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Striking a chord: Ninth Circuit revives copyright suit over liturgical music

by Hannah Hurley | Sep 11, 2025 | Copyrights

In a copyright case involving liturgical music, the US Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded a district court summary judgment after finding triable issues of fact regarding access and similarity between two musical compositions. The Court upheld the exclusion of the plaintiff’s late-disclosed evidence on access. Ambrosetti v. Or. Cath. Press, et al., Case No. 24-2270 (9th Cir. Aug. 27, 2025) (Thomas, Smith, Rayes, JJ.)

Vincent Ambrosetti, a prolific composer of sacred music, alleged that Bernadette Farrell copied his 1980 composition “Emmanuel” when writing her 1993 hymn “Christ Be Our Light.” Both works are widely used in Catholic liturgy, and Farrell’s song has become a staple in worship settings around the globe. Ambrosetti claimed that Farrell had access to “Emmanuel” through her association with Oregon Catholic Press (OCP), which published her work and had received copies of Ambrosetti’s music in the 1980s. He also pointed to striking musical similarities between the two compositions.

The district court excluded key evidence (letters from OCP’s then-publisher Owen Alstott acknowledging receipt of Ambrosetti’s music) as a sanction for late disclosure and barred Ambrosetti from arguing that Farrell accessed “Emmanuel” through those letters. Without that theory of access, and finding no striking similarity, the district court granted summary judgment for OCP. Ambrosetti appealed.

The Ninth Circuit affirmed the exclusion of the letters, finding that the sanctions were not “claim dispositive” since Ambrosetti could still pursue other theories of access and striking similarity. However, the panel reversed the summary judgment ruling, concluding that triable issues of fact existed as to whether Farrell had access to “Emmanuel” based on her and Alstott’s attendance at music conventions where Ambrosetti performed.

The Ninth Circuit also found that there was a genuine issue of material fact as to whether “Emmanuel” and “Christ” were substantially similar. According to Ambrosetti’s expert, 23 similarities in pitch, rhythm, and melodic development supported a finding of substantial similarity, with the district court noting that while individual elements may not be protectable, the unique combination could be. In vacating the summary judgement, the Ninth Circuit noted that summary judgment is “not highly favored” in copyright cases involving musical works where the evidence relied on is primarily competing expert testimony.

The Ninth Circuit upheld the exclusion of Alstott’s letters as a discovery sanction but found a genuine issue of material fact on the issue of access remained, thus precluding summary judgement.

Wrestling with prevailing defendant’s post-trial fee request in copyright dispute

by Christian Tatum | Aug 21, 2025 | Copyrights, Trademarks

The US Court of Appeals for the Fifth Circuit affirmed a district court’s denial of attorneys’ fees to the defendant after it prevailed at trial in a copyright infringement suit, concluding that the district court adequately addressed the Supreme Court’s Fogarty factors and did not abuse its discretion. Booker T. Huffman v. Activision Publ’g, Inc., et al., Case No. 22-40072 (5th Cir. Aug. 6, 2025) (Richman, Elrod, Oldham, JJ.) (Oldham, J., dissenting) (nonprecedential).

Booker Huffman, a retired professional wrestler, alleged that Activision’s “Prophet” character in Call of Duty: Black Ops IV infringed his G.I. Bro comic book poster. The case proceeded to trial, and the jury returned a verdict in favor of Activision. Activision then sought attorneys’ fees under 17 U.S.C. § 505, arguing that Huffman’s claims were frivolous, objectively unreasonable, and brought in bad faith, citing a lack of supporting evidence and substantial proof of independent creation. The district court found that the claims involved unsettled areas of law and were neither frivolous nor objectively unreasonable. Applying the factors the Supreme Court outlined in Fogarty v. Fantasy (1994), the district court concluded that an award of attorneys’ fees was not warranted. Activision appealed.

Activision argued that the district court failed to follow Fifth Circuit precedent, which holds that fee awards are “the rule rather than the exception” for prevailing parties in copyright actions. Activision contended that Huffman’s claims were meritless due to a lack of evidence establishing access, striking similarity, or causation. The Fifth Circuit rejected these arguments, emphasizing that there is no automatic entitlement to fees and that the district court’s six-page Fogerty analysis was more thorough than in other cases in which the Fifth Circuit has sustained lower court fee decisions. The Fifth Circuit highlighted that the district court carefully analyzed whether Huffman’s claims were objectively unreasonable, noting that the case implicated areas of unsettled law. The panel emphasized the district court’s denial of Activision’s pretrial motions, the evidence supporting Huffman’s access and similarity, and the district court’s evaluation of the evidentiary record.

The Fifth Circuit also rejected Activision’s argument that the district court abused its discretion by failing to analyze each of the Fogerty factors separately, finding that the judge recited the parties’ arguments for the relevant factors and that it could be inferred that the district court did not find Activision’s arguments persuasive. Throughout its analysis, the Court emphasized that a district court’s attorneys’ fees decision is reviewed only for abuse of discretion and not to relitigate the merits.

Judge Oldham dissented, concluding that Huffman’s claims were “speculation piled on fantasy piled on a pipe dream” and that overwhelming evidence of independent creation made the suit clearly unreasonable. Judge Oldman would have awarded fees to compensate Activision for defending against what he characterized as a baseless $32 million claim and to deter similarly unmeritorious lawsuits in the future.

To kill a derivative: Licensee has no post-termination copyright control

by Rick Evans | Aug 7, 2025 | Copyrights

Addressing a dispute concerning two derivative stage adaptations of Harper Lee’s To Kill a Mockingbird, the US Court of Appeals for the Second Circuit affirmed the district court’s grant of declaratory relief, finding that the plaintiff did not infringe any copyright interest in derivative works following the termination of the defendant’s exclusive licensing grant. Atticus Limited Liability Company v. The Dramatic Publishing Company, Case No. 23-1226 (2d Cir. July 29, 2025) (Wesley, Chin, Perez, JJ.)

In 1969, Harper Lee granted Dramatic an exclusive license to create and license a derivative work stage adaptation of To Kill a Mockingbird for non-first-class productions (e.g., amateur and community theater). Lee terminated that grant in 2011 under the Copyright Act’s termination provisions, effective in 2016. In 2015, Lee granted exclusive rights to develop and perform a second derivative stage adaptation to Atticus.

In 2019, Dramatic initiated arbitration against Lee’s estate asserting continued exclusive rights to non-first-class productions despite the termination. The arbitrator ruled in favor of Dramatic. Subsequently, Atticus, which was not a party to the arbitration, sought declaratory judgment that performances of its play did not infringe any rights held by Dramatic. The district court ruled in favor of Atticus and awarded Atticus more than $200,000 in attorneys’ fees. Dramatic appealed the judgment and the parties cross-appealed the award of fees.

Dramatic argued that its exclusive right to stage non-first-class productions of To Kill a Mockingbird survived Lee’s termination of the 1969 grant under the Copyright Act’s derivative works exception. The Second Circuit rejected this argument, finding that Dramatic improperly equated its rights in the derivative work with ownership rights in the original copyrighted work. While Dramatic could continue using its play under the original grant, it could not prevent the creation or authorization of new adaptations. Those exclusive rights belonged to Lee and reverted to her upon termination of the grant.

Dramatic also argued that:

Lee’s grant to Atticus was invalid because it preceded the effective termination date of Dramatic’s grant.
Atticus’ claim was untimely.
Atticus’ claims were barred by res judicata based on the earlier arbitration.

The Second Circuit disposed of each of these arguments, explaining that:

The grant date was irrelevant because Dramatic no longer held exclusive rights.
The statute of limitations did not toll because Atticus’ claim was for noninfringement, not ownership.
The claims were not barred by res judicata because Atticus was not a party to the arbitration.

Regarding the award of attorneys’ fees, the Second Circuit agreed that Dramatic’s statute of limitations and res judicata defenses were objectively unreasonable, justifying a fee award, but found no basis for fees based on an alleged forfeiture of Dramatic’s statute of limitations defense since it was properly raised in the answer, even if not included in its opposition to Atticus’ pre-answer motion for summary judgment. The Court further found that Atticus was not entitled to attorneys’ fees for Dramatic’s limited discovery efforts to determine Atticus’ involvement in the arbitration or for the current appeal. Accordingly, the [...]

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Que sera, sera: No declaratory relief after songwriter’s heir terminated copyright assignments

by Taylor MacDonald | Jul 17, 2025 | Copyrights

Addressing the intersection of a trust beneficiary’s rights to royalties and an heir’s copyright termination rights under 17 U.S.C. § 203, the US Court of Appeals for the Sixth Circuit affirmed the district court’s order dismissing the beneficiary’s request for declaratory relief for failure to state a claim. Tammy Livingston v. Jay Livingston Music, Inc. and Travilyn Livingston, Case No. 24-5263 (6th Cir. Jul. 7, 2025) (Readler, Siler, Clay, JJ.)

Jay Livingston was a prominent 20th century songwriter. In 1985, he established a family trust that granted the beneficiaries royalties from nearly 250 songs and transferred his reversionary copyright interests in the songs to the trust. The copyright interest was reversionary because in 1984, Livingston executed a contract that began assigning copyright interests in the songs to a company whose legal successor would become Jay Livingston Music. That contract laid the groundwork for successive agreements that would each transfer a specific song to the company. By 2000, Livingston had assigned his interests in each song to Jay Livingston Music.

In 2000, Livingston signed a second overarching contract, extending the company’s rights to the full duration of each song’s copyright protection. The songs’ copyrights expire around 2050. In 2003, after Livingston passed away, a California probate court ordered that the trust no longer held any rights in his copyright interests beyond the royalties.

In 2015, Travilyn Livingston (Livingston’s only child) terminated the assignment to Jay Livingston Music of 32 songs under § 203(a)(2)(B) of the Copyright Law, reverting all rights to Travilyn. Tammy Livingston, Travilyn’s daughter, sued Travilyn in 2022, requesting declaratory relief stating either that the termination notices Travilyn used were invalid or that Tammy remained entitled to royalties from the 32 songs under state law. The district court dismissed the case for failure to state a claim. Tammy appealed.

The Sixth Circuit affirmed the district court. The Sixth Circuit considered whether Livingston executed the 2000 contract as an individual or a trustee and to what extent that affected the validity of the assignment extensions. The Court determined that the probate court’s 2003 order had preclusive effect and that Livingston had signed the 2000 contract in his individual capacity. Therefore, the company – not the trust – held the valid assignments in 2015 when Tammy terminated them.

Tammy argued that Travilyn could only terminate the assignments if they had been transferred to a third party in 1984. Tammy claimed that Travilyn did not own the company when the 1984 contract was executed and that Livingston thus granted the rights to himself as the owner of the company. The Sixth Circuit was unpersuaded by this argument because the 1984 agreement stated that Travilyn owned the company on the date of execution. Tammy next argued that the district court committed reversable error when it stated that Travilyn owned the company “sometime before” the 1984 contract’s execution rather than on the day, as the contract itself stated. The Court found that this misstatement did not rise to reversible error.

Finally, to support her [...]

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Supreme Court to consider whether ISPs can be liable for contributory copyright infringement

by Amol Parikh | Jul 10, 2025 | Cert Alert

The Supreme Court of the United States has agreed to review whether an internet service provider (ISP) can be liable for copyright infringement for providing an internet connection that leads to piracy. Cox Communications, Inc. v. Sony Music Entertainment, Case No. 24-171 (Supr. Ct. June 30, 2025) (certiorari granted). The questions presented are:

Whether the US Court of Appeals for the Fourth Circuit erred in holding that a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it.
Whether the Fourth Circuit erred in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c).

In Sony Music Entm’t., et al. v. Cox Commc’ns, Inc., Case No. 21-1168 (4th Cir. Feb. 20, 2024), the Fourth Circuit upheld a jury verdict finding Cox liable for contributory copyright infringement, rejecting Cox’s arguments that its service was also used for lawful activity and that its contribution must amount to aiding and abetting the infringement. The Court, however, reversed the jury’s verdict of vicarious liability, finding that Cox did not profit from its subscribers’ acts of infringement and thus did not meet the legal prerequisite for that form of secondary liability.

Fair use or foul play? The AI fair use copyright line

by Jodi Benassi | Jul 2, 2025 | Copyrights

The US District Court for the Northern District of California granted summary judgment in favor of an artificial intelligence (AI) company, finding that its use of lawfully acquired copyrighted materials for training and its digitization of acquired print works fell within the bounds of fair use. However, the district court explicitly rejected the AI company’s attempt to invoke fair use as a defense to rely on pirated copies of copyrighted works as lawful training data. Andrea Bartz, et al. v. Anthropic PBC, Case No. 24-CV-05417-WHA (N.D. Cal. June 23, 2025) (Alsup, J.)

Anthropic, an AI company, acquired more than seven million copyrighted books without authorization by downloading them from pirate websites. It also lawfully purchased print books, removed their bindings, scanned each page, and stored them in digitized, searchable files. The goal was twofold:

To create a central digital library intended, in Anthropic’s words, to contain “all the books in the world” and to be preserved indefinitely.
To use this library to train the large language models (LLMs) that power Anthropic’s AI assistant, Claude.

Each work selected for training the LLM was copied through four main stages:

Each selected book was copied from the library to create a working copy for training.
Each book was “cleaned” by removing low-value or repetitive content (e.g., footers).
Cleaned books were converted into “tokenized” versions by being simplified and split into short character sequences, then translated into numerical tokens using Anthropic’s custom dictionary. These tokens were repeatedly used in training, allowing the model to discover statistical relationships across massive text data.
Each fully trained LLM itself retained “compressed” copies of the books.

Once the LLM was trained, it did not output any of the books through Claude to the public. The company placed particular value on books with well-curated facts, structured analyses, and compelling narratives (i.e., works that reflected well-written creative expressions) because Claude’s users expected clear, accurate, and well-written responses to their questions.

Andrea Bartz, along with two other authors whose books were copied from pirated and purchased sources and used to train Claude, sued Anthropic for copyright infringement. In response, Anthropic filed an early motion for summary judgment on fair use only under Section 107 of the Copyright Act.

To assess the applicability of the fair use defense, the court separated and analyzed Anthropic’s actions across three distinct categories of use.

Transformative training (fair use)

The authors challenged only the inputs used to train the LLMs, not their outputs. The district court found that Anthropic’s use of copyrighted books to train its LLMs was a transformative use, comparable to how humans read and learn from texts and produce new, original writing. While the authors claimed that the LLMs memorized their creative expression, there was no evidence that Claude released infringing material to the public. The court concluded that using the works as training inputs – not for direct replication, but to enable the generation of new content – favored a finding of fair use.

Format-shifting copies (fair use)

[...]

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Running on Empty: ‘Stang’ With No Anthropomorphic Characteristics Isn’t Copyrightable Character

by Taylor MacDonald | Jun 5, 2025 | Copyrights

The US Court of Appeals for the Ninth Circuit affirmed a district court’s denial of copyright protection for a car that had a name but no anthropomorphic or protectable characteristics. Carroll Shelby Licensing, Inc. v. Denice Shakarian Halicki et al., Case No. 23-3731 (9th Cir. May 27, 2025) (Nguyen, Mendoza, JJ.; Kernodle Dist. J., sitting by designation).

In 2009, Denice Shakarian Halicki and Carroll Shelby Licensing entered into a settlement agreement resolving a lawsuit concerning Shelby’s alleged infringement of Halicki’s asserted copyright interest in a Ford Mustang known as “Eleanor,” which appeared in a series of films dating back to the 1970s. Under the agreement, Shelby, a custom car shop, was prohibited from producing GT-500E Ford Mustangs incorporating Eleanor’s distinctive hood or headlight design. Shortly thereafter, Shelby licensed Classic Recreations to manufacture “GT-500CR” Mustangs, a move Halicki viewed as a breach of the settlement agreement. Halicki contacted Classic Recreations and demanded it cease and desist in the production of the GT-500CRs.

Shelby filed a lawsuit alleging breach of the settlement agreement and seeking declaratory relief. Halicki counterclaimed for copyright infringement and breach of the agreement. Following a bench trial, the district court ruled in Shelby’s favor on both the breach and infringement claims but declined to grant declaratory relief. Shelby appealed.

The Ninth Circuit began by addressing whether “Eleanor” qualified for copyright protection as a character under the Copyright Act. Although the act does not explicitly list characters among the types of works it protects, the Ninth Circuit has recognized that certain characters may be entitled to such protection. The applicable standard, articulated in 2015 by the Ninth Circuit in DC Comics v. Towle, sets forth a three-pronged test, under which the character must:

Have “physical as well as conceptual qualities”
Be “sufficiently delineated to be recognizable as the same character whenever it appears” with “consistent, identifiable character traits and attributes”
Be “especially distinctive” and have “some unique elements of expression.”

The Ninth Circuit concluded that Eleanor failed to satisfy any of the three prongs of the Towle test. As to the first prong, the Court found that Eleanor functioned merely as a prop and lacked the anthropomorphized qualities or independent agency associated with protectable characters. Regarding the second prong, the Court noted that Eleanor’s appearance varied significantly across the films in terms of model, colors, and condition. Under the third prong, the Court found that Eleanor lacked the distinctiveness necessary to elevate it beyond the level of a generic sports car commonly featured in similar films. Thus, the Court concluded that Eleanor did not qualify as a character, let alone a copyrightable one.

The Ninth Circuit next turned to the parties’ settlement agreement. While California law permits the use of extrinsic evidence to aid in contract interpretation, the Court found the language sufficiently unambiguous to render such evidence unnecessary. Notably, the parties did not include “Eleanor” as a defined term in the agreement, and the term was used in varying contexts throughout the document, conveying different meanings [...]

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Copyright, AI, and Politics

by Paul Devinsky | May 22, 2025 | Copyrights

In early 2023, the US Copyright Office (CO) initiated an examination of copyright law and policy issues raised by artificial intelligence (AI), including the scope of copyright in AI-generated works and the use of copyrighted materials in AI training. Since then, the CO has issued the first two installments of a three-part report: part one on digital replicas, and part two on copyrightability.

On May 9, 2025, the CO released a pre-publication version of the third and final part of its report on Generative AI (GenAI) training. The report addresses stakeholder concerns and offers the CO’s interpretation of copyright’s fair use doctrine in the context of GenAI.

GenAI training involves using algorithms to train models on large datasets to generate new content. This process allows models to learn patterns and structures from existing data and then create new text, images, audio, or other forms of content. The use of copyrighted materials to train GenAI models raises complex copyright issues, particularly issues arising under the “fair use” doctrine. The key question is whether using copyrighted works to train AI without explicit permission from the rights holders is fair use and therefore not an infringement or whether such use violates copyright.

The 107-page report provides a thorough technical and legal overview and takes a carefully calculated approach responding to the legal issues underlying fair use in GenAI. The report suggests that each case is context specific and requires a thorough evaluation of the four factors outlined in Section 107 of the Copyright Act:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, the report concludes that GenAI training run on large diverse datasets “will often be transformative.” However, the use of copyright-protected materials for AI model training alone is insufficient to justify fair use. The report states that “transformativeness is a matter of degree of the model and how it is deployed.”

The report notes that training a model is most transformative where “the purpose is to deploy it for research, or in a closed system that constrains it to a non-substitutive task,” as opposed to instances where the AI output closely tracks the creative intent of the input (e.g., generating art, music, or writing in a similar style or substance to the original source materials).

As to the second factor (commercial nature of the use), the report notes that a GenAI model is often the product of efforts undertaken by distinct and multiple actors, some of which are commercial entities and some of which are not, and that it is typically difficult to discern attribution and definitively determine that a model is the product of a commercial or a noncommercial [...]

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Human Authorship Required: AI Isn’t an Author Under Copyright Act

by Jodi Benassi | Mar 27, 2025 | Copyrights

The US Court of Appeals for the District of Columbia upheld a district court ruling that affirmed the US Copyright Office’s (CO) denial of a copyright application for artwork created by artificial intelligence (AI), reaffirming that human authorship is necessary for copyright registration. Thaler v. Perlmutter, Case No. 23-5233 (D.C. Cir. Mar. 18, 2025) (Millett, Wilkins, Rogers, JJ.)

Stephen Thaler, PhD, created a generative AI system that he named the Creativity Machine. The machine created a picture that Thaler titled, “A Recent Entrance to Paradise.” Thaler applied to the CO for copyright registration for the artwork, listing the Creativity Machine as the author and Thaler as the copyright owner.

The CO denied Thaler’s application because “a human being did not create the work.” Thaler twice sought reconsideration of the application, which the CO denied because the work lacked human authorship. Thaler subsequently sought review in the US District Court for the District of Columbia, which affirmed the CO’s denial of registration. The district court concluded that “[h]uman authorship is a bedrock requirement of copyright.” Thaler appealed.

The DC Circuit reaffirmed that the Creativity Machine could not be considered the author of a copyrighted work. The Copyright Act of 1976 mandates that to be eligible for copyright, a work must be initially authored by a human being. The Court highlighted key provisions of the Copyright Act that only make sense if “author” is interpreted as referring to a human being. For instance:

A copyright is a property right that immediately vests in the author. Since AI cannot own property, it cannot hold copyright.
Copyright protection lasts for the author’s lifetime, but machines do not have lifespans.
Copyright is inheritable, but machines have no surviving spouses or heirs.
Transferring a copyright requires a signature, and machines cannot provide signatures.
Authors of unpublished works are protected regardless of their nationality or domicile, yet machines do not have a domicile or national identity.
Authors have intentions, but machines lack consciousness and cannot form intentions.

The DC Circuit concluded that the statutory provisions, as a whole, make human activity a necessary condition for authorship under the Copyright Act.

The DC Circuit noted that the human authorship requirement is not new, referencing multiple judicial decisions, including those from the Seventh and Ninth Circuits, where appellate courts have consistently ruled that authors must be human.

Practice Note: Only humans, not their tools, can author copyrightable works of art. Images autonomously generated are not eligible for copyright. However, works created by humans who used AI are eligible for copyright depending on the circumstances, how the AI tool operates, and to what degree the AI tool was used to create the final work. Authors whose works are assisted by AI should seek advice of counsel to determine whether their works are copyrightable.

Religious Texts, Copyrights, and Estate Law: A Case of Strange Bedfellows

by Ashley K. Justice | Feb 13, 2025 | Copyrights

The US Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a case involving a deceased religious leader who owned the copyrights to works reflecting his teachings. The Court found that the copyrighted works were not works for hire under copyright law, that the leader therefore had the right to license his copyrights, and that the subsequent owner of the copyrights (not a statutory heir) also had the right to terminate licenses. Aquarian Foundation, Inc. v. Bruce Kimberley Lowndes, Case No. 22-35704 (9th Cir. Feb. 3, 2025) (Hawkins, McKeown, de Alba, JJ.)

Aquarian Foundation is a nonprofit religious organization founded by Keith Milton Rhinehart. During his time as the leader of Aquarian, Rhinehart copyrighted his spiritual teachings. An Aquarian member, Bruce Lowndes, claimed that he obtained a license from Rhinehart in 1985. Upon Rinehart’s death in 1999, he left his estate, including interests in copyrights, to Aquarian. In 2014, Aquarian discovered that Lowndes was uploading Rhinehart’s teachings online and sent Lowndes takedown requests pursuant to the Digital Millennium Copyright Act (DMCA). In 2021, Aquarian sent Lowndes a letter terminating Lowndes’ license and sued Lowndes for copyright infringement, trademark infringement, and false designation of origin.

After a bench trial, the district court concluded that Rhinehart’s works were not works for hire under either the 1909 or the 1976 Copyright Act, so Rhinehart had the authority to grant Lowndes an unrestricted license. The district court also found that Aquarian did not have the authority to terminate the license as a nonstatutory heir and should have given Lowndes two years notice. The district court denied attorneys’ fees. Both parties appealed the district court’s ruling on ownership and attorneys’ fees, and Aquarian appealed the ruling on its lack of authority to terminate the license.

The Ninth Circuit, finding no clear error, affirmed the district court’s holding that Rhinehart’s works were not works for hire under either the 1909 or the 1976 Copyright Act. Under the 1909 Act’s “instance and expense” test, the Court found that “the creation and maintenance of the works was Rhinehart’s purview, and not the church’s domain.” Under the 1976 Act, which applies agency law, the Court similarly found that Rhinehart’s creation of the works was outside the scope of his employment as Aquarian’s president and secretary. Therefore, under either act, Rhinehart’s works were not works for hire, making Rhinehart the copyright owner. The Ninth Circuit affirmed the district court’s finding that as owner, Rhinehart had authority to grant the license to Lowndes. The Court also found that Lowndes’ license to “use copyrighted materials ‘without restriction’” referenced “a coming World Wide Network,” so Lowndes did not breach the license by posting the works online.

The Ninth Circuit also affirmed that the testamentary transfer of copyrights to Aquarian was permitted by both the 1909 and 1976 Copyright Acts: “Both the 1909 and 1976 Copyright Acts allow for the transfer of a copyright by will. 17 U.S.C. § 42 (repealed) (providing that copyrights ‘may be bequeathed by will’); [...]

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