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By the Book: Unauthorized Material Doesn’t Forfeit Training Guide’s Copyright Protection

The US Court of Appeals for the Sixth Circuit affirmed a jury verdict in favor of a copyright owner in a lawsuit alleging infringement of the copyright in a home-services training manual, finding that the jury was correctly instructed that a work’s incorporation of some copyrighted content does not invalidate the copyright in the work’s original parts. Hiller LLC v. Success Grp. Int’l Learning Alliance LLC, Case No. 19-6115 (6th Cir. Sept. 23, 2020) (Suhrheinrich, J.). Hiller is a home-services company providing HVAC services. Hiller was a paying member of Success Group International, which offered customer service training to home services companies. Success Group conducted training courses using manuals copyrighted by its owner, Clockwork Home Services. Hiller sent its employees to Success Group’s courses and had access to the manuals. Clockwork later sold Success Group to another company, but retained ownership of the copyrights in the manuals and granted...

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“Can’t Hold Us” Liable: Macklemore & Ryan Lewis Win Affirmance in Copyright Suit

The US Court of Appeals for the Fifth Circuit affirmed a grant of summary judgment on the issue of copyright infringement and an award of attorneys’ fees against the plaintiff under the Copyright Act. Although the Court noted that it lacked jurisdiction to review sanctions against the plaintiff’s attorney, it observed that counsel went beyond “vigorous representation.” Batiste v. Lewis, Case Nos. 19-30400, -30889 (5th Cir. Sept. 22, 2020) (Clement, J.). Batiste, a local musician, sued Macklemore & Ryan Lewis, an internationally famous hip-hop duo, for copyright infringement. Batiste alleged that the duo sampled his songs without authorization. As support, Batiste submitted the expert report of a musicologist, Milton, but Milton later admitted that Batiste had conducted the analysis and written the report, and that Milton did not even have access to the necessary software. The district court excluded the report, which Batiste then sought leave to resubmit...

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Jersey Boys Don’t Cry: No Copyright Protection for Facts “Based on a True Story”

The US Court of Appeals for the Ninth Circuit affirmed a district court’s grant of judgment as a matter of law finding that the musical Jersey Boys did not infringe a copyright held in an autobiography of band member Tommy DeVito. Donna Corbello v. Frankie Valli, et al., Case No. 17-16337 (9th Cir. Sept. 8, 2020) (Berzon, J.). In the 1990s, Rex Woodard ghostwrote an autobiography of Tommy DeVito, one of the original members of the 1950s quartet the Four Seasons. Woodard and DeVito agreed to split the profits equally. However, shortly after finishing the book, and before finding a publisher, Woodard died. Donna Corbello, Woodard’s widow, became the successor-in-interest to the book, and she continued the search for a publisher. Almost 15 years later, Corbello still had not published the book. DeVito’s autobiography reads as a straightforward historical account of the Four Seasons. At the beginning of the book, DeVito, as the narrator, describes his...

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No Remix: Copyright Act Preempts Right of Publicity Claim

The US Court of Appeals for the Second Circuit found that the federal Copyright Act preempts a state right of publicity claim when the latter is merely “a thinly disguised effort to exert control over an unauthorized [use of a copyrighted] work.” Jackson v. Roberts, Case No. 19-480 (2d Cir. Aug. 19, 2020) (Leval, J.). Both parties in this case are famous hip-hop artists more commonly known by their stage names: the plaintiff, Curtis James Jackson III, is known as 50 Cent, and the defendant, William Leonard Roberts II, is known as Rick Ross. In 2015, Roberts released a free mix tape that included samples from many famous songs, including Jackson’s hit “In Da Club.” The mix tape track at issue was titled “In Da Club (Ft. 50 Cent)” and included Rick Ross rapping over the “In Da Club” instrumentals, a 30-second sample of 50 Cent singing the “In Da Club” refrain, and multiple references to Rick Ross’s upcoming album. Jackson sued Roberts, claiming that the...

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Not Your Grandfather’s Internet Royalties? DMCA Favorable Rates Might Apply to Internet Offerings

Reversing the Copyright Royalty Board’s determination that a favorable grandfathered royalty rate did not apply to internet streaming audio transmissions, the US Court of Appeals for the District of Columbia Circuit concluded that internet transmissions are not categorically excluded from the definition of “service” in the Digital Millennium Copyright Act of 1998 (DMCA). Music Choice v. Copyright Royalty Bd., Case No. 19-1011 (DC Cir. Aug. 18, 2020) (Rao, J.). In the late 1990s, Music Choice, a company best known for its cable television genre-specific music channels, also offered some digital audio transmissions over the internet. These audio transmissions—and their alleged continuation through today—are the subject of this case. Seeking to establish a new regime governing royalties for digital music services, Congress required in the DMCA that service providers pay copyright holders a market-based rate for playing digital music, but set a generally lower...

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Use of Infringing Product, Misappropriated Trade Secrets May Continue—for a Licensing Fee

The US Court of Appeals for the Sixth Circuit affirmed a district court’s stay of a permanent injunction against copyright infringement and trade secret misappropriation, permitting the infringer to continue use of an infringing product and misappropriated trade secrets but requiring the infringer to pay a licensing fee. ECIMOS, LLC v. Carrier Corp., Case Nos. 19-5436, -5519 (6th Cir. Aug. 21, 2020) (Boggs, J.). Carrier sold HVAC systems. ECIMOS designed and sold a quality-control-testing system that assessed each HVAC unit at the end of Carrier’s assembly line. ECIMOS’s system consisted of a software program, associated hardware and a database that stored results of runtests performed by the system. Carrier paid ECIMOS to maintain and periodically upgrade its software system. ECIMOS licensed Carrier to use the system but prohibited unauthorized copying, distributing or creating derivative works based in whole or in part on the software. Years into the...

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Liability for Copyright Infringement Attaches if Conduct Exceeds Scope of License

The US Court of Appeals for the Ninth Circuit revived a software owner’s copyright infringement suit because the district court erred in granting summary judgment of no infringement by failing to analyze whether the accused infringer exceeded the scope of a copyright license. Oracle America, Inc., et al. v. Hewlett Packard Enterprise Company, Case No. 19-15506 (9th Cir. Aug. 20, 2020) (Smith, J.). Oracle owns registered copyrights for Solaris software, including copyrighted software patches. Oracle requires its customers have a prepaid annual support contract, for each server they desire to be under support, to access the software patches. Customers under a support plan can access patches through an Oracle support website. Hewlett Packard Enterprise (HPE) provides a “one-stop-shop” for support to its customers, including HPE servers running Solaris. HPE provides this support directly and through its partners. One of HPE’s partners is Terix Computer Company....

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Bugs in Space? Star Trek Plotline Does Not Infringe Tardigrade Video Game

The US Court of Appeals for the Second Circuit affirmed a district court’s pleadings-stage determination that certain Star Trek: Discovery characters and plotlines did not infringe copyrighted elements of a video game because there was not substantial similarity between protectible elements of the video game and the Discovery episodes. Abdin v. CBS Broad. Inc., Case No. 19-3160 (Fed. Cir. Aug. 17, 2020) (Chin, J.). Between 2014 and 2017, Plaintiff Abdin posted videos and draft designs online for his sci-fi video game, Tardigrade, a puzzle-based game in which the human protagonist can travel through outer space in the warm embrace of a gigantic blue tardigrade. Tardigrades, also known as water bears, are microscopic animals capable of withstanding extreme climates—including the harsh vacuum and radiation of space. After a 2007 research study confirmed tardigrades’ spacefaring abilities, they became somewhat of a pop culture phenomenon, being featured in...

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Buzz-sawed: Give Copyright Credit or Face Statutory Damages, Fees, Costs

The US Court of Appeals for the Second Circuit affirmed a district court’s award of statutory damages where the defendant knowingly distributed a photograph without first getting permission to use the photograph. Gregory Mango v. BuzzFeed, Inc., Case No.19-446 (2nd Cir. Aug.13, 2020) (Park, J.). Gregory Mango, a freelance photographer, sued BuzzFeed, an online media company, under the Digital Millennium Copyright Act (DMCA), for using one of his photographs in a news article without first obtaining his permission and crediting him. Mango asserted copyright infringement, alleging that BuzzFeed removed or altered the copyright management information (CMI), a violation under the DMCA. Mango sought statutory damages of $30,000 for his copyright infringement claim, $5,000 for his DMCA claim, and attorney’s fees. BuzzFeed argued that it could not be held liable under the DMCA because there was no evidence that it knew its conduct would lead to future, third-party...

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Copyright Board Ordered to Take a New Look at Streaming Services Rate Structure

Reversing the Copyright Royalty Board’s (Board) determination of a revised rate structure governing musical works, the US Court of Appeals for the District of Columbia Circuit concluded that the Board reached a final structure without providing adequate notice. George Johnson v. Copyright Royalty Bd., Case No. 2019-1028 (D.C. Cir. Aug. 7, 2020) (Millett, J.). Every five years, the Board holds a proceeding to determine the royalty rate and terms for reproducing and distributing musical works, where interested stakeholders are permitted to present evidence and argument. At issue in Johnson is the Board’s decision, made after a five-week evidentiary hearing, setting the compulsory rate for the right to reproduce and distribute recordings of copyrighted musical works, known as a mechanical license, through streaming services for the period of January 1, 2018, to December 31, 2022. Before the Board’s determination, depending on the type of service provided, the...

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