check it out here. It really should put to rest any doubts about the theory of evolution.

Press accounts suggest that Slater is arguing that he owns the copyright because it was his camera, and Wikimedia is arguing that because the photo was taken by a non-human, there can be no “author.”  I suspect the actual arguments are more nuanced, because both of these positions seem like misfires to me, at least under U.S. copyright law.

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A few weeks ago, in writing about the Supreme Court’s ruling in Petrella v. MGM, in a post entitled “The Breyer Ascendancy Deferred,” I hazarded a fearless prediction:

I am wagering that Justice Breyer will, despite this setback, be voting with and perhaps writing for the majorities in the two most important IP cases coming down over the next six weeks, American Broadcasting v. Aereo and  Alice Corp. v. CLS Bank.

Even a broken clock is right twice a day. Justice Breyer did indeed vote with the majority in Alice Corp. last week, and now he has written for the six-justice majority in Aereo. Surprisingly to me though, Breyer, the leading intellectual property skeptic on the Supreme Court, has written an opinion that strikes down Aereo’s business model as directly infringing TV broadcasters’ exclusive right of public performance on the basis of what I think is a rather tendentious reading of the Copyright Act.

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