IP UPDATE
Exploring the latest in intellectual property law
IP UPDATE
Exploring the latest in intellectual property law
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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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Provider’s degree of control affects DMCA safe harbor

by | Feb 26, 2026 |

The US Court of Appeals for the Second Circuit affirmed dismissal of a photographer’s Digital Millennium Copyright Act (DMCA) claims against a digital media platform for lack of scienter but vacated summary judgment on copyright claims. The Second Circuit remanded the case to the district court with instructions to assess whether the accused infringer can claim protection under the DMCA’s service provider safe harbor. McGucken v. Shutterstock Inc., Case No. 23-7652 (2nd. Cir. Feb. 10, 2026) (Lynch, Lee, Perez, JJ.)

Elliott McGucken, a professional photographer, discovered that several hundred of his copyrighted photographs were uploaded to Shutterstock by three user accounts that generated more than $2,000 in licensing revenue. Shutterstock removed the images within four days of receiving takedown notices and terminated the uploading accounts. McGucken nevertheless sued, alleging copyright infringement under 17 U.S.C. § 106 and false copyright management information (CMI) under 17 U.S.C. § 1202. The district court granted summary judgment for Shutterstock on all claims. McGucken appealed.

The Second Circuit agreed that McGucken failed to raise a triable issue on Shutterstock’s scienter regarding CMI under the DMCA. First, the Court found that Shutterstock’s practice of placing a watermark on all images on its site did not demonstrate that it knowingly affixed false CMI to McGucken’s works for the purpose of facilitating infringement. Second, the Court found that Shutterstock’s automated removal of CMI from all uploaded images, which is done to avoid malware and strip personally identifiable information, did not show that Shutterstock knew it was removing McGucken’s CMI without authorization or that Shutterstock intended to conceal infringement. On these grounds, the Court affirmed dismissal of the § 1202 claim.

As for the safe harbor provision regarding the copyright infringement claim, the Second Circuit agreed that Shutterstock qualified as a “service provider” with a repeat infringer policy and no interference with standard technical measures. The Court also affirmed that Shutterstock lacked actual or red flag knowledge of the infringement and acted expeditiously once notified.

The Second Circuit found triable issues of fact, however, on two critical safe harbor elements under § 512(c)(1). The first issue was whether the storage was “at the direction of the user.” The Court stated that the factfinder must determine whether Shutterstock’s review of uploaded material involved “substantive and discretionary control” over what appears on the platform, including the level of aesthetic or editorial judgment applied when deciding which images to accept.

The second issue assessed was whether Shutterstock had the “right and ability to control” the alleged infringing activity. The Second Circuit explained that safe harbor is unavailable where the provider exercises “substantial control” over users’ activities, such that decisions about what content is allowed on the site go beyond promoting or demoting material. The Court noted that control may also be inferred if the provider selectively reviews only a subset of uploaded content rather than reviewing all user submissions.

Since these issues remained unresolved, the Second Circuit vacated summary judgment on the copyright claim and remanded for further proceedings.

Practice note: The Second Circuit’s clarification of [...]

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Blackbeard’s revenge: State sovereign immunity ends long running copyright battle

by | Feb 12, 2026 |

The US Court of Appeals for the Fourth Circuit reversed a 2021 district court ruling and vacated a subsequent 2024 ruling in a decade-long legal battle over copyright infringement claims related to the pirate Blackbeard’s Queen Anne’s Revenge shipwreck, concluding the claims were barred under state sovereign immunity. Allen v. Stein, Case No. 24-1954 (4th Cir. Jan. 23, 2026) (Niemeyer, King, Harris, JJ.)

Background

The dispute stems from Frederick Allen and Nautilus Productions’ allegations that the state of North Carolina and its officials infringed on Allen’s copyrights for photographs and videos of the shipwreck recovery project.

Allen initially filed suit in 2015, alleging that North Carolina officials infringed his copyrights by using his footage without authorization and enacting legislation (dubbed “Blackbeard’s Law”) that designated such materials as public records. The district court largely dismissed Allen’s claims in 2017 on sovereign immunity grounds, but the Fourth Circuit reversed the district court’s ruling on the validity of the Copyright Remedy Clarification Act (CRCA) in 2018, concluding that Congress had not validly abrogated state sovereign immunity for copyright claims. The Supreme Court affirmed that decision in Allen v. Cooper (2020), confirming that states are immune from copyright infringement suits under the CRCA.

Despite the Supreme Court’s ruling, Allen sought to reopen the case in 2021, relying on Federal Rule of Civil Procedure 60(b)(6) and introducing a new constitutional theory based on United States v. Georgia (2006). The district court allowed Allen to amend his complaint and proceed with his claims under the “Georgia theory,” which argues for case-by-case abrogation of state sovereign immunity for conduct that violates the Fourteenth Amendment. In 2024, the district court denied North Carolina’s sovereign immunity defense for Allen’s copyright infringement claims under this theory, allowing the case to proceed. North Carolina appealed.

Fourth Circuit decision

The Fourth Circuit reversed the 2021 district court decision and vacated the 2024 ruling, finding that the district court abused its discretion in reopening the litigation. The Fourth Circuit explained that Rule 60(b)(6) was the only applicable procedural mechanism for reconsideration because the case had been fully resolved in 2020 following the Supreme Court’s decision and Allen’s voluntary dismissal of the remaining defendant. The Court emphasized that Rule 60(b)(6) requires “extraordinary circumstances,” which were not present in this case. Allen’s failure to raise the Georgia theory earlier in the litigation did not meet this standard.

The Fourth Circuit also criticized the district court’s reliance on Rule 54(b), which applies to interlocutory orders, rather than Rule 60(b), which governs final judgments. The Court noted that the district court’s 2021 decision was based on erroneous legal premises and failed to properly evaluate the timeliness, merits, and prejudice factors required under Rule 60(b).

Pendent appellate jurisdiction

A key aspect of the Fourth Circuit’s decision was its exercise of pendent appellate jurisdiction to review the 2021 district court ruling, even though it was not directly appealable. The Fourth Circuit determined that the 2021 decision was “inextricably intertwined” with the appealable 2024 ruling on sovereign immunity because the [...]

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TRAIN Act targets transparency in generative AI training practices

by | Feb 12, 2026 |

Representatives Madeleine Dean (D-PA) and Nathaniel Moran (R-TX) introduced a bipartisan bill entitled the Transparency and Responsibility for Artificial Intelligence Networks (TRAIN) Act in the US House of Representatives. The legislative objective is to provide a mechanism to help musicians, artists, writers, and other creators determine if their copyrighted work was used to train generative artificial intelligence (AI) models without their permission, and if so, to pursue compensation for that use. A bipartisan group of senators also reintroduced the TRAIN Act in the US Senate.

The proposed legislation would create a new legal mechanism allowing copyright owners to use federal court subpoena power to obtain information about the materials used to train generative AI models. The bill would establish the first federal statutory definition of “generative AI models.” A generative AI model would be defined as an AI model that “emulates the structure and characteristics of input data in order to generate derived synthetic content,” including images, video, audio, text, and other digital content, as well as any subsequent variation of such a model.

Under the proposed framework, an owner of one or more copyrighted works would be entitled to seek a subpoena compelling a generative AI developer to produce copies of, or records sufficient to identify, the copyrighted works (or portions thereof) that were used to train the developer’s model. To obtain a subpoena, the copyright owner would submit a request to a US district court clerk that includes a proposed subpoena and a sworn affidavit attesting to the owner’s subjective good faith belief that the developer used some or all of the owner’s copyrighted works to train its generative AI model. The affidavit would also attest that the subpoena’s purpose is to obtain the owner’s copyrighted materials or records to sufficiently identify the owner’s copyrighted materials used to train the model, and that the copies or records requested would be used solely to protect the copyright owner’s rights.

Once a subpoena was issued and served in accordance with the Federal Rules of Civil Procedure, the developer would be required to “expeditiously disclose” the requested copies or records to the copyright owner or an authorized representative.

The TRAIN Act also includes two enforcement provisions. First, if a developer fails to comply with a subpoena, the court may apply a rebuttable presumption that the developer did in fact use the copyrighted works to train its model. Second, if a copyright owner seeks a subpoena in bad faith, the recipient may pursue sanctions under Federal Rule of Civil Procedure 11.

If enacted, the TRAIN Act would significantly expand transparency obligations for developers of generative AI models and provide copyright owners with a new tool to investigate potential unauthorized uses of their works.



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IRPA claims accrue at first publication, not first discovery

by | Feb 5, 2026 |

The US Court of Appeals for the Seventh Circuit confirmed that the single publication rule applies to claims brought under the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/1 et seq. Giovannelli v. Walmart Inc., Case Nos. 24-2869; -3103; 25-1185; -1223 (7th Cir. Jan. 22, 2026) (Brennan, Scudder, Pryor, JJ.)

In 2009, US Army veteran Nicholas Giovannelli was unknowingly photographed while deployed in Afghanistan. The image was later posted on a US Department of Defense website, downloaded by Stocktrek Images, and then licensed and sold as posters on public retail websites, including Posterazzi, Walmart, Pixels, and a large e-commerce company. Giovannelli remained unaware of the photo’s commercial use until 2020, when a friend discovered the posters while searching for their unit number.

Giovannelli sued Walmart, Stocktrek, Pixels, the large e-commerce company, and Posterazzi under the IRPA, which prohibits the unauthorized commercial use of an individual’s name or likeness. After removal to federal court, the cases were severed to address misjoinder.

Under Illinois law, IRPA claims are subject to a one-year statute of limitations. The defendants argued that the claims were time barred under the single publication rule, which starts the limitations period at first publication, meaning Giovannelli would have needed to sue within one year of Pixels’ 2011 posting, Walmart’s 2016 posting, or the large e-commerce company’s 2018 posting. Giovannelli countered that the discovery rule should apply because the publications were “hidden” or “inherently undiscoverable,” asserting he had no reason to know of the posters until 2020. The district courts granted the defendants’ motions for summary judgment, applying the single-publication rule. Giovannelli appealed.

The Seventh Circuit, applying Illinois substantive law under diversity jurisdiction, made an “Erie guess” because the Supreme Court of Illinois has not addressed whether IRPA claims follow the single publication rule or the discovery rule. The Seventh Circuit looked to the 2006 Illinois Appellate Court decision in Blair v. Nevada Landing Partnership, which rejected the discovery rule in the IRPA context. Although Giovannelli argued that Blair’s discussion was dicta, the Seventh Circuit explained that dicta may still guide an Erie analysis. The Seventh Circuit affirmed summary judgment, finding that Illinois would apply the single publication rule to IRPA claims. The Court explained that the exception for hidden or inherently undiscoverable publications did not apply because the posters were available on public websites, and Giovannelli’s friend located them through a simple search using their unit number.



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DMCA safe harbor is deep: Plaintiffs need to get specific

by | Jan 29, 2026 |

The US Court of Appeals for the Eleventh Circuit affirmed summary judgment for YouTube, finding that the company was protected by Section 512(c) of the Digital Millennium Copyright Act (DMCA). In doing so, the Court joined the Second and Ninth Circuits in requiring knowledge of specific infringing material, not generalized awareness of infringement on a platform, to defeat safe-harbor protection. Athos Overseas Ltd. Corp. v. YouTube, Inc., et al., Case No. 23-13156 (11th Cir. Jan. 7, 2026) (Pryor, Jordan, Marcus, JJ.)

Athos owns copyrights in classic Mexican and Latin American films and sued YouTube for hosting unauthorized uploads of its works. YouTube invoked the DMCA Section 512(c) safe harbor, which shields service providers from liability for infringing material stored at the direction of users if certain statutory conditions are met. Athos did not dispute that YouTube expeditiously removed content identified in valid takedown notices. Instead, Athos argued that YouTube’s internal technologies provided it with actual or “red flag” knowledge of additional infringing copies beyond those specifically identified, and that YouTube’s content moderation and curation tools gave it the “right and ability to control” infringing activity.”

The Eleventh Circuit rejected both arguments. Echoing Viacom Int’l v. YouTube and UMG Recordings v. Shelter Cap. Partners, the Court explained that Section 512(c) requires knowledge of specific instances of infringement. A service provider’s duty to act arises only when it knows which particular material is infringing, because expeditious removal is possible only with such specificity. Since YouTube’s tools do not automatically identify legally infringing content, and because Athos provided no evidence that YouTube knew which specific videos were infringing, there was no triable issue on knowledge.

The Court rejected Athos’ argument that YouTube’s ability to recommend videos, remove content, or set platform policies constituted the type of control that strips safe-harbor protection. The DMCA requires “something more” than ordinary content moderation, such as substantial influence over or inducement of specific infringing activity. Because Athos failed to establish such control, the Eleventh Circuit did not reach the question of whether YouTube derived a direct financial benefit from infringement.

The Eleventh Circuit affirmed summary judgment for YouTube, concluding that it remained entitled to Section 512(c) safe-harbor protection.



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Federal question? You can’t hypothetically fair use your way into federal court

by | Jan 29, 2026 |

Addressing the limits of federal jurisdiction, the US Court of Appeals for the Sixth Circuit affirmed the dismissal of an action seeking a declaratory judgment that the fair use exception in federal copyright law required disclosure of a student survey under Kentucky’s open records statute. The Court determined that neither the hypothetical presence of a federal fair use defense nor the possibility of future copyright litigation was sufficient to confer federal jurisdiction. Stovall v. Jefferson County Board of Education, Case No. 25-5357 (6th Cir. Jan. 14, 2026) (Sutton, Boggs, Bloomekatz, JJ.)

Miranda Stovall, a Kentucky resident, learned that Jefferson County Public Schools planned to administer a mental health survey to students. She requested a copy of the survey under the Kentucky Open Records Act. The school district denied the request, citing an exemption for records prohibited from disclosure by federal law and asserting that the survey was copyrighted intellectual property of its publisher, NCS Pearson.

Stovall sued in federal court seeking a declaratory judgment that that disclosure of the survey would be permitted under the Copyright Act’s fair use doctrine. NCS Pearson moved to dismiss for lack of subject matter jurisdiction, and the district court granted that motion. Stovall appealed.

The Sixth Circuit affirmed, applying the established “arising under” framework used to assess federal-question jurisdiction under 28 U.S.C. Sections 1331 and 1338. Under that framework, a claim may arise under federal copyright law only if:

  • It is created by the Copyright Act.
  • It is a state law claim that necessarily raises a disputed and substantial copyright issue.
  • It asserts rights equivalent to those protected by copyright and is therefore preempted.

The Court concluded that none of these categories applied.

First, the Copyright Act did not create Stovall’s cause of action; her asserted entitlement to inspect or copy the survey arose solely under the Kentucky Open Records Act.

Second, although copyright law was implicated, it entered the case only as a potential defense to the school district’s disclosure obligation. The Sixth Circuit emphasized that federal jurisdiction cannot be manufactured by anticipating a federal defense, even where the defense involves copyright fair use. Because federal copyright law was not an essential element of Stovall’s state law claim, the case did not “arise under” federal law.

Third, the Sixth Circuit rejected Stovall’s argument that her claim was effectively a copyright dispute because it might provoke an infringement action by NCS Pearson. The Kentucky Open Records Act claim did not resemble an infringement action and did not seek to vindicate rights equivalent to those protected by the Copyright Act. Accordingly, it was not preempted and did not fall within exclusive federal jurisdiction.

The Sixth Circuit concluded that Stovall also lacked Article III standing under the Declaratory Judgment Act. The Court explained that a speculative fear of future litigation does not create the “substantial controversy” required to establish a justiciable case or controversy. Stovall had not alleged any prior infringement claim, threat of suit, or concrete indication that NCS Pearson intended to sue [...]

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Top Gun and all that jazz: “Substantial similarity” in the Ninth Circuit

by | Jan 15, 2026 |

Two January 2026 decisions from the US Court of Appeals for the Ninth Circuit confirm that copyright infringement requires substantial similarity in protectable expression, proven through both extrinsic and intrinsic tests. Yonay v. Paramount Pictures Corp. demonstrates strict application of filtration principles and the constraints of selection-and-arrangement theories at summary judgment. Sedlik v. Von Drachenberg, by contrast, underscores the central and increasingly contested role of the intrinsic test at trial, even when extrinsic similarity evidence is substantial. Yonay v. Paramount Pictures Corp., Case No. 24-2897 (9th Cir. Jan. 2, 2026) (Hurwitz, Miller, Sung, JJ.); Sedlik v. Von Drachenberg, et al., Case No. 24-3367 (9th Cir. Jan. 2, 2026) (Wardlaw, Mendoza Jr., Johnstone, JJ.) (per curiam) (Wardlaw, Johnstone, JJ., concurring).

The extrinsic test examines objective similarities in protectable expression after excluding unprotectable elements while the intrinsic test asks whether an ordinary reasonable observer would perceive substantial similarity in expression without expert guidance.

Yonay v. Paramount Pictures – “Top Guns”

Ehud Yonay authored and owns a copyright in “Top Guns,” a 1983 magazine article about the US Navy Fighter Weapons School, popularly known as “Top Gun.” Yonay sued Paramount Pictures, alleging that its 2022 film Top Gun: Maverick infringed that copyright. The district court granted summary judgment for Paramount, and Yonay appealed.

The Ninth Circuit applied the extrinsic test and rigorously filtered out unprotectable elements, including factual material about the Top Gun program, stock scenes, and high-level themes. The Court concluded that the similarities identified by the plaintiffs existed only at an abstract level and did not involve protectable expression. Although “Top Guns” contains vivid prose and an innovative narrative structure that qualify as protectable expression, none of that expression appeared in the film. The Court explained that even under a selection-and-arrangement theory, courts must filter out unprotectable elements and determine whether the works share a protectable “pattern, synthesis, or design.” After doing so, the Court concluded that the similarities identified by the plaintiffs consisted of unprotectable facts and ideas rather than original expression.

Because the intrinsic test is reserved exclusively for the trier of fact, only the extrinsic test was relevant at the summary judgment stage. The Ninth Circuit also determined that the district court did not abuse its discretion in excluding the plaintiffs’ expert, whose analysis failed to adequately filter out unprotectable elements and therefore relied heavily on similarities in facts and abstract ideas, rendering his opinions unhelpful.

The Ninth Circuit affirmed summary judgment for Paramount, holding that Top Gun: Maverick was not substantially similar to the article “Top Guns.”

Sedlik v. Von Drachenberg, et al. – Miles Davis photograph

Jeffrey Sedlik owns a copyright in his photograph of Miles Davis. Sedlik sued Katherine Von Drachenberg and her tattoo parlor, High Voltage Tattoo, alleging copyright infringement based on Von Drachenberg’s use of the photograph as a reference to create a tattoo depicting Davis’s likeness, the creation of a preliminary sketch, and the posting of related images on social media. After a jury trial, the district court entered judgment in favor [...]

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