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Results for "Copyright appeals"
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Copyright Royalty Board royalty rate allocations must be explained

by | Oct 1, 2026 |

Addressing royalties under the US Copyright Act’s compulsory licensing scheme, the US Court of Appeals for the District of Columbia Circuit vacated the Copyright Royalty Board’s royalty allocation for 2014 through 2017 and remanded for the Board to further explain how the royalty rates were calculated and allocated. Office of the Commissioner of Baseball v. Librarian of Congress, Case Nos. 24-1259; -1260 (DC Cir. Sept. 22, 2026) (Srinivasan, Childs, Rogers, JJ.) (Rogers, J., concurring in part and dissenting in part).

The compulsory licensing scheme at issue relates to cable systems that pay statutorily prescribed royalties in exchange for permission to distantly retransmit television broadcast programming. The cable systems calculate and deposit those royalties with the Register of Copyrights. If copyright claimants cannot agree on how to distribute the resulting royalty pool, the Board conducts proceedings to determine the appropriate allocation.

In phase one of the royalty calculation proceedings, the copyright claimants group themselves into categories based on the programming they own, and the Board allocates the overall royalty pot among those categories based on their relative marketplace value. In this case, the Board relied on two principal valuation methodologies, the Bortz Survey and a regression analysis, to determine the relative marketplace value of the programming categories and allocate the royalty pool among them. The Board’s phase one allocation was at issue on appeal. The Joint Sports Claimants (JSC), which included the Office of the Commissioner of Baseball, along with Public Television (PTV), which included the Public Broadcasting Service, separately challenged the Board’s allocation of the royalty pool as arbitrary and capricious.

PTV argued that the Board’s reliance on an expert’s sensitivity test was arbitrary and capricious because:

  • It departed from the Board’s precedent without explanation.
  • It contradicted the evidence and nearly every expert’s testimony that minimum-fee signals retain value.
  • It was applied inconsistently across the copyright claimants.

In response to the first point, the DC Circuit found that the Board did not depart from precedent but instead properly changed its valuation method based on the changed circumstances in the compulsory licensing marketplace that occurred during the 2014 to 2017 time period. Regarding the second point, the Court found that the Board reasonably excluded minimum-fee cable systems because their programming preferences could not be meaningfully captured by a regression designed to measure incremental willingness to pay. As to the third point, the Court found that the Board correctly applied adjustments to certain programming groups to correct distortions in the regression data.

PTV further argued that the sensitivity test’s exclusion of cable systems that were required to carry certain programming was arbitrary and disproportionately affected PTV. The DC Circuit disagreed, explaining that the Copyright Act does not establish the marketplace value of must-carry programming, the evidence did not establish the value PTV attributed to such programming, and the Board reasonably relied on an expert’s estimate of the number of must-carry signals.

JSC argued that the Board’s reliance on an expert’s regression analysis and a Bortz Survey was arbitrary and capricious [...]

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Fifth Circuit scrolls past Ninth Circuit “Server Test” for online copyright infringement

by | Sep 10, 2026 |

The US Court of Appeals for the Fifth Circuit rejected the Ninth Circuit’s “server test” for determining whether embedded online content infringes a copyright owner’s public display right and concluded that URLs are not categorically excluded from qualifying as copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA). Emmerich Newspapers, Inc. v. Particle Media, Inc., Case No. 23-60550 (5th Cir. Aug. 27, 2026) (King, Higginson, Duncan, JJ.)

Emmerich Newspapers publishes local news content online. Particle Media operates NewsBreak, a news aggregation website and application that links to content from various publishers, including Emmerich. One NewsBreak feature, called Framed View, allowed users to view a live version of an Emmerich webpage within a frame appearing in the NewsBreak interface.

Emmerich sued Particle for copyright infringement, alleging that Framed View violated Emmerich’s exclusive right under 17 USC § 106(5) to publicly display its copyrighted content. Emmerich also asserted a DMCA claim, contending that its URLs constituted CMI and that Particle improperly removed or altered that information when Emmerich content appeared under NewsBreak URLs.

The district court granted summary judgment to Particle. Applying the Ninth Circuit’s server test, first articulated in Perfect 10 v. Amazon.com (2007), the district court concluded that Particle did not infringe Emmerich’s display right because Particle did not store copies of Emmerich’s content on its own servers and instead linked to content transmitted from Emmerich’s servers. The district court also concluded that URLs could not constitute CMI because they primarily function as internet addresses. The Fifth Circuit accepted an interlocutory appeal addressing whether the server test provides the proper standard for display-right infringement and whether URLs may constitute CMI.

The Fifth Circuit declined to adopt the server test. Under that test, an entity that does not store a copy of a work on its own server generally does not “display” the work even if the entity embeds or frames content stored elsewhere. The Court concluded that this approach improperly transforms the Copyright Act’s requirement that a work be “fixed” into a requirement that the alleged infringer possess a copy of the work. The statutory definition of “fixed,” the Court explained, does not impose such a possession requirement.

Instead, the Fifth Circuit focused on the statutory requirement that a public display involve transmitting the work. The Court explained that determining whether this “transmit requirement” is satisfied requires identifying where the transmission originates and whether the transmission was permitted.

Applying that framework to Framed View, the Fifth Circuit concluded that Particle did not itself transmit Emmerich’s content. The transmission originated from Emmerich’s server, while NewsBreak merely sent a request for that content. The Court also emphasized that Emmerich’s server could have rejected the request. Thus, although the Court rejected the server test’s doctrinal basis, it concluded that Particle’s use of Framed View did not violate Emmerich’s public display right.

The Fifth Circuit cautioned that its finding was limited to the circumstances before it, suggesting that the analysis might differ where a copyright owner lacks the technological ability to reject [...]

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

by | Sep 11, 2025 |

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.



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

by | Aug 21, 2025 | ,

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.



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