IP UPDATE
Exploring the latest in intellectual property law
IP UPDATE
Exploring the latest in intellectual property law
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Senate passes bill to improve CBP mechanisms to block importation of counterfeit goods

by | Aug 20, 2026 | ,

Blocking the importation of counterfeit goods could soon become easier. On August 7, 2026, the US Senate unanimously passed S 2677, a bill that would allow greater coordination between US Customs & Border Protection (CBP) and relevant stakeholders in determining whether imported goods violate trademark or copyright law.

Sponsored by Senator Chuck Grassley and co-sponsored by Senator Margaret Wood Hassan, S 2677 would amend 19 U.S.C. § 1628a to authorize CBP to share nonpublic information to rightsholders for examination when assessing potential copyright or trademark violations. The bill would also expand the parties with which CBP may share information. While current law permits disclosure only to certain rightsholders, S 2677 would allow CBP to share information with “any other party with an interest in the merchandise, as determined appropriate by the Commissioner.” The bill would also permit such information sharing when CBP has a “reasonable suspicion” of a violation, rather than requiring officials to “suspect” one.

The US House of Representatives passed a very similar bill, HR 4930, on April 27, 2026, and the two versions will need to be reconciled. During House Ways and Means Committee proceedings, Chief Trade Counsel Joshua Snead and Representatives Blake Moore and Bradley Schneider explained that the legislation responds to concerns raised by CBP about constraints under existing law. According to Snead, CBP requested the changes and expressed concerns under both the Biden and Trump administrations that the Defend Trade Secrets Act could prevent it from sharing information useful to intellectual property enforcement. Representative Moore said the legislation would help CBP “recognize and flag patterns of behavior” by repeat offenders.



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Book of wisdom has limits: Can’t impute knowledge of later-arising facts to hypothetical negotiation

by | Jul 30, 2026 |

The US Court of Appeals for the Federal Circuit vacated in part a US Court of Federal Claims damages award, finding that the court erred in applying the book of wisdom in its damages analysis and assessing noncompensatory damages against the government. 4DD Holdings, LLC, et al. v. United States, Case No. 2024-1996 (Fed. Cir. July 16, 2026) (Hughes, Prost, Stark, JJ.)

4DD licensed TETRA software to the US Department of Defense and the US Department of Veterans Affairs to improve interoperability among existing military healthcare databases. Under the license, the government was permitted to make only a single backup copy of TETRA. 4DD later discovered that the government had made thousands of unauthorized copies of the software and sued for copyright infringement. During discovery, 4DD learned that the government had deleted TETRA copies from its development and test center and had destroyed evidence related to those copies. 4DD moved for sanctions.

The Court of Federal Claims imposed about $1.1 million in sanctions, found that the government had exceeded the scope of the licenses by hundreds of thousands of Federator cores and Studio seats, and awarded about $12.7 million in damages based on a hypothetical negotiation rather than the parties’ license agreement. In assessing the parties’ bargaining positions, the claims court relied in part on the fact that TETRA was never implemented, had no established profitability, and faced competition from a less expensive software product. 4DD appealed.

4DD argued that the claims court should have calculated damages using the royalty rates established in the parties’ license agreement, which it contended would have resulted in an award amount between $3 billion and $5 billion. The Federal Circuit disagreed, explaining that 28 U.S.C. § 1498(b), which provides for “reasonable and entire compensation,” does not require a particular methodology for calculating copyright damages. Although a reasonable royalty may be based on an established royalty rate, it may also be determined through a hypothetical negotiation. The Court explained that the relevance of prior license agreements depends on the extent to which they are economically comparable to the infringing use. Because the government’s licensed use differed materially from the scope of its infringing use, the Federal Circuit concluded that the claims court did not abuse its discretion in determining damages through a hypothetical negotiation rather than by simply applying the parties’ license rates.

4DD also argued that the claims court misapplied the book of wisdom doctrine by imputing to the government (at the time of the hypothetical negotiation) knowledge of its later decision to abandon the TETRA project. The Federal Circuit agreed. The Court explained that although later-occurring facts may be considered to reduce uncertainty and illuminate the value that existed at the time of the hypothetical negotiation, they may not be used to impute knowledge of unforeseeable future events that affect the value of the license. Here, the court’s claims improperly relied on the government’s subsequent change in leadership and resulting decision to discontinue the project before TETRA was implemented to diminish 4DD’s bargaining [...]

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It’s a wrap: Constructive discovery under copyright statute of limitations

by | Jul 30, 2026 |

The US Court of Appeals for the Second Circuit affirmed summary judgment dismissing a copyright infringement claim as untimely, finding that the extensive publicity surrounding the accused works, combined with the copyright owner’s ties to Italy and the local art community, meant that a reasonably diligent owner should have discovered the alleged infringement years before filing suit. Hayden v. Koons, Case No. 25-498-cv (2d Cir. July 21, 2026) (Chin, Sullivan, Lee, JJ.)

Michael Hayden, a US artist who lived and worked primarily in Italy from about 1980 to 2007, created a Styrofoam sculpture depicting a serpent wrapped around boulders for Italian performer and politician Ilona Staller. In 1988, Hayden sold the sculpture to Diva Futura, Staller’s production company, for approximately $900. The parties did not execute a written agreement or discuss copyright ownership or third-party use. Hayden designed the sculpture as a platform for Staller’s live performances and film productions.

In 1989, Koons hired Staller to pose with him for photographs taken on her sets, including Hayden’s serpentine sculpture. Koons later used the photographs to create works in his Made in Heaven series. Three works were at issue: Made in Heaven (1989), Jeff and Ilona (Made in Heaven) (1990) and Jeff in the Position of Adam (1990), each depicting Koons and Staller posing on Hayden’s sculpture.

The Made in Heaven series drew substantial international attention. The works appeared in magazines, and Jeff and Ilona (Made in Heaven) was exhibited at the Venice Biennale. Publicity surrounding the series continued for decades.

Hayden asserted that he did not discover Koons’ use of the sculpture until 2019, when a business partner sent him an Italian article concerning unrelated litigation that included an image of Made in Heaven. Hayden registered the sculpture with the US Copyright Office later that year and filed suit against Koons in December 2021, alleging copyright infringement, removal, or falsification of copyright management information under the Digital Millennium Copyright Act (DMCA) and false authorship under the Visual Artists Rights Act.

The district court granted summary judgment for Koons, finding Hayden’s copyright claim untimely. Hayden appealed.

Under 17 U.S.C. § 507(b), a copyright claim must be filed within three years after it accrues. In the Second Circuit, a copyright claim accrues under the discovery rule when the copyright owner actually discovers, or with due diligence should have discovered, the infringement. The parties agreed that Hayden lacked actual knowledge before 2019. The dispute centered on whether he should have discovered the alleged infringement earlier.

Hayden argued that constructive discovery required inquiry notice and actual knowledge of facts suggesting probable infringement. The Second Circuit rejected that proposed standard. The Court explained that inquiry notice may help identify when a reasonable plaintiff would have begun investigating, but it is not itself the governing standard for constructive discovery. The Court also declined to require actual knowledge of triggering facts, reasoning that doing so would collapse constructive discovery into actual discovery.

The Second Circuit explained that the proper inquiry is whether the defendant identified sufficient facts [...]

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La vida loca: First Circuit vacates summary judgment entered before meaningful discovery

by | Jul 1, 2026 |

The US Court of Appeals for the First Circuit vacated summary judgment in favor of singer Ricky Martin in a copyright infringement action, concluding that the district court improperly resolved key factual issues without allowing the plaintiff to obtain discovery. The Court also vacated the district court’s order invalidating the plaintiff’s copyright registration because that ruling depended on the same prematurely decided issues. Luis Adrián Cortés-Ramos v. Enrique Martin-Morales, a/k/a Ricky Martin, Case No. 24-1805 (1st Cir. June 12, 2026) (Thompson, Aframe, JJ.) (Barron, J., dissenting in part).

The dispute stems from Cortés-Ramos’s submission of a song and music video to a contest sponsored by a recording studio and Ricky Martin for inclusion on the 2014 FIFA World Cup official album. After Martin released the song “Vida,” Cortés-Ramos alleged that it infringed his copyrighted work. Martin defended on the ground that Cortés-Ramos had assigned his copyright to the recording studio by agreeing to the contest rules. Cortés-Ramos contended that he never received those rules despite signing documents acknowledging compliance with them.

The district court rejected Cortés-Ramos’s argument that the dispute belonged in arbitration because Martin was not a party to the arbitration agreement between Cortés-Ramos and the recording studio. The court then adopted an expedited summary judgment schedule that foreclosed discovery, concluding that Cortés-Ramos had assigned his rights to the recording studio and, as a result, that his copyright registration was invalid. Cortés-Ramos appealed.

The First Circuit agreed that the district court properly exercised jurisdiction because Martin could not be compelled to arbitrate under an agreement to which he was not a party. The Court cautioned, however, that factual findings in the litigation could have preclusive effect in the parallel arbitration between Cortés-Ramos and the recording studio.

The First Circuit nevertheless vacated the summary judgment ruling, explaining that Cortés-Ramos had repeatedly sought discovery regarding evidence uniquely within the possession of the recording studio and Martin. Although Cortés-Ramos had not formally moved under Federal Rule of Civil Procedure 56(d), the Court treated his repeated requests for discovery as functionally seeking Rule 56(d) relief. The Court found it fundamentally unfair to resolve dispositive issues while denying Cortés-Ramos access to evidence necessary to challenge Martin’s assertion that the contest documents assigned ownership of the work.

Because the district court entered summary judgment without permitting discovery on issues central to ownership of the copyright, the First Circuit vacated both the summary judgment order and the ruling invalidating Cortés-Ramos’ copyright registration and remanded for further proceedings.



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A costly discovery misstep: Untimely damages evidence excluded

by | Jun 18, 2026 |

The US Court of Appeals for the Fourth Circuit affirmed a district court’s exclusion of damages evidence under Federal Rule of Civil Procedure 37(c)(1) and the resulting grant of summary judgment against the plaintiff on all claims. Deque Sys. Inc. v. BrowserStack, Inc., Case No. 25-1534 (4th Cir. June 5, 2026) (Agee, Traxler, Floyd, JJ.)

Deque Systems develops software that helps businesses make websites accessible to users who have visual and hearing impairments. Deque sued competitor BrowserStack for copyright infringement, false advertising, breach of contract, and unjust enrichment, alleging that BrowserStack reverse-engineered Deque’s software to develop a competing product and falsely advertised it as “5x faster” than Deque’s flagship offering.

Under the district court’s scheduling order, initial disclosures were due on June 7, 2024; expert disclosures were due on August 9, 2024; and fact discovery closed on October 11, 2024. Although Deque timely served its Rule 26(a)(1) initial disclosures, it failed to provide a computation of damages as required by Rule 26(a)(1)(A)(iii). When BrowserStack later served an interrogatory seeking the categories and calculations of Deque’s claimed damages, Deque again declined to provide a damages computation, stating only that it intended to seek all available damages and that its calculations remained incomplete.

Deque also failed to serve a damages expert report by the August 2024 expert disclosure deadline. After retaining new counsel, Deque disclosed a $30 million damages calculation on October 8, 2024, just three days before the close of discovery. BrowserStack moved to exclude the damages evidence and sought summary judgment.

The district court excluded Deque’s damages evidence under Rule 37(c)(1), finding that Deque failed to comply with Rule 26’s disclosure requirements. Because Deque could no longer prove damages and failed to establish entitlement to injunctive relief, the district court granted summary judgment in BrowserStack’s favor on all claims. Deque appealed.

The Fourth Circuit affirmed. The Court explained that Rule 37(c)(1) “gives teeth” to Rule 26’s disclosure requirements by prohibiting a party from using information that was not properly disclosed during discovery. The Court found that Deque had “indisputably failed to comply” with Rule 26(a)’s damages disclosure requirements by failing to provide a damages computation in its initial disclosures, expert disclosures, or interrogatory responses. The Court rejected Deque’s argument that its disclosure of damages in a rebuttal expert report three days before the close of discovery constituted a timely disclosure.

Turning to the propriety of the sanction, the Fourth Circuit applied the five-factor test set forth in its 2003 Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co. decision:

  • Surprise to the opposing party
  • Ability to cure the surprise
  • Disruption of trial
  • Importance of the evidence
  • Explanation for the nondisclosure

The Fourth Circuit concluded that all five factors favored exclusion. BrowserStack was plainly surprised by Deque’s $30 million damages claim, which was disclosed only days before discovery closed. Curing that surprise would have required reopening discovery and significantly delaying the proceedings. Although the damages evidence was important, Deque failed to offer any meaningful justification for its repeated failure [...]

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Funked out: Sixth Circuit finds copyright ownership claim accrues upon plain and express repudiation

by | Jun 11, 2026 |

Addressing when a copyright ownership claim accrues under the Copyright Act, the US Court of Appeals for the Sixth Circuit reversed a summary judgment grant, finding that genuine disputes of material fact remained as to whether a musician’s estate timely asserted joint ownership rights in certain sound recordings. The Court explained that an ownership claim accrues only when one party plainly and expressly repudiates another party’s ownership. Est. of Worrell v. Thang, Inc., Case No. 25-1863 (6th Cir. May 27, 2026) (Boggs, Batchelder, Moore, JJ.)

George Bernard (Bernie) Worrell, Jr. and George Clinton were members of Parliament-Funkadelic (P-Funk), the influential funk collective that began in the 1950s. Worrell collaborated with Clinton and P-Funk for approximately a decade before leaving the group in the 1980s. During that period, Worrell and Clinton allegedly operated under several informal and disputed agreements, including a purported 1976 agreement under which Worrell allegedly assigned ownership of certain sound recordings to Thang, Inc. (a company owned by Clinton) in exchange for royalty payments. The parties disputed whether the agreement was ever validly executed, and Worrell allegedly was not consistently paid under it.

After Worrell died in 2016, his estate sued Thang in New York state court in 2019 for breach of contract. Thang prevailed, arguing that Worrell did not possess a countersigned copy of the 1976 agreement. In that litigation, Clinton submitted sworn testimony stating that Thang never signed the agreement and that Clinton himself did not sign either the original or a copy.

Two years later, the estate sued Thang in federal district court, seeking a declaration that Worrell jointly owned the sound recordings he created with P-Funk and requesting an accounting of royalties. The district court granted summary judgment to Clinton and Thang, finding that the Copyright Act’s statute of limitations barred the estate’s claims. The estate appealed.

The Sixth Circuit explained that a copyright ownership claim accrues only once and must be brought within three years of accrual. Following its own precedent and the approach of other circuits, the Court reiterated that an ownership claim accrues when there has been a “plain and express repudiation” of ownership by one party against another. The Court emphasized that the repudiation inquiry is fact-intensive and subject to equitable considerations.

Applying that standard, the Sixth Circuit found genuine disputes of material fact as to when, if ever, Clinton and Thang plainly and expressly repudiated Worrell’s alleged co-ownership. The Court reasoned that because the New York court had determined that Thang never executed the 1976 agreement, which was the agreement that purportedly exchanged Worrell’s ownership rights for royalty payments, a fact finder could conclude that Worrell never gave up his joint ownership rights in the recordings. The Sixth Circuit also found that the parties’ decades-long conduct in relation to the agreement complicated the limitations analysis and precluded summary judgment.

The Sixth Circuit also considered whether the estate had presented sufficient evidence of joint authorship. Under the Copyright Act, a joint work is one prepared by two or more authors [...]

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One frame is enough: Second Circuit narrows de minimis use, limits fair use at pleading stage

by | May 14, 2026 |

The US Court of Appeals for the Second Circuit affirmed in part and reversed in part a judgment on the pleadings, clarifying that the de minimis doctrine does not apply where the copyrighted work is identifiable in the secondary use – even if only a single frame is copied – and that fair use is unlikely to be resolved at the pleading stage when an entire copyrighted work is republished for commercial purposes. Richardson v. Townsquare Media, Inc., Case No. 25-291-CV (2d Cir. Apr. 23, 2026) (Lynch, Nardini, Menashi, JJ.)

Delray Richardson operates the YouTube channel “Straight Game TV.” In May 2015, he posted a 42 second video showing Michael Jordan intervening in a confrontation. The video gained widespread attention in July 2023 after the hip hop blog DailyLoud reposted it in full on X. Townsquare Media subsequently published an article reporting on the incident and embedded DailyLoud’s X post containing the entire video.

In a separate incident, Richardson recorded an interview with rapper Grandmaster Melle Mel in March 2023. Richardson posted a three-minute clip of the interview, in which Melle Mel made controversial statements about Eminem, to YouTube. The following day, Townsquare published an article discussing the interview and embedded the YouTube clip. The article’s header image included a screenshot taken from the Melle Mel video, depicting Melle Mel next to an image of Eminem. Two days later, Townsquare published a follow up article about rapper 50 Cent’s response and included a second screenshot from the same video, this time placed next to an image of 50 Cent.

Richardson sued Townsquare for copyright infringement based on Townsquare’s use of the Jordan video, the Melle Mel video, and the two screenshots. Townsquare moved for judgment on the pleadings, arguing that:

  • Its use of the Jordan video constituted fair use.
  • Its embedding of the Melle Mel video was authorized under YouTube’s terms of service.
  • The screenshots were de minimis.

The district court accepted each argument and dismissed the case in full. Richardson appealed.

The Second Circuit reversed the district court’s fair use ruling as to the Jordan video. Applying the four factors under 17 U.S.C. § 107, the Second Circuit disagreed with the district court’s analysis of the first, third, and fourth factors.

As to the first factor (the purpose and character of the use), the Second Circuit concluded that it was “debatable” whether Townsquare’s article added meaningful commentary, and even if it did, any transformative character was substantially offset by the use’s commercial nature.

On the third factor (the amount and substantiality of the portion used), the Second Circuit emphasized that Townsquare republished the entire video, rather than linking to or embedding it in a manner consistent with the original platform. That full reproduction weighed heavily against fair use at the pleading stage.

With respect to the fourth factor (the effect on the potential market), the Second Circuit concluded that Townsquare failed to carry its burden of showing that its use did not usurp a market for the [...]

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Transformative documentary use, work made for hire doctrine defeat copyright claims

by | May 14, 2026 |

Elaborating on the application of the fair use doctrine in the documentary context, the US Court of Appeals for the Tenth Circuit affirmed summary judgment after determining that seven of the eight works at issue were works made for hire and that the defendant’s use of the eighth work constituted fair use under all four statutory factors. Whyte Monkee Productions, LLC v. Netflix, Inc., Case No. 22-6086 (10th Cir. Apr. 30, 2026) (Holmes, Hartz, Carson, JJ.)

The dispute arose from Netflix’s use of video footage in its documentary series Tiger King. The footage was filmed by Timothy Sepi, who later claimed copyright ownership through his company, Whyte Monkee Productions. Whyte alleged that Netflix infringed its copyrights by including eight videos in the series.

Netflix argued that the first seven videos were made for hire because Sepi created them while he was employed by the Greater Wynnewood Exotic Animal Park. The district court agreed, crediting evidence that filming was part of Sepi’s job responsibilities and noting significant inconsistencies between Sepi’s 2016 and 2021 deposition testimony regarding his employment and role in creating the footage.

The eighth video, which was the only one not created within the scope of Sepi’s employment, was a 24-minute recording of a funeral. Netflix used approximately 66 seconds of the funeral video in Tiger King. The district court agreed with Netflix that this was fair use. Whyte appealed.

Whyte advanced new arguments on appeal challenging the work made for hire status of the first seven videos. The new arguments differed meaningfully from those presented to the district court. The Tenth Circuit found that the new arguments were waived because Whyte failed to raise the theories below or argue for plain error on appeal. Thus, the Court declined to consider them and affirmed summary judgment as to the first seven videos.

The Tenth Circuit affirmed the district court’s ruling regarding the eighth video that all four fair use factors favored Netflix.

Factor one: Transformative use and justification

The Tenth Circuit’s analysis of the first factor (the purpose and character of the use) emphasized that the central question is whether the secondary use has a distinct purpose or character, not merely whether it adds new meaning. The Court explained that the original funeral video functioned as a memorial recording while Tiger King repurposed the footage to illustrate and comment on Joe Exotic’s personality, specifically his performative behavior and megalomania. That difference in purpose rendered the use transformative.

The Court clarified the role of “justification” and “targeting” in transformative use analysis. Where a secondary use has a sufficiently distinct purpose or character, no independent justification, such as parody or direct commentary on the original work, is required. Targeting the original work is necessary only where the secondary use does not otherwise establish meaningful transformativeness. This analysis tempers overly rigid interpretations of the Supreme Court’s Warhol v. Lynn decision and preserves flexibility for documentary and contextual uses.

The Court further determined that although Tiger King was a commercial [...]

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It’s not a trap: A shared copyright license can still be exclusive

by | May 14, 2026 |

Addressing statutory standing under the Copyright Act, the US Court of Appeals for the Eleventh Circuit affirmed in part, vacated in part, and remanded, holding that a license is not rendered nonexclusive merely because the copyright owner retained certain rights or previously granted nonexclusive licenses. Great Bowery Inc. v. Consequence Sound LLC, Case No. 24-12482 (11th Cir. May 5, 2026) (Jordan, Newsom, Corrigan, JJ.)

In 2014, a photographer entered into an artist agreement granting Great Bowery the exclusive right to license and market certain photographs. The photographer retained the ability to provide those works to select third parties for limited projects. Around the same time, Condé Nast invited the photographer to shoot the cast and crew of new Star Wars films and obtained a nonexclusive license to publish the photographs in Vanity Fair magazine.

When photographs from Vanity Fair’s Star Wars feature later appeared on Consequence Sound’s website, Great Bowery sued Consequence Sound for copyright infringement.

During discovery, Great Bowery relied on a 2018 authorization letter from the photographer permitting Great Bowery to enforce her copyrights on her behalf. The district court denied Great Bowery’s untimely motion to amend the complaint to add the photographer as a coplaintiff and granted summary judgment for Consequence Sound. The district court concluded that Great Bowery lacked statutory standing under 17 U.S.C. § 501(b) because it did not hold an exclusive copyright interest. Great Bowery appealed.

The Eleventh Circuit affirmed the denial of leave to amend, explaining that while third party infringers generally may not challenge technical deficiencies in a copyright transfer, they are permitted to dispute whether a purported transfer actually conveyed any exclusive rights. Because Consequence Sound challenged the substance of Great Bowery’s alleged ownership rather than the adequacy of the writing, Great Bowery bore the burden of establishing standing, and Consequence Sound was entitled to contest it.

On the merits, however, the Eleventh Circuit vacated the grant of summary judgment, holding that the district court misapplied governing law on exclusive licenses. The district court had concluded that Great Bowery’s license was necessarily nonexclusive because the photographer retained certain usage rights and had previously granted Condé Nast a nonexclusive publication license. According to the Eleventh Circuit, that reasoning misunderstood the divisibility of copyright interests.

The Eleventh Circuit explained that copyright rights enumerated in 17 U.S.C. § 106, such as reproduction, distribution, and public display, are divisible and independently transferable. As a result, a copyright owner may retain or grant some rights while conveying others exclusively. The presence of retained rights or prior nonexclusive licenses does not categorically defeat exclusivity as long as the licensee possesses at least one exclusive § 106 right sufficient to confer standing under § 501(b).

Applying that principle, the Eleventh Circuit rejected the argument that Condé Nast’s preexisting nonexclusive license necessarily precluded Great Bowery’s exclusive rights. A nonexclusive license grants only permission to use copyrighted material and does not transfer ownership of any portion of the copyright. Thus, the photographer remained free to transfer exclusive ownership interests to [...]

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Unauthorized streaming of foreign TV programming dishes up copyright infringement liability

by | Apr 23, 2026 |

The US Court of Appeals for the Eleventh Circuit affirmed a judgment for an exclusive licensee arising from unauthorized streaming of Arabic language television programming into the United States. The Court’s ruling reinforces both the strength of registered foreign works and the limits on an accused infringer’s ability to challenge ownership and transfer agreements. Dish Network L.L.C. v. Fraifer, Case No. 24-10223 (11th Cir. Apr. 9, 2026) (Branch, Abudu, Kidd, JJ.)

DISH had exclusive US rights to distribute and publicly perform certain Arabic language television channels (protected channels). DISH’s rights derived from agreements with MBC FZ LLC, which provides five of the protected channels. Fraifer operated UlaiTV and AhlaiTV, selling set top boxes and using internet infrastructure to capture live broadcasts abroad and retransmit them to customers in the United States via content delivery networks (CDNs) without DISH’s authorization. After a bench trial, the district court found direct copyright infringement. Fraifer appealed.

Fraifer raised three arguments on appeal, all of which the Eleventh Circuit rejected.

First, Fraifer argued that DISH failed to establish valid ownership of the copyrighted works, which were first published in the United Arab Emirates. The Eleventh Circuit disagreed. The Court concluded that MBC’s US copyright registrations were entitled to the statutory presumption of validity. Because DISH was not the author of the works, the Court examined whether DISH had sufficiently established MBC’s initial ownership. Fraifer argued that the works were “joint works” under UAE law, which would undermine MBC’s sole ownership. But the Court concluded that the television programs were better characterized as “collective works,” since the various creative contributions (writing, music, directing, and other artistic elements) were inseparable in the final audiovisual products.

That classification mattered because under UAE copyright law, the entity directing the creation of a collective work may exercise the relevant rights absent an agreement to the contrary. The Eleventh Circuit also declined to entertain a late-raised challenge to the validity of the registrations, noting that Fraifer had failed to preserve invalidity as an affirmative defense. As a result, MBC was entitled to the statutory presumption of ownership, which DISH could rely on.

Second, Fraifer contended that MBC had not validly transferred exclusive rights to DISH. Even assuming arguable defects in the written conveyances, the Eleventh Circuit concluded that Fraifer lacked standing to raise the issue. Section 204(a) of the Copyright Act is designed to resolve disputes between copyright owners and transferees, not to provide accused third party infringers with a defense where neither the owner nor the transferee disputes the transfer. Because MBC and DISH agreed on the status of the rights, Fraifer could not dispute the transfer.

Finally, Fraifer challenged the sufficiency of the evidence supporting direct infringement. The Eleventh Circuit disagreed, finding that the record supported the finding of direct infringement based on Fraifer’s use of encoders to ingest live broadcasts and push copyrighted programming onto its streaming system for customer viewing. The Eleventh Circuit also upheld the district court’s evidentiary rulings, including the admission of expert testimony, monitoring [...]

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