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Official Statute Annotations Are Not Copyrightable

In a 5-4 decision, the Supreme Court of the United States held that copyright law does not protect annotations contained in the official annotated compilation of state statutes. Georgia v. Public.Resource.Org, Inc., Case No. 18-1150 (Supr. Ct. Apr. 27, 2020) (Roberts, Justice) (Thomas, Justice, dissenting) (Ginsburg, Justice, dissenting). Background The State of Georgia has one official code: the Official Code of Georgia Annotated (OCGA). The OCGA is compiled and annotated by Lexis under a contract with the Georgia Revision Commission, an arm of the Georgia General Assembly, with summaries of judicial opinions applying a given statute, editor’s notes, excerpts from law review articles and other research references. The contract specifies that the Commission owns the copyright to the OCGA and grants Lexis the exclusive right to publish, distribute and sell copies of the OCGA. The nonprofit group Public.Resource.Org, Inc. (PRO), which is dedicated to providing...

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Ricky Martin’s “Vida” Lives On, but Plaintiff Will Get Another Shot at It

Addressing whether a copyright infringement claim should be dismissed with prejudice where the plaintiff failed to register his copyright prior to filing the lawsuit, the US Court of Appeals for the First Circuit held that dismissal is too harsh, remanding the case for consideration of whether the claim should be dismissed without prejudice or if the plaintiff should be entitled to supplemental allegations. Cortes-Ramos v. Martin-Morales, Case No. 19-1358 (1st Cir. Apr. 13, 2020) (Dyk, J.[1]). This dispute between Luis Adrian Cortes-Ramos and famous pop star Enrique Martin-Morales (known as Ricky Martin) stems from a 2014 contest. Cortes-Ramos entered a song and music video for the chance to have Martin perform it at the 2014 Federation Internationale de Football Association (FIFA) World Cup opening in Brazil. Cortes-Ramos’s entry was a top-20 finalist, but it did not win the competition. Shortly thereafter, when Martin released a new song titled “Vida,”...

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11th Circuit Tells Guitar Maker to Take a [Pantera] Walk on Delayed Copyright Claims

Affirming a summary judgment in favor of defendant, the US Court of Appeals for the Eleventh Circuit determined that a copyright infringement lawsuit pertaining to the graphic design on a guitar made famous by a late heavy metal guitarist, was time-barred because the plaintiff’s copyright infringement claim was actually a claim of copyright ownership over the design. Buddy Webster v. Dean Guitars, et al., Case No. 19-10013 (11th Cir. Apr. 16, 2020) (Wilson, J.). In 1985, guitar maker and technician Buddy Blaze (née Buddy Webster) modified a Dean ML electric guitar (which has a distinctive design consisting of a V-shaped headstock and V-shaped tailpiece) and hired a third party to paint a lightning storm graphic on the guitar. Two years later, Webster gifted the guitar to Abbott, who called the guitar “The Dean from Hell” (DFH) and made the guitar famous through his performances with the heavy metal band, Pantera, until Abbott was tragically murdered during a...

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US Copyright Office, USPTO Act to Assist Those Affected by COVID-19

On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which authorized the US Copyright Office (USCO) and the United States Patent and Trademark Office (USPTO) to temporarily waive or modify certain statutory deadlines. Prior to the CARES Act, the USPTO and USCO had sought to provide relief to intellectual property owners by waiving certain fees (including, for example, fees associated with petitions to revive abandoned applications), but had been limited by their inability to modify statutory deadlines. The extensions will undoubtedly provide needed relief for certain rights holders during this tumultuous time. Nonetheless, if possible, adhering to original deadlines is the safest route, and parties should first carefully review the USPTO and USCO notices with a lawyer to determine whether the extensions are applicable and legally prudent. USPTO Section 12004 of the CARES Act allows the USPTO to...

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Ninth Circuit Gleefully Rejects Copyright Claims against California High School

Affirming a district court’s summary judgment in favor of various defendants, including the vocal music director and parent volunteers at Burbank High School (whose competitive show choirs reportedly inspired the television series “Glee”), the US Court of Appeals for the Ninth Circuit examined issues of standing via copyright ownership and the copyright infringement defense of fair use. The Court, however, reversed the lower court’s denial of defendants’ attorneys’ fees and remanded for the calculation of an appropriate award in view of plaintiff’s “objectively unreasonable” arguments in the lawsuit. Tresóna Multimedia, LLC, v. Burbank High School Vocal Music Association, et. al., Case No. 17-56006 (9th Cir., Mar. 24, 2020) (Wardlaw, J.). Arizona-based licensing company Tresóna Multimedia, LLC, filed copyright infringement claims against the Burbank High School music director, as well as the school’s booster club and others, citing infringing performances by...

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SCOTUS Sinks the CRCA, Confirms States are Immune from Copyright Suits

The Supreme Court of the United States issued a unanimous decision invalidating the Copyright Remedy Clarification Act (CRCA), a 1990 statute intended to provide copyright owners with the power to sue a US state government for infringement, and held that states cannot be sued for copyright infringement. Allen v. Cooper, Case No. 18-877 (Supr. Ct. Mar. 23, 2020) (Kagan, Justice) (Thomas, Justice, concurring) (Breyer and Ginsburg, Justices, concurring). Background In 1996, marine salvage company Intersal discovered the wreck of the Queen Anne’s Revenge, the pirate ship of the infamous Blackbeard. Intersal was hired to recover the wreck by the state of North Carolina, which owned of the shipwreck. Intersal hired local videographer Frederick Allen to document the process, and Allen registered copyrights in a decade’s worth of videos and photos of the wreckage recovery. Allen first objected to the state of North Carolina’s use of his copyrighted content in 2013...

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“Lightly Sketched” Characters Not Copyrightable

The US Court of Appeals for the Ninth Circuit affirmed that “lightly sketched anthropomorphized characters representing human emotions” were not copyrightable. Daniels v. Walt Disney Co., Case No. 18-55635 (9th Cir. Mar. 16, 2020) (McKeown, J.). Denise Daniels created The Moodsters Company. The Moodsters were five named characters, each color-coded to an emotion. The Moodsters Company developed a pitchbook in 2005, a pilot episode for television in 2007, and toys and books of a second generation of The Moodsters by 2013. Daniels and The Moodsters Company also pitched The Moodsters to Disney. In 2010, Disney began developing a movie about five anthropomorphized emotions called Inside Out. Daniels brought a claim of copyright infringement against Disney. After the district court granted Disney’s motion to dismiss, Daniels appealed. On appeal, the Ninth Circuit analyzed whether The Moodsters qualified for copyright protection under (1) the Towle test and (2)...

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Lightbulb Moment: It’s Possible to Grant an Implied Copyright Sublicense

Addressing for the first time the issue of implied copyright sublicenses, the US Court of Appeals for the First Circuit held that where a copyright license provides an unrestricted right to grant sublicenses, a copyright licensee may do so impliedly and without express language. Photographic Illustrators Corp. v. Orgill, Case No. 19-1452 (1st Cir. Mar. 13, 2020) (Kayatta, J.). Photographic Illustrators Corp. (PIC), a commercial photography company, and Osram Sylvania (Sylvania), a lightbulb manufacturer and one of PIC’s customers, had entered into a detailed license granting Sylvania, inter alia, “a non-exclusive, worldwide license in and to all the images and copyrights thereto to freely use, sublicense use, and permit use, in its sole and absolute discretion, in perpetuity, anywhere that was in the world.” Sylvania—and its dealers and distributors—used the licensed images to market Sylvania products. Orgill, one of Sylvania’s distributors, used the licensed...

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Ninth Circuit Shows Led Zeppelin a Whole Lotta Love in ‘Stairway’ Copyright Win

Ruling en banc, the US Court of Appeals for the Ninth Circuit reinstated a 2016 jury verdict, finding that the rock band Led Zeppelin and the opening notes of its hit song “Stairway to Heaven” did not infringe the 1967 song “Taurus” by the band Spirit. Michael Skidmore v. Led Zeppelin et al., Case No. 16-56057 (9th Cir., March 9, 2020) (en banc) (McKeown, J.) (Bea and Ikuta, JJ., dissenting). The en banc decision addressed a “litany of copyright issues”—the most critical being the interplay between the 1909 and 1976 Copyright Acts and the Court’s reversal of its own precedent in rejecting a doctrine occasionally referred to as the “inverse ratio rule”—when it concluded that, regardless of a copyrighted work’s fame, all plaintiffs must satisfy the same standard of proof in showing that an allegedly infringing work is substantially similar to the copyrighted work. In 2014, 43 years after the release of Zeppelin’s “Stairway to Heaven,” Michael Skidmore, the...

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Street Art Street Smarts: Second Circuit Applies VARA, Affirms Moral Rights

The US Court of Appeals for the Second Circuit affirmed that plaintiffs-appellees’ temporary artwork had achieved appropriate stature to be protected by the rarely invoked Visual Artists Rights Act of 1990 (VARA), and that an award of statutory damages was warranted for defendants-appellants’ willful unlawful actions. Jonathan Cohen, et al. v. G&M Realty L.P., et al., Case Nos. 18-498, -538 (2nd Cir. Feb. 20, 2020) (Parker, J). VARA established a structure of moral rights that gives the author of a work of visual art the right to “prevent any destruction of a work of recognized stature,” and provides that “any intentional or grossly negligent destruction of that work is a violation” of VARA. The act also contains specific language prohibiting the removal or destruction of artwork incorporated into a building absent certain written waivers or notice provisions, which are detailed in the statute. The present dispute traces its roots back to 2002 when Gerald...

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