JLA Beat is a regularly-updated online resource written entirely by the Journal’s editorial staff. Launched in 2015, the Beat features recent legal developments in the topics discussed in our print edition and beyond, including the art, entertainment, sports, intellectual property, and communications industries.
Texts published in the JLA beat are subject to the Journal's CC-BY 4.0 license.
It turns out that most recipes are not eligible for copyright protections under Publications Int'l, Ltd. v. Meredith Corp, nor are most dishes eligible as “food sculptures” under Kim Seng Co. v. J & A Importers, Inc. From Eric Ripert’s signature White Tuna-Japanese Wagyu (of Le Benardin fame) to your mother’s homemade kimchi-jjigae, suffused with salinity and peppery maternal affection, case law has ruled these undeserving of copyright protections. Poor mom—I know—but don’t let all that noise distract you from focusing on the real victims here: teppanyaki and sushi chefs. Their craft of producing food and performances is surely most worthy of creative protection, yet copyright law has no remedy for them. However, lucky for all the IP protection-deprived sushi chefs and teppanyaki grillers of this great nation, I might have discovered a workaround for finding the protections they never knew they needed: choreography copyright.
The Marvel Cinematic Universe. A universe that we have all come to love and enjoy. A universe currently made up of 23 captivating movies, each adding more and more to the storyline of beloved superheroes like Iron Man, Captain America, Black Panther, and more. However, the creation of this wonderfully coherent superhero story has not been without complications. I am sure that many who have seen these movies would agree with me in saying that one of the most impressive facets of these films is their cohesion and how every action or detail in one of the many movies seems to have some kind of consequence or significance in another one of the 23 movies. Each plot line and detail feels so intentional. Yet, one unintentional conflict that the Marvel Cinematic Universe (MCU) did encounter was the rights for Spider-Man.
Of recent note to fans of sports, art, and video games is the saga of controversy regarding the increasingly realistic depictions of players’ tattoos in video games such as the NBA 2K and Madden franchises. Several suits have been filed and settled regarding NFL players in the Madden franchise and UFC fighters depicted in the UFC franchise, to the point where for several years Electronic Arts intentionally avoided inclusion of player tattoos, even as graphical capabilities were increasing. Ironically, the one NFL player whose tattoos were depicted in Madden 15 (released in 2014) was Collin Kaepernick, who obtained permission from his artists. 2K Entertainment, on the other hand, has been going to painstaking lengths to ensure the tattoos they depict on certain players are as realistic as possible since 2013. So, what’s the law and what should it be?
On September 30, 2019, California Governor Gavin Newson officially signed the Fair Pay to Play Act, which prohibits California colleges from preventing student-athletes from profiting from their “name, image or likeness.”This is a landmark moment in collegiate athletics. Current NCAA regulations prohibit student-athletes from receiving such compensation. While the Act does not come into effect until 2023, this historic event occurs in the middle of a national debate—is the NCAA’s current policy against student-athlete compensation unfair to the student-athletes who contribute so much value to their respective schools and the NCAA?
Facebook and YouTube announced last week that they would not take down politicians’ posts that violate their community standards, in anticipation of the upcoming 2020 elections. Facebook stated, and YouTube echoed, it will only remove candidate’s posts when the company determines the content has the potential to incite violence or poses a safety risk outweighing its public interest value. Twitter, however, has announced its intention to flag and de-emphasize tweets from politicians that break its content rules. What should we make of this self-regulation?
As professional photographers and influencers flocked to the Vessel in Hudson yards this March, they realized something strange written on the Vessel’s website: the Vessel would own all their carefully planned-out Instagrams. The Vessel is New York’s latest soon-to-be-landmark, featuring 154 intricately interconnecting flights of stairs, comprised of almost 2,500 individual steps.
Implementing the Music Modernization Act: Special Considerations for Promulgating Rules on Pre-1972 Ethnographic Sound Recordings
The purpose of the blog post is to summarize the recent administrative actions involving the U.S. Copyright’s implementation of the 2018 Music Modernization Act’s provisions for pre-1972 sound recordings. In addition, it is the goal of this post to facilitate understanding of the Act’s implications for Native Americans.
On January 17, 2019, France announced that it was creating a task force for the restitution of Nazi looted artworks in compliance with the EU Parliament Resolution to Identify and Recover Looted Art. The country’s president, Emmanuel Macron, has also commissioned a study aimed to repatriate artworks stolen years ago from France’s former colonies. Neither of these recent developments is particularly surprising; today, the principle of restitution of stolen, illegally traded, imported or exported art has been codified in many international law treaties to the point of becoming a principle of customary international law (Barakat case).
Perhaps too often in sports we focus on best of the best. Viewership skyrockets during playoffs and finals as consumers want to see someone win something tangible. But what about the worst teams? What about the 0-16 Cleveland Browns (2017), the 119-loss Detroit Tigers (2003), or the 2014-2015 Philadelphia 76ers squad that was being compared to the college basketball Kentucky Wildcats? At best, after a certain point in the season where their historically dreadful fate was sealed, these terrible teams simply provided something for fans to laugh at, and public attention shifts towards the teams competing for a championship. To quote Reese Bobby, father of the great Ricky Bobby, “if you ain’t first, you’re last”, and that is certainly the sentiment that best encapsulates American sports culture.
Anyone familiar with Harper Lee’s To Kill a Mockingbird knows the plot is centered on legal drama. Currently, there is a stage adaptation of the novel telling the same legal story of the trial of Tom Robinson. While the play is centered on the trial, the play is also surrounded by its own legal issues. Before production began, the Harper Lee estate sued the screenwriter of the play, Aaron Sorkin. More recently, the producer of the Broadway production has shut down a UK and Ireland tour of To Kill a Mockingbird and threatened suit to small community theater productions.
Brandon A. Zamudio
In some respects, imitation can be the sincerest form of flattery. But among songwriters, imitation can also be the surest route to a lawsuit. One of the most prominent music copyright cases today has ensnared pop star Miley Cyrus.
“You have been warned,” an International Foundation for Art Research (IFAR) article exposing a recently-identified Jackson Pollock forgery concludes. But haven’t we already?
Watching the TV show The Good Wife is actually a pretty effective way to learn some criminal law. Although it definitely presents a simplified version, a compelling drama making concepts manifest as “real world” situations can help people understand on a deeper level than any classroom could.
“Andy Warhol—From A to B And Back Again” opened at The Whitney Museum of American Art on November 12, 2018. The retrospective exhibit includes 350 works that span three floors of the museum. The exhibition, which is considerably larger than the typical feature at The Whitney, has been a rousing success. It’s gotten rave reviews in The New York Times and The New Yorker and has become one of The Whitney’s most well-attended exhibits of all time.
As the rumor mill continues to buzz around Major League Baseball’s off-season deals, one name persistently comes up: Bryce Harper. Even before the Washington Nationals’ 2018 season ended, Harper’s name splashed headlines that speculated on where he would be playing next and for how much. But now it is February and Harper remains unsigned. Whether the absence of a deal so far is due to clubs’ desire to appear uninterested, complications with a potential salary bubble, informal collusion among the clubs, or Harper’s indecision is any outsider’s guess. Harper’s cryptic tweet on February 3, 2019 that simply said “Loading…” restarted the sports media speculation that a deal is imminent. With spring training just around the corner, exasperated baseball fans will likely have a Harper decision soon.
Taken together, the documentary RBG that came out last summer and the biopic On the Basis of Sex which was released this winter further cemented Supreme Court Justice Ruth Bader Ginsburg’s status as a pop culture icon. In an interview on the podcast Amicus with Dahlia Lithwick, Daniel Stiepleman, the screenwriter of the latter and Ginsburg’s nephew, commented on the odd phenomenon of strangers wanting to take pictures with his 85-year-old “bubby.”
The 3D reconstruction of the city of Palmyra, a digitized copy of the Brazil national museum, new media art products, Google Cultural Institute’s collection and Object IDs have something in common: they are all “cultural data.” More than 2 billion people in the world create “digital culture” by simply sharing photos, videos, and links or writing posts, articles, and comments. At the same time, analog culture is taking to the cybersphere, from the Gutenberg Project, the first project to digitize books and archives, to the latest EU online cultural platform, Europeana, which counts 2,165,191 digitized works. The digitization of cultural heritage of the last 20 years has opened the doors to innovative conservation processes allowing the study of the past through the use of computational methods already used for big data.
Indulge me, for a moment, in a thought experiment based on a famous thought experiment:
You may, through your various literary or philosophical exploits (or perhaps, a dalliance with the work of Douglas Adams), have come across something known as the Infinite Monkey Theorem. There are all sorts of mathematical proofs and statistics and theories of probability accompanying the Theorem, but the core of the idea is really quite simple: an infinite number of monkeys randomly hitting keys on typewriters over an infinite amount of time will eventually produce the complete works of William Shakespeare.
The context may differ, but the joke is always the same: there are too many lawyers, and what are they good for, anyway? After all, lawyers are nothing more than ambulance chasers and sharks and defenders of multi-billion-dollar corporations…right?
David A. Fischer
On November 7, the day after the midterm elections, the President held a press conference. In an average administration, that statement could evince a real snoozer. The press conference could yield a few interesting tidbits, but it would more likely be filled with carefully-calibrated, spin-doctored gobbledygook that would attract the considered attention of self-described “politics junkies.” As anyone who has passed the proverbial electronics store window filled with blaring televisions (a ubiquitous experience centered around momentous occasions, if you believe most action films) could tell you, this is not a normal time.
It almost doesn’t bear repeating that Fall 2018 has been an exciting yet stressful time for many of us. We’re law students, so this will partly be related to school, as clubs, journals, clinics, and classes fill out much of our schedules. But there’s also that other Thing. The Thing that may not take up as much time as a hundred pages of casebook reading, but that’s a source of continual, intangible stress about the direction of the country. Sure, much about the 2018 midterms excited me, but the aftershock of the last election and the sheer relentlessness of the last two years had dovetailed together. My fall was hectic enough, and Nate Silver’s projections weren’t enough to soothe moments of politically induced anxiety.
Halloween is here, and it’s one of our favorite holidays at JLA. So, in order to celebrate we thought we’d take you back to where it all began, and tell the fascinating story of…The Legal History of Halloween.
In the current digital age, the way we create and consume content is quickly changing, so much so that the law at times has a hard time keeping up. Recent developments have helped to bring some more balance between the service providers and the artists, but there is still much work to be done. The Music Modernization Act (the “MMA”) is a big step in the right direction, but even within this Act there is room to provide more protection and fair compensation to the artist.
Stravinsky is perhaps classical music’s most celebrated stylistic chameleon. Whether it be revolutionary modernism in The Rite of Spring, sweeping romanticism in The Firebird, or sparkling neo-classicism in The Rake’s Progress, every genre Stravinsky touched, he mastered. It is in his smaller works, however, where Stravinsky demonstrates a subtler, but equally virtuosic, ability to exploit the beauty in the interstices between styles. In no piece is this more on display than in The Soldier’s Tale, a part-play, part-ballet, part-instrumental suite celebrating its centennial this year.
“Capturing the Flag” is an enlightening and inspiring new documentary from Emmy Award-winning filmmaker Anne de Mare that illustrates some of the ways in which voter suppression occurs in America and how the efforts of ordinary citizens can make a difference in ensuring that people are able to vote.
“Bonjour! I’m x66x. All you need to know about me is I hate macaroni casserole with a passion. I’m on a new diet that consists of salad and sausage links,” reads my kitten’s profile. Fortunately for “x66x”, it inherited its likeness from one of its androgynous parents “10”, from whom it inherited its love for sausage links. I refer to my adorable kitten as “it” to avoid being gender normative, because just like its parents, “x66x” is neither male nor female; it is simply a Gen 2 kitten with sleek, beautiful “sphynx” fur.
It occurred to me earlier this semester, when a professor put on “Cabinet Battle #1” to school us on the beginnings of the federal tax system, that Hamilton must have been the best thing ever to happen to legal scholars. As an unabashed fan of the musical, I get it — but alongside the seemingly ageless Schoolhouse Rock, Hamilton’s had to do a lot of heavy lifting as our go-to device for zazzing up American legal history with a song.
At age 85, Justice Ruth Bader Ginsburg is ready for her closeup. It’s probably safe to say that never in history has a sitting member of the Supreme Court become so ingrained in the popular zeitgeist.
[Note: This review contains heavy spoilers for the Netflix original film Candy Jar.]
I’ve often mused that Columbia Law School feels more like high school than college. We have lockers; there’s an annual basketball game in a gym with a pep band; we go to Law Prom each March; there are few enough people that there are no secrets; and, at least during 1L year, the pressure to succeed can wreak havoc on even the most resilient psyche.
On April 5, a New York State Supreme Court judge dismissed an art dealer’s lawsuit against authenticators of the works of the abstract painter Agnes Martin, rejecting claims that the defendants’ authentication decisions intentionally sought to cause the dealer harm.
It’s fair to say that Steven Spielberg’s The Post, starring Meryl Streep as Katharine Graham alongside an all-star cast, was well-received this awards season. The movie received a string of nominations for various awards including the Academy Awards and the Golden Globe Awards. Set in the early 1970s, the film tells the true story of the journalistic struggle between The New York Times and The Washington Post to publish the Pentagon Papers, a lengthy series of classified documents detailing the United States government’s involvement in the Vietnam War.
On April 3, United States District Judge Alvin K. Hellerstein of the Southern District of New York denied summary judgment moved for by the creators of the Broadway musical Anastasia. This is the most recent step toward trial in this copyright dispute over the musical, which is based on the rumored life of Anastasia, daughter of Russian Tsar Nicholas II.
Fireworks, barbecue, red, white, blue, stars, stripes – many things have long been emblematic of the Fourth of July; for basketball fans everywhere, however, Kevin Durant’s decision to join the Golden State Warriors in free agency, penned in a now infamous article for The Players’ Tribune entitled My Next Chapter on July 4, 2016, is perhaps equally characteristic of the date. His decision shocked the conscious of the sports world, sending ripples across every form of media one could think of for months, years even, to come.
In the immensely successful 2018 documentary film, Black Panther, the world received a surprisingly candid and close look at the country of Wakanda. The film follows the newly-crowned king, T’Challa, as he rises to power and struggles to solidify his hold on the throne. Soon after T’Challa’s coronation, a U.S. citizen named Erik Stevens arrives in Wakanda, reveals that he is actually the son of N’Jobu, brother of the late King T’Chaka, and challenges T’Challa to ritual combat for the throne. After Mr. Stevens appeared to win the challenge and was crowned king, T’Challa eventually returns to continue the challenge and seemingly secures the crown upon Mr. Stevens’s death. Because we possess such little knowledge of the laws of Wakanda,it is unclear how much of the final challenge is legal process and how much of it is simply a military coup. Scenes from the movie provide clues as to the overall process of succession, how one could accede the throne, and how such ascension may be threatened.
On my first night home for spring break I was hanging out with my siblings and one of them brought out a game I hadn’t played before called, “What Do You Meme?” Seeking to combine the gameplay of the popular party game “Card’s Against Humanity,” with the Internet sensation of memes, “What Do You Meme?” is a game created by Elliot Tebele, better known by his Instagram handle @FuckJerry. The game is very simple. There are two kinds of cards: picture cards, which include pictures associated with a popular meme, and caption cards, which include actual captions that Tebele has posted on his famous Instagram account. For each round, one of the players serves as the judge and chooses a picture card. The rest of the players then submit whichever of the caption cards in their hands that they think the judge will find the funniest in relation to the picture.
In the aftermath of at least 80 sexual harassment claims against its co-founder and former co-Chairman, the Weinstein Co. (“TWC”) filed for Chapter 11 bankruptcy on March 19 and intends to sell the assets of its production studio.
On March 21, a split panel for the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict finding that 2013 chart-topper “Blurred Lines” infringed the copyright in Marvin Gaye’s 1977 classic song “Got to Give It Up.” The panel decided the case, Williams v. Gaye, on relatively narrow procedural grounds, but Judge Jacqueline H. Nguyen warned in her dissent that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”
Much to the disappointment of many in the sports and wagering industries, the Supreme Court failed to issue a decision regarding New Jersey’s appeal of the Professional and Amateur Sports Protection Act (PASPA) this month. Passed in 1992, PASPA bans sports gambling in the United States by prohibiting state governmental entities from sponsoring, advertising, operating, promoting, licensing or authorizing any betting, gambling, or wagering scheme based on amateur or professional athletic events. However, the Act includes exceptions for Nevada, Delaware, Montana and Oregon, which already had legal sports wagering at the time the Act was passed and are therefore grandfathered in. A ruling in the case at issue, Murphy, et al. v. NCAA, could effectively open the doors to legalized sports gambling in the United States.
Through seven seasons of flirting with and often crossing the line when it comes to office antics, Michael Scott is remembered by many as one of the most complex, flawed and in the end lovable characters in television history. His 152 episodes as Regional Manager of Dunder Mifflin Scranton brought us not only some of the best sitcom television of all time, but also a series of potential liabilities long enough to keep a team of in-house counsel occupied for years.
The Oscar nominated film that has critics buzzing, The Shape of Water, made headlines last month for another reason. On February 21, the estate of Pulitzer Prize-winning playwright Paul Zindel filed a copyright infringement lawsuit in the United States District Court for the Central District against Fox Searchlight, Guillermo del Toro, and others associated with the film. The Zindel estate argues that The Shape of Water, a fantasy/science fiction love story that was nominated for 13 Oscars, is a “rip-off” of a 1969 play by Zindel called Let Me Hear You Whisper.
On February 15, 2018, the Southern District of New York handed down a ruling in Goldman v. Breitbart finding that a webpage publisher who embeds a tweet containing a copyrighted photo is “displaying” the photo within the meaning of the Copyright Act and, in the absence of authorization, is violating the owner’s exclusive display rights. If allowed to stand, this ruling could dramatically increase publishers’ liability for the widespread practice of embedding tweets.
In The Square, winner of 2017’s Palme D’or at Cannes, director Ruben Östlund skewers the contemporary art world in a sprawling satire that assaults the conscience (or lack thereof) of the cultural elite. This elite naturally includes much of the film’s audience, from those who cheered the film on at the Cannes Film Festival where it first made its mark, to US audiences who watch the Swedish-language film as a result of its notoriety and, more recently, its nomination for best foreign film in the 2018 Academy Awards.
On January 16, 2018, members of the Berkshire Museum appealed the Berkshire Superior Court’s dismissal of their request to enjoin the museum’s proposed sale (deaccession) of 40 works of art. The museum’s members liken their position to shareholders of a for-profit corporation and argue that they have standing to sue the museum for an action violates the museum’s governing charter.
On January 10, 2018, Netflix and Amazon joined with several major Hollywood studios, including Columbia Pictures, Disney, Paramount, 20th Century, Universal Pictures, and Warner Bros, to file suit against Dragon Media for allegedly inducing and facilitating copyright infringement through their streaming device, the Dragon Box.
Long before I knew anything about personal jurisdiction or mens rea, I played video games. It has always been, as they say, “my thing.” We did not have much in the trailer I grew up in, but the Sega Genesis that sat on our entertainment center the day I was brought home from the hospital ensured I would at least be exposed to the world of gaming.
Investigators seized looted antiquities from the home of hedge fund manager and philanthropist Michael Steinhardt in early January. Having collected antiquities for three decades, Steinhardt is considered “one of the most prolific American buyers of ancient art.” He is a dedicated supporter of the Metropolitan Museum of Art, which named one of its Greek art galleries the Judy and Michael H. Steinhardt Gallery. In this seizure, at least nine items were taken from his private collection, including a terra-cotta flask from the fourth century B.C. and Proto-Corinthian figures from the seventh century B.C. According to the search warrants, these pieces were purchased within the last 12 years for a total cost of $1.1 million and there is a possible charge of possession of stolen property.
Spotify, a digital music streaming and downloading service, faces another copyright infringement allegation in a series of lawsuits brought by music publishers and songwriters. On December 29th, 2017, Wixen Music Publishing, Inc., an independent music publisher formed in 1978, filed a complaint in California federal court, alleging that Spotify willfully infringed the copyrights of a list of musical compositions. Wixen identified approximately 10,784 musical compositions and seeks a total statutory award of at least $1.6 billion.
In late November this past year, the Supreme Court heard oral argument in Oil States Energy Services v. Greene’s Energy Group, a case whose outcome may affect both the core of the patent system and the administrative state, writ large. The Court granted certiorari to answer the following question: “May the Patent Trial and Appeal Board (the “Board”), an administrative law body, extinguish patent rights in an inter parties review proceeding, or is the patent owner entitled to a jury trial before an Article III court?” The petitioner-patent owner, Oil States, argues that the system of inter parties review by the Board violates Article III of the Constitution by vesting the authority to adjudicate claims involving private rights in a non-Article III court. On the other hand, Greene’s Energy argues that administrative scheme is perfectly constitutional, as the adjudication of patent rights in front the Board is an example of a “paradigmatic public right.”
On November 30, the Walt Disney Company filed a lawsuit against Redbox, alleging that Redbox has been illegally selling digital download codes for Disney, Lucasfilm, and Marvel films. Disney’s complaint lists claims of copyright infringement, breach of contract, tortious interference with contract, false advertising, and unfair competition. It is seeking an injunction to prevent Redbox from selling the codes, profits from sales, and damages of up to $150,000 per title.
The New Zealand High Court rendered a decision in favor of Eminem’s publishing company, Eight Mile Style, LLC, on October 25, 2017, holding that New Zealand’s National Party committed copyright infringement when they used a tune similar to Eminem’s “Lose Yourself” in a campaign advertisement. Finding substantial similarities between the music in the ad and the original song, the High Court awarded $415,000 in damages to Eight Mile Style.
In a bid to jump on the recent popularity of the true crime genre and to revive the now-languishing Law & Order franchise, NBC launched Law & Order True Crime: The Menendez Murders this September. Following in the footsteps of last year’s The People v. O.J. Simpson: American Crime Story, Law & Order True Crime chose an infamous 90’s murder story for its debut season. While its premise and branding scheme are similar to The People v. O.J. Simpson (whose title is also a callback to another successful franchise: creator Ryan Murphy’s other FX series American Horror Story), Law & Order True Crime stumbles more than its contemporary to tell a compelling story and fails to stand out in the already-crowded prestige drama genre.
Is graffiti protected by law? Earlier this November, a Brooklyn jury in the Eastern District of New York answered in the affirmative, and found that real estate developer Jerry Wolkoff violated the Visual Artists Rights Act of 1990 (VARA) when he demolished the well-known New York City “graffiti mecca,” 5Pointz.
On October 12, 2017, the Computer and Communications Industry Association (CCIA) filed a brief as amicus curiae in a trademark and copyright infringement case, American Chemical Society v. Sci-Hub. Sci-Hub is a website that hosts research papers and make them available for free, and ACS holds the copyright to some of the research papers available on Sci-Hub. ACS filed the case on June 23, 2017, seeking damages to the effect of $4.8 million and relief against the Defendant “and all those in active concert or participation with them.” According to Magistrate Anderson, “those in active concert and participation” include search engines, domain name registries and Internet Service Providers (ISPs). ACS also moved for default judgment against Sci-Hub because despite service through various publications and social media, Sci-Hub has chosen not to appear in Court.
Kyle Tuckman, Warren Loegering
Marshall, starring Chadwick Boseman as Thurgood Marshall, is an incredible film about one of the first cases taken on by Thurgood Marshall in 1941. The movie captures the early years of Marshall’s career as one of the first attorneys for the National Association for the Advancement of Colored People (NAACP). Writers Michael and Jacob Koskoff and Director Reginald Hudlin highlight how Thurgood Marshall’s illustrious legal career is even more impressive than one might realize due to the severe racist and anti-Semitic climate that impeded his ability to litigate effectively.
Lawyers from the Department of Justice have moved for summary judgment in a lawsuit brought by critics who were blocked by President Trump on Twitter. In its motion filed October 13th, the DOJ claims that the President’s personal account is not a public forum for First Amendment purposes. The lawsuit, brought last July by the Knight First Amendment Institute at Columbia and seven individual Twitter users, claims that blocking the users from following President Trump’s account constitutes a viewpoint-based restriction on their participation in a public forum.
Fashion retail giant Forever 21 is being accused again of copying, this time by Word, a woman-owned branding agency based in Los Angeles. Word claims that Forever 21 copied their “Creator Shirt,” which features the word “woman” written in nine different languages.
Since Word posted about the similar design on Instagram, Forever 21 has taken down the shirt and released a statement that the product, bought from a third party source, did not have trademark or IP protections at the time of purchase. While no legal action by Word seems to be impending this time, Forever 21 has been facing other legal turmoil involving intellectual property rights.
In an opinion filed on September 15, 2017, Judge Alvin K. Hellerstein of the Southern District of New York held that a comedic play parodying Dr. Seuss’ “How the Grinch Stole Christmas!” qualifies as fair use.
New Bill Might Politicize US Copyright Office: Register Of Copyrights to be a Presidential Appointee
With a search for the next Register of Copyrights currently underway, a bill introduced in Congress on March 23, 2017, would let President Donald Trump make that appointment, rather than Librarian of Congress Carla Hayden.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.) introduced the “Register of Copyrights Selection and Accountability Act of 2017” (H.R. 1695), which would give the President the power to appoint the Register of Copyrights for a 10-year, renewable term, subject to Senate confirmation. The President would also have the power to fire the Register at any time. Currently the Register of Copyrights is appointed by, and serves at the sole discretion of, the Librarian of Congress, who oversees the Copyright Office.
The Ninth Circuit is allowing a lawsuit over trademarks on the jewelry color term “red gold” to continue after rejecting the lower court’s grant of summary judgment.
China has greenlit 38 Trump trademarks that contain English and Chinese variations on the name “Donald Trump.” Although China stated that it followed the law in processing the applications, some experts in the United States and beyond view the pace as “unusually quick,” and raised fears of political leveraging.
On Monday, March 6, attorney John Steele pled guilty to multiple conspiracy charges for his role in a massive scheme in which he and his partners used fraudulent copyright infringement settlements to extort money from pornography viewers.
The presence of “immigration clauses” in artist performance contracts for the Austin, Texas festival South by South West (SXSW) has prompted criticism and protests by the musicians scheduled to perform.
A decision last month by the European Court of Human Rights found that Spanish journalists infringed upon Mexican Singer Paulina Rubio’s privacy rights by publishing information about her private sex life, reversing a nearly decade-old decision by the Spain Supreme Court.
A New York judge has ruled that Anthony Defries, David Bowe’s former manager, is still responsible for paying the $9.5 million judgment against him from 2012.
Ex-ESPN tennis analyst Doug Adler is suing ESPN for wrongful termination after being fired for on-air comments about Venus Williams during the 2017 Australian Open.
The analyst sparked controversy when he described Williams as having a “gorilla” style of play. Adler, however, contends that he used the term “guerilla,” in reference to Williams’ aggressive playstyle.
Appropriation artist Richard Prince is involved in yet another dispute over his New Portrait series. As the JLA Beat previously reported, this series of paintings based on Instagram screenshots with Prince’s own comments has been subject to scrutiny for potential copyright infringement. The most recent controversy, however, involves moral rights.
ZeniMax Media LLC was recently awarded $500 million in its trade secret and copyright infringement case against Facebook Inc. stemming from Facebook’s purchase of Oculus.
ZeniMax had requested $2 billion in damages and $4 billion in additional punitive damages from its claims that Oculus improperly appropriated key pieces of software, before Facebook purchased the virtual reality company in 2014.
Recent large-scale transactions involving Big Data, like AT&T’s $85.4 billion merger deal with Time Warner – approved by Time Warner shareholders February 15 – and Microsoft’s roughly $26 billion acquisition of LinkedIn last year, have prompted worldwide concern amongst antitrust professionals. among some academics and policymakers.
Following years of bitter controversy and a string of lawsuits, a Florida judge recently allowed the reclusive Marvel CEO Isaac ‘Ike’ Perlmutter and his wife to move forward with a claim of conversion of their DNA. By allowing the case to move forward, the judge ostensibly allowed the question of whether DNA is to be considered ‘property’ for purposes of the lawsuit to proceed.
The controversial January 27 executive order from President Donald Trump banning travel from seven Muslim-Majority countries will likely intensify screening the social media accounts of foreign visitors traveling between those countries and the United States.
The Ninth Circuit, in an issue of first impression, last month dismissed a trademark infringement claim on the grounds that “media-shifting,” or ripping, in the karaoke industry does not concern a “relevant” material good protected by the Lanham Act.
A New York judge has denied a motion to dismiss a copyright infringement suit against a new Broadway musical adapted from the 1997 animated film “Anastasia.”
The heirs of playwright Marcelle Maurette sued playwright Terrence McNally in December over the planned musical, alleging that the show is plagiarized from Laurette’s 1952 play titled “Anastasia.” Maurette’s play, the 1997 film, and the Broadway show are each based upon the same historical story of Anastasia Romanov, daughter of Tsar Nicholas II.
On January 11, former pro wrestler Lenwood Hamilton brought suit in a Pennsylvania federal court against video game developer Epic Games, publisher Microsoft Studios, and former wrestler Lester Speight, for allegedly using his voice and likeness in the “Gears of War” video game series. Hamilton’s suit is the most recent in a series of long-running controversies regarding the use of celebrity likenesses in video games.
“Appropriation” artist Richard Prince, known for his controversial Instagram photo series, has been sued again on claims that he unlawfully reproduced a photographer’s copyrighted work.
The Second Circuit has reinstituted a jury verdict for nearly $50 million in the long-running litigation between MP3Tunes, the discontinued online music service, and a group of record companies. In a landmark ruling on October 25, the Circuit reversed the trial court’s determination that MP3Tunes was largely protected by a provision in the Digital Millennium Copyright Act (DMCA).
The artist who created the iconic logo for Los Pollos Hermanos, the fictional chicken restaurant on the popular AMC TV show “Breaking Bad,” is suing Sony Pictures for using the logo to sell merchandise without permission.
On October 27, 2016, the Federal Communications Commission (FCC) passed rules regarding increased data privacy for customers of broadband Internet Service Providers (ISPs). The FCC says that these rules intend to provide ISP consumers with more meaningful choices on how their data is used, while also improving their data security and pushing ISPs to be more transparent about how they use consumers’ data.
A July 2015 survey shows that 19 percent of Internet-using households reported that they had been affected by an online security breach, identity theft, or other malicious activity during the 12 months prior to the survey.
A federal case filed in September pits The Beatles’ Apple Corps LTD against The Beatles’ late promoter over the copyright ownership of concert footage from the band’s famous performance at Shea Stadium in 1965.
McArtist? Dash Snow Estate Defends Artist’s Legacy in Copyright Infringement Suit Against McDonald’s
Ongoing questions about the application of intellectual property protections to graffiti tags are set to be discussed by the Central District of California, after a graffiti artist’s estate sued McDonald’s for copyright infringement.
The lawsuit, filed October 3, 2016, centers around the alleged use of a tag by Dash Snow. Snow, who died in 2009 at the age of twenty-seven, was a controversial New York-based artist known for his graffiti, explicit photography, and adamant anti-commercialism. Among his known works was his tag, “SACE,” which Snow was known to spray-paint in bubble letters around New York City.
A British photographer has filed a copyright infringement suit against Donald Trump’s campaign in the Northern District of Illinois, after a controversial tweet from the son of the presidential candidate utilized his photograph.
David Kittos alleged that Trump’s campaign used his copyrighted photograph of a bowl of Skittles, without authorization, as part of a meme targeting Syrian refugees.
On September 29, following two years of litigation, a Manhattan federal jury handed down a $5.5 million verdict in damages against Costco Wholesale Corp., along with an additional $8.25 million in punitive damages, for infringing jeweler Tiffany & Co.’s registered trademark “Tiffany.”
Supreme Court to Hear Lanham Act Constitutionality Challenge, Granting Cert for THE SLANTS, but Denying for the Redskins
The Supreme Court will decide this term upon the constitutionality of the disparagement provision of the Lanham Trademark Act, after it granted certiorari last week in the case of Lee v. Tam.
The disparagement provision of the Lanham Act, 15 U.S.C.S. §1052(a), prevents the registration of “scandalous, immoral or disparaging” marks, specifically those that “a substantial composite of the referenced group” perceive as disparaging. Under §1052(a), the Patent and Trademark Office rejected musician Simon Shiao Tam’s application for trademark of his band’s name, THE SLANTS, on the ground that the name was racially pejorative. Tam argues that the denial of his trademark is a violation of his first amendment rights. The Court of Appeals for the Federal Circuit agreed, vacating the Trademark Trial and Appeal Board’s decision that “THE SLANTS” was unrecognizable under the Lanham Act. The Federal Circuit found that the law denies legal rights to trademark owners and the denial view is viewpoint-based, dependent on the opinions of the referenced group.
The Navajo Nation settled with Urban Outfitters on September 29, 2016, reaching an agreement resolving issues of trademark and false sponsorship caused by the retailer’s use of the name “Navajo” and “Navaho” in its goods. The case was heard in New Mexico federal court and had been for trial on January 3rd before the parties ultimately reached an agreement during a settlement conference. Financial details of the deal are not currently available, although both parties will issue a joint press release when the specifics have been resolved.
Scottish artist, Peter Doig, was recently accused of tortious interference for claiming that a work attributed to him was not in fact painted by him. Doig’s denial of ever having painted the work is the subject of a suit brought against him by Plaintiffs Robert Fletcher and Bartlow Gallery Ltd. Fletcher, the present owner of the work, claimed that Doig sold him the painting for $100 and that he watched Doig paint the piece when he was in jail. Fletcher filed the suit in 2013 after he attempted to auction off the painting as a work of Doig’s. For Fletcher, this is a serious matter—although Doig’s work usually sells for $10 million a piece, the painting in Fletcher’s hands is worthless without any authentication that it was painted by Doig.
The Associated Press, Vice Media LLC, and Gannett Co., the parent company of USA Today, sued the FBI on Friday to seek records of the FBI’s contract and transaction with a vendor who unlocked an iPhone in last year’s investigation of the San Bernardino shooting.
In their complaint, the plaintiff media organizations argue that the amount of public funds the FBI considered appropriate to allocate for the tool, and the identity and reputation of the vendor, are necessary for proper public oversight of the government. Furthermore, the plaintiffs assert that there is no legal basis for the FBI to withhold the information.
Texas Congressman Pulls Rabbit out of a Hat: Introduces Legislation to Recognize Magic as a National Treasure
On March 14th, Texas congressman Rep. Pete Sessions introduced a House resolution that, if passed, would officially recognize magic as “a rare and valuable art form and national treasure.” The proposed bill cites the impact of magic on both technology and broader arts & culture, and references famous American magicians Harry Houdini and David Copperfield.
On March 7, 2016, the United States Supreme Court declined to hear an appeal of the Ninth’s Circuit’s decision declaring replicas of the Batmobile an infringement of DC Comics’ intellectual property.
On February 12, the U.S. District Court for the District of Oregon enjoined Skechers from selling three styles of shoes until the court deals with Adidas’ trademark and trade dress infringement claims. Although Adidas has not registered their designs for trademark, the court found that their trade dress was sufficiently distinctive to be protectable. Skechers announced their intent to appeal the ruling “in order to ensure that our footwear designers retain the freedom to use common design elements that have long been in the public domain,” but the court was concerned with more than common design elements. Skechers appeared to intentionally be creating as association between their shoes and an iconic Adidas’ design.
As has been long expected, a California federal judge dismissed a copyright infringement suit brought on behalf of a monkey. Naruto the macaque swung into the spotlight in 2014 when he took a photo of himself using a camera that had been set up by British nature photographer David Slater. People for the Ethical Treatment of Animals (PETA) brought suit against Slater for publishing the photo in a book, claiming that Naruto was the rightful author of the photo, and copyright ownership belonged to the macaque.
Shortly after Twentieth Century Fox Television (“Fox”) debuted its hip-hop drama called Empire, a record label named Empire Distribution sent them letters claiming a trademark violation for the use of their name. Initially, Empire Distribution asked for one of two payment options to make the lawsuit go away- $8 million or $5 million compensation plus guest spots on the show. Further, Empire Distribution alleged that its reputation was being ruined by its association with the show, due to the show’s “portrayal of a label run by a homophobic drug dealer prone to murdering his friends.” In March 2015, the real legal battled began when Fox sued Empire Distribution in hopes of safeguarding its intellectual property rights related to Empire.
The question of the legality of Google Books, which has been in dispute for over a decade, may make its first appearance in the Supreme Court after plaintiffs petitioned for cert in December.
The Authors Guild, a national professional and advocacy organization for writers, challenges Google’s book-scanning project. With Google Books, the internet conglomerate scanned millions of books, making “snippets” available for researchers to search through volumes. The Authors Guild argues that Google Books violates fair use.
On October 9, Judge Gardephe in the Southern District of New York ruled on motions for summary judgment in an action stemming from the infamous Knoedler forgery case. From 1994 until 2009, an independent dealer Glafira Rosales provided Knoedler Gallery – through Knoedler’s director of contemporary art Ann Freedman – with 32 forgeries of prominent modern artists. Among the fake works sold to now-disgruntled collectors were alleged “masterworks” by Pollock, Rothko, and Motherwell. The case has involved multiple lawsuits, three of which have settled to date.
Bikram Choudhury, a Hollywood yoga instructor, claimed that another yoga studio, Evolation Yoga, had infringed on his copyright to a sequence of yoga moves. Choudhury’s “hot yoga” classes were conducted in a room heated up to 105 degrees, and he had been charging a licensing fee and making specific requirements to those wishing to use his set of moves. In a decision on October 8th, the Unites States Court of Appeals for the Ninth Circuit affirmed the district court’s decision to grant Evolation’s motion for summary judgment, holding that Evolation had not infringed on Choudhury’s copyright because Choudhury had no valid copyright. Specifically, the Court categorized the yoga moves as an idea promoting health, not an expression. Thus, the Court held, the sequence of yoga moves was not entitled to copyright protection as a compilation or a choreographic work.
Google Books is an online service that allows users to search for specific words in over 20 million books and view short excerpts from those books without the author’s permission. The U.S. Court of Appeals for the Second Circuit held on October 16 that this search function is protected under the doctrine of fair use, affirming the 2013 district court decision in Authors Guild v. Google, Inc.
On November 5, the Obama Administration released the full text of the Trans-Pacific Partnership agreement to the public. This twelve-nation trade agreement has been under negotiation for years, with most of the specific provisions kept from the public eye. The completed deal now faces an uphill battle obtaining Congressional approval in the United States.
FS Drama: The Ongoing Assault on Daily Fantasy Sports by New York State Attorney General Eric Schneiderman
Daily Fantasy Sports (DFS) operators have been increasingly embroiled in challenges to the legality of their services over the past few months. Perhaps none of these challenges is more significant than the one levied by New York state Attorney General Eric Schneiderman, whose office has deemed DFS to be “plainly illegal”–“nothing more than a rebranding of sports betting.”
In a new app, users will be able to rate people, much like one would rate a restaurant, car, spa or hair salon. Peeple co-founder and CEO Julia Cordray described the original vision for the app as a safe place for people to manage their online reputation and easily investigate other people’s characters. The app was critically received upon its announcement in September 2015. Objections were made to the proposed five-star rating system, user inability to delete reviews, potential for bullying, and generally to the assignment of value in such a way to a person.
Register of Copyrights Maria Pallante has publicly sided with Pandora Media Inc. in an opinion stating that the Copyright Royalty Board (CRB) should hear Pandora’s argument regarding its lower royalty rate payments. Pallante stated that she agreed with the company that the CRB could set Pandora’s rates based on the company’s direct licensing deal with Merlin, a digital rights agency representing over 20,000 independent music labels and distributors.
After 80 years, Chief Judge George H. King of the Central District of California has effectively released the lyrics to the song “Happy Birthday to You” into the public domain. The case was brought by Rupa Marya, a leader of an alternative band who recorded their arrangement of “Happy Birthday to You” at an April 2013 live performance in San Francisco, CA. After its performance, the band was subsequently slapped with a $455 mechanical license fee for using the song. Defendant, Warner/Chappell Music, is a multinational music publisher that administers copyrights on behalf of major artists like Beyoncé and Eric Clapton.
On August 25th, 2015, New Jersey’s legislative attempt to permitsports betting failed in the 3rd Circuit. In a 2-1 decision, the 3rd Circuit found that the state law allowing sports betting at casinos and racetracks violated the federal Professional and Amateur Sports Protection Act of 1992 (PAPSA).
Earlier this year, the Federal Communications Commission (FCC) released its ruling for an Open Internet, which reclassified broadband providers as telecommunication services, as opposed to informational services. As a result, the FCC has broad authority to regulate and prevent broadband providers from blocking or degrading Internet traffic in order to prioritize other traffic. Following the ruling, the United States Telecom Association (USTelecom), an industry trade group representing telecommunications and broadband providers, responded by filing a lawsuit in the D.C. Circuit, in which it claims such rules are arbitrary and capricious.
In 2013, Fox News Network (“Fox News”) filed suit against TVEyes, Inc (“TVEyes”). TVEyes is a “media monitoring service” that records the content of more than 1,400 television and radio stations. For $500 a month, TVEyes subscribers have access to a searchable database containing such content. Subscribers can view transcripts, create keyword alerts, view and download high-definition video clips, and “live stream” television content.