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So You Wanna Play with Copyright? “Joyful Noise” Ostinato Isn’t Original Expression

The US Court of Appeals for the Ninth Circuit affirmed a district court’s order vacating a jury award of damages for copyright infringement and granting judgment as a matter of law, explaining that the musical work alleged to have been copied did not qualify as an original work of authorship but consisted only of “commonplace musical elements.” Marcus Gray PKA Flame et al. v. Katheryn Elizabeth Hudson PKA Katy Perry et al., Case No. 20-55401 (9th Cir. Mar. 10, 2022) (Clifton, Smith, Watford, JJ.)

Key Definitions:

  • A musical scale is a sequence of musical notes or tones by pitch.
  • A subset of seven notes is called the minor scale and can be referred to with alphabetic names (A, B, C, etc.) or scale degrees (1, 2, 3, etc.).
  • An ostinato is a repeating musical figure (for example, 3-3-3-3-2-2).

In 2007, Marcus Gray (Flame) purchased an ostinato and used it in the song “Joyful Noise.” The song was released in 2008. While “Joyful Noise” did not achieve significant commercial success or airtime, it received millions of views online. In 2013, American singer-songwriter Katy Perry created “Dark Horse,” which was a hit, resulting in her performance at the Super Bowl halftime show in 2015.

The “Joyful Noise” ostinato consists of notes, represented as 3-3-3-3-2-2-2-1 and 3-3-3-3-2-2-2-6, whereas Dark Horse’s ostinato contains 3-3-3-3-2-2-1-5. Both have a uniform rhythm and equal note duration in time.

Plaintiffs sued Perry and her co-defendants for copyright infringement. Plaintiffs presented circumstantial evidence that the defendants had a reasonable opportunity to access “Joyful Noise” and that the ostinatos in both songs were substantially similar. Plaintiffs did not present direct evidence that Perry and the others had copied elements of the song, instead relying on testimony from their expert musicologist, Dr. Todd Decker.

Decker testified that the ostinatos were similar in many aspects, but he also testified that there was no single element that caused him to believe the ostinatos at issue were “substantially similar” when viewed “in isolation.” The jury also heard testimony from Perry’s expert, who disagreed altogether that the ostinatos were substantially similar.

The jury found that the defendants had a reasonable opportunity to hear “Joyful Noise” before composing “Dark Horse,” that the two songs contained substantially similar copyrightable expression and that “Dark Horse” used protected material from “Joyful Noise.” The jury found the defendants liable for copyright infringement and awarded $2.8 million in damages. The district court vacated the award and granted judgment as a matter of law to defendants, concluding that the evidence at trial was legally insufficient to show that the “Joyful Noise” ostinato was a copyrightable original expression. The plaintiffs appealed.

The Ninth Circuit explained that because the plaintiffs did not present any direct evidence that the defendants copied the “Joyful Noise” ostinato, they were required to show that the defendants had access to the work and that the ostinatos were substantially similar.

The Ninth Circuit began with its analysis [...]

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Copyright Claims Board Clarifies Service Rules and Opt-Outs

The US Copyright Office issued two final rules for how companies can designate agents to receive claims and how libraries can preemptively opt out of claims before the Copyright Claims Board (CCB). The agency has been drafting rules governing the CCB since it was established in 2020. The new venue is designed to serve as an alternative forum where parties may voluntarily seek to resolve certain copyright claims regarding any category of copyrighted work.

Companies Can Designate Subsidiaries as Agents of Service

Section 37 CFR § 222.6 (Designated service agents) becomes law effective April 7, 2022. This forthcoming rule will allow corporations, partnerships and unincorporated associations to use the same designated agent for process of service for separate legal entities under their direct or indirect common control. This rule will also allow companies with many subsidiaries to designate one service agent for each of its affiliates.

Libraries and Archives Can Preemptively Opt Out

Section 37 CFR § 223.2 (Libraries and archives opt-out procedures) becomes law effective April 8, 2022. Under this new law, a library or archive that wishes to preemptively opt out of participating in CCB proceedings may do so by submitting written notification to the CCB. The notification must certify that the library or archive qualifies for the limitations on exclusive rights under 17 U.S.C. 108, which provides that it is not an infringement of copyright for a library or archive, or any of its employees acting within the scope of their employment, to reproduce a single copy of a work under certain conditions.

Class Action Opt-Out Procedures

Section 37 CFR § 223.3 (Class action opt-out procedures) becomes law effective April 8, 2022. Under the new law, if a party to an active CCB proceeding receives notice of a pending or putative class action arising out of the same transaction or occurrence as the proceeding before the CCB in which the party is a class member, that party may either opt out of the class action or seek written dismissal of the proceeding before the CCB within 14 days of receiving notice of the pending class action.




Paradise Lost: Art Created by AI Is Ineligible for Copyright Protection

The US Copyright Office Review Board (“Board”) rejected a request to register a computer-generated image of a landscape for copyright protection, explaining that a work must be created by a human being to obtain a copyright. Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Copyright Review Board Feb. 14, 2022) (S. Perlmutter, Register of Copyrights; S. Wilson., Gen. Counsel; K. Isbell, Deputy Dir. of Policy).

In 2018, Steven Thaler filed an application to register a copyright in a work named “A Recent Entrance to Paradise.” Thaler listed as the author of the work the “Creative Machine,” a computer algorithm running on a machine. Thaler listed himself as a claimant and sought to register the work as a “work-for-hire” as the “owner” of the Creative Machine. The Board refused to register the work, finding that it lacked the necessary human authorship. Thaler requested reconsideration, arguing that the “human authorship requirement is unconstitutional and unsupported by either statute or case law.”

After reviewing the work a second time, the Board found that Thaler provided no evidence of sufficient creative input or intervention by a human author. The Board refused to abandon its longstanding interpretation of the Copyright Act, as well as Supreme Court and lower court precedent, that a work meets the requirements of copyright protection only if it is created by a human author. The Board concluded that “A Recent Entrance to Paradise” lacked the required human authorship and therefore affirmed refusal to register. Thaler filed for a second reconsideration.

The Board found that Thaler’s second request for consideration repeated the same arguments as his first request. Relying on the Compendium of US Copyright Office Practices (the Office’s practice manual), the Board found that Thaler provided neither evidence that the work was a product of human authorship nor any reason for the Board to depart from more than a century of copyright jurisprudence.

The Board explained that the Supreme Court of the United States, in interpreting the Copyright Act, has described a copyright as the exclusive right of a human and her own genius going back to 1884. The Board noted that the Supreme Court has repeatedly articulated the nexus between the human mind and creative expression as a prerequisite for copyright protection. The human authorship requirement is further supported by the lower courts. For example, in 1997 the US Court of Appeals for the Ninth Circuit held in Urantia Found. v. Kristen Maaherra that a book containing words “‘authored’ by non-human spiritual beings” can only gain copyright protection if there is “human selection and arrangement of the revelations.”

The Board further explained that federal agencies have followed the courts. In the 1970s, the National Commission on New Technological Uses of Copyrighted Works (CONTU) studied the creation of new works by machines. CONTU determined that the requirement of human authorship was sufficient to protect works created with the use of computers and that no amendment to copyright law was necessary. CONTU explained that “the eligibility of [...]

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2022 IP Outlook Report: The Developments Shaping Copyright Law

Key Takeaways and Outlook for 2022

Like so many things in 2021, a few long-awaited copyright developments have spilled into 2022, with anticipated amendments to key provisions in the Digital Millennium Copyright Act topping the list of legislation to watch.

The key issues we are tracking include the following:

  1. Proposed Changes to the Digital Millennium Copyright Act
  2. The Fair Use Doctrine in Light of Google LLC v. Oracle America, Inc.
  3. Transformativeness in Fair Use under The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
  4. Unicolors and H&M Hennes & Mauritz Face Off in SCOTUS Infringement Dispute
  5. Copyright Alternative in Small-Claims Enforcement Act: A Venue and a Less-Complex Process in Sight in 2022

Read the full report.




Copyright Office Solicits Comments on Deferred Examination Option

The US Copyright Office announced a public study to evaluate the merits of providing an option to defer examination of copyright registration materials until a later request by the applicant. Deferred Registration Examination Study: Notice and Request for Public Comment, 86 Fed. Reg. 70540 (Dec. 10, 2021). To aid in the effort, the Copyright Office is soliciting public comments, which are due by January 24, 2022.

Copyright protection automatically attaches to an original work of authorship as soon as it’s created and fixed in tangible form. Although registration is optional, the US Copyright Act provides significant incentives to encourage registration, which only occurs after the Copyright Office examines the work and determines that it is copyrightable. This process can often take many months. In 2019, the Supreme Court of the United States held that a lawsuit for copyright infringement can be brought only after the Copyright Office registers the copyright. Fourth Estate v. Wall-Street.com, Case No. 17-571 (US March 4, 2019) (Ginsburg, Justice).

There is currently no option to delay or defer examination of submitted application materials. In an effort to modernize its technological infrastructure, the Copyright Office has previously solicited public input concerning the registration process. Respondents have submitted various proposals involving a deferred examination proceeding, some of which included:

  • Allowing applicants to submit application materials at a discounted fee
  • Delaying examination but still intaking information about the work into the public catalog
  • Allowing formal examination to determine whether the work should be registered at a later time for an additional fee
  • If the work is registered, attaching statutory benefits with an effective date of when the original materials were received.

Commenters have indicated that benefits of permitting deferred examination include more registrations, more timely registrations, expansion of the public record, improved efficiency by removal of the examination step, decreased processing times, lower expenses and more deposits available for the Library of Congress’s collections.

In May 2021, Senator Thom Tillis, the ranking member of the Senate Judiciary Subcommittee on Intellectual Property, sent a letter to the Copyright Office requesting a study on the feasibility, benefits and costs of creating a deferred examination option for an application, including whether an applicant can obtain an effective date of registration upon submission and deposit while choosing to defer examination until a later time. He also asked the Copyright Office to consider whether statutory changes might be necessary to enable such an option.

In order to assess the viability of including a deferred examination option, the Copyright Office is inviting written comments on various subjects, including:

  • The deficiencies in the current registration process
  • The potential benefits and drawbacks of a deferred examination option
  • The possible legal or regulatory framework for the option
  • The impact of such an option on the Copyright Office, the Library and the ability to bring a lawsuit based on Fourth Estate
  • Whether the same goals that deferred examination is meant to achieve could be accomplished through alternative [...]

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US Copyright Office Expands Rights to Repair Software-Enabled Devices

The US Copyright Office issued new regulations expanding and strengthening consumers’ rights to repair software-enabled digital devices (such as video game consoles and medical devices) via exemptions to the Digital Millennium Copyright Act.

Under 17 U.S.C. § 1201, it is generally unlawful to “circumvent a technological measure that effectively controls access to” copyrighted works. In response to proposals from several organizations, including the Electronic Frontier Foundation and the iFixit and Repair Association, the Registrar of Copyright (as it has done every three years since 2000) made rulemaking recommendations to the Librarian of Congress; recommendations that have now been adopted as final rules. The new rules create exemptions to make it easier to repair software-enabled devices. In the prior rulemaking sessions, the Register of Copyrights recommended—and the Librarian of Congress adopted—17 groups of exceptions. This session, the Register recommended 14 additional classes of exemptions, all of which have been adopted.

Among the 14 classes of exemptions that were recommended and adopted are the following:

  • Computer programs that operate the following types of devices, to allow diagnosis, maintenance and repair:
    • Motorized land vehicles or marine vessels
    • Devices primarily designed for use by consumers
    • Medical devices and systems.

This proposed class initially included “modification” in addition to diagnosis, maintenance and repair, but the exemption for modifications was ultimately eliminated. The Register reasoned that including all “modification[s]” would encompass both infringing and noninfringing activities and would implicate the right to prepare derivative works, as well as other issues.

This proposed class, “Computer Programs – Repair,” was initially divided into four general categories: “(1) all software-enabled devices; (2) vehicles and marine vessels; (3) video game consoles; and (4) medical devices and systems.” Not all of the categories made it through, as the Register removed all software-enabled devices from the recommendations. The recommendations stated that this category would have made the class too broad and would have raised the complex question of which types of devices would qualify for permitted repair.

After consideration of all the issues, the Register determined the following three classes had sufficient commonalities to recommend them: Computer programs in devices primarily designed for use by consumers (such as the repairing of optical drives in video games), computer programs in marine vessels and computer programs and data in medical devices and systems. The adopted exemptions expanding the current exemptions for vehicle and device repair and added an exemption for medical devices and systems repair.

The Rules also expand exemptions for consumer-related devices only. In recommending exemptions for device repair, the Register found significant commonalities among uses and users in terms of the diversity of software-enabled devices designed for use by consumers. The Register determined that the narrowed uses of “diagnosis, maintenance, and repair” were supported by the fair use factors, and that the exemption was “not accomplished for the purpose of gaining access to other copyrighted works.” The recommendations also contained a special subset for video games, which narrows the exemption solely to the repair of optical drives. [...]

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Copyright Claims Board’s Proposed Rulemaking: How to Initiate and Respond to a Claim

In January 2021, Congress enacted the Consolidated Appropriations Act. This legislation incorporates the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020, which includes revisions to the Copyright Act with the goal of creating a new venue for copyright owners to enforce their rights without having to file an action in federal court. The new venue, called the Copyright Claims Board (CCB), is designed to serve as an alternative forum where parties may voluntarily seek to resolve certain copyright claims regarding any category of copyrighted work.

On September 29, 2021, the US Copyright Office issued proposed rules in the Federal Register to establish the initial stages of a proceeding before the CCB. The proposed rules prescribe how to file a complaint, a process that includes submitting claim and notice forms online and paying a $100 filing fee. The proposed rulemaking notes that the claim form will require less information than what is required under Federal Rules of Civil Procedure, Rule 12, as practice before the CCB will be less complex than practice in federal courts according to the Copyright Office.

After a claim is filed, a copyright claims attorney will review the claim to ensure compliance with applicable regulations. If the claim is approved, the claimant can proceed to serve the claim within 90 days. If the claim is not approved, the claimant has 30 days to file an amended claim. Counterclaims are subject to the same review process. To pass review muster, the claim must “clearly state a claim upon which relief can be granted.” § 224.1.3. Under the proposed rules, a copyright claims attorney must review the claim or counterclaim for unsuitability on the grounds set out in 17 U.S.C. § 1506(f)(3). If the copyright claims attorney concludes that the claim should be dismissed as unsuitable under CASE he or she shall recommend that the CCB dismiss the claim and set forth the basis for that conclusion. The proposed rulemaking notes that the CCB wants to avoid hearing overbroad or clearly implausible claims.

The respondent will have 60 days to opt out after receiving notice of the claim, or it will lose the opportunity to have the dispute decided in a federal court. The proposed rulemaking prescribes that the initial notice form, provided by the CCB, be similar to a summons and would require the claimant to identify the nature (i.e., infringement, noninfringement or misrepresentation) of the claims being asserted. If the respondent does not respond or opt out within 20 days after the claimant files a proof or waiver of service, then the CCB will send a second notice to supplement the initial notice by mail and email. A respondent can opt out online, using a CCB form or by mail.

All comments to the proposed rulemaking must be received no later than October 29, 2021, 11:59 pm EDT.




Second Circuit: Supreme Court Google Precedent Doesn’t Alter Copyright Law’s Fair Use Analysis

Addressing fair use as an affirmative defense to copyright infringement, the US Court of Appeals for the Second Circuit amended its recent opinion, reversing a district court’s summary judgment in favor of fair use. The Court did not change its original judgment but took the opportunity to address the recent Supreme Court of the United States precedent in Google v. Oracle. The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, Lynn Goldsmith, Ltd., Docket No. 19-2420-cv (2d Cir., Aug. 24, 2021) (Lynch, J.) (Jacobs, J., concurring).

Lynn Goldsmith and Lynn Goldsmith, Ltd. (collectively, LGL) appealed from a district court judgment that granted summary judgment to The Andy Warhol Foundation for the Visual Arts, Inc. (AWF) on its complaint for a declaratory judgment of fair use and dismissing defendants-appellants’ counterclaim for copyright infringement. The Second Circuit reversed and remanded for further proceedings.

In 1984, LGL’s agency licensed her 1981 photograph of Prince to Vanity Fair for use as an artist reference for creating a rendering of Prince to accompany Vanity Fair‘s profile of the artist. What LGL did not learn until more than 30 years later, shortly after Prince’s untimely death, was that the artist commissioned by Vanity Fair to create the Prince drawing was Andy Warhol and that Warhol had used the photograph to create an additional 15 silkscreen prints and illustrations, known as the Prince Series. In 2017, LGL notified AWF, as the successor to Warhol’s copyright in the Prince Series, of her claims of copyright infringement. AWF responded with a lawsuit seeking a declaratory judgment that the Prince Series works were non-infringing, or, in the alternative, qualified as fair use of LGL’s photograph. LGL countersued for infringement. Relying on the Second Circuit’s 2013 holding in the copyright case Cariou v. Prince, the district court granted summary judgment to AWF, agreeing with its assertion of fair use and considering the Warhol work to be “transformative” of the original.

LGL’s appeal required the Second Circuit to consider the four fair use factors under §107 of the Copyright Act:

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

In its March 2021 opinion, the Second Circuit rejected AWF’s fair use defense, concluding that the Prince Series was not transformative and substantially similar to LGL’s original photograph.

After the Second Circuit’s initial disposition of the appeal, the Supreme Court issued its decision in Google LLC v. Oracle America, Inc., which discussed the four fair use factors as applied to a computer programming language and found that Google’s copying of certain Oracle application programming interfaces (APIs) “to create new products . . . [and] expand the use [...]

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Unhappy Together: No Right of Public Performance under California Copyright Law

Addressing for the first time whether California law establishes a right of public performance for the owners of pre-1972 sound recordings, the US Court of Appeals for the Ninth Circuit found no such right for music and overturned a district court’s grant of partial summary judgment. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., Case No. 17-55844 (9th Cir. Aug. 23, 2021) (Lee, J.)

In 1971, Howard Kaylan and Mark Volman of the rock band the Turtles formed Flo & Eddie to control the band’s song rights, including the hit song “Happy Together.” In 2013, Flo & Eddie filed a complaint alleging a violation of California common law and statutory copyright law arising out of Sirius XM’s playing of songs to which Flo & Eddie control the rights. Based on California’s copyright statute (Cal. Civ. Code § 980), Flo & Eddie argued that California law gave it the “exclusive ownership” of its pre-1972 songs—including the right of public performance—which required compensation whenever Flo & Eddie’s copyrighted recordings were publicly performed.

The district court granted partial summary judgment to Flo & Eddie in 2014, finding that California law protected sound recording owners’ right of public performance by granting “exclusive ownership” to the music, and therefore, Sirius XM must pay for playing pre-1972 music. The district court reasoned that “the plain meaning of having ‘exclusive ownership’ in a sound recording is having the right to use and possess the recording to the exclusion of others,” and further explained that there is “nothing in that phrase to suggest that the legislature intended to exclude any right or use of the sound recording from the concept of ‘exclusive ownership.’” The district court looked to individual dictionary definitions of the words “exclusive” and “ownership” to craft a broad meaning for the phrase “exclusive ownership,” ultimately finding that it must include the “right of public performance.” Sirius XM appealed.

In an opinion artfully embroidered with classic rock references, the Ninth Circuit found that the district court erred in finding that “exclusive ownership” under § 980(a)(2) included the right of public performance and remanded for entry of judgment consistent with the parties’ contingent settlement agreement. The Court faulted the district court’s dictionary-based approach to statutory interpretation, instructing that “[d]ictionaries and tools of grammatical construction can help determine plain meaning of specific words, but some phrases have a separate or more specialized ‘term of art’ meaning that cannot be stripped away from its historical context or subject matter area.” To that end, the Court took an expressly textualist approach to interpreting California’s law, looking back to common law in the 19th century when California first used the term “exclusive ownership” in its copyright statute in order to inform the understanding of that term as used at the time.

Based on this inquiry, the Ninth Circuit found that there was no recognized right of public performance for music and that California only protected unpublished works. The Court explained the distinction, stating that “[c]ommon law provides a perpetual copyright [...]

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When Pictures Aren’t Pictures: Real Estate Agent-Generated Floor Plans Are Outside Copyright Infringement Exception for Pictorial Representations

Examining whether the Architectural Works Copyright Protection Act enacted in 1990 protects the creation of floor plans, the US Court of Appeals for the Eighth Circuit held that such technical drawings generated for practical, rather than artistic, purposes are not covered by a statutory exception that removes the right to control pictures, paintings, photographs or other pictorial representations of their work from architects. Designworks Homes, Inc. et al. v. Columbia House of Brokers Realty, Inc. et al., Case Nos. 19-3608, 20-1099, -3104, 20-3107 (8th Cir. Aug. 16, 2021) (Arnold, J.)

The facts of the case are relatively simple: In the course of selling designed homes, homebuilders hired real estate agents to generate floor plans for use in their listings. The designers of the homes registered copyrights in the homes themselves, then sued the homebuilders and their real estate agents for copyright infringement.

The issue for the Court was whether 17 U.S.C. § 120(a), a statute designed to limit the scope of copyright protection for architectural works, applied to the floor plans that the real estate agents developed. Section 120(a) excludes from the scope of a copyright in an architectural work “the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work.” The district court held that the floor plans fell within Section 120(a)’s exclusion and, thus, were not covered by the copyright.

The Eighth Circuit disagreed. Employing numerous canons of statutory construction, the Court held that the functional floor plans were neither pictures nor “other pictorial representations” within the meaning of the statute. Drawing from 1990s dictionaries, the Court reasoned that although a floor plan could conceivably be a picture, context showed otherwise. For example, Congress used the phrase “technical drawings” elsewhere in the copyright statute; thus, had Congress intended to exclude them here, it knew how to do so. Moreover, the types of floor plans at issue here were—in the Court’s view—not similar to the other listed categories of items for which copyright protection had been curtailed as the plans did not have any artistic expression.

Practice Note: Not all hope is lost for the homebuilder or developer. Although the Eighth Circuit declined to expressly consider other defenses, it explained that there were others that very readily could apply, including the doctrine of fair use.




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