2020 COPYRIGHT DEVELOPMENTS

Prepared for the American Bar Association Section of Intellectual Property Law’s Copyright Division

by Joshua L. Simmons, Council Liaison

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TABLE OF CONTENTS

I. COPYRIGHT DECISIONS ..............................................................................................1

Supreme Court of the United States.................................................................................1

D.C. Circuit.........................................................................................................................1

Court of Appeals for the District of Columbia ........................................................1

District of the District of Columbia .........................................................................5

Federal Circuit ...................................................................................................................6

Court of Appeals for the Federal Circuit .................................................................6

District of Puerto Rico .............................................................................................8

First Circuit ........................................................................................................................8

Court of Appeals for the First Circuit ......................................................................8

District of Massachusetts .........................................................................................9

District of New Hampshire ....................................................................................15

District of Peurto Rico ...........................................................................................16

District of Rhode Island .........................................................................................18

Second Circuit ..................................................................................................................19

Court of Appeals for the Second Circuit ................................................................19

District of Connecticut ...........................................................................................24

Eastern District of New York ................................................................................25

Northern District of New York ..............................................................................28

Southern District of New York ..............................................................................32

Western District of New York ...............................................................................82

Third Circuit ....................................................................................................................83

Court of Appeals for the Third Circuit ..................................................................83

District of Delaware ...............................................................................................84

District of New Jersey ............................................................................................87

Middle District of Pennsylvania ............................................................................96

Western Distict of Pennsylvania ............................................................................97

Fourth Circuit ..................................................................................................................98

Court of Appeals for the Fourth Circuit .................................................................98

Western District of North Carolina ........................................................................99

District of South Carolina ....................................................................................100

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Eastern District of Virginia ..................................................................................104

Fifth Circuit ....................................................................................................................105

Court of Appeals for the Fifth Circuit..................................................................105

Eastern District of Louisiana ...............................................................................109

Eastern District of Texas ......................................................................................111

Northern District of Texas ...................................................................................115

Southern District of Texas ...................................................................................117

Western District of Texas ....................................................................................123

Sixth Circuit ...................................................................................................................126

Court of Appeals for the Sixth Circuit .................................................................126

Eastern District of Michigan ................................................................................130

Northern District of Ohio .....................................................................................132

Eastern District of Tennessee ...............................................................................133

Middle District of Tennessee ...............................................................................133

Seventh Circuit ...............................................................................................................134

Court of Appeals for the Seventh Circuit ............................................................134

Northern District of Illinois .................................................................................134

Southern District of Illinois .................................................................................145

Northern District of Indiana .................................................................................147

Southern District of Indiana .................................................................................148

Eighth Circuit .................................................................................................................149

Court of Appeals for the Eighth Circuit ...............................................................149

District of Minnesota ...........................................................................................151

Western District of Missouri ................................................................................153

District of Nebraska .............................................................................................154

Ninth Circuit...................................................................................................................155

Court of Appeals for the Ninth Circuit ................................................................155

District of Arizona ...............................................................................................168

Central District of California ...............................................................................171

Eastern District of California ...............................................................................182

Northern District of California.............................................................................183

Southern District of California.............................................................................189

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District of Hawai‘i ...............................................................................................190

District of Idaho ...................................................................................................190

District of Nevada ................................................................................................192

Western District of Washington ...........................................................................195

Tenth Circuit ..................................................................................................................201

Court of Appeals for the Tenth Circuit ................................................................201

District of Colorado .............................................................................................203

District of Kansas .................................................................................................206

District of New Mexico .......................................................................................207

Western District of Oklahoma .............................................................................209

District of Utah ....................................................................................................209

Eleventh Circuit .............................................................................................................211

Court of Appeals for the Eleventh Circuit ...........................................................211

Northern District of Alabama ..............................................................................214

Middle District of Florida ....................................................................................215

Southern District of Florida .................................................................................216

II. COPYRIGHT-RELATED LEGISLATION ...............................................................218

House ...............................................................................................................................218

H. Res. 369: Expressing the sense of the House of Representatives supporting the federal workforce. ........................................................................218

H.R. 11: Commitment to American Growth Act .................................................218

H.R. 133: Consolidated Appropriations Act, 2021 ..............................................219

H.R. 748: CARES Act .........................................................................................219

H.R. 1006: Open Internet Act of 2019 .................................................................221

H.R. 1096: Promoting Internet Freedom and Innovation Act of 2019 ................221

H.R. 1101: To amend the Communications Act of 1934 to . . . ..........................222

H.R. 1709: Scientific Integrity Act ......................................................................222

H.R. 2136: Open Internet Preservation Act .........................................................223

H.R. 2500: National Defense Authorization Act for Fiascal Year 2020 .............223

H.R. 3002: A bill to provide for the carriage of certain television broadcast stations, and for other purposes. ..........................................................................224

H.R. 4083: FINISH Act .......................................................................................224

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H.R. 4414: Electronic Books Opening Opportunity for Knowledge Act of 2019......................................................................................................................225

H.R. 4447: Clean Economy Jobs and Innovation Act .........................................225

H.R. 4476: Financial Transparency Act of 2019 .................................................226

H.R. 4674: College Affordability Act ..................................................................227

H.R. 4997: Artistic Recognition for Talented Students Act ................................228

H.R. 5140: Satellite Television Community Protection and Promotion Act of 2019 .................................................................................................................228

H.R. 5219: Ask Musicians for Music Act of 2019 ..............................................229

H.R. 5430: United States-Mexico-Canada Agreement Implementation Act .......229

H.R. 5685: Securing American Leadership in Science and Technology Act of 2020 .................................................................................................................230

H.R. 6017: Twenty-First Century Courts Act ......................................................231

H.R. 7181: Holding China Accountable Act .......................................................231

H.R. 7611: Legislative Branch Appropriations Act, 2021 ...................................232

H.R. 7956: Critical Medical Infrastructure Right-to-Repair Act of 2020 ............233

H.R. 8037: Advancing America’s Interests Act ..................................................234

Senate ..............................................................................................................................235

S. 775: Scientific Integrity Act ............................................................................235

S. 847: Commercial Facial Recognition Privacy Act of 2019 .............................235

S. 1059: Fund for Innovation and Success in Higher Education Act ..................236

S. 2557: Student Aid Improvement Act of 2019 .................................................237

S. 2824: Artistic Recognition for Talented Students Act ....................................237

S. 2932: Ask Musicians for Music Act of 2019...................................................238

S. 3208: Regulatory Accountability Act ..............................................................238

S. 3232: PLACE Act ............................................................................................239

S. 3410: AIM-HIGH Act .....................................................................................240

S. 3426: Anticompetitive Exclusionary Conduct Prevention Act of 2020 ..........240

S. 3770: H-1B and L-1 Visa Reform Act of 2020 ...............................................241

S. 4473: Critical Medical Infrastructure Right-to-Repair Act of 2020 ................241

S. 4632: Online Content Policy Modernization Act ............................................243

III. LIBRARY OF CONGRESS..........................................................................................244

Request for Public Input ...............................................................................................244

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The Next Register of Copyrights .........................................................................244

IV. COPYRIGHT OFFICE .................................................................................................245

Policy Studies ..................................................................................................................245

Section 512...........................................................................................................245

Sovereign Immunity.............................................................................................246

Unclaimed Royalties ............................................................................................250

Rulemakings ...................................................................................................................252

Copyright Office Fees ..........................................................................................252

Electronic Delivery of Litigation Notices Under Sections 411 and 508 .............253

Emailed Waiver Requests Under DMCA Designated Agent Rule ......................254

Exemptions to Permit Circumvention of Access Controls on Copyrighted Works ...................................................................................................................254

Group Registration of Newsletters.......................................................................261

Group Registration of Short Online Literary Works ...........................................261

Mandatory Deposit of Electronic-Only Books ....................................................263

Modernizing Document Recordation ...................................................................264

Modernizing Recordation of Notices of Termination ..........................................264

Music Modernization Act Notices of License, Notices of Nonblanket Activity, Data Collection and Delivery Efforts, and Reports of Usage and Payment Rulemaking ...........................................................................................266

Online Publication ...............................................................................................267

Protection of Confidential Information by the Mechanical Licensing Collective and Digital Licensee Coordinator Rulemaking ..................................271

Registration Modernization .................................................................................272

Reporting and Distribution of Royalties to Copyright Owners by the Mechanical Licensing Collective Rulemaking ....................................................274

Secure Tests Rulemaking .....................................................................................275

Transition Period Cumulative Reporting and Transfer of Royalties to the Mechanical Licensing Collective .........................................................................276

Transparency of the Mechanical Licensing Collective and Its Database of Musical Works Information Rulemaking ............................................................277

Letters .............................................................................................................................281

Noncommercial Use Exception ...........................................................................281

Publications ....................................................................................................................282

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Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code ...............................................................................282

Announcements ..............................................................................................................282

COVID-19 Pandemic ...........................................................................................282

Events ...................................................................................................................290

Financials .............................................................................................................293

Ringer Fellowship ................................................................................................294

Leadership ............................................................................................................295

Modernization ......................................................................................................296

Recordation ..........................................................................................................302

V. COPYRIGHT ROYALTY BOARD ............................................................................304

Adjudgments ..................................................................................................................304

Cable Statutory License Royalty Rates ................................................................304

Cost of Living Adjustments .................................................................................304

Determinations ...............................................................................................................305

Ephemeral Recording and Digital Performance of Sound Recordings ...............305

Mechanical Licensing Collective .........................................................................306

Distributons ....................................................................................................................306

Cable Royalty.......................................................................................................306

Digital Audio Recording Royalty ........................................................................306

Satellite Royalty ...................................................................................................307

Rulemakings ...................................................................................................................307

Categorization of Claims for Cable or Satellite Royalty Funds and Treatment of Ineligible Claims ............................................................................307

Digitial Performance Right in Sound Recordings and Ephemeral Recordings ...........................................................................................................307

Electronic Filing of Claims ..................................................................................308

Proxy Distributions for Unmatched Royalties Deposited During 2010–2018......................................................................................................................309

Audits ..............................................................................................................................309

Announcements ..............................................................................................................310

VI. DEPARTMENT OF COMMERCE .............................................................................311

Patent & Trademark Office ..........................................................................................311

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Intellectual Protection for Artificial Intelligence Innovation ...............................311

Events ...................................................................................................................319

Leadership ............................................................................................................319

VII. COPYRIGHT IN THE NEWS .....................................................................................321

January 2020 ..................................................................................................................321

February 2020 ................................................................................................................344

March 2020 .....................................................................................................................363

April 2020 .......................................................................................................................391

May 2020 .........................................................................................................................418

June 2020 ........................................................................................................................440

July 2020 .........................................................................................................................468

August 2020 ....................................................................................................................488

September 2020 ..............................................................................................................514

October 2020...................................................................................................................537

November 2020 ...............................................................................................................561

December 2020 ...............................................................................................................577

VIII. COPYRIGHT LAW JOURNAL ARTICLES: JOURNAL OF THE COPYRIGHT SOCIETY OF THE USA .....................................................................596

Vol. 66, No. 3 (Summer 2020) .......................................................................................596

IX. COPYRIGHT LAW JOURNAL ARTICLES.............................................................599

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TABLE OF CASES

Aamot v. Peterson, No. CV 18-1402 (JRT/LIB), 2020 WL 4926598 (D. Minn. Aug. 21, 2020).........................152

Abdin v. CBS Broad. Inc., No. 19-3160-CV, 2020 WL 4743018 (2d Cir. Aug. 17, 2020)................................................23

ABKCO Music, Inc. v. Sagan, No. 15 CIV. 4025 (ER) (SLC), 2020 WL 6690641 (S.D.N.Y. Nov. 13, 2020) ......................79

Academy Orthotic & Prosthetic Assocs. IPA, Inc. v. Fitango Health, Inc., No. 19-CV-10203 (JPO), 2020 WL 6135762 (S.D.N.Y. Oct. 16, 2020).................................77

Adina's Jewels, Inc. v. Shashi, Inc., No. 19 CIV. 8511 (AKH), 2020 WL 950752 (S.D.N.Y. Feb. 27, 2020) .................................42

Adlife Mktg. & Commc'ns Co. v. Associated Grocers, Inc., No. CV 19-316-JJM-LDA, 2020 WL 1862863 (D.R.I. Apr. 14, 2020) ..................................18

Advanta-Star Automotive Research Corp. of Am. v. Reynolds Ford, Inc., No. CIV-19-912-G, 2020 WL 5823537 (W.D. Okla. Sep. 30, 2020)....................................209

Al-Nasser v. Serdy, No. 2:20-CV-03582-ODW (EX), 2020 WL 3129206 (C.D. Cal. Jun. 12, 2020) ..................175

Alexander v. Take-Two Interactive Software, Inc., No. 18-CV-966-SMY, 2020 WL 1287734 (S.D. Ill. Mar. 18, 2020) ....................................145

Alexander v. Take-Two Interactive Software, Inc., No. 18-CV-966-SMY, 2020 WL 5752158 (S.D. Ill. Sep. 26, 2020) .....................................146

Alfred v. Walt Disney Co., No. 19-55669, 2020 WL 4207584 (9th Cir. Jul. 22, 2020)....................................................163

Allen v. Cooper, No. 18-877, 2020 WL 1325815 (U.S. Mar. 23, 2020) ...............................................................1

Alliance of Artists & Recording Cos. v. Denso Int'l Am., Inc., No. 18-7141, 18-7172, 2020 WL 425058 (D.C. Cir. Jan. 28, 2020) .........................................1

ALS Scan, Inc. v. Steadfast Networks, LLC, No. 18-55615, 18-56173, 2020 WL 4038050 (9th Cir. Jul. 17, 2020) ..................................162

Altigen Commc'ns, Inc. v. CTI Commc'ns, LLC, No. 19-CV-00488-RBJ, 2020 WL 6873951 (D. Col. Nov. 23, 2020) ...................................205

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Am. Bd. of Internal Medicine v. Rushford, No. 19-2461, 2020 WL 7663193 (3d Cir. Dec. 24, 2020) .......................................................83

Ambrosetti v. Or. Catholic Press, No. 3:19-CV-00682-JD-MGG, 2020 WL 2219172 (N.D. Ind. May. 7, 2020)......................147

Aoki v. Gilbert, No. 2:11-CV-02797-TLN-CKD, 2020 WL 6741693 (E.D. Cal. Nov. 17, 2020) ..................182

Apps v. Universal Music Grp., Inc., No. 18-15889, 18-15987, 2020 WL 1514971 (9th Cir. Mar. 30, 2020) ................................158

Arclight Films Int'l Pty. Ltd. v. Netflix Global, LLC, No. 2:20-CV-09917-CAS-PVCX, 2020 WL 7225415 (C.D. Cal. Dec. 7, 2020) ..................180

Armes v. Post, No. 2:20-CV-03212-ODW (PJWX), 2020 WL 6135068 (C.D. Cal. Oct. 19, 2020) ......................................................................................................................................179

Bass v. Syracuse Univ., No. 5:19-CV-566 (TJM/ATB), 2020 WL 4934585 (N.D.N.Y. Aug. 24, 2020) ......................29

Bassett v. Jensen, No. CV 18-10576-PBS, 2020 WL 2310718 (D. Mass. May. 11, 2020) ..................................12

Batiste v. Lewis, No. 19-30400, 19-30889, 2020 WL 5640589 (5th Cir. Sep. 22, 2020) .................................108

Bayoh v. Afropunk Fest 2015 LLC, No. 18CV5820 (DLC), 2020 WL 229978 (S.D.N.Y. Jan. 15, 2020) ......................................37

Beatriz Ball, LLC v Barbagallo, No. CV 18-10214-WBV-KWR, 2020 WL 6938524 (E.D. La. Nov. 25, 2020) ....................111

Bell v. Chicago Cubs Baseball Club, LLC, No. 19-CV-2386, 2020 WL 550605 (N.D. Ill. Feb. 4, 2020) ................................................135

Bell v. Merchants Bank of Indiana, No. 1:18-CV-00056-JPH-DLP, 2020 WL 1987252 (S.D. Ind. Apr. 27, 2020) .....................148

Berio-Ramos v. Flores-García, No. CV 13-1879 (PAD), 2020 WL 2788504 (D.P.R. May. 28, 2020) ....................................17

Berrios-Nieves v. Fines-Nevarez, No. CV 18-1164 (JAG), 2020 WL 981671 (D.P.R. Feb. 28, 2020) ........................................16

Bertuccelli v. Universal City Studios LLC, No. CV 19-1304, 2020 WL 6163402 (E.D. La. Oct. 21, 2020).............................................110

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Beyond Blond Prods., LLC v. Heldman, No. CV 20-5581 DSF (GSJX), 2020 WL 4772796 (C.D. Cal. Aug. 17, 2020) ....................176

Beyond Blond Prods., LLC v. Heldman, No. CV 20-5581 DSF (GSJX), 2020 WL 4782745 (C.D. Cal. Aug. 14, 2020) ....................175

Blue Book Servs., Inc. v. Farm Journal, Inc., No. 18 CV 07155, 2020 WL 419405 (N.D. Ill. Jan. 27, 2020)..............................................134

Boesen v. U.S. Publ'ns, Ltd., No. 20-CV-1552 (ARR) (SIL), 2020 WL 6393010 (E.D.N.Y. Nov. 2, 2020) ........................27

Bowers v. Reece & Nichols Realtors, Inc., No. 19-2094-JAR, 2020 WL 2992086 (D. Kas. Jun. 4, 2020) ..............................................206

Bradford v. Nationwide Ins. Co., No. 19-50555, 2020 WL 1230317 (5th Cir. Mar. 12, 2020)..................................................107

Brooks v. Dash, No. 19-CV-1944 (JSR), 2020 WL 1847548 (S.D.N.Y. Apr. 13, 2020) ..................................53

Brown v. Netflix, Inc., No. 19 CIV. 1507 (ER), 2020 WL 2749571 (S.D.N.Y. May. 27, 2020) .................................59

Capitani v. World of Miniature Bears, Inc., No. 3:19-CV-00120, 2020 WL 4805729 (M.D. Tenn. Aug. 18, 2020) .................................133

Capstone Logistics Holdings, Inc. v. Navarrette, No. 17 CIV. 4819 (GBD) (BCM), 2020 WL 3429775 (S.D.N.Y. Jun. 23, 2020) ........................................................................................................................................66

Castle v. Kingsport Publ'g Corp., No. 2:19-CV-00092-DCLC, 2020 WL 7348157 (E.D. Tenn. Dec. 14, 2020) ......................133

Charles v. Seinfeld, No. 19-3335, 2020 WL 2215602 (2d Cir. May. 7, 2020) ........................................................19

Chikowski v. Goldner, No. 19-CV-2272 (AJN), 2020 WL 2834225 (S.D.N.Y. May. 31, 2020) ................................65

Cianelli v. Nourison Indus., Inc., No. 3:19-CV-19147(FLW), 2020 WL 4882500 (D.N.J. Aug. 20, 2020) ................................92

Colwell v. Eleven Creative Servs., No. 18-CV-02784-CMA-STV, 2020 WL 417573 (D. Col. Jan. 26, 2020) ...........................203

Comerica Bank & Trust, N.A. v. Habib, No. CV 17-12418-LTS, 2020 WL 58527 (D. Mass. Jan. 6, 2020) ............................................9

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Compulife Software Inc. v. Newman, No. 18-12004, 18-12007, 2020 WL 2549505 (11th Cir. May. 20, 2020)..............................211

Corbello v. Valli, No. 17-16337, 2020 WL 5361461 (9th Cir. Sep. 8, 2020) ....................................................165

CoreClarity, Inc. v. Gallip, Inc., No. 4:20-CV-00601, 2020 WL 6741962 (E.D. Tex. Nov. 17, 2020) ....................................115

Cortés-Ramos v. Martin-Morales, No. 19-1358, 2020 WL 1847072 (1st Cir. Apr. 13, 2020) ........................................................9

Cortes-Rramos v. Mortes-Morales, No. CV 16-1223 (DRD), 2020 WL 4920045 (D.P.R. Aug. 21, 2020) ......................................8

Craft Smith, LLC v. EC Design, LLC, No. 19-4087, 2020 WL 4590535 (10th Cir. Aug. 11, 2020) .................................................201

Crafty Prods., Inc. v. Fuqing Sanxing Crafts Co., No. 20-55010, 2020 WL 7388083 (9th Cir. Dec. 16, 2020) ..................................................167

Criminal Prods., Inc. v. Cordoba, No. 18-15919, 2020 WL 3119026 (9th Cir. Jun. 11, 2020) ...................................................162

Cristo v. Cayabyab, No. 18-CV-00561-BLF, 2020 WL 1531349 (N.D. Cal. Mar. 31, 2020) ...............................185

Cruz v. Cox Media Grp., LLC, No. 18-CV-1041 (NGG) (AKT), 2020 WL 1234458 (E.D.N.Y. Mar. 13, 2020) ....................25

D'pergo Custom Guitars, Inc. v. Sweetwater Sound, Inc., No. 17-CV-747-LM, 2020 WL 97976 (D.N.H. Jan. 6, 2020) .................................................15

Daniels v. Walt Disney Co., No. 18-55635, 2020 WL 1240915 (9th Cir. Mar. 16, 2020)..................................................156

Daniels v. Walt Disney Co., No. 18-55635, 2020 WL 2119396 (9th Cir. May. 4, 2020) ...................................................160

Delano v. Rowland Network Commc'ns LLC, No. CV-19-02811-PHX-MTL, 2020 WL 2308476 (D. Ariz. May. 8, 2020) ........................170

Dermansky v. Univ. of Col., No. 19-CV-02954-MEH, 2020 WL 1433498 (D. Col. Mar. 23, 2020) .................................203

Digital Drilling Data Sys., L.L.C. v. Petrolink Serv., Inc., No. 19-20116, 2020 WL 3603953 (5th Cir. Jul. 2, 2020)......................................................107

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Dish Network L.L.C. v. Jadoo TV, Inc., No. 20-CV-01891-CRB, 2020 WL 5816579 (N.D. Cal. Sep. 30, 2020) ...............................188

In re DMCA Subpoena to Reddit, Inc., No. 19-MC-80005-SK (JD), 2020 WL 999788 (N.D. Cal. Mar. 2, 2020) ............................184

Doc's Dream, LLC v. Dolores Press, Inc., No. 18-56073, 2020 WL 2464928 (9th Cir. May. 13, 2020) .................................................160

Doerr v. Quickcall.com, LLC, No. 19-10774, 2020 WL 4366050 (E.D. Mich. Jul. 30, 2020) ..............................................132

Dominick R. Pilla, Archecture-Eng'g P.C. v. Gilat, No. 19-CV-2255 (KMK), 2020 WL 1309086 (S.D.N.Y. Mar. 19, 2020) ...............................45

Dr. Seuss Enters., L.P. v. ComicMix LLC, No. 19-55348, 2020 WL 7416324 (9th Cir. Dec. 18, 2020) ..................................................168

Dutcher v. Bold Films LP, No. 19-4126, 2020 WL 4811322 (10th Cir. Aug. 19, 2020) .................................................202

Earthworks Grp., Inc. v. A&K Props. of S.C., Inc., No. 4:17-CV-01486-SAL, 2020 WL 1703897 (D.S.C. Apr. 8, 2020)...................................100

Eastpointe DWC, LLC v. Wing Snob Inc., No. 19-13768, 2020 WL 3412266 (E.D. Mich. Jun. 22, 2020) .............................................131

Ecimos, LLC v. Carrier Corp., No. 19-5436, 19-5519, 2020 WL 4915629 (6th Cir. Aug. 21, 2020) ....................................128

Edwards v. Take Fo' Records, Inc., No. CV 19-12130, 2020 WL 3832606 (E.D. La. Jul. 8, 2020) ..............................................109

Enchant Christmas Light Maze & Market Ltd. v. Glowco, LLC, No. 19-6282, 2020 WL 2487598 (6th Cir. May. 14, 2020) ...................................................126

Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, L.P., No. 18-20350, 18-20615, 2020 WL 219008 (5th Cir. Jan. 15, 2020)....................................106

Energy Intelligence Grp., Inc. v Kayne Anderson Capital Advisors, LP, No. CV H-14-1903, 2020 WL 7388624 (S.D. Tex. Dec. 16, 2020) ......................................122

Enter. Mgmt. Ltd. v. Construx Software Builders, Inc., No. 2:19-CV-1458-DWC, 2020 WL 2795198 (W.D. Wash. May. 29, 2020) .......................197

Envoy Techs., Inc. v. Northrop Grumman Co., No. CV 19-13976 (FLW), 2020 WL 2079376 (D.N.J. Apr. 30, 2020) ...................................88

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Everly v. Everly, No. 19-5150, 2020 WL 2111312 (6th Cir. May. 4, 2020) .....................................................126

Express Lien, Inc. v. Handle, Inc., No. CV 19-10156, 2020 WL 1030847 (E.D. La. Mar. 3, 2020) ............................................109

Fair Isaac Corp. v. Fed. Ins. Co., No. 16-CV-1054 (WMW/DTS), 2020 WL 1330214 (D. Minn. Mar. 23, 2020) ...................151

Fair Isaac Corp. v. Fed. Ins. Co., No. 16-CV-1054 (WMW/DTS), 2020 WL 3446872 (D. Minn. Jun. 24, 2020) ....................152

Feingold v. Rageon, Inc., No. 18-CV-2055 (KMW), 2020 WL 4003152 (S.D.N.Y. Jul. 15, 2020) ................................70

Feldblyum v. Eight Bros. Dev., LLC, No. CV 19-1659 (RJL), 2020 WL 1079175 (D.D.C. Mar. 6, 2020) .........................................5

Ferrarini v. Irgit, No. 19 CIV. 0096 (LGS), 2020 WL 122987 (S.D.N.Y. Jan. 9, 2020) ....................................36

FinancialApps, LLC v. Envestnet, Inc., No. CV 19-1337-CFC-CJB, 2020 WL 3640063 (D. Del. Jul. 6, 2020) ..................................85

Fischer v. Forrest, No. 18-2955-CV, 18-2959-CV, 2020 WL 4457943 (2d Cir. Aug. 4, 2020) ...........................22

FMHUB, LLC v. MuniPlatform, LLC, No. CV 19-15595 (FLW) (DEA), 2020 WL 4581828 (D.N.J. Aug. 10, 2020) .......................92

Geophysical Serv., Inc. v. TGS-Nopec Geophysical Co., No. CV H-14-1368, 2020 WL 821879 (S.D. Tex. Feb. 19, 2020) ........................................117

Georgia v. Public.Resource.Org, Inc., No. 18-1150, 2020 WL 1978707 (U.S. Apr. 27, 2020) .............................................................1

Gogo Apparel, Inc. v. True Destiny, LLC, No. 19 CIV. 5693 (GBD), 2020 WL 5578336 (S.D.N.Y. Sep. 17, 2020) ...............................75

Goldstein v. Facebook, Inc., No. 6:19-CV-00389, 2020 WL 4696457 (E.D. Tex. Aug. 12, 2020) ....................................113

Goode Time Prods., L.L.C. v. Just, No. 4:19-CV-58-SDJ, 2020 WL 5518098 (E.D. Tex. Sep. 14, 2020) ...................................113

Graduation Solutions, LLC v. Acadima, LLC, No. 3:17-CV-1342 (VLB), 2020 WL 1466204 (D. Conn. Mar. 26, 2020)..............................24

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Graduation Solutions, LLC v. Acadima, LLC, No. 3:17-CV-1342 (VLB), 2020 WL 1528082 (D. Conn. Mar. 30, 2020)..............................25

Gray v. Perry, No. 2:15-CV-05642-CAS-JCX, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020) ...................173

Great Mill Rock LLC v. Stellex Capital Mgmt. LP, No. 20 CIV. 3056 (CM), 2020 WL 5370626 (S.D.N.Y. Sep. 4, 2020) ...................................74

Greg Young Publ'g, Inc. v. Zazzle, Inc., No. 2:16-CV-04587 SVW (KSX), 2020 WL 3871451 (C.D. Cal. Jul. 9, 2020) ...................175

Haas Outdoors, Inc. v. Dryshod Int'l, LLC, No. 1:18-CV-596-RP, 1:18-CV-978-RP, 2020 WL 555385 (W.D. Tex. Feb. 4, 2020) ......................................................................................................................................123

Hall v. Swift, No. CV 17-6882-MWF (ASX), 2020 WL 5358390 (C.D. Cal. Sep. 2, 2020) ......................177

Harbus v. Manhattan Inst. for Policy Research, Inc., No. 19 CIV. 6124 (ER), 2020 WL 1990866 (S.D.N.Y. Apr. 27, 2020) ..................................54

Health King Enter., Inc. v. Dalian Health Prods. Co., No. 19 C 1878, 2020 WL 1201533 (N.D. Ill. Mar. 12, 2020) ...............................................138

Hello I Am Elliot, Inc. v. Sine, No. 19 CIV. 6905 (PAE), 2020 WL 3619505 (S.D.N.Y. Jul. 2, 2020) ...................................67

Hemlock Hat Co. v. Diesel Power Gear, LLC, No. 19-CV-02422-AJB-AHG, 2020 WL 7013585 (S.D. Cal. Nov. 25, 2020) ......................189

Hiller, LLC v. Success Grp. Int'l Learning Alliance, LLC, No. 19-6115, 2020 WL 5651087 (6th Cir. Sep. 23, 2020) ....................................................129

Hines v. Roc-a-Fella Records, LLC, No. 19-CV-4587 (JPO), 2020 WL 1888832 (S.D.N.Y. Apr. 16, 2020) ..................................53

Hirsch v. Rehs Gallaries, Inc., No. 18-CV-11864 (VSB), 2020 WL 917213 (S.D.N.Y. Feb. 26, 2020) .................................41

Howarth v. Patterson, No. CV-19-00726-PHX-ESW, 2020 WL 209930 (D. Ariz. Jan. 14, 2020) ..........................168

Hubay v. Mendez, No. 2:19-CV-1327-NR, 2020 WL 6694406 (W.D. Pa. Nov. 13, 2020) ..................................97

Hudson Furniture, Inc. v. Mizrahi, No. 20 CIV. 4891 (PAC), 2020 WL 5202118 (S.D.N.Y. Sep. 1, 2020)..................................73

- xv -

Hughes v. Benjamin, No. 17-CV-6493 (RJS), 2020 WL 4500181 (S.D.N.Y. Aug. 5, 2020) ....................................72

Hughes v. Benjamin, No. 17-CV-6493 (RJS), 2020 WL 528704 (S.D.N.Y. Feb. 3, 2020).......................................39

Hunter Killer Prods., Inc. v. AKA Wireless, Inc., No. CV 19-00323 JAO-KJM, 2020 WL 4043317 (D. Haw. Jul. 17, 2020) ..........................190

Iantosca v. Elie Tahari, Ltd., No. 19-CV-04527 (MKV), 2020 WL 5603538 (S.D.N.Y. Sep. 18, 2020) ..............................75

IMAPizza, LLC v. At Pizza Ltd., No. 18-7168, 2020 WL 4032650 (D.C. Cir. Jul. 17, 2020) .......................................................4

Independent Producers Grp. v. Copyright Royalty Board, No. 18-1337, 19-1116, 2020 WL 4118335 (D.C. Cir. Jul. 21, 2020) ........................................4

InfoGroup Inc. v. Office Depot, Inc., No. 8:20CV109, 2020 WL 6707359 (D. Neb. Nov. 13, 2020) ..............................................154

Infogroup, Inc. v. Database LLC, No. 18-3723, 2020 WL 1982213 (8th Cir. Apr. 27, 2020) ....................................................149

Insurent Agency Corp. v. Hanover Ins. Co., No. 16-CV-3076 (LGS) (JLC), 2020 WL 86813 (S.D.N.Y. Jan. 8, 2020) ..............................35

Int'l Code Council, Inc. v. UpCodes, Inc., No. 17 CIV. 6261 (VM), 2020 WL 2750636 (S.D.N.Y. May. 27, 2020) ................................57

Internet Prods. LLC v. LLJ Enters., Inc., No. CV 18-15421 (RBK/AMD), 2020 WL 6883430 (D.N.J. Nov. 24, 2020) ........................95

Io, Inc. v. Needle & Threads of West Palm Beach, Inc., No. 19-CV-4078 (PKC) (PK), 2020 WL 7343037 (E.D.N.Y. Dec. 14, 2020) ........................27

In re Jackson, No. 19-480, 2020 WL 4810706 (2d Cir. Aug. 19, 2020) ........................................................24

Joe Hand Promotion Inc. v. Edsco Inc., No. 1:19-CV-12750-NLH-JS, 2020 WL 4345310 (D.N.J. Jul. 29, 2020) ...............................90

Joe Hand Promotions, Inc. v. Bella's Bar & Grill LLC, No. 1:19-CV-00140, 2020 WL 6585717 (S.D. Tex. Nov. 9, 2020) ......................................121

Johansen v. Sony Music Entm't Inc., No. 19 CIV. 1094 (ER), 2020 WL 1529442 (S.D.N.Y. Mar. 31, 2020)..................................51

- xvi -

Kazee, Inc. v. Callender, No. 4:19-CV-31-SDJ, 2020 WL 994832 (E.D. Tex. Mar. 2, 2020) ......................................112

Kinon Surface Design, Inc. v. Hyatt Int'l Corp., No. 19 C 7736, 2020 WL 7123068 (N.D. Ill. Dec. 4, 2020) .................................................144

Klauber Bros., inc. v. QVC, Inc., No. 1:19-CV-09321, 2020 WL 7029088 (S.D.N.Y. Nov. 30, 2020) .......................................80

Kobi Karp Architecture & Interior Design, Inc. v. O'Donnell Dannwolff & Partners Architects, Inc., No. 19-24588-CIV, 2020 WL 4287005 (S.D. Fla. Jul. 27, 2020) .........................................216

Krisko v. Marvel Entm't, LLC, No. 1:19-CV-9256-GHW, 2020 WL 4194940 (S.D.N.Y. Jul. 21, 2020) ................................71

LA Gem and Jewelry Design, Inc. v. Groupon, Inc., No. 2:19-CV-00035-ODW (PLAX), 2020 WL 5440501 (C.D. Cal. Sep. 10, 2020) ......................................................................................................................................178

Lanard Toys Ltd. v. Dolgencorp LLC, No. 2019-1781, 2020 WL 2478876 (Fed. Cir. May. 14, 2020) .................................................7

Latin Am. Music Co. v. Spanish Broad. Sys., Inc., No. 13-CV-1526 (RJS), 2020 WL 2848232 (S.D.N.Y. Jun. 1, 2020) .....................................62

Lee v. Black Entm't Television, LLC, No. 19-CV-02751 (LAK), 2020 WL 1140795 (S.D.N.Y. Mar. 6, 2020) ................................43

Lego a/s, Lego Sys., Inc. v. Zuru Inc., No. 2019-2122, 2020 WL 229874 (Fed. Cir. Jan. 15, 2020) .....................................................6

Life After Hate, Inc. v. Free Radicals Project, Inc., No. 18 C 6967, 2020 WL 1903956 (N.D. Ill. Apr. 16, 2020)................................................140

Lisa Coppola LLC v. Higbee, No. 1:19-CV-00678-CCR, 2020 WL 5350427 (W.D.N.Y. Sep. 4, 2020) ...............................82

Live Face on Web, LLC v. Integrity Solutions Grp., Inc., No. 16-CV-01627-CMA-STV, 2020 WL 3971640 (D. Col. Jul. 14, 2020) ..........................205

Live Face on Web, LLC v. Rockford Map Gallery, LLC, No. CV 17-539, 2020 WL 5821750 (D. Del. Sep. 30, 2020) ..................................................86

Longhorn Locker Co. v. Hollman, Inc., No. 3:19-CV-02872-K, 2020 WL 3963732 (N.D. Tex. Jul. 13, 2020) ..................................116

- xvii -

M-I L.L.C. V. Q'Max Solutions, Inc., No. CV H-18-1099, 2020 WL 4549210 (S.D. Tex. Aug. 6, 2020) .......................................117

Makeup Blowout Sale Grp., Inc. v. All That Glowz, Inc., No. 20-20906-CIV, 2020 WL 5535533 (S.D. Fla. Sep. 15, 2020) ........................................217

Malibu Media, LLC v. Doe, No. 1:19-CV-950 (NAM/ML), 2020 WL 4569433 (N.D.N.Y. Aug. 7, 2020) ........................28

Malibu Media, LLC v. Jane Doe, No. 1:19-CV-950 (NAM/ML), 2020 WL 6043946 (N.D.N.Y. Oct. 13, 2020) .......................29

Malibu Media, LLC v. Schmidt, No. SA-19-CV-00599-XR, 2020 WL 5351079 (W.D. Tex. Sep. 1, 2020) ...........................125

Mango v. BuzzFeed, Inc., No. 19-446-CV, 2020 WL 4690071 (2d Cir. Aug. 13, 2020) .................................................22

Marano v. Metropolitan Museum of Art, No. 19-CV-8606 (VEC), 2020 WL 3962009 (S.D.N.Y. Jul. 13, 2020) ..................................68

Martin v. Sgt., Inc., No. 2:19-CV-00289, 2020 WL 1930109 (D. Utah Apr. 21, 2020)........................................210

Massarelli's Lawn Ornaments, Inc. v. Continental Studios, Inc., No. 18-CV-03685, 18-CV-06760, 2020 WL 5819880 (N.D. Ill. Sep. 30, 2020) ..................142

Masterson v. Walt Disney Co., No. 19-55650, 2020 WL 4435103 (9th Cir. Aug. 3, 2020) ...................................................164

Mattel, Inc. v. 2012ShiningRoom2012, No. 18-CV-11648 (PKC), 2020 WL 5743517 (S.D.N.Y. Sep. 25, 2020) ...............................76

McGucken v. Newsweek LLC, No. 19 CIV. 9617 (KPF), 2020 WL 2836427 (S.D.N.Y. Jun. 1, 2020) ..................................63

Mellin v. Carol Fox & Assocs., No. 19 C 6799, 2020 WL 4676668 (N.D. Ill. Aug. 12, 2020) ...............................................141

Michael Grecco Prods., Inc. v. Ziff Davis, LLC, No. 19-56465, 2020 WL 6948338 (9th Cir. Nov. 25, 2020) .................................................166

Mills v. Netflix, Inc., No. CV 19-7618-CBM-(AGRX), 2020 WL 548558 (C.D. Cal. Feb. 3, 2020) .....................172

Morning Sun Books, Inc. v. Division Point Models, Inc., No. 18-3510, 2020 WL 5543036 (3d Cir. Sep. 16, 2020) .......................................................83

- xviii -

Morris v. Wise, No. 1:19 CV 2467, 2020 WL 2475839 (N.D. Ohio May. 13, 2020) .....................................132

Motta & Motta LLC v. Lawyers 777, LLC, No. 18-CV-5811, 2020 WL 1433816 (N.D. Ill. Mar. 24, 2020) ............................................138

Mourabit v. Klein, No. 18 CIV. 8313 (AT), 2020 WL 5211042 (S.D.N.Y. Sep. 1, 2020) ....................................74

Mourabit v. Klein, No. 19-2142-CV, 2020 WL 3042131 (2d Cir. Jun. 8, 2020) ...................................................21

MPAY Inc. v. Erie Custom Comput. Applications, Inc., No. 19-2206, 2020 WL 4726523 (8th Cir. Aug. 14, 2020) ...................................................151

Music Choice v. Copyright Royalty Bd., No. 19-1011, 2020 WL 4782379 (D.C. Cir. Aug. 18, 2020) .....................................................5

Ningbo Mizhihe I&E Co. v. Does 1-200, No. 19 CIV. 6655 (AKH), 2020 WL 2086216 (S.D.N.Y. Apr. 30, 2020) ..............................56

Noland v. Janssen, No. 17-CV-5452 (JPO), 2020 WL 2836464 (S.D.N.Y. Jun. 1, 2020) .....................................61

NYC Image Int'l, Inc. v. RS USA, Inc., No. 19-CV-10355 (VSB), 2020 WL 6135763 (S.D.N.Y. Oct. 16, 2020) ...............................78

Off Lease Only, Inc. v. Lakeland Motors, LLC, No. 20-10825, 2020 WL 5553301 (11th Cir. Sep. 17, 2020) ................................................212

Office for Planning & Architecture, Inc. v. City of Harrisburg, No. 1:20-CV-00920, 2020 WL 6889198 (M.D. Pa. Nov. 24, 2020) .......................................96

Oppenheimer v. ACL LLC, No. 3:19-CV-00024-GCM, 2020 WL 7060971 (W.D.N.C. Dec. 2, 2020) .............................99

Oppenheimer v. Scarafile, No. 2:19-CV-3590-BHH, 2020 WL 6710864 (D.S.C. Nov. 16, 2020) .................................102

Oracle Am., Inc. v. Hewlett Packard Enters. Co., No. 19-15506, 2020 WL 4876833 (9th Cir. Aug. 20, 2020) .................................................165

Otto v. Hearst Commc'ns, Inc., No. 1:17-CV-04712-GHW, 2020 WL 377479 (S.D.N.Y. Jan. 23, 2020) ...............................38

Pablo Star Ltd. v. Welsh Gov't, No. 19-1262-CV, 2020 WL 3041261 (2d Cir. Jun. 8, 2020) ...................................................21

- xix -

Palmer/Kane LLC v. Benchmark Edu. Co., No. 18-CV-9369 (NSR), 2020 WL 85469 (S.D.N.Y. Jan. 6, 2020) ........................................33

Patel Burica & Assocs., Inc. v. Lin, No. 8:19-CV-01833 CAS (ADSX), 2020 WL 491467 (C.D. Cal. Jan. 30, 2020) ......................................................................................................................................171

Pearson Edu., Inc. v. ABC Books LLC, No. 19-CV-7642 (RA), 2020 WL 3547217 (S.D.N.Y. Jun. 30, 2020) ....................................68

Philips N. Am., LLC v. Summit Imaging Inc., No. C19-1745JLR, 2020 WL 6741966 (W.D. Wash. Nov. 16, 2020) ..................................200

Photographic Illustrators Corp. v. Orgill, Inc., No. 19-1452, 2020 WL 1226489 (1st Cir. Mar. 13, 2020) ........................................................8

Photographic Illutrators Corp. v. Orgill, Inc., No. CV 14-11818-PBS, 2020 WL 3051774 (D. Mass. Jun. 8, 2020)......................................13

Platform Architecture & Design, PLLC v. Escobar, No. 1:20-CV-00012-WBS, 2020 WL 4785437 (D. Idaho Aug. 18, 2020) ............................190

Ponderosa Twins Plus One v. iHeartMedia, Inc., No. 16-CV-05648-VC, 2020 WL 3481737 (N.D. Cal. Jun. 26, 2020) ..................................186

Pretty in Plastic, Inc. v. Bunn, No. 19-55278, 2020 WL 618666 (9th Cir. Feb. 10, 2020) ....................................................155

Purohit v. Legend Pictures, LLC, No. CV 18-1907-RGA, 2020 WL 1441614 (D. Del. Mar. 24, 2020) ......................................84

Pyrotechnics Mgmt., Inc. v. XFX Pyrotechnics LLC, No. 2:19-CV-00893-RJC, 2020 WL 2085251 (W.D. Pa. Apr. 30, 2020) ...............................97

Quetel Corp. v. Abbas, No. 18-2334, 2020 WL 4013921 (4th Cir. Jul. 16, 2020)........................................................98

Ragan v. Berkshire Hathaway Auto., Inc., No. 4:18-CV-01010-HFS, 2020 WL 63106 (W.D. Mo. Jan. 7, 2020) ..................................153

Recif Resources, LLC v. Juniper Capital Advisors, L.P., No. CV H-19-2953, 2020 WL 5739138 (S.D. Tex. Sep. 24, 2020) ......................................119

Reilly v. Louder with Crowder, LLC, No. 3:20-CV-0395-S, 2020 WL 4016252 (N.D. Tex. Jul. 16, 2020) ....................................117

Reilly v. Wozniak, No. CV-18-03775-PHX-MTL, 2020 WL 1033156 (D. Ariz. Mar. 3, 2020) .........................169

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Richardson v. Kharbouch, No. 19 C 02321, 2020 WL 1445629 (N.D. Ill. Mar. 25, 2020) .............................................139

Rimini St., Inc. v. Oracle Int'l Corp., No. 2:14-CV-01699-LRH-DJA, 2020 WL 5531493 (D. Nev. Sep. 14, 2020) ......................193

RJ Control Consultants, Inc. v. Multiject, LLC, No. 20-1009, 2020 WL 6878106 (6th Cir. Nov. 23, 2020) ...................................................129

S. Credentialing Support Serv., L.L.C. v. Hammond Surgical Hosp., L.L.C., No. 18-31160, 2020 WL 104342 (5th Cir. Jan. 9, 2020) .......................................................105

SA Music, LLC v. Amazon.com, Inc., No. 2:20-CV-00105-BAT, 2:20-CV-00106-BAT, 2:20-CV-00107-BAT, 2020 WL 3128534 (W.D. Wash. Jun. 12, 2020) ............................................................................199

SAS Institute Inc. v. World Programming Ltd., No. 2:18-CV-00295-JRG, 2020 WL 6271230 (E.D. Tex. Oct. 26, 2020) .............................114

Schwartzwald v. Oath Inc., No. 19-CV-9938 (RA), 2020 WL 5441291 (S.D.N.Y. Sep. 10, 2020) ...................................83

Seattlehaunts, LLC v. Thomas Family Farm, LLC, No. C19-1937JLR, 2020 WL 1674124 (W.D. Wash. Apr. 6, 2020) .....................................196

SeattleHaunts, LLC v. Thomas Family Farm, LLC, No. C19-1937JLR, 2020 WL 5500373 (W.D. Wash. Sep. 11, 2020) ...................................199

SellPoolSuppliesOnline.com LLC v. Ugly Pools Arizona, Inc., No. 18-16839, 19-15714, 2020 WL 1527774 (9th Cir. Mar. 31, 2020) ................................159

SHC Holdings, LLC v. JP Denison, LLC, No. 2:17-CV-02718-KJD-BNW, 2020 WL 1308322 (D. Nev. Mar. 19, 2020) ....................192

Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW), 2020 WL 1847841 (S.D.N.Y. Apr. 13, 2020) .................................52

Singletary Constr., LLC v. Reda Home Builders, Inc., No. 19-5491, 2020 WL 2841816 (6th Cir. Jun. 1, 2020) .......................................................127

Skidmore v. Zeppelin, No. 16-56057, 16-56287, 2020 WL 1128808 (9th Cir. Mar. 9, 2020) ..................................155

Sohm v. Scholastic Inc., No. 18-2110, 18-2245, 2020 WL 2375056 (2d Cir. May. 12, 2020) .......................................19

Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 2020 WL 1467394 (S.D.N.Y. Mar. 26, 2020) ............................46

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Soos & Assocs., Inc. v. Five Guys Enters., LLC, No. 17 C 06577, 2020 WL 1027885 (N.D. Ill. Mar. 3, 2020) ...............................................136

State St. Global Advisors Trust Co. v. Visbal, No. 1:19-CV-01719-GHW, 2020 WL 71162 (S.D.N.Y. Jan. 3, 2020) ...................................32

Stockfood Am., Inc. v. Adagio Teas, Inc., No. 2:18-CV-16678-KM-MAH, 2020 WL 4382479 (D.N.J. Jul. 31, 2020) ...........................91

Strike 3 Holdings, LLC v. Doe, No. 18-7188, 2020 WL 3967836 (D.C. Cir. Jul. 14, 2020) .......................................................3

Strike 3 Holdings, LLC v. Doe, No. C17-1731 TSZ, 2020 WL 531996 (W.D. Wash. Feb. 3, 2020) ......................................195

Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 173.71.68.16, No. 1:18-CV-12585-NLH-JS, 1:18-CV-12586-NLH-JS, 1:18-CV-16564-NLH-JS, 1:18-CV-16565-NLH-JS, 1:18-CV-16566-NLH-JS, 1:18-CV-17594-NLH-JS, 1:18-CV-17595-NLH-JS, 1:18-CV-2674-NLH-JS, 1:19-CV-00894-NLH-JS, 1:19-CV-00895-NLH-JS, 1:19-CV-14014-NLH-JS, 1:19-CV-14015-,

2020 WL 3567282 (D.N.J. Jun. 30, 2020) .....................................................................................89

Strobel v. Rusch, No. CIV 18-0656 RB/JFR, 2020 WL 42857 (D.N.M. Jan. 3, 2020) .....................................207

Stross v. Hearst Commc'ns, Inc., No. SA-18-CV-01039-JKP, 2020 WL 5250579 (W.D. Tex. Sep. 3, 2020) ..........................124

Sundance Media Grp., LLC v. Yuneec USA, Inc., No. 2:18-CV-00388-APG-BNW, 2020 WL 5502304 (D. Nev. Sep. 11, 2020) ....................192

Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Grp., No. 15 CIV. 211 (LGS), 2020 WL 1528129 (S.D.N.Y. Mar. 30, 2020) .................................49

Terrier Media Buyer, Inc. v. Dish Network, L.L.C., No. 20 C 583, 2020 WL 5518479 (N.D. Ill. Sep. 14, 2020) ..................................................142

Texasldpc Inc. v. Broadcom Inc., No. CV 18-1966-RGA, 2020 WL 1285916 (D. Del. Mar. 18, 2020) ......................................84

Timmins Software Corp. v. EMC Corp., No. 19-CV-12053-IT, 2020 WL 6907069 (D. Mass. Nov. 24, 2020) .....................................14

Timothy B. O'Brien LLC v. Knott, No. 19-2138, 2020 WL 3263007 (7th Cir. Jun. 17, 2020) .....................................................134

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Tolbert v. Discovery, Inc., No. 4:18-CV-00680-KOB, 2020 WL 3269148 (N.D. Ala. Jun. 17, 2020)............................214

Tom Hussey Photography, LLC v. BDG Media, Inc., No. CV 20-404-MN, 2020 WL 7481770 (D. Del. Dec. 18, 2020) ..........................................87

Town & Country Linen Corp. v. Ingenious Designs LLC, No. 18 CIV. 5075 (LGS), 2020 WL 470234 (S.D.N.Y. Jan. 29, 2020) ..................................38

Trans-Radical Solutions, LLC v. Burlington Med., LLC, No. 2:18-CV-656, 2020 WL 6386970 (E.D. Va. Oct. 30, 2020) ...........................................104

Tresóna Multimedia, LLC v. Burbank High School Vocal Music Assoc., No. 17-56006, 17-56417, 17-56419, 2020 WL 1429318 (9th Cir. Mar. 24, 2020) ......................................................................................................................................157

Turn on Products, Inc. v. Full Circle Trends, Inc., No. 19CV5594, 2020 WL 1272286 (S.D.N.Y. Mar. 17, 2020) ...............................................44

Twelve Sixty LLC v. ITV Studios, No. CV 19-9959-GW-SKX, 2020 WL 1150935 (C.D. Cal. Mar. 3, 2020) ...........................172

UAB Planner5D v. Facebook, Inc., No. 19-CV-03132-WHO, 2020 WL 4260733 (N.D. Cal. Jul. 24, 2020) ...............................187

UMG Recordings, Inc. v. Bright House Networks, LLC, No. 8:19-CV-710-MSS-TGW, 2020 WL 3957675 (M.D. Fla. Jul. 8, 2020) ........................215

UMG Recordings, Inc. v. RCN Telecom Servs., LLC, No. CV 19-17272 (MAS) (ZNQ), 2020 WL 5204067 (D.N.J. Aug. 31, 2020) ......................93

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 18-56253, 18-56548, 2020 WL 2781317 (9th Cir. May. 29, 2020)................................161

Vallejo v. Narcos Prods. LLC, No. 19-14894, 2020 WL 6281501 (11th Cir. Oct. 27, 2020) ................................................213

Vera Bradley Designs, Inc. v. Li, No. 20-CV-2550, 2020 WL 4736413 (N.D. Ill. Aug. 14, 2020) ...........................................141

VHT, Inc. v. Zillow Grp., Inc., No. C15-1096JLR, 2020 WL 2307492 (W.D. Wash. May. 8, 2020) ....................................196

Virtual Chart Sols. I, Inc. v. Meredith, No. 4:17CV546, 2020 WL 896674 (E.D. Tex. Feb. 25, 2020)..............................................112

Waite v. UMG Recordings, Inc., No. 19-CV-1091 (LAK), 2020 WL 1530794 (S.D.N.Y. Mar. 31, 2020) ................................50

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Walsh v. Townsquare Media, Inc., No. 19-CV-4958 (VSB), 2020 WL 2837009 (S.D.N.Y. Jun. 1, 2020) ....................................64

Warner Records Inc. v. Charter Commc'ns, Inc., No. 19-CV-00874-RBJ-MEH, 2020 WL 1872387 (D. Col. Apr. 15, 2020) .........................203

Webster v. Dean Guitars, No. 19-10013, 2020 WL 1887783 (11th Cir. Apr. 16, 2020) ................................................211

Wild v. Rockwell Labs, Ltd., No. 4:19-CV-00919-W-RK, 2020 WL 1921127 (W.D. Mo. Apr. 20, 2020) ........................153

Williams v. 3DExport, No. 19-12240, 2020 WL 532418 (E.D. Mich. Feb. 3, 2020) .................................................130

Windsor v. Olson, No. 3:16-CV-934-L, 2020 WL 1493556 (N.D. Tex. Mar. 27, 2020) ....................................115

Witt v. Sollecito, No. 1:19-CV-676 (GLS/CFH), 2020 WL 6318379 (N.D.N.Y. Oct. 28, 2020) .......................30

Woodson v. Atl. City Bd. of Edu., No. CV 19-14572, 2020 WL 1329918 (D.N.J. Mar. 23, 2020) ...............................................87

XTomic, LLC v. Active Release Techniques, LLC, No. 14-CV-02901-RM-KMT, 2020 WL 2520191 (D. Col. May. 18, 2020) .........................204

Yang v. Mic Network, Inc., No. 18-CV-7628 (AJN), 2020 WL 6562403 (S.D.N.Y. Nov. 9, 2020) ...................................79

Yellowpages Photos, Inc. v. YP, LLC, No. 8:17-CV-764-T-36JSS, 2020 WL 3402359 (M.D. Fla. Jun. 19, 2020) ..........................215

Zahourek Sys., Inc. v. Balanced Body Univ., LLC, No. 18-1300, 18-1312, 2020 WL 4133951 (10th Cir. Jul. 21, 2020) ....................................201

Zindel v. Fox Searchlight Pictures, Inc., No. 18-56087, 2020 WL 3412252 (9th Cir. Jun. 22, 2020) ...................................................162

- xxiv -

TABLE OF TOPICS

Circumvention of copyright protection systems exception ......................................................................................................................... 233, 241 pleading requirements ............................................................................................................... 92 rulemaking ............................................................................................... 254, 255, 256, 258, 260 technological protection measure ............................................................................................ 107

Contributory infringement contribution ............................................................................................................................. 162 direct infringement .......................................................................................................... 207, 209 knowledge ............................................................................................................................... 206 pleading requirements ..................... 27, 30, 32, 33, 63, 71, 80, 94, 102, 135, 188, 190, 207, 210

Copyright Office announcement.................................................................................. 282, 284, 285, 294, 299, 302 appropriation ................................................................................................................... 219, 232 copyright registration .......................................................................... See Copyright registration COVID-19 pandemic ...................................... 220, 275, 282, 283, 284, 285, 287, 288, 289, 305 event ........................................................................................................ 290, 291, 292, 293, 300 fees .................................................................................................................. 228, 238, 252, 253 fellowship ................................................................................................................................ 294 financials ................................................................................................................................. 293 fraud on the Copyright Office .................................................................................. See Defenses leadership ................................................................................................................ 244, 295, 296 letter ......................................................................................................................................... 281 litigation notice ........................................................................................................................ 254 modernization .......................................................................... 272, 273, 296, 297, 298, 300, 301 recordation ....................................................................................................................... 288, 302 request for information ............................................................................................................ 297 rulemaking ...... 252, 254, 255, 256, 258, 260, 261, 262, 263, 264, 265, 266, 267, 270, 271, 272,

273, 274, 275, 276, 277, 278, 279, 280, 287 study ................................................................................................ 245, 246, 248, 249, 250, 251 timing adjustment .................................................................................................................... 287 written comments ............................................ 246, 248, 250, 251, 256, 265, 271, 273, 275, 276

Copyright registration collective work .......................................................................................................................... 70 deposit copy ............................................................................................................................. 155 draft application ....................................................................................................................... 300 group registration ...................................................................................................... 19, 261, 262 pleading requirements ............................................................................................................. 107 presumption of validity ................................................................. 17, 26, 80, 92, 94, 97, 99, 148 publication ................................................................................................................................. 95 recordation ............................................................................................................................... 264 refusal ...................................................................................................................... 134, 254, 284 registration requirement . 8, 9, 19, 30, 43, 53, 65, 67, 75, 76, 113, 116, 145, 147, 159, 175, 187,

196, 199, 207, 210

- xxv -

scope of registration .......................................................................................... 49, 130, 134, 176 single unit of publication ......................................................................................................... 161 special handling ....................................................................................................................... 283

Copyright Royalty Board allocation ................................................................................................................................. 306 announcement.......................................................................................................................... 310 audit ................................................................................................................................. 309, 310 determination ........................................................................................................... 4, 5, 305, 306 distribution .............................................................................................................. 306, 307, 309 proceeding ............................................................................................................................... 304 rate adjustment ........................................................................................................................ 304 rulemaking ............................................................................................................... 307, 308, 309

Copyrightability authorship .................................................................................................................................... 1 character .......................................................................................................................... 156, 160 compilation .............................................................................................................................. 212 creativity ............................................................................................................................ 78, 178 government edicts ..................................................................................................................... 57 originality ...................................................................................... 26, 66, 95, 105, 129, 149, 155 pleading requirements ......................................................................................................... 30, 80 publication ....................................................................................................................... 267, 270 selection and arrangement ............................................................................... 155, 177, 187, 201 short phrases .............................................................................................................................. 17 unauthorized derivative work .................................................................................................. 129 United States Government work ..................................................................................... 223, 231 useful article .................................................................................................................. 7, 12, 201

Defenses abandonment ................................................................................................................... 125, 193 act of state .................................................................................................................................. 99 attribution .................................................................................................................................. 75 collateral estoppel ...................................................................................................................... 33 copyright misuse ............................................................................................................. 178, 200 de minimis use ..................................................................................... 46, 75, 119, 128, 146, 170 equitable estoppel ........................................................................................................ 29, 37, 193 exemption of certain performances and displays .................................................................... 185 failure to mitigate .................................................................................................................... 106 fair use ...... 9, 12, 26, 27, 39, 46, 54, 57, 60, 61, 63, 64, 69, 75, 83, 99, 117, 124, 133, 146, 153,

157, 168, 170, 182, 184, 193, 216 first sale ........................................................................................................................... 133, 142 fraud on the Copyright Office ..................................................................... 37, 95, 113, 123, 159 independent creation ............................................................................................... 142, 173, 178 laches ....................................................................................................................... 121, 178, 193 license 8, 9, 19, 29, 37, 46, 52, 63, 76, 91, 96, 119, 124, 141, 146, 151, 153, 154, 165, 193, 204,

215, 216

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limitation on exclusive rights for secondary transmissions of local television programming by satellite ................................................................................................................................. 142

release ...................................................................................................................................... 178 repair and maintenance .................................................................................................... 233, 241 statute of limitations ..... 16, 19, 30, 33, 36, 37, 41, 50, 83, 86, 87, 100, 102, 110, 124, 126, 139,

144, 165, 166, 170, 193, 211 unclean hands ............................................................................................................ 99, 125, 193 waiver ........................................................................................................................................ 29

Digital audio recording devices and media definitions .................................................................................................................................... 2

Discovery subpoena .................................................................................................................................... 89

Infringement access ......................................................................................... 17, 108, 123, 131, 173, 178, 192 architectural work .................................................................................................................... 100 attribution and integrity rights ................................................................................................... 84 discovery ..................................................................................................................................... 3 distribution .............................................................................................................................. 119 evidence of copying ............................ 9, 17, 19, 24, 70, 105, 128, 142, 149, 165, 193, 195, 206 evidence of public display ......................................................................................................... 17 evidence of public performance ........................................................................................ 90, 121 extraterritoriality ...................................................................................................... 4, 32, 61, 173 inverse ratio rule .............................................................................................................. 155, 163 liability of corporate officer ...................................................................................... 99, 121, 188 liability of foreign governments ................................................................................................ 21 liability of states .......................................................................................... 1, 203, 246, 248, 249 making available ..................................................................................................................... 199 pleading requirements ...... 9, 29, 30, 33, 53, 65, 68, 80, 84, 92, 94, 97, 102, 109, 110, 112, 116,

130, 132, 135, 138, 139, 141, 145, 154, 168, 196, 197, 216 probative similarity ................................................................................................... 17, 123, 178 standing ................................................................................................................................... 157 striking similarity ........................................................................................................ 71, 92, 108 substantial similarity 6, 23, 43, 44, 45, 78, 80, 84, 107, 110, 114, 116, 117, 126, 155, 162, 163,

164, 165, 171, 173, 178, 190, 197, 201, 202, 211, 212, 213, 214 volitional conduct .............................................................................................................. 87, 188

Infringemet pleading requirements ............................................................................................................... 27

Integrity of Copyright Management Information conveyed .................................................................................................................. 159, 172, 209 defenses ................................................................................................................................... 106 definition of Copyright Management Information .................................................... 22, 159, 216 knowledge ............................................................................................................................... 119 pleading requirements ................................................................. 14, 45, 102, 136, 172, 207, 209 scienter ...................................................................................................................................... 22

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statute of limitations .................................................................................................................. 41 Legislation

antitrust .................................................................................................................................... 240 criminal ............................................................................................................................ 219, 302 disabled .................................................................................................................................... 240 education ......................................................................... 224, 225, 227, 228, 236, 237, 238, 240 energy ...................................................................................................................................... 226 federal workforce .................................................................................................................... 218 immigration ............................................................................................................................. 241 privacy ..................................................................................................................................... 235 rulemaking ............................................................................................................................... 238 scientific integrity ............................................................................................................ 222, 235 securities .................................................................................................................................. 226 small claims ............................................................................................................. 219, 243, 302 taxes ................................................................................................................................. 218, 239 technology transfer .................................................................................................................. 230 telecommunications ................................................................................. 221, 222, 223, 224, 228 trade ......................................................................................................................... 229, 231, 234

Library of Congress mandatory deposit ................................................................................................................... 263

Limitations on liability relating to material online designated agent ...................................................................................................................... 254 expeditiousness .......................................................................................................................... 70 financial benefit ................................................................................................................. 70, 178 knowledge ............................................................................................................................... 178 misrepresentations ................................................................................................... 9, 39, 56, 217 pleading requirements ............................................................................................................... 56 standard technical measures .................................................................................................... 293 study ........................................................................................................................................ 245

Music compulsory license .................................................................................................. 266, 267, 279 Music Modernization Act........................................................................................................ 274 pre-1972 sound recording ................................................................................................ 186, 281

Ownership assignment ............................................................................................................. 74, 90, 91, 207 authorship ................................................................................................................................ 126 copyright registration .......................................................................... See Copyright registration declaratory judgment ................................................................................................................. 67 evidence of ownership ............................................................................................................. 148 evidence of work ..................................................................................................................... 192 exclusive license ........................................................................................................................ 32 joint work .......................................................................................................... 53, 113, 173, 180 pleading requirements ............................... 27, 33, 65, 88, 97, 109, 130, 154, 170, 180, 196, 209 standing ............................................................................................................. 96, 111, 167, 180

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termination of transfers and licenses ................................................................................... 50, 52 work made for hire .............................................................................................. 87, 97, 113, 138

Patent & Trademark Office event ........................................................................................................................................ 319 leadership ................................................................................................................................ 319 request for comments .............................................................................................................. 311 study ........................................................................................................................................ 318

Preemption accounting ......................................................................................................................... 16, 169 breach of contract .................................................................................................. 18, 77, 88, 210 civil conspiracy ....................................................................................................................... 199 collection of money ................................................................................................................... 16 common law copyright ............................................................................................................ 189 conversion ................................................................................................................................. 36 deceptive acts and practices ...................................................................................................... 42 deceptive trade practices ................................................................................................... 85, 140 declaratory judgment ............................................................................................................... 169 fraud .................................................................................................................................... 85, 88 implied covenant ....................................................................................................................... 77 intentional interference with prospective economic advantage ........................................ 36, 167 misappropriation ........................................................................................................................ 88 money had and received .......................................................................................................... 169 passing off ............................................................................................................................... 104 right of publicity ........................................................................................................................ 24 tortious interference ..................................................................................... 30, 85, 140, 176, 199 trade libel ................................................................................................................................. 176 trade secret ............................................................................................................................... 116 unfair competition ................................................. 14, 21, 36, 42, 75, 85, 95, 167, 176, 189, 197 unfair trade practices ................................................................................................................. 14 unjust enrichment ........................................................................ 14, 16, 21, 30, 42, 88, 107, 140

Remedies actual damages ...................................................................... 15, 53, 95, 113, 128, 146, 151, 192 apportionment.......................................................................................................................... 173 attorneys fees 5, 14, 22, 25, 30, 35, 38, 62, 73, 74, 76, 79, 82, 83, 100, 106, 107, 112, 115, 117,

121, 132, 134, 153, 157, 158, 159, 160, 162, 175, 182, 195, 203, 205 disgorgement of profits ..................................................... 15, 113, 127, 128, 149, 151, 152, 173 innocent infringement ..................................................................................................... 125, 178 permanent injunction ................................................................................. 9, 53, 76, 98, 175, 182 preliminary injunction ............................................................................................................... 73 statutory damages .................................. 12, 22, 76, 100, 105, 106, 119, 121, 122, 182, 192, 196 willful infringement........................................................... 57, 63, 76, 90, 91, 102, 124, 178, 182

Rights of certain authors to attribution and integrity authorship .................................................................................................................................. 61 effective date ............................................................................................................................. 61

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Scope of protection blank forms ........................................................................................................................ 17, 153 fact ........................................................................................................................... 165, 182, 213 idea ...................................................................................................................... 7, 129, 130, 214 merger .................................................................................................... 17, 57, 66, 117, 129, 177 originality .................................................................................................................................. 92 scenes a faire ........................................................................................... 117, 129, 165, 190, 214

Termination of transfers and licenses granted by the author notice ............................................................................................................................... 264, 265

Unauthorized fixation and trafficking in sound recordings and music videos license .......................................................................................................................................... 9

Vicarious infringement financial benefit ......................................................................................................... 66, 206, 215 pleading requirements ........... 27, 30, 33, 63, 71, 80, 94, 102, 135, 168, 188, 190, 203, 210, 215 right and ability to control ......................................................................................................... 66

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TABLE OF OUTCOMES

Appeal affirmed 1, 2, 4, 7, 8, 9, 19, 21, 22, 23, 24, 83, 98, 107, 108, 126, 128, 129, 134, 149, 155, 156,

158, 159, 160, 164, 165, 167, 201, 202, 211, 212, 213 affirmed-in-part ..................................... 6, 19, 105, 106, 107, 127, 129, 151, 157, 162, 165, 211 reversed ....................................................... 3, 5, 83, 89, 126, 160, 161, 162, 163, 166, 168, 201

Bench trial judgment for defendant ..................................................................................................... 17, 111 judgment for plaintiff .................................................................................................. 53, 76, 182 mixed result ............................................................................................................................. 204

Motion for a new trial denied ........................................................................................................................................ 79

Motion for attorneys fees and costs denied ............................................................ 13, 30, 35, 38, 74, 79, 82, 115, 132, 153, 175, 203 granted ....................................................................................... 5, 62, 73, 79, 112, 115, 195, 205 granted-in-part ........................................................................................................... 25, 117, 205

Motion for declaratory judgment granted ....................................................................................................................................... 97

Motion for judgment denied ...................................................................................................................................... 122

Motion for judgment as a matter of law denied ........................................................................................................................................ 24 granted ..................................................................................................................................... 173

Motion for judgment on the pleadings denied .............................................................................................................................. 136, 141 granted ....................................................................................................................................... 64 granted-in-part ........................................................................................................................... 30

Motion for new trial denied ........................................................................................................................................ 24 granted ..................................................................................................................................... 122

Motion for permanent injunction denied ...................................................................................................................................... 175

Motion for preliminary injunction denied ................................................................................................................ 67, 131, 138, 175 granted ............................................................................................................................... 73, 176

Motion for summary judgment denied ................................................................................................ 57, 110, 124, 133, 142, 146 granted .... 26, 44, 46, 66, 70, 75, 86, 90, 114, 117, 119, 121, 123, 133, 146, 148, 192, 195, 196,

215 granted-in-part ........... 9, 12, 15, 29, 37, 49, 91, 99, 100, 104, 113, 148, 151, 178, 185, 193, 206

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Motion to amend denied .................................................................................................................................... 8, 32

Motion to dismiss denied . 14, 41, 51, 65, 68, 74, 78, 93, 95, 97, 102, 109, 112, 117, 132, 139, 141, 153, 154, 168,

170, 177, 188, 196, 203, 214, 217 granted .. 18, 27, 28, 32, 39, 42, 43, 52, 53, 54, 56, 59, 61, 67, 68, 75, 80, 83, 84, 87, 92, 93, 96,

113, 130, 134, 142, 147, 171, 172, 186, 189, 190, 199, 203, 215 granted-in-part .. 16, 27, 33, 36, 38, 45, 50, 63, 71, 77, 84, 85, 88, 109, 116, 135, 138, 140, 144,

145, 169, 172, 175, 179, 187, 190, 197, 199, 200, 207, 209, 210, 216 Motion to quash

granted ..................................................................................................................................... 184 Motion to remand

granted ..................................................................................................................................... 180 Motion to strike

denied ...................................................................................................................................... 125 granted ..................................................................................................................................... 152 granted-in-part ......................................................................................................................... 207

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TABLE OF WORKS

Architectural work design .......................................................................................................... 30, 45, 127, 171, 190 drawing ........................................................................................................................ 30, 45, 216 plan .......................................................................................................................................... 136

Audiovisual work cartoon ..................................................................................................................................... 175 film .......................................................... 3, 28, 30, 60, 73, 89, 90, 125, 162, 163, 180, 190, 202 motion picture ............................................................................................. 53, 84, 156, 160, 195 pilot.................................................................................................................................. 156, 160 recording .................................................................................................................................. 160 series ........................................................................................ 4, 19, 23, 121, 142, 188, 213, 304 teaser ........................................................................................................................................ 214 television ......................................................................................................................... 306, 307 video .......................................................................................................... 9, 39, 43, 84, 140, 172 video game ................................................................................................................ 46, 145, 146

Dramatic work play .......................................................................................................................................... 165

Literary work annotation .................................................................................................................................... 1 article ......................................................................................................................................... 87 book ....................................................................... 53, 68, 84, 130, 135, 164, 165, 168, 213, 263 chart ......................................................................................................................................... 197 compilation .............................................................................................................................. 201 computer program ...... 14, 49, 66, 67, 77, 84, 85, 86, 88, 98, 107, 112, 114, 117, 128, 129, 151,

152, 165, 187, 193, 200, 204, 205, 311, 318 contest .......................................................................................................................................... 8 course ................................................................................................................................ 17, 175 database ........................................................................................................... 107, 134, 149, 154 document ........................................................................................................................... 87, 184 exam .......................................................................................................................................... 83 form ........................................................................................................................................... 96 game .......................................................................................................................................... 65 Internet work ..................................... 22, 24, 25, 74, 95, 109, 138, 159, 211, 261, 262, 267, 270 legal agreement ......................................................................................................................... 35 manual ..................................................................................................................................... 129 model building code .................................................................................................................. 57 newsletter ................................................................................................................ 106, 122, 261 packaging ................................................................................................................................ 138 packet ...................................................................................................................................... 105 plan .......................................................................................................................................... 115 play .......................................................................................................................................... 162 presentation ............................................................................................................................. 182 protocol ...................................................................................................................................... 97

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questionnaire ........................................................................................................................... 153 review ...................................................................................................................................... 209 screenplay ................................................................................................................................ 163 script ........................................................................................................................................ 164 survey ...................................................................................................................................... 117 test ........................................................................................................................................... 112

Music musical work .... 9, 16, 71, 79, 126, 147, 155, 157, 158, 173, 177, 180, 185, 199, 250, 251, 266,

267, 270, 271, 274, 276, 277, 278, 280, 281, 304 sound recording .... 2, 5, 24, 50, 52, 53, 60, 62, 93, 108, 109, 113, 139, 180, 186, 203, 215, 229,

238, 250, 251, 266, 267, 270, 271, 274, 276, 277, 278, 280, 281, 305, 306, 308, 309, 310 Visual work

art style .................................................................................................................................... 130 artwork .................................................................................................................................... 212 clothing ...................................................................................................................................... 36 design .................................................. 27, 44, 73, 75, 78, 80, 134, 141, 144, 155, 161, 167, 189 graphic work .................................................................. 12, 38, 56, 100, 169, 196, 199, 210, 211 illustration........................................................................................................................ 133, 153 image ............................................................................................................................... 110, 175 jewelry ............................................................................................................................... 42, 178 logo .......................................................................................................................... 131, 176, 207 makeup ................................................................................................................................ 21, 74 map .......................................................................................................................................... 119 pattern ...................................................................................................................................... 123 photograph .... 1, 4, 5, 8, 14, 15, 18, 19, 21, 22, 26, 27, 29, 33, 37, 38, 41, 52, 54, 63, 64, 69, 70,

75, 79, 82, 83, 87, 91, 97, 99, 102, 104, 116, 117, 124, 132, 133, 141, 148, 153, 162, 166, 168, 170, 192, 196, 203, 206, 215

rug.............................................................................................................................................. 92 sculptural work ............................................................................................ 32, 61, 126, 192, 201 statue ........................................................................................................................................ 142 style guide ................................................................................................................................. 76 tableware ................................................................................................................................. 111 tattoo .......................................................................................................................... 46, 145, 146 technical drawing .................................................................................................................... 129 toy ............................................................................................................................................ 6, 7

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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I. COPYRIGHT DECISIONS

Supreme Court of the United States

ALLEN V. COOPER No. 18-877, 2020 WL 1325815 (U.S. Mar. 23, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - photograph Topics: Infringement - liability of states In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank . . . that the patent statute lacked a valid constitutional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion. GEORGIA V. PUBLIC.RESOURCE.ORG, INC. No. 18-1150, 2020 WL 1978707 (U.S. Apr. 27, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - annotation Topics: Copyrightability - authorship The Copyright Act grants potent, decades-long monopoly protection for “original works of authorship.” . . . The question in this case is whether that protection extends to the annotations contained in Georgia's official annotated code. We hold that it does not. Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act's “authorship” requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties. We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law. . . . We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia's annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.

D.C. Circuit

Court of Appeals for the District of Columbia

ALLIANCE OF ARTISTS AND RECORDING COS. V. DENSO INT'L AM., INC. No. 18-7141, 18-7172, 2020 WL 425058 (D.C. Cir. Jan. 28, 2020)

Joshua L. Simmons joshua.simmons@kirkland.com

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Outcome: Appeal - affirmed Works of Authorship: Music - sound recording Topics: Digital audio recording devices and media - definitions This case involves actions filed by Appellant Alliance of Artists and Recording Companies, Inc. (“AARC” or “Appellant”) pursuant to the Audio Home Recording Act of 1992 (“Act” or “AHRA”) . . . . On July 25, 2014, AARC filed a lawsuit against General Motors LLC, DENSO International America, Inc., Ford Motor Company, and Clarion Corporation of America (“GM/Ford action”) for alleged violations of the Act. A second, substantially similar lawsuit was filed by AARC on November 14, 2014, against FCA US LLC and Mitsubishi Electric Automotive America, Inc. (“FCA action”). On February 9, 2015, the District Court consolidated the cases. In each case, AARC claimed that in-vehicle audio recording devices that copy music from CDs onto hard drives within the devices, allowing the music to be played back inside the vehicle even without the CDs, are “digital audio recording device[s]” under the Act. . . . Based on this assertion, AARC alleged that the three suppliers of the devices (DENSO, Clarion, and Mitsubishi), along with the three automobile manufacturers that sold vehicles containing the recording devices (General Motors, Ford, and FCA) (collectively “Appellees”) had violated the Act by failing to pay royalties and adopt the required copying control technology with respect to the devices. On March 23, 2018, after several years of litigation . . the District Court granted Appellees’ joint motion for summary judgment . . . . On the same date, the District Court entered an Order confirming its judgments. This Order resolved all the claims in the FCA action and all but the claims based on GM’s flash-drive devices in the GM/Ford action. On September 18, 2018, AARC filed a notice of appeal in the FCA action. On October 23, 2018, the District Court granted AARC’s unopposed Rule 54(b) motion to enter final judgment as to the hard-drive claims in the GM/Ford action. However, the court reserved judgment on the flash-drive claims and those claims remain pending before the District Court. AARC then filed a timely notice of appeal in the GM/Ford action, and this court consolidated the appeals. This appeal raises challenging issues regarding the coverage of the AHRA. The Act was passed to address important questions emanating from the advent of digital audio tape (“DAT”) recordings in the late 1980s. As digital audio recorders became more common, the prospect of “home copying” loomed as a major issue. Both the companies that produced the devices and the consumers who used them faced uncertain liabilities under prevailing copyright law. And musicians and record companies, for their part, were concerned that high-quality digital copies would cause serious drops in authorized sales of music recordings. The enactment of the AHRA embodied “a historic compromise” intended to address these issues. . . . The AHRA exempts the manufacture and use of certain digital audio recorders from copyright infringement actions, thereby dispelling legal uncertainties and ensuring that consumers will have access to the technology. In exchange, the AHRA imposes royalties on certain digital audio recorders and media. The Act also requires covered digital audio recorders to include systems

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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that prevent them from making second-generation copies (i.e., copies of copies), thereby offering some protection to the rights of copyright holders. In this case, Appellant contends that the “AHRA covers all consumer devices that (1) are capable of digitally reproducing recorded music, and (2) the recording functions of which are designed or marketed for the primary purpose of doing so.” . . . Appellant contends that the District Court erred in holding “that the output of Defendants’ recording devices must contain ‘only sounds’ and material ‘incidental’ to such sounds” to be subject to the proscriptions of the Act. . . . Finally, Appellant argues that, in any event, “Defendants’ devices met the district court’s test because they stored music to hard drive partitions, which function essentially as separate hard drives, that met this purported ‘only sounds’ requirement.” . . . The District Court rejected Appellant’s claims. . . . We do as well. . . . On the merits, we affirm the judgments of the District Court. First, we hold that a digital audio recorder is covered by the AHRA only if it can make a “digital audio copied recording” that is also a “digital musical recording” as that term is defined by the Act. Second, we hold that, because it is undisputed that the hard drives in Appellees’ devices do not contain “only sounds,” they do not qualify as “digital musical recording[s]” and, therefore, the devices do not qualify as “digital audio recording device[s]” subject to the Act. Third, we reject AARC’s partition theory. We hold that, at least where a device fixes a reproduction of a digital musical recording in a single, multi-purpose hard drive, the entire disk, and not any logical partition of that disk, is the “material object” that must satisfy the definition of a “digital musical recording” for the recording device to qualify under the Act. These matters are explained in detail in the succeeding sections of the opinion. STRIKE 3 HOLDINGS, LLC V. DOE No. 18-7188, 2020 WL 3967836 (D.C. Cir. Jul. 14, 2020) Outcome: Appeal - reversed Works of Authorship: Audiovisual work - film Topics: Infringement - discovery Strike 3 Holdings, LLC, is a producer and distributor of adult films. This case arises out of a copyright infringement suit filed by Strike 3 against a “John Doe” defendant alleged to have illegally downloaded and distributed Strike 3’s films. In its complaint, Strike 3 was able to identify the defendant only with an Internet Protocol (IP) address linked to numerous acts of online piracy. Strike 3 could not identify the defendant and effectuate service without subpoenaing the defendant’s Internet service provider (ISP) and so moved the district court for a court order under Federal Rule of Civil Procedure 26(d)(1). The district court denied the Rule 26(d)(1) motion and dismissed Strike 3’s complaint without prejudice. While district courts enjoy substantial discretion with respect to discovery matters, that discretion is not unbounded. We hold that the district court abused its discretion by assigning improper weight to what it viewed as the “aberrantly salacious nature” of Strike 3’s films, by concluding that Strike 3 could not state a plausible claim for infringement against the IP address

Joshua L. Simmons joshua.simmons@kirkland.com

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subscriber, and by drawing unsupported, negative inferences against Strike 3 regarding its litigation tactics. We therefore reverse the district court’s order and remand for further proceedings consistent with this opinion. IMAPIZZA, LLC V. AT PIZZA LTD No. 18-7168, 2020 WL 4032650 (D.C. Cir. Jul. 17, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - photograph Topics: Infringement - extraterritoriality IMAPizza, which operates the “&pizza” chain of restaurants in the United States, has brought this suit under the Copyright and Lanham Acts as well as D.C. common law against At Pizza, operator of the “@pizza” restaurant in Edinburgh, Scotland. IMAPizza alleges At Pizza’s restaurant is an unauthorized copycat version of its “&pizza” stores. Because At Pizza operates only in the United Kingdom, IMAPizza’s claims test the limits of the extraterritorial application of the Copyright and Lanham Acts. The district court dismissed these and IMAPizza’s other claims. For the reasons below, we affirm the judgment of the district court. . . . We agree with the district court that this definition of copy does not include “ephemeral transmission of a picture across the internet.” Instead, the copy becomes “fixed” when the picture is reproduced for a viewer. IMAPizza, however, failed plausibly to allege that any such reproduction occurred in the United States. . . . In sum, IMAPizza failed to state a claim under the Copyright Act because it did not allege an act of copyright infringement in the United States. We decline, as have other courts, to extend the Copyright Act beyond its territorial limits lest U.S. law be used to sanction what might be lawful conduct in another country. INDEPENDENT PRODUCERS GRP. V. COPYRIGHT ROYALTY BOARD No. 18-1337, 19-1116, 2020 WL 4118335 (D.C. Cir. Jul. 21, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - series Topics: Copyright Royalty Board - determination Under the Copyright Act, when a cable or satellite company retransmits programs initially aired on broadcast stations, the Register of Copyrights collects royalty fees under a compulsory licensing scheme and later redistributes the fees to the appropriate copyright owners. The Copyright Royalty Judges (the Judges) preside over royalty distribution proceedings and settle disputes among royalty fee claimants. Appellant Worldwide Subsidy Group LLC dba Independent Producers Group (IPG), an agent for royalty claimants in these proceedings, challenges a series of decisions by the Copyright Royalty Judges denying most of its clients’ royalty fee claims for programming in the devotional and program suppliers’ categories that was retransmitted by cable for 2004-2009 and by satellite for 1999-2009. IPG lost the right to pursue many of its clients’ claims as a result of a discovery sanction and because, after the Judges held that IPG was not entitled to a “presumption of validity” for either its representative role or the

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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validity of the royalty claims it proffered, IPG failed to establish for certain claims that it was a duly appointed agent pressing valid claims. IPG challenges the factual grounds for those determinations and contends they are so disproportionately harsh as to be an abuse of discretion. It also challenges as arbitrary the Judges’ final distribution methodologies for allocating the royalties to all eligible claimants. We affirm the Copyright Royalty Judges on all three challenges: the revocation of the presumption of validity, the imposition of discovery sanctions, and the final distribution of royalties. MUSIC CHOICE V. COPYRIGHT ROYALTY BD. No. 19-1011, 2020 WL 4782379 (D.C. Cir. Aug. 18, 2020) Outcome: Appeal - reversed Works of Authorship: Music - sound recording Topics: Copyright Royalty Board - determination The case raises the question of what copyright royalty rate must be paid by Music Choice for transmissions of digital music over the internet. Pursuant to the Digital Millennium Copyright Act (“DMCA”), a lower grandfathered royalty rate is paid by some music services that were early providers of digital music transmissions. Music Choice challenges a Final Determination of the Copyright Royalty Board (“the Board”), which excludes Music Choice’s internet transmissions from the grandfathered rate and also adopts more stringent audit requirements. We hold that the Board’s categorical exclusion of Music Choice’s internet transmissions from the grandfathered rate conflicts with the unambiguous language of the DMCA. Under the DMCA, Music Choice’s internet transmissions are eligible for the grandfathered rate to the extent they were part of its service offering on July 31, 1998. The Board, however, retains discretion to determine whether parts of Music Choice’s current service offering, which includes mobile applications and internet-exclusive channels, should be excluded from the grandfathered rate. The Board also acted arbitrarily and capriciously in altering the audit standards applicable to Music Choice. Accordingly, we vacate the relevant parts of the Final Determination and remand for the Board to determine if Music Choice’s internet transmissions qualify for the grandfathered rate and to reconsider the amended audit procedure.

District of the District of Columbia

FELDBLYUM V. EIGHT BROS. DEV., LLC No. CV 19-1659 (RJL), 2020 WL 1079175 (D.D.C. Mar. 6, 2020) Outcome: Motion for attorneys fees and costs - granted Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees Plaintiff Boris Feldblyum (“plaintiff”) brought this action against defendants Eight Brothers Development, LLC and Andrew Amurrio (“defendants” or “Eight Brothers”) pursuant to 17 U.S.C. § 101 et seq., seeking money damages for and injunctive relief from alleged copyright

Joshua L. Simmons joshua.simmons@kirkland.com

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infringement. . . . After receiving the Complaint but before answering, defendants filed an offer of judgment in the amount of $2,000 plus reasonable attorneys fees and costs, pursuant to Federal Rule of Civil Procedure 68. . . . Plaintiff accepted. . . . Before me now is plaintiff’s Motion for Attorneys Fees. . . . Plaintiff seeks $24,495 in fees and $746.25 in costs. . . . Defendants acknowledge that plaintiff is entitled to some compensation but suggest that $1,000 in fees $512.50 in costs would be more appropriate. . . . For the reasons set forth below, I GRANT plaintiff’s Motion for Attorneys Fees but in the reduced amount of $6,175.35 in fees and $746.25 in costs.

Federal Circuit

Court of Appeals for the Federal Circuit

LEGO A/S, LEGO SYS., INC. V. ZURU INC. No. 2019-2122, 2020 WL 229874 (Fed. Cir. Jan. 15, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Visual work - toy Topics: Infringement - substantial similarity This is an interlocutory appeal of Appellant, ZURU Inc. (“ZURU”), from an order of the District Court for the District of Connecticut granting Appellees LEGO A/S (“LAS”), LEGO Systems, Inc. (“LSI”), and LEGO Juris A/S (“LJAS”) (collectively, “LEGO”) a preliminary injunction directed to ZURU products accused of infringing various LEGO copyrights, trademarks, and design patents. . . . For the reasons discussed below, we affirm-in-part, vacate-in-part, and remand. . . . I. The ZURU Action Figures . . . As ZURU acknowledges, LEGO has a registered copyright entitled “Basic Minifigures” and alternatively titled “Figures with jackets, helmets, or crash helmets.” Appellant’s Br. at 35. The LEGO Minifigure analyzed by Ms. Knight and the district court is just that—a basic minifigure wearing a jacket. Indeed, the copyrightable elements of the Minifigure Copyrights and the Minifigure sculptures relied upon by the district court are the same — i.e., apart from the medium in which they are conveyed, there are no material differences between the LEGO Minifigure sculptures and the corresponding copyright images. . . . Thus, the shift in medium from a copyright registration image to sculpture does not add the original copyrightable authorship necessary to constitute a derivative work. Therefore, the analyzed LEGO Minifigures are not, as ZURU contends, unregistered derivative works—they are physical embodiments of the copyrighted images. . . . Accordingly, we find that the district court did not commit legal error in comparing the allegedly infringing ZURU Action Figures to the physical embodiment of the basic minifigures seen in LEGO’s copyright registrations. Nevertheless, even if the district court and Ms. Knight’s additional comparisons to the Minifigure Figurines were legal error, ZURU identifies no material differences between the figures depicted in the LEGO copyright registrations and the ones the district court and Ms. Knight compared to the ZURU Action Figures. To the contrary, ZURU’s arguments on appeal

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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apply equally to the Minifigure Copyright images and the LEGO Minifigure viewed by the district court. . . . Accordingly, we find that even if ZURU had shown that the district court compared the wrong figure to the allegedly infringing ZURU Action Figures, it was harmless error. . . . Because the standard for determining substantial similarity is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetical appeal the same, the district court found that the total concept and feel of the ZURU Action Figures is substantially similar to that of LEGO’s Minifigure Figurine. Where, as here, ZURU only identifies alleged disparities between the two products and has failed to demonstrate instead that the “total concept and feel” of the two works is different, we see no reason to disagree with the district court’s finding on substantial similarity. III. The MAYKA Toy Tape Packaging Image . . . While ZURU provides a list of alleged differences between the LEGO Friends Copyrights and the Packaging Image based on their own expert’s testimony, the district court found that these arguments deserve less weight than Ms. Knight’s analysis in light of the fact that the standard for determining substantial similarity is whether an “ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal the same.” . . . For the reasons discussed above with respect to the ZURU Action Figures, we see no reason to upset the district court’s finding on substantial similarity. LANARD TOYS LTD. V. DOLGENCORP LLC No. 2019-1781, 2020 WL 2478876 (Fed. Cir. May. 14, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - toy Topics: Copyrightability - useful article, Scope of protection - idea Lanard Toys Limited (“Lanard”) appeals from the decision of the United States District Court for the Middle District of Florida granting summary judgment in favor of Dolgencorp LLC, Ja-Ru, Inc., and Toys “R” Us–Delaware, Inc. (collectively, “Appellees”) with respect to Lanard’s claims for design patent infringement, copyright infringement, trade dress infringement, and statutory and common law unfair competition. . . . For the reasons described below, we affirm. . . . Here, Lanard’s ’458 copyright is for the chalk holder itself, and Lanard’s arguments in the district court and in this appeal merely confirm that it seeks protection for the dimensions and shape of the useful article itself. Because the chalk holder itself is not copyright protectable, Lanard cannot demonstrate that it holds a valid copyright. Furthermore, the ’458 copyright shows images that appear to be a pencil with the words “Chalk Pencil” on it, and the copyright is titled “Pencil/Chalk Holder.” Based on that limited information, in conjunction with its arguments in the district court and this appeal, Lanard is essentially seeking to assert protection over any and all expressions of the idea of a pencil-

Joshua L. Simmons joshua.simmons@kirkland.com

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shaped chalk holder. But copyright protection does not extend to an “idea.” . . . For this additional reason, we conclude as a matter of law that Lanard does not own a valid copyright for a pencil-shaped chalk holder. Thus, we hold that the district court correctly granted summary judgment in favor of Appellees on Lanard’s claim for copyright infringement.

District of Puerto Rico

CORTES-RRAMOS V. MARTIN-MORALES No. CV 16-1223 (DRD), 2020 WL 4920045 (D.P.R. Aug. 21, 2020) Outcome: Motion to amend - denied Works of Authorship: Literary work - contest Topics: Copyright registration - registration requirement The First Circuit remanded the instant case for this Court to determine whether Plaintiff should be allowed to amend his Complaint in order to satisfy the requirements set at Section 411 (a) of the Copyright Act of 1976 (“Copyright Act”) . . . . To that end, pending before the Court are Plaintiff's multiple request for leave to amend. . . . After considering Plaintiff's arguments, Defendant's contentions and the applicable case law, the Court hereby DENIES Plaintiff's request for leave to amend and DISMISSES - without prejudice - Plaintiff's surviving claims under the Copyright Act. . . . In the instant case, Plaintiff filed a Certificate of Registration, issued by the United States Copyright Office, with regards to the work he submitted to the Contest. . . . The referenced Certificate reveals that the “Effective Date of Registration” was on March 01, 2017; that is, almost a year after the Complaint in the instant case was filed. If the Court were to agree to Petitioner's request to amend, it would validate the filing of a suit in violation of the requirements set in Section 411(a).

First Circuit

Court of Appeals for the First Circuit

PHOTOGRAPHIC ILLUSTRATORS CORP. V. ORGILL, INC. No. 19-1452, 2020 WL 1226489 (1st Cir. Mar. 13, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - photograph Topics: Defenses - license In this case of first impression in the circuit courts, we hold that a copyright licensee given the unrestricted right to grant sublicenses may do so without using express language. . . . In sum, we hold that, where a licensor grants to a licensee the unrestricted right to sublicense and permit others to use a copyrighted work, a sublicense may be implied by the conduct of the sublicensor and sublicensee. So although implied sublicenses, like implied licenses, are probably

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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not “an everyday occurrence in copyright matters,” . . . we reject the contention that they are a legal impossibility. . . . Having considered the entire record, we find it indisputable that Sylvania intended -- indeed, wanted -- Orgill to use the photos, and gave the photos to Orgill for precisely that purpose, just as the license itself anticipated and allowed. We therefore agree with the district court that Orgill has conclusively proven the existence of a sublicense and that no reasonable jury could find otherwise. CORTÉS-RAMOS V. MARTIN-MORALES No. 19-1358, 2020 WL 1847072 (1st Cir. Apr. 13, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - video Topics: Infringement - pleading requirements, Copyright registration - registration requirement Luis Adrián Cortés-Ramos sued Enrique Martin-Morales (a/k/a Ricky Martin) (“Martin”) and other unknown defendants, alleging violations of federal copyright law and various Puerto Rico laws. On appeal, Cortés-Ramos challenges the district court's dismissal of these claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We conclude that the district court correctly held that the complaint failed to state a copyright claim because it did not allege registration. But we also conclude that the district court erred in holding that the complaint otherwise failed to state a copyright claim and dismissing the complaint with prejudice. We remand so that the district court may consider, whether, in light of this opinion, to dismiss the copyright claim or whether Cortés-Ramos should be allowed to supplement his complaint under Federal Rule of Civil Procedure 15(d) to allege registration. We affirm the district court's dismissal of the state-law claims.

District of Massachusetts

COMERICA BANK & TRUST, N.A. V. HABIB No. CV 17-12418-LTS, 2020 WL 58527 (D. Mass. Jan. 6, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Music - musical work Topics: Infringement - evidence of copying, Defenses - fair use, Defenses - license, Unauthorized fixation and trafficking in sound recordings and music videos - license, Limitations on liability relating to material online - misrepresentations, Remedies - permanent injunction This federal copyright law case concerns several audiovisual recordings of the now-deceased international superstar Prince Rogers Nelson (“Prince”) performing his own musical compositions live in concert. Plaintiff Comerica Bank & Trust, N.A., in its capacity as the appointed Personal Representative of Prince’s Estate (“Comerica”), alleges that several videos recorded and uploaded to YouTube by Defendant Kian Andrew Habib (“Habib”) constitute copyright infringement under 17 U.S.C. § 501 and violate the civil anti-bootlegging statute . . . .

Joshua L. Simmons joshua.simmons@kirkland.com

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In response, Habib raises multiple defenses to Comerica’s two claims and counterclaims that takedown notices sent on behalf of Comerica to YouTube were “knowingly, material misrepresent[ations]” in violation of 17 U.S.C. § 512(f). . . . For the following reasons, Comerica’s Motion for Partial Summary Judgment . . . is ALLOWED IN PART and Habib’s Cross Motion for Summary Judgment . . . is DENIED. . . . a. Infringement . . . It is of no moment that the performances recorded by Habib were “far removed from, and not recognizable as, the studio version[s] of ... particular song[s].” . . . Indeed, each performance of a given musical composition—whether fixed in a specific sound recording or played with a live band at a concert venue—falls well within the scope of the copyright protection afforded to musical compositions. Notably, courts have consistently held that an arrangement of a musical composition may not be considered a separate derivative work if the arrangement is “merely a stylized version of the original song ... [that] may take liberties with the lyrics or the tempo” and regurgitates “basically the original tune.” . . . And courts have long held that the right to create new versions of a composition is an entitlement that lies at the core of the Copyright Act’s protection of musical works. . . . Accordingly, Comerica need not “separately register for copyright protection ... every live performance of every [Prince] song” in order to avail itself of the Copyright Act’s remedies . . . nor does Comerica’s infringement claim seek to “mold[ ] [the musical composition copyrights] beyond the material they actually protect,” as Habib claims. . . . 1. Fair Use . . . Critically, Habib did not imbue Prince’s musical compositions with new meaning or add any of his own expression to the underlying works. . . . In fact, the record is devoid of evidence that might support Habib’s claim that his videos are “educational” or “historical” in nature. . . . And to the extent his video titles are original contributions, they are mere “message[s] of approval [that do] not endow the copyrighted material with any new purpose.” . . . Indeed, as Comerica notes, Habib’s videos do nothing more than “repackage or republish the original copyrighted [musical compositions],” . . . albeit in a “grainy” and “blurry” fashion. . . . Accordingly, the Court concludes that his videos are not transformative in nature. . . . Here, Habib sought to drive traffic to his YouTube channel by posting “rare” and “[a]mazing” videos of Prince performing his musical compositions in concert. . . . Thus, Habib stood “to gain recognition ... through [his] posting of [Prince’s musical compositions] online” and “benefitted by being able to provide the protected works free of cost” to other YouTube users. . . . Accordingly, the “non-commercial” nature of Habib’s videos is far from dispositive and, if anything, counsels against a finding of fair use. Therefore, the Court concludes that the first factor weighs decisively in Comerica’s favor. . . . As to the second element, there is no dispute that the musical compositions at issue in this case were previously published by Prince. Nonetheless, the fact that these musical compositions were previously published and registered by Prince “does not mean that this inquiry weighs in favor of fair use, only that [the compositions] do not fall into the category of private works to which the doctrine of fair use is especially unsuited.” . . . Given that the works in question lie at the core of copyright law’s protection, the second factor weighs against a finding of fair use. . . .

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Habib’s videos copied significant and valuable portions of the six musical compositions, in many cases capturing multiple verses and recognizable refrains. . . . Significantly, the videos “appropriated the heart” of the musical compositions . . . “providing the viewer with the best parts of each copyrighted work.” . . . And while “[c]opying does not become excessive ... merely because the portion taken was the original’s heart,” . . . when copying is carried out “ ‘for the same intrinsic purpose for which [the composer] intended [the song] to be used,’ this third factor weighs against [Habib’s] contention of fair use.” . . . Accordingly, the third factor weighs in Comerica’s favor. . . . While the Court queries the extent to which the “grainy” and “blurry” visuals, muffled sound, and pervasive audience din in Habib’s videos . . . “satisfy[ ] viewers’ taste for videos of Prince performances,” . . . even drawing all inferences in Habib’s favor, his videos plainly divert traffic away from authorized reproductions of the musical compositions, thus depriving the Estate of advertising revenue. . . . Similarly, the Court is persuaded that Habib’s decidedly poor-quality recordings harm the Estate’s interest in policing the caliber of secondary uses of Prince’s musical compositions. Indeed, the Copyright Act repeatedly demonstrates a commitment to musicians’ right to protect the integrity of their compositions. . . . Accordingly, the fourth factor counsels against finding fair use. . . . As all four statutory factors weigh in Comerica’s favor, Habib’s fair use defense fails as a matter of law. . . . Habib has failed to “carry his evidentiary burden” as to his third affirmative defense to copyright infringement. . . . Accordingly, Comerica’s motion for summary judgment as to Habib’s fair use defense is ALLOWED and Habib’s cross motion for summary judgment on the fair use defense is DENIED. . . . c. Willful Infringement . . . Notwithstanding the fact that Habib received—and did not dispute—multiple Content ID claims informing him that his audiovisual recordings of live musical performances contained copyrighted material, Habib continued to post similar videos, assuming that he would escape legal liability merely because some copyright owners elected to allow his videos to remain live. . . . Indeed, his unflagging conviction—one that he has maintained throughout this copyright infringement suit—that “every artist ... encourage[s] people to post video[s]” of live musical performances . . . demonstrates an unreasonable disregard for the exclusive rights afforded to musicians under the Copyright Act. . . . Moreover, his “casual[ ]” counter-notification submissions . . . recklessly assumed that parroting the statutory fair use factors is an adequate substitute for either seeking out legal advice or carefully evaluating the applicability of the fair use doctrine. Finally, Habib has presented no mitigating evidence tending to show that he held a “reasonable” belief that his videos were not infringing. . . . For these reasons, Comerica’s motion for summary judgment that Habib engaged in willful infringement of Prince’s musical composition copyrights is ALLOWED and Habib’s cross-motion is DENIED. 2. Count II: Violation of the Anti-Bootlegging Statute . . . Here, none of the relevant factors tend to demonstrate the existence of an implied license. As Comerica notes, “Prince’s broad, alleged statement made to the general public does not set out any license terms, does not demonstrate an

Joshua L. Simmons joshua.simmons@kirkland.com

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intent to contract with Habib, and indeed plainly has no relation to Habib.” . . . Thus, based on the evidence before the Court, should an anti-bootlegging claim lie in this case—a determination that the Court has not reached—Habib’s implied license defense will fail. . . . Here, the undisputed evidence before the Court indicates that MarkMonitor had, at the very least, a “good faith belief” that Habib’s videos infringed Prince’s copyrighted musical compositions. . . . Habib has offered no evidence to the contrary; in fact, as Comerica notes, Habib “did not even take discovery from MarkMonitor.” . . . When, as here, the moving party “ha[s] not supplied a factual basis on which to find ... that [the] plaintiff[ ], in pursuing takedown notices, made a knowing material misrepresentation,” summary judgment is appropriate. . . . Accordingly, as Habib has “failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof,” . . . Habib’s cross-motion for summary judgment as to his counterclaim is DENIED and Comerica’s motion for summary judgement as to Habib’s counterclaim is ALLOWED. . . . Here, the Court agrees with Comerica’s assessment that “[a]bsent a permanent injunction, further infringement is likely.” . . . Throughout the course of this litigation, Habib has refused to engage with the demands of copyright law, has continued to post potentially infringing videos, and has antagonized opposing counsel . . . even after Comerica “made several attempts to resolve the case on terms that merely required Habib to refrain from distributing unauthorized Prince videos in the future.” . . . The Court concludes that “a threat of future infringement remains, in light of [Habib’s] repeated, current, and past acts.” . . . Thus, the Court ALLOWS Comerica’s motion for a permanent injunction. BASSETT V. JENSEN No. CV 18-10576-PBS, 2020 WL 2310718 (D. Mass. May. 11, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - graphic work Topics: Copyrightability - useful article, Defenses - fair use, Remedies - statutory damages Plaintiff Leah Bassett rented her Martha’s Vineyard home to Defendant Joshua Spafford for personal residential purposes. Unbeknownst to Bassett, the property was then used as a set for pornographic videos and photographs, as well as housing for cast and crewmembers. In March 2018, Bassett filed this suit alleging ten counts: (I) breach of contract, (II) trespass, (III) negligence, (IV) violations of Chapter 93A, (V) civil conspiracy, (VI) civil fraud, (VII) infliction of emotional distress, (VIII) interference with advantageous business relations, (IX) copyright infringement, and (X) civil RICO violations. An eleventh count of (XI) defamation was added in May 2018. Three defendants — Monica Jensen, Jon Blitt and Mile High Distribution, LLC (collectively, “Defendants”) — have moved for summary judgment on all claims. Bassett cross-moved for summary judgment on four counts — Chapter 93A, civil conspiracy, infliction of emotional distress, and copyright infringement.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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After hearing, the Court ALLOWS IN PART (Counts I, II, III, VI, X, XI) and DENIES IN PART (Counts IV, V, VII, and VIII) Defendants’ motion for summary judgment . . . . The Court defers ruling on Count IX pending Plaintiff’s submission within 45 days of an analysis of all appearances of her copyrighted works in Defendants’ films. The Court also DENIES Bassett’s motion for partial summary judgment as to Counts IV, V, and VII . . . and defers ruling as to Count IX. . . . A. Validity and Scope of Copyrights . . . While the functionalist elements of the fireplace are not copyrightable, the aesthetic design choices are. Defendants argue the fireplace is not “attributable” to Bassett because her father testified that a former boyfriend designed it, not Bassett. Bassett testified that she co-designed the fireplace and submitted sketches of its design. Whether the fireplace is attributable to Basset is a disputed issue of fact appropriate for determination by a factfinder. Finally, the slipcovers and pillows do not surpass the low originality bar. Those works were made from fabric not designed by Bassett and their shapes were chosen for the functional purpose of covering items of furniture also not designed by Bassett. Those works are not entitled to copyright protection and will not be considered in the Court’s further analysis. . . . Fair Use . . . Defendants do not argue that their use was transformative, but rather stake their fair use claim on the “incidental” nature of their use. . . . [H]ere, Bassett’s works were featured in Mile High films as decorative elements, precisely how Bassett used them in her home. Furthermore, the use here was “of a commercial nature,” which weighs against fair use in the first factor. . . . The first aspect weighs in Bassett’s favor — her copyrighted works are artistic rather than factual. The second aspect weighs somewhat in Bassett’s favor. Bassett’s copyrights are for “unpublished collections,” but she never intended to sell her works, so Defendants did not usurp her opportunity to publish. . . . On the whole, the second factor weighs in Bassett’s favor. . . . Here, some of Bassett’s copyrighted works appear in full in screenshots from Defendants’ films. This factor weighs in Bassett’s favor. . . . The fourth factor favors Defendants. By her own testimony, Bassett never intended to sell her copyrighted works. . . . Balancing the factors, Defendants are not entitled to summary judgment on fair use. . . . Damages . . . Bassett is not entitled to “statutory damages” under 17 U.S.C. § 504(c) because she did not register her copyrights prior to the infringement. PHOTOGRAPHIC ILLUSTRATORS CORP. V. ORGILL, INC. No. CV 14-11818-PBS, 2020 WL 3051774 (D. Mass. Jun. 8, 2020) Outcome: Motion for attorneys fees and costs - denied

Joshua L. Simmons joshua.simmons@kirkland.com

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Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees Defendant Orgill, Inc. moves for attorneys’ fees incurred during its successful defense of this copyright suit brought by Photographic Illustrators Corporation (“PIC”). . . . For the following reasons, the Court declines to award fees here and DENIES Orgill’s motion . . . . TIMMINS SOFTWARE CORP. V. EMC CORP. No. 19-CV-12053-IT, 2020 WL 6907069 (D. Mass. Nov. 24, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - computer program Topics: Preemption - unfair competition, Preemption - unfair trade practices, Preemption - unjust enrichment, Integrity of Copyright Management Information - pleading requirements Plaintiff Timmins Software Corporation's Amended Complaint [#5] brings seven counts against Defendants EMC Corporation, Dell Technologies Inc., and Dell Inc. based on allegations that Defendants infringed on Plaintiff's copyrighted software and engaged in other unscrupulous business practices. Plaintiff's claims include: alteration or removal of copyright management information (Count III); unjust enrichment (Count IV); unfair competition under the Lanham Act . . . (Count VI); and unfair trade practices under Mass. Gen. Laws ch. 93A (“93A”) (Count VII). Defendants have moved to dismiss these four counts for failure to state a claim pursuant to Fed. R. Civ. P. 8(a)(2) and 9(b). For the reasons explained below, Defendants’ Motion to Dismiss Counts III, IV, VI, and VII of the Amended Complaint . . . is DENIED. . . . i. Unfair Competition Under 15 U.S.C. § 1125(a) (Lanham Act Claim) (Count VI) . . . As in Ivymedia, here Plaintiff's Lanham Act claim includes allegations of simple copyright infringement. . . . However, in contrast to Ivymedia, Plaintiff also alleges that Defendants made “false statements about Live Optics (e.g., that it is “100% Dell IP” and “[n]othing is going away. It's actually just a rebranded experience”). . . . These allegations do not merely accuse Defendants of infringing Plaintiff's copyrighted material, but also of providing false or misleading representations that were “likely to deceive customers as to the origin, source, and/or sponsorship” of the product. . . . These additional allegations are elements exclusive to the Lanham Act claim, which “prohibits unfair competition through false or misleading representations that could cause confusion with respect to the ‘origin, sponsorship, or approval’ of goods or services.” . . . Accordingly, the amended complaint properly pleads a cause of action under the Lanham act that is not simply duplicative of the alleged copyright violation and is thus not subject to dismissal. ii. Chapter 93A Claim (Count VII) . . . Here, as in Tingley, the factual allegations in the Amended Complaint support a claim that requires proof of an “extra element” not required by federal copyright law. Inter alia, Plaintiff alleges “Defendants improperly pressured TSC to agree to unreasonable contract terms, used knowingly false accusations and leveraged the parties’ unequal bargaining power to force TSC to agree to an extension of the parties’ agreement and then used that extension to buy time and retain access to the [Mitrend] platform.” . . . Here as

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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well, Plaintiff's 93A claim isn't simply an allegation that Defendants acted unfairly or deceptively through the accused act of infringement, but that Defendants employed unfair business practices in order to gain access to the copyrighted material (with specific, and plausible, factual allegations that support the claim). Accordingly, as in Real View and Tingley, Plaintiff has alleged a set of facts that may give rise to rights and remedies established by 93A that are separate and apart those that are provided under the federal Copyright Act. Therefore, the 93A claim is not preempted. iii. Unjust Enrichment Claim (Count IV) . . . Here, the facts underlying Plaintiff's unjust enrichment claim differ materially from those facts alleged in both Tingley and Data Gen since Plaintiff alleges that the source of Defendants’ unjust enrichment was not simply the result of infringement. Namely, Plaintiff alleges that, as with the 93A claim and the Lanham Act claim, Defendants were unjustly enriched as a result of improperly and unfairly pressuring Plaintiff . . . and through their false statements in public-facing statements . . . . Moreover, Plaintiff plausibly alleges that this conduct was to the detriment of Plaintiff. . . . These allegations properly plead a claim of unjust enrichment under the elements of the action as set forth by the First Circuit in Massachusetts Eye & Ear Infirmary . . . and, furthermore, do not simply arise from the same allegations as the copyright claim asserted in the amended complaint. . . . The amended complaint pleads factual allegations that allow for the plausible inference that Defendants violated 17 U.S.C. § 1202.

District of New Hampshire

D'PERGO CUSTOM GUITARS, INC. V. SWEETWATER SOUND, INC. No. 17-CV-747-LM, 2020 WL 97976 (D.N.H. Jan. 6, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Remedies - actual damages, Remedies - disgorgement of profits D’Pergo Custom Guitars, Inc. (“D’Pergo”) brings this suit against Sweetwater Sound, Inc. (“Sweetwater”), alleging claims of copyright and trademark infringement and violations of the New Hampshire Consumer Protection Act (“CPA”). D’Pergo alleges that Sweetwater used a copyrighted photograph of D’Pergo’s trademarked custom guitar necks and headstock to promote and sell Sweetwater products on Sweetwater’s website. Sweetwater moves for summary judgment on all of D’Pergo’s claims. . . . D’Pergo moves for summary judgment on its copyright infringement claim. . . . 1. Actual damages . . . Viewing the evidence in the light most favorable to D’Pergo, there is a genuine issue of material fact as to whether D’Pergo suffered actual damages from Sweetwater’s copyright infringement. Therefore, the court denies Sweetwater’s motion for summary judgment as to D’Pergo’s request for actual damages for its copyright infringement claim. 2. Infringing Profits . . . Regardless of whether a plaintiff must meet an initial burden to a show a “legally sufficient causal link” between the infringement and a defendant’s gross revenues, viewing the evidence in the light most favorable to D’Pergo, there is a genuine issue of material

Joshua L. Simmons joshua.simmons@kirkland.com

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fact as to whether D’Pergo can establish such a nexus. D’Pergo does not merely point to Sweetwater’s gross revenues and put the burden on Sweetwater to prove that its profits are not attributable to the infringement. Rather, through its expert, Dr. Michael Einhorn, D’Pergo offers as evidence of Sweetwater’s gross revenues only the profits Sweetwater purportedly derived from customers who purchased electric guitars online after viewing the Buying Guide, which contained the Photograph. . . . The record, viewed favorably to D’Pergo, contains disputes of fact as to whether all profits Sweetwater derived from purchases through the Buying Guide were attributable to the Photograph. . . . Viewing the evidence in the light most favorable to D’Pergo, its claim for infringing profits is sufficiently supported to survive summary judgment.

District of Peurto Rico

BERRIOS-NIEVES V. FINES-NEVAREZ No. CV 18-1164 (JAG), 2020 WL 981671 (D.P.R. Feb. 28, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Music - musical work Topics: Preemption - unjust enrichment, Preemption - accounting, Preemption - collection of money, Defenses - statute of limitations Pending before the Court are co-Defendants Warner Chappell Music and Sony’s (“Moving Defendants”) unopposed Motion to Dismiss the Third Amended Complaint . . . ; and On Fire Music, Inc. and On Fire Music Publishing, Inc.’s (“OFM Defendants”) Motion for Joinder and for Partial Dismissal . . . . For the reasons stated below, Moving Defendants’ Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART; OFM Defendants’ Motion for Joinder is GRANTED; and OFM Defendants’ Motion for Partial Dismissal is GRANTED IN PART and DENIED IN PART. . . . I. Preemption of State Law Claims . . . In the case at bar, Plaintiff’s unjust enrichment claim is based on the same conduct alleged to violate the Copyright Act and is, thus, preempted. First, the musical works at issue here clearly fall within the subject matter of copyright as defined by §§ 102 and 103. Second, the Third Amended Complaint contains no factual allegations in support of the unjust enrichment claim that are distinct from those alleged in support of the copyright claims. Plaintiff essentially alleges that Defendants’ misattribution of ownership over the musical recordings allowed Defendants to be “unjustly enriched by the exploitation of [Plaintiff’s] work and intellectual property.” . . . Thus, he is requesting, through state law, the vindication of a right that is equivalent to a right created by the Copyright Act. This is precisely the type of state law claim that the Copyright Act preempts. . . . This conclusion also applies to Plaintiff’s collection of money claims. . . . II. Statute of Limitations . . . Here, Plaintiff’s allegations date back to 2009, well beyond the three-year limitations period. Pursuant to the First Circuit accrual standard, the copyright claims pertaining to albums that Plaintiff finished recording before March 25, 2015 are time-barred and must, therefore, be dismissed. Even under the more lenient standard, most of Plaintiff’s claims would still be barred by § 507(b) “because there was plain and express repudiation of co-

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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ownership from the fact that [Defendants] openly, and quite notoriously, sold [Plaintiff’s] records without providing payment to him” more than three years prior to the commencement of the instant action. BERIO-RAMOS V. FLORES-GARCÍA No. CV 13-1879 (PAD), 2020 WL 2788504 (D.P.R. May. 28, 2020) Outcome: Bench trial - judgment for defendant Works of Authorship: Literary work - course Topics: Copyright registration - presumption of validity, Scope of protection - blank forms, Copyrightability - short phrases, Scope of protection - merger, Infringement - evidence of copying, Infringement - probative similarity, Infringement - access, Infringement - evidence of public display Plaintiff Monín Berio-Ramos sued Gerardo Flores-García and the Senate of Puerto Rico seeking injunctive and monetary relief for alleged copyright violations under the U.S. Copyright Act of 1976 . . . and the Author’s Moral Rights Act of Puerto Rico . . . . Flores denied liability . . . . The Senate of Puerto Rico is no longer a party, as the action against it was dismissed on Eleventh Amendment grounds . . . . Having seen and heard the witnesses during trial and examined all exhibits and evidence in light of applicable law, the court finds that Berio’s work is protected, and was copied verbatim or near verbatim without her authorization into approximately two thirds of a PowerPoint prepared without Flores’ input by personnel of the Senate Office that he directed. Even though he used the PowerPoint in two lectures as part of the Senate’s Continuing Legislative Education Program, there is no evidence that he copied Berio’s protected work or had any role in the copying; that the slides he used during the lectures corresponded to Berio’s protected work; that he uploaded or authorized the uploading of the PowerPoint into the Senate’s website; or that he prepared, submitted or authorized the submission of a document with infringing material to the Puerto Rico Supreme Court for registration to qualify for professional continuing education credits in a way that would make him directly liable here. Given that Berio is not seeking to impose secondary liability upon Flores, the case must be dismissed. . . . 1. Copying . . . Within this timeline, the court considers the registration prima facie evidence of copyrightability and originality. There is no persuasive argument or evidence that would raise any question as to the validity of the copyright covered by the registration certificate. . . . Berio’s work is not a series of blank forms, but questions to guide the reader on how best to prepare and draft legislation, with accompanying blank spaces to write answers on, not unlike the one examined in Edwin K. Williams & Co., Inc. v. Edwin K Williams & Co.-East . . . , in which the infringed work contained pages of instructions preceding and following 31 pages of blank forms, one page for each day of the month. . . . Further, that the work is organized in the form of short questions does not deprive it of copyright protection. Although, in general, “short phrases may not be subject to copyrightability,” a short phrase may command copyright protection if it exhibits sufficient creativity. . . . Berio’s ideas on legislative drafting and technique are not limited to one expression. . . .

Joshua L. Simmons joshua.simmons@kirkland.com

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There is no direct evidence that Flores copied Berio’s work. On the contrary, Flores denied that he prepared the PowerPoint . . . . He stated that it was prepared by somebody in the Office of Advisers, not him, and that he had no role in the drafting of the document. . . . No evidence contradicts this testimony. Hence, Berio may rely on the indirect method to show copying, using probative similarity and prior access to her work. a. Probative Similarity . . . On this account, out of the 92-slides that comprise the PowerPoint, 62 slides incorporate almost entirely, word-for-word, Berio’s original material from the Questionnaire and Checklist Guidelines. . . . In addition, the PowerPoint modifies textual portions from the original. . . . Furthermore, the PowerPoint contains what Berio described as the same “grammatical error” found in the guidelines. . . . b. Access . . . Taking all of these elements into account, Berio did not establish that Flores attended the Congress, received a copy of the protected material or saw and heard her lecture. Given the lack of previous access, the record does not support the conclusion that Flores copied Berio’s work. . . . 2. Lectures . . . Even though Flores displayed some of the slides in the PowerPoint, the record does not show that he unlawfully displayed Berio’s work. There is no evidence on which of the slides he specifically displayed, a critical evidentiary gap, as approximately one third of the PowerPoint does not correspond to Berio’s protected work. 3. Senate’s Website . . . The PowerPoint was uploaded to the Senate’s website. . . . Neither Berio nor Bell knows who uploaded or gave the order to upload the PowerPoint to the Senate’s website. . . . Simply put, the record is silent on who authorized the uploading, or uploaded the material on the website. . . . In the end, Berio did not show by a preponderance of evidence that Flores had any role in the placement of the PowerPoint on the Senate’s website so as to expose him to direct copyright infringement liability. 4. CLE Document . . . Flores, however, testified that he did not prepare or send the CLE Document to the Supreme Court; does not know who did so; and was not in charge of the Senate’s Continuing Education Program . . . . He said the document could have been prepared and sent by an employee of the Office of Advisors, by somebody else in the Senate, or by any person seeking to certify the legislative technique course for continuing legal education credit. . . . He did not remember anyone having asked for his permission to send the document.

District of Rhode Island

ADLIFE MKTG. & COMMC'NS CO. V. ASSOCIATED GROCERS, INC. No. CV 19-316-JJM-LDA, 2020 WL 1862863 (D.R.I. Apr. 14, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Preemption - breach of contract

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Adlife Marketing & Communications Co., Inc. (“Adlife”) has sued Associated Grocers, Inc. and DOES 1 through 10 inclusive (“Associated Grocers”) alleging that Associated Grocers violated the Copyright Act, 17 U.S.C. § 101 et seq., by using copyrighted photographs without Adlife’s permission, and breached the agreed to License Agreement and Amendment. Associated Grocers now moves to dismiss the breach of contract claim under Federal Rule 12(b)(6). . . . For the following reasons, the Court GRANTS the motion.

Second Circuit

Court of Appeals for the Second Circuit

CHARLES V. SEINFELD No. 19-3335, 2020 WL 2215602 (2d Cir. May. 7, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - series Topics: Defenses - statute of limitations Appellant Christian Charles appeals from the September 30, 2019 judgment of the United States District Court for the Southern District of New York (Nathan, J.) granting defendants’ motion to dismiss on the ground that Charles’s copyright infringement claims were time-barred. . . . Charles’s infringement claim is therefore time-barred because his ownership claim is time-barred. The district court identified two events described in the Second Amended Complaint that would have put a reasonably diligent plaintiff on notice that his ownership claims were disputed. First, in February 2012, Seinfeld rejected Charles’s request for backend compensation and made it clear that Charles’s involvement would be limited to a work-for-hire basis. . . . Second, the show premiered in July 2012 without crediting Charles, at which point his ownership claim was publicly repudiated. . . . Either one of these developments was enough to place Charles on notice that his ownership claim was disputed and therefore this action, filed six years later, was brought too late. SOHM V. SCHOLASTIC INC. No. 18-2110, 18-2245, 2020 WL 2375056 (2d Cir. May. 12, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Visual work - photograph Topics: Defenses - license, Defenses - statute of limitations, Infringement - evidence of copying, Copyright registration - registration requirement, Copyright registration - group registration Plaintiffs-Appellants-Cross-Appellees Joseph Sohm and Visions of America, LLC (together, “Sohm”) bring this action against Defendant-Appellee-Cross-Appellant Scholastic Inc. for copyright infringement with respect to 89 photographs authored by Sohm. The district court (Oetken, J.) granted in part and denied in part the parties’ cross motions for partial summary judgment, determining that Scholastic had infringed Sohm’s copyright for six of the photographs. On appeal, Sohm contends that the district court (1) erred in finding that Scholastic’s use of Sohm’s copyrighted work sounded in breach of contract and not copyright

Joshua L. Simmons joshua.simmons@kirkland.com

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infringement; (2) improperly shifted the burden of proof to Sohm to demonstrate that Scholastic exceeded the scope of its license; and (3) incorrectly dismissed Sohm’s claim corresponding to a certain photo. Scholastic cross appeals, arguing that the district court erred in (1) holding that the discovery rule applies for statute of limitations purposes in determining when Sohm’s claims accrued; (2) allowing damages for more than the three years prior to when the copyright infringement action was brought; and (3) finding that certain group registrations were valid under the Copyright Act for Sohm’s individual photographs. We AFFIRM IN PART and REVERSE IN PART. . . . The District Court Misconstrued Sohm’s Claims as Contract Claims Rather Than Copyright Infringement Claims . . . We conclude that the language is clear on the face of the license agreements: the print-run limitations were conditions precedent, the violation of which gave rise to claims for copyright infringement. Sohm thus properly pleaded copyright infringement. Accordingly, we reverse the grant of partial summary judgment to Scholastic on this basis. . . . Sohm Offered Sufficient Proof of Infringement to Survive Summary Judgment on the Steam Engine Photo . . . Sohm proffered evidence that Scholastic obtained a limited license from The Image Works to print 40,000 copies of Sohm’s image in Wheels, but actually printed 195,500 copies. Scholastic did not dispute this evidence nor include this claim in the group of claims for which it sought summary judgment on the basis that the evidence did not show infringement. Consequently, the district court’s dismissal of this claim appears to have been inadvertent. Scholastic “agrees that it did not seek dismissal of this claim under any theory agreed with by the District Court,” and thus does not oppose Sohm’s request that this dismissal be reversed. . . . Accordingly, we reverse the district court’s grant of partial summary judgment to Scholastic on Sohm’s claim of copyright infringement corresponding to the image at Row 4 of Exhibit 5 to the First Amended Complaint. . . . The District Court Properly Applied the Discovery Rule in Determining When Sohm’s Copyright Claims Accrued . . . Psihoyos, as a published opinion of a prior panel, is binding precedent upon this Court “unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc.” . . . [W]ithout identifying facts or circumstances that would have prompted such an inquiry, Scholastic cannot rely on the passage of time alone to establish that Sohm should have discovered the alleged copyright infringements at issue in this case. Scholastic has therefore not demonstrated that Sohm’s claims accrued outside the Copyright Act’s statute of limitations. Accordingly, the district court properly rejected Scholastic’s affirmative defense based on the Copyright Act’s statute of limitations. . . . The Copyright Act Limits Sohm’s Damages to the Three Years Prior to the Commencement of This Action . . . [U]nder the Copyright Act, a plaintiff’s recovery is limited to damages incurred during the three years prior to filing suit. We reverse the district court’s contrary conclusion. . . . Corbis Validly Registered Each of Sohm’s Photographs . . . The plain language of § 409(2) does not require a group registrant like Corbis to include each individual author of each individual work in the compilation to effectively register those individual works. The key word in § 409(2) is “work” instead of “author.” As the Ninth Circuit explained, “[t]his subsection says that the

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name of the author or authors of ‘the work’ must be provided, the statute defines a ‘collective work’ as being a type of ‘work,’ and here, the author of the collective work was” Corbis. . . . Consequently, to obtain a valid group registration under § 409(2), “[t]he ‘author or authors’ that must be listed ... are the author or authors of the collective work itself.” . . . The Corbis group registrations all satisfied this requirement by listing Corbis as the author of the collective work. PABLO STAR LTD. V. WELSH GOV'T No. 19-1262-CV, 2020 WL 3041261 (2d Cir. Jun. 8, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - photograph Topics: Infringement - liability of foreign governments The Foreign Sovereign Immunities Act (“FSIA”) provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States,” subject to several enumerated exceptions. . . . The exception at issue in this case is the “commercial activity” exception, specifically its first clause, which states that “[a] foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case ... in which the action is based upon a commercial activity carried on in the United States by the foreign state.” . . . To trigger the exception, the commercial activity must have “substantial contact with the United States.” . . . The United States District Court for the Southern District of New York (J. Paul Oetken, J.) denied the Welsh Government’s motion to dismiss on the ground of sovereign immunity, holding that the commercial-activity exception applies. The Welsh Government challenges the district court’s conclusions on both prongs of the relevant exception. First, it argues that its promotion in the United States of tourism to Wales was not commercial, but rather governmental, in nature. Second, it asserts that, even if its conduct was commercial, it did not have the requisite substantial contact with the United States. As explained below, we find that the Welsh Government did engage in commercial activity in publicizing Wales-themed events in New York, and we further find that the Welsh Government’s activity had substantial contact with the United States. We therefore AFFIRM the district court’s denial of the Welsh Government’s motion. MOURABIT V. KLEIN No. 19-2142-CV, 2020 WL 3042131 (2d Cir. Jun. 8, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - makeup Topics: Preemption - unjust enrichment, Preemption - unfair competition Plaintiff-appellant Sammy Mourabit appeals from a judgment entered July 8, 2019, dismissing his copyright infringement, common law, and statutory fraud claims against defendant-appellees Steven Klein, Steven Klein Studio, LLC, and Steven Klein Studio, Inc. (collectively, “Klein”) and Francois Nars, Shiseido Inc., and Shiseido International, DBA Shiseido Americas

Joshua L. Simmons joshua.simmons@kirkland.com

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Corporation (collectively, “Shiseido,” and, together with Klein, “defendants”), under Federal Rule of Civil Procedure 12(c). Mourabit alleges that defendants violated the Copyright Act . . . and other laws by improperly using Mourabit’s “make up artistry” in their promotion of a new makeup line. . . . We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. . . . Here, we conclude that, for preemption purposes only, Mourabit’s Makeup Artistry falls comfortably within “the broad ambit of the subject matter categories listed in section 102(a).” . . . To our knowledge, no federal appeals court has addressed whether a human body part may qualify as a “tangible medium of expression” for copyright purposes. . . . We need not venture further into this uncharted territory, however, to resolve Mourabit’s appeal. . . . Here, the Makeup Artistry—i.e., the work that Mourabit asserts is the subject of his state law claims—was plainly fixed in Klein’s Photograph. FISCHER V. FORREST No. 18-2955-CV, 18-2959-CV, 2020 WL 4457943 (2d Cir. Aug. 4, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - Internet work Topics: Remedies - statutory damages, Remedies - attorneys fees, Integrity of Copyright Management Information - definition of Copyright Management Information James H. Fischer appeals from a judgment of the United States District Court for the Southern District of New York (Engelmayer, J.). The district court granted summary judgment in favor of the Defendants-Appellees, Sandra Forrest, Shane Gebauer, Stephen Forrest, Jr., and Brushy Mountain Bee Farm (“Brushy Mountain”) on Fischer’s claims of copyright infringement and copyright management information (“CMI”) removal. The controversy underlying this litigation arose from the promotion by the Forrests of their own version of a honey harvesting product. The new product replaced one Fischer had invented and that the Forrests had sold for many years through the website and catalogue of Brushy Mountain, a company the Forrests owned. Judge Engelmayer concluded that Fischer was not entitled to statutory damages or attorneys’ fees, the relief he sought on his copyright infringement claim, because the first allegedly infringing act occurred before the work was registered. . . . The district court also concluded that Fischer failed to establish a CMI removal claim under the Digital Millennium Copyright Act (“DMCA”) . . . . We agree and accordingly, we affirm the judgment of the district court. MANGO V. BUZZFEED, INC. No. 19-446-CV, 2020 WL 4690071 (2d Cir. Aug. 13, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - photograph Topics: Integrity of Copyright Management Information - scienter

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This appeal concerns the publication of a photograph without the photographer’s permission or correct attribution. BuzzFeed, Inc., an online media company, published a news article containing a photograph of a man taken by Gregory Mango, a freelance photographer, without crediting him. Mango sued BuzzFeed for removal or alteration of copyright management information (“CMI”) under the Digital Millennium Copyright Act (“DMCA . . . and the district court awarded statutory damages after a one-day bench trial. A removal-or-alteration-of-CMI claim under Section 1202(b)(3) of the DMCA requires a plaintiff to show that the defendant distributed copyrighted work “knowing that [CMI] has been removed or altered” without authorization and “knowing, or ... having reasonable grounds to know, that [such distribution] will induce, enable, facilitate, or conceal [a copyright] infringement.” . . . BuzzFeed argues that it cannot be held liable under the DMCA because there was no evidence that it knew its conduct would lead to future, third-party infringement of Mango’s copyright. We hold that the DMCA does not require such evidence and affirm the judgment of the district court. ABDIN V. CBS BROAD. INC. No. 19-3160-CV, 2020 WL 4743018 (2d Cir. Aug. 17, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - series Topics: Infringement - substantial similarity This copyright infringement case marks the latest lawsuit involving the iconic Star Trek series. Since Star Trek premiered in September 1966, courts have wrestled with copyright and trademark lawsuits involving the television series.1 Today, in the latest round of Star Trek-related litigation, we are asked to boldly go where no court has gone before and determine whether the television series Star Trek: Discovery (a recent addition to the Star Trek franchise) unlawfully infringed upon a game developer's videogame concept involving a tardigrade, a real life microscopic organism with the unique ability to survive in space. In 2014, plaintiff-appellant Anas Osama Ibrahim Abdin submitted a version of his science fiction videogame to several online forums and websites (the “Videogame”). The Videogame was initially introduced on May 8, 2014 under the name Epoch, before Abdin changed the name to Tardigrades on February 22, 2015. As the title of the Videogame suggests, the game featured a tardigrade -- traveling in space. Two years later, on September 24, 2017, defendant-appellees CBS Broadcasting Inc., Netflix, Inc., CBS Corporation, and CBS Interactive, Inc. (“defendants”) premiered their latest installment in the Star Trek series, Star Trek: Discovery (“Discovery”). Discovery featured, in three episodes, a tardigrade named “Ripper” and followed the space adventures of its newest Starfleet crew. Abdin brought this copyright infringement action alleging that in making Discovery, defendants copied elements of his Videogame, including not only the tardigrade, but the plot, mood, characters, and overall feel as well. For the reasons set forth below, we agree with the district court that Abdin failed to plausibly allege substantial similarity between his Videogame and

Joshua L. Simmons joshua.simmons@kirkland.com

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Discovery. Accordingly, the district court's judgment dismissing his third amended complaint is AFFIRMED. IN RE JACKSON No. 19-480, 2020 WL 4810706 (2d Cir. Aug. 19, 2020) Outcome: Appeal - affirmed Works of Authorship: Music - sound recording Topics: Preemption - right of publicity Plaintiff Curtis James Jackson III appeals from the judgment of the District Court for the District of Connecticut (Warren W. Eginton, J.) granting summary judgment in favor of Defendant William Leonard Roberts II on the grounds that Jackson's claim of violation of the Connecticut common law right of publicity is preempted by the Copyright Act. Jackson and Roberts are both recognized hip-hop recording artists, known to the public by their stage names: Jackson is known as “50 Cent” and Roberts is known as “Rick Ross.” This dispute arises from Roberts's use of a sample taken from one of Jackson's best-known songs, “In Da Club,” in a mixtape entitled Renzel Remixes, which Roberts released for free in 2015, in advance of Roberts's then-upcoming commercial album, Black Market. Jackson's complaint alleged that, on the mixtape, Roberts's use of Jackson's voice performing “In Da Club,” as well as of Jackson's stage name in the track title identifying that song, violated Jackson's right of publicity under Connecticut common law. The district court granted Roberts's motion for summary judgment. Because we conclude that Jackson's claim is preempted under either the doctrine of implied preemption or under the express terms of § 301 of the Copyright Act, we AFFIRM the grant of summary judgment.

District of Connecticut

GRADUATION SOLUTIONS, LLC V. ACADIMA, LLC No. 3:17-CV-1342 (VLB), 2020 WL 1466204 (D. Conn. Mar. 26, 2020) Outcome: Motion for judgment as a matter of law - denied, Motion for new trial - denied Works of Authorship: Literary work - Internet work Topics: Infringement - evidence of copying On June 27, 2019, a jury found Defendants Alexander Loukaides (“Loukaides”) and Acadima, LLC liable on Plaintiff Graduations Solutions, LLC’s (“Graduation Solutions” or “Plaintiff”) claims of copyright infringement, trade-dress infringement, violation of Connecticut’s prohibition against unfair competition, and unjust enrichment. The jury awarded Graduation Solutions $6.254 million dollars in compensatory and punitive damages, including $3.23 million dollars from Loukaides. In the wake of that verdict, Loukaides moves for, in the alternative, (1) renewed judgment as a matter of law . . . , or (2) a new trial . . . . Because of the overlap in relevant law and arguments, the Court considers the motions together. After considering each party’s briefing, the Court DENIES both motions for the reasons that follow. . . . First, the Court finds that there is at least some evidence supporting the reasonable inference that Loukaides personally copied the protected material. Seviane testified that Loukaides created and controlled Acadima.com . . . Loukaides listed Gradshop.com as his personal asset . . . and

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Loukaides is listed as the contact in multiple fields on the Domain Registrant Information sheet for GradShop.com. . . . The Court recognizes that Seviane also testified that Seviane was in charge of “day-to-day operations,” while Loukaides did “nothing” with respect to the LLC, though his role was “of customer service and fulfillment.” . . . The Court does not find that this testimony is “overwhelming” evidence suggesting that Loukaides did not personally copy the protected material. There was sufficient evidence for the jury to find that Loukaides personally copied the material. . . . First, Graduation Solutions established a prima facie case that its website was original because it presented its copyright registrations and assignments as Exhibits 1-5. . . . Next, Graduation Solutions presented evidence that gradshop.com infringed on Plaintiff’s copyright of its website through the testimony of Albanese, its copyright registration and screenshots of its website, screenshots of gradshop.com, and its demonstrative comparison exhibits. . . . Finally, for the same reasons that Graduation Solutions presented sufficient evidence that Loukaides personally copied the website to the jury, Graduation Solutions presented sufficient evidence of vicarious liability. . . . Therefore, there was ample evidence supporting the jury’s decision to which the Court must defer. Loukaides’s motion on this ground is denied. GRADUATION SOLUTIONS, LLC V. ACADIMA, LLC No. 3:17-CV-1342 (VLB), 2020 WL 1528082 (D. Conn. Mar. 30, 2020) Outcome: Motion for attorneys fees and costs - granted-in-part Works of Authorship: Literary work - Internet work Topics: Remedies - attorneys fees Plaintiff Graduation Solutions, LLC (“Plaintiff” or “Graduation Solutions”) moves for an award of attorney’s fees and costs, as well as for injunctive relief enjoining Defendant Alexander Loukaides (“Defendant” or “Loukaides”) from dissipating assets. . . . After considering the briefing, the Court grants in part and denies in part Plaintiff’s motion for attorney’s fees and costs and for injunctive relief. Plaintiff’s motion for costs is granted in the amount of $400.00. Plaintiff’s motion is otherwise denied. . . . Here, again, Plaintiff argues that it is entitled to fees because the jury found that Loukaides “acted with reckless indifference to Plaintiff’s rights or intentionally or wantonly violated Plaintiff’s rights.” . . . But, again, the point that the jury found Loukaides’s infringement willful is distinct from the question of whether Loukaides’s litigation position was unreasonable, frivolous, or in bad faith, and does not by itself demonstrate a need for compensation and deterrence, especially where, as here, the jury awarded Plaintiff over a million dollars in compensatory damages and over a million dollars in punitive damages. Without any additional analysis by Plaintiff, the Court cannot find that Loukaides’s reckless or wanton violation of Plaintiff’s copyrights alone establishes Plaintiff’s entitlement to attorneys’ fees.

Eastern District of New York

CRUZ V. COX MEDIA GRP., LLC No. 18-CV-1041 (NGG) (AKT), 2020 WL 1234458 (E.D.N.Y. Mar. 13, 2020)

Joshua L. Simmons joshua.simmons@kirkland.com

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Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Copyright registration - presumption of validity, Copyrightability - originality, Defenses - fair use Plaintiff Alex Cruz brings this action against Defendant Cox Media Group, LLC (“Cox”) alleging infringement of Plaintiff’s copyright in a photograph he took of the arrest of terror suspect Sayfullo Saipov. . . . Before the court are cross motions for partial summary judgment. Plaintiff seeks judgment on Cox’s liability for infringement and dismissal of Cox’s affirmative defenses. . . . Cox opposes Plaintiff’s motion and seeks either a judgment of no infringement or, in the alternative, fair use. . . . For the following reasons, Plaintiff’s motion is GRANTED and Defendant’s motion is DENIED. . . . Ownership . . . Here, Cruz has provided a copy of his Certificate of Registration for the Photograph. . . . He has therefore established a prima facie case that he owns the copyright in the Photograph. . . . Originality . . . As with almost any photograph, the Photograph reflects creative choices, including Cruz’s timing for when he took the Photograph. . . . Indeed, Cruz’s recognition of what he considered a “big commotion” . . . , and his decision to take the Photograph when he did (i.e. as law enforcement closed in on Saipov after he had been shot and was lying on the ground) were sufficient creative choices to meet the low threshold required for copyright protection. In addition, the Photograph is not an example of a “slavish copy” not entitled to copyright protection. . . . Actual Copying . . . Here, the parties do not dispute that Cox actually copied the Photograph for use on its website and social media accounts. As such, Cruz has established this element of his copyright infringement claim. . . . Fair Use . . . Applying those standards here, the first factor cuts strongly against Cox. Cox’s use of the Photograph was not transformative, and the court disagrees with Cox that it “add[ed] context” to the Photograph . . . such that its use of the Photograph was fair. To the extent that Cox argues that its use of the Photograph was fair because “news reporting is a favored use” . . . the court is not persuaded. . . . Here, Cox’s Article accompanying the Photograph did not “serv[e] to illustrate criticism, commentary, or a news story” about the Photograph. . . . To the contrary, Cox used the Photograph as a “illustrative aid because [it] depicted the subjects described in [the] [A]rticl[e],” namely the arrest of Saipov. Here, Cruz acknowledges that the Photograph is “factual in nature” and was “published prior to Cox’s use” of it. . . . The court agrees and finds that the second fair use factor favors Cox. The court also notes, however, that the second factor is “rarely found to be determinative” in the fair use analysis. . . . Here, Cox does not dispute it copied the Photograph in its entirety . . . meaning that, at the very least, this factor does not favor fair use. . . . It is true that using a protected work in its entirety

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may constitute fair use when the purpose of the use requires it. . . . Yet, as explained above, Cox’s use of the Photograph was not transformative—Cox simply thought (apparently like its competitors CNN and NBC) that the Photograph had certain qualities that would make it a good complement to the Article. . . . In other words, Cox “made no effort to circumscribe its use such that it reproduced only enough of [the Photograph] to satisfy any reporting needs.” . . . This factor weighs against a finding of fair use. The record makes clear that Cruz demonstrated an interest in entering into the market for the Photograph when he entered into licensing agreements with both CNN and NBC. . . . As the owner of the Photograph, Cruz had the right to sell the Photograph to media outlets if he so desired; Cox’s publication of the Photograph without Cruz’s permission, therefore, “usurp[ed]” his market. BOESEN V. U.S. PUBL'NS, LTD. No. 20-CV-1552 (ARR) (SIL), 2020 WL 6393010 (E.D.N.Y. Nov. 2, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Defenses - fair use Defendant, United Sports Publications, Ltd., moves to dismiss this copyright infringement action under Federal Rule of Civil Procedure 12(b)(6) and moves for bond under Local Rule 54.2. . . . It argues its embedding of an Instagram post by professional tennis player Caroline Wozniacki that featured a copyrighted photograph taken by plaintiff, Michael Barrett Boesen, is protected by the fair use doctrine. . . . It also argues bond is appropriate because plaintiff's counsel, Richard Liebowitz, frequently violates court orders. . . . Plaintiff opposes, claiming at minimum a more developed factual record is needed to evaluate the fair use defense here, and in any event, it will fail. . . . Plaintiff also claims bond is unwarranted because he will prevail and regardless defendant has failed to show plaintiff's lawsuit was improperly motivated. . . . I grant defendant's motion to dismiss because I find the fair use defense established on the face of the complaint. Accordingly, I deny defendant's motion for bond. Defendant is free to move for attorneys’ fees, and I expect plaintiff and his counsel to comply with any orders I may issue on that motion. INO, INC. V. NEEDLE & THREADS OF WEST PALM BEACH, INC. No. 19-CV-4078 (PKC) (PK), 2020 WL 7343037 (E.D.N.Y. Dec. 14, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - design Topics: Ownership - pleading requirements, Infringement - pleading requirements, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements Plaintiff Ino, Inc., doing business as INOAH (“Ino”), sues Defendants Needle & Threads of West Palm Beach Inc. (“NTWPB”) and Eli Cameo (“Cameo”), as well as unnamed Does, for copyright infringement. Defendants move to dismiss the Complaint under Federal Rule of Civil

Joshua L. Simmons joshua.simmons@kirkland.com

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Procedure (“FRCP”) 12(b)(6). For the reasons set forth below, the Court grants in part, and denies in part, the motion, and gives Ino leave to file an amended complaint. . . . Here, Ino easily clears the first three hurdles of the Kelly test. The Complaint plainly states, “Plaintiff owns in exclusivity all rights, including copyrights, in and to certain two-dimensional works of art, each of which has been registered with the Copyright Office and are pictured hereinbelow (‘Subject Designs’).” . . . Images of each of the five Subject Designs are included in the Complaint. . . . Copies of the registration certificates are not attached, but “the complaint is not required to attach copies of registration certificates or provide registration numbers for all of the copyrights at issue in order to survive a motion to dismiss.” . . . Thus, the factual allegations in Ino's Complaint, accepted as true, satisfy the first three prongs of the Kelly test. . . . The Complaint in this case is much like the complaint in Klauber. Like the Klauber complaint, the Complaint here alleges that Ino “produced, distributed and sold product bearing the Subject Designs to numerous parties in the fashion and apparel industries,” and that “Defendants had access to the Subject Designs ... through [Ino's] prior sales of garments bearing the Subject Designs.” . . . The Complaint also alleges that “without [Ino's] authorization, Defendants, and each of them, manufactured, distributed, and/or sold garments featuring designs which are identical or substantially similar to the Subject Designs[.]” . . . Furthermore, the Complaint provides specific style numbers, as well as several demonstratives comparing the Subject Designs with examples of the allegedly Infringing Products. . . . These allegations, taken as true, sufficiently state a claim that Defendants had access to and copied the Subject Designs—just as they did in Klauber. . . . To be sure, on summary judgment or at trial, Ino will have to “offer ‘significant, affirmative and probative evidence [of infringement].’ ” . . . But at this stage in the proceedings, the Complaint adequately describes the alleged infringement, and Ino need not do more to be able to proceed. . . . With respect to the claim for indirect liability, the Complaint offers only vague, conclusory statements that Defendants “knowingly induced, participated in, aided and abetted in and profited from the illegal reproduction and/or subsequent sales of garments featuring the Subject Designs” and “are vicariously liable for the infringement alleged herein because they had the right and ability to supervise the infringing conduct and because they had a direct financial interest in the infringing conduct.” . . . These bare recitals of the elements for claims of contributory infringement and vicarious infringement are insufficient. . . . The Complaint does state that Defendant Cameo “is an individual doing business in and with the state of New York on behalf of NTWPB.” . . . But that fact alone does not reasonably give rise to an inference that Cameo had actual or constructive knowledge of NTWPB's alleged infringements, and materially contributed to such infringing activity. Nor does it reasonably give rise to an inference that Cameo had the right and ability to supervise NTWPB's allegedly infringing behavior.

Northern District of New York

MALIBU MEDIA, LLC V. DOE No. 1:19-CV-950 (NAM/ML), 2020 WL 4569433 (N.D.N.Y. Aug. 7, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Audiovisual work - film

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Topics: Infringement - pleading requirements Plaintiff Malibu Media, LLC (“Malibu Media”) brings this action against Defendant Jane Doe (“Defendant”) alleging direct copyright infringement under the United States Copyright Act of 1976 . . . (the “Copyright Act”). . . . Defendant now moves under Fed. R. Civ. P. 12(b)(6) to dismiss the Complaint for failure to state a claim. . . . For the reasons that follow, Defendant’s motion is granted. . . . In sum, Malibu Media’s claim rests solely on the unfounded assumption that Defendant must be the infringer because she is the internet subscriber. But that theory simply does not pass muster, especially where the Amended Complaint does not allege any direct investigation of Defendant herself, nor does it allege that Defendant “acknowledged personal involvement in any download or distribution, that Defendant had exclusive access to the alleged infringing IP address, or any circumstances which might increase the likelihood that the subscriber is the infringer (such as defendant’s living arrangements or network details).” BASS V. SYRACUSE UNIV. No. 5:19-CV-566 (TJM/ATB), 2020 WL 4934585 (N.D.N.Y. Aug. 24, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Defenses - license, Defenses - waiver, Defenses - equitable estoppel Before the Court is Plaintiff James Bass's motion for partial summary judgment in this case concerning Plaintiff's claims of copyright infringement. . . . A reasonable juror could conclude that Plaintiff's conduct implied that he had granted permission for the Defendant to use his photographs on the billboard; instead of taking an opportunity to object to that use, Plaintiff mentioned the use approvingly to Syracuse administrators. . . . The evidence discussed above, however, indicates that evidence exists to support a claim that, even if Plaintiff and Defendant actually made an oral agreement to restrict use of the photographs, Defendant waived that right by his response to the existence of the billboard. . . . Here, the evidence described above shows that a reasonable juror could conclude that Plaintiff should be equitably estopped from asserting a copyright claim. He knew of the alleged infringement for months and did not complain, and this caused Defendant to keep the billboard up for months without knowledge that the billboard could be a source of infringement. Plaintiff also sent emails where he appeared pleased that the images were displayed to the public. These emails could have convinced the University to continue to display the images, thinking that Plaintiff agreed they should be shown in that form. MALIBU MEDIA, LLC V. JANE DOE No. 1:19-CV-950 (NAM/ML), 2020 WL 6043946 (N.D.N.Y. Oct. 13, 2020)

Joshua L. Simmons joshua.simmons@kirkland.com

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Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Audiovisual work - film Topics: Remedies - attorneys fees Plaintiff Malibu Media, LLC (“Malibu Media”) brought an unsuccessful action against Defendant Jane Doe (“Defendant”) alleging direct copyright infringement under the United States Copyright Act of 1976 . . . (the “Copyright Act”). . . . Defendant now moves for an award of attorney's fees pursuant to 17 U.S.C. § 505 and Fed. R. Civ. P. 54(d)(1), (2). . . . For the reasons that follow, Defendant's motion is denied. WITT V. SOLLECITO No. 1:19-CV-676 (GLS/CFH), 2020 WL 6318379 (N.D.N.Y. Oct. 28, 2020) Outcome: Motion for judgment on the pleadings - granted-in-part Works of Authorship: Architectural work - design, Architectural work - drawing Topics: Copyright registration - registration requirement, Defenses - statute of limitations, Copyrightability - pleading requirements, Infringement - pleading requirements, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements, Preemption - unjust enrichment, Preemption - tortious interference Plaintiffs John Witt and Witt Construction, Inc. bring this action against defendants Larry Sollecito, Joanne Sollecito, DeRaven Design & Drafting, Roxanne Osborne-Heller, David J. Hopper, Architects, and John Doe pursuant to the Copyright Act, the Lanham Act, and New York state law. . . . Now pending are defendants’ motions for judgment on the pleadings . . . and plaintiffs’ cross-motion to amend their amended complaint . . . . For the reasons that follow, defendants’ motions are granted in part and denied in part, and plaintiffs’ cross-motion is granted. . . . 1. Standing and Plaintiffs’ Cross-Motion to Amend . . . Defendants argue that plaintiffs lacked standing to bring their copyright claim because plaintiffs only allege that a copyright application was filed prior to commencement of the action, and not that the copyright was registered. . . . The court sees no reason to deny plaintiffs’ cross-motion to amend, as no discovery has been conducted in this case, and the court is not convinced that plaintiffs acted in bad faith. . . . Moreover, amendment is not futile because, accepting plaintiffs’ allegations as true, the copyright registration was made in May 2019, prior to commencement of this action, and, thus, the precondition for copyright infringement claims is satisfied at this stage. . . . Further, the court disagrees with defendants . . . that allowing plaintiffs’ proposed amendment would permit plaintiffs to amend their complaint to assert an intervening registration, as, again, the proposed second amended complaint alleges that the registration was made prior to commencement of the action. . . . 2. Statute of Limitations . . . The statute of limitations for copyright claims is three years. . . . Thus, plaintiffs brought a timely copyright claim against defendants, even if just barely. Moreover, the amended complaint and the proposed second amended complaint relate back to the date of plaintiffs’ original complaint for statute of limitations purposes, as, accepting

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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plaintiffs’ allegations as true, the copyright registration was made prior to the filing of their original complaint, and the amendments merely rectify deficiencies as to a claim originally asserted. . . . 3. Originality . . . At this early stage, the court is satisfied that plaintiffs have sufficiently alleged that their designs and plans constitute original works under the Copyright Act. Accepting plaintiffs’ allegations as true, plaintiffs’ works are designs and plans for the construction of a unique home designed specifically for the Sollecitos, with distinct features, and which, as a whole, are an expression of plaintiffs’ creativity and sense of design. Although the designs encompass common features of a home, it is the unique selection and arrangement of the common features that are original, and, thus, protectible at this stage. . . . Further, even if the Sollecitos’ directed plaintiffs to design the home a certain way, it was plaintiffs who turned Sollecitos’ ideas into protectible works. . . . 4. Substantial Similarity . . . After reviewing defendants’ and plaintiffs’ works . . . and accepting plaintiffs’ allegations as true, the court is satisfied that plaintiffs’ have set forth sufficient allegations to establish, at this time, that an ordinary observer could conclude that defendants’ designs were appropriated from plaintiffs’ copyrighted designs, and that defendants wrongfully copied such copyrighted designs. Without the benefit of a more developed record, the court is satisfied that an ordinary observer could conclude that plaintiffs’ and defendants’ designs for the exterior and interior of the home embody a similar “total concept and overall feel,” notwithstanding some differences as to the intricacies of the designs. . . . 5. Contributory and Vicarious Copyright Infringement Claims . . . Here, at this early stage, plaintiffs have alleged sufficient facts to maintain claims of contributory and vicarious copyright infringement against defendants. As argued by plaintiffs . . . accepting their allegations as true, the facts presented throughout the amended complaint establish that defendants had access to the copyrighted works, induced direct infringement, and derived financial benefit from copying such works, if only just barely. . . . Plaintiffs have provided no basis whatsoever to depart from this well-established precedent, except for a bare and conclusory statement that their claim is “qualitatively different.” . . . Indeed, the conduct alleged in support of their unjust enrichment claim is the same conduct alleged in support of their copyright infringement claim—that defendants unjustly benefitted from the use of plaintiffs’ copyrighted designs and plans. . . . Accordingly, defendants’ motions for judgment on the pleadings as to plaintiffs’ unjust enrichment claim are granted, and the claim is dismissed. . . . Here, as was the case with respect to their unjust enrichment claim, the conduct alleged in support of plaintiffs’ tortious interference claims is the same conduct alleged in support of their copyright infringement claim—that defendants deprived plaintiffs of the benefits that were to be derived from their agreement with the Sollecitos due to defendants’ use of plaintiffs’ copyrighted designs and plans.

Joshua L. Simmons joshua.simmons@kirkland.com

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Southern District of New York

STATE ST. GLOBAL ADVISORS TRUST CO. V. VISBAL No. 1:19-CV-01719-GHW, 2020 WL 71162 (S.D.N.Y. Jan. 3, 2020) Outcome: Motion to amend - denied, Motion to dismiss - granted Works of Authorship: Visual work - sculptural work Topics: Ownership - exclusive license, Infringement - extraterritoriality, Contributory infringement - pleading requirements Fearless Girl—a bronze statue that became a viral sensation after it was placed at Bowling Green in New York City—stands at the center of the dispute in this case. In 2017, State Street Global Advisors (“SSGA”) commissioned sculptor Kristen Visbal to create an original statue for International Women’s Day. After it was unveiled, that statue became known as “Fearless Girl” and received wide media attention. SSGA and Visbal then executed a set of contracts that governed the use of the Fearless Girl copyright and trademark. When SSGA learned that Visbal sought to sell replicas of the statue to buyers in Australia and Germany in ways that allegedly violated the terms of these contracts, SSGA commenced this litigation. Visbal has subsequently counterclaimed against SSGA, alleging a breach of those same contracts. There are two motions pending before the Court. First, SSGA moves to amend its complaint. Dkt No. 82. Because SSGA’s direct copyright infringement and trademark infringement claims are not futile and would not unduly prejudice Visbal, SSGA’s motion to amend is GRANTED as to these claims. However, Plaintiff’s claims for secondary copyright liability are extraterritorial as alleged. Consequently, Plaintiff’s motion to amend is futile as to these claims and Plaintiff’s motion to amend is DENIED in part. Second, SSGA moves to dismiss a subset of Visbal’s counterclaims and to strike a subset of Visbal’s affirmative defenses. Dkt No. 120. Because Visbal has not adequately alleged the elements of tortious interference with contract, fraud in the inducement, copyright infringement, or contributory copyright infringement, SSGA’s partial motion to dismiss and partial motion to strike is GRANTED. . . . i. Scope of the Copyright License Agreement . . . Plaintiff has adequately alleged that it has an exclusive license with respect to uses of the Artwork in connection with gender diversity issues in corporate governance and in the financial services sector, and that Defendant violated that license by distributing a statute to an Edward Jones employee. ii. Extraterritoriality . . . Plaintiff’s proposed indirect copyright claims, as alleged, are impermissibly extraterritorial. . . . The SAC describes conduct by the Australian firms—which are not alleged to have business interests or other contacts with the United States—that is directed at a domestic audience, not the United States. There is no allegation that the Australian firms’ conduct had any contact with, or impact on, the United States apart from a conclusory allegation that their conduct caused Plaintiff unspecified damages in the United States. As pleaded in the SAC, the Australian firms used the internet to communicate with their domestic audiences, and that, like most everything on the internet, their communications are thus “accessible” in the United States. Such conduct on its own is insufficient to state a claim, given the limitation on the extraterritorial application of United States copyright law.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Accordingly, Plaintiff has not adequately alleged a direct copyright infringement by the Australian firms. For that reason, Plaintiff’s secondary liability claims cannot succeed as alleged and Plaintiff’s motion to amend is denied as futile as pleaded with respect to counts seven, eight, and nine of Plaintiff’s proposed SAC. Plaintiff is granted leave to replead this claim. . . . 3. Direct Copyright Infringement . . . Defendant alleges that “SSGA has directly infringed Visbal’s copyright by displaying, reproducing, and distributing copies of images and videos of the Fearless Girl visual artwork.” . . . However, Defendant “grant[ed] to SSGA a royalty-free, irrevocable, assignable, worldwide, unencumbered, and exclusive right, license, and privilege to” use the Fearless Girl image for certain purposes in the Copyright License Agreement. Agreements at 15 (Copyright License Agreement § 1(a)). Defendant argues that this does not bar her claim because “SSGA is not licensed to use Visbal’s copyright because ... the Agreements should be voided due to SSGA’s material breaches of the Agreements, breaches of the implied covenant of good faith and fair dealing, and fraud in the inducement.” . . . Defendant has not plausibly pleaded that the license granted to Plaintiff in the Copyright License Agreement has been rescinded. . . . 4. Contributory Copyright Infringement Claim . . . The infringing activity alleged by Defendant is that third parties use Fearless Girl “alongside corporate branding and logos in marketing and promotional photographs” that the third parties take and use. . . . Defendant also points to a specific incident in which an employee of Slack Technologies, Inc. posted a photograph on the social networking platform LinkedIn depicting Fearless Girl and a banner bearing the Slack name and logo. . . . Defendant has not adequately alleged that Plaintiff had knowledge of third parties’ allegedly infringing activity. . . . At most, Defendant has pleaded that Plaintiff had generalized knowledge of the possibility that third parties might infringe Defendant’s copyright. That is insufficient to state a claim for contributory copyright infringement. Defendant has also failed to plead that Plaintiff induced, caused, or materially contributed to the allegedly directly infringing activity. . . . Defendant has not alleged that Plaintiff acted in concert with the allegedly infringing Slack employee or with any other direct infringer. PALMER/KANE LLC V. BENCHMARK EDU. CO. No. 18-CV-9369 (NSR), 2020 WL 85469 (S.D.N.Y. Jan. 6, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - photograph Topics: Infringement - pleading requirement, Ownership - pleading requirements, Defenses - collateral estoppel, Infringement - pleading requirements, Defenses - statute of limitations, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements Plaintiff Palmer/Kane LLC (“P/K” or “Plaintiff”) commenced this copyright infringement action against Defendant Benchmark Education Company LLC (“Benchmark” or “Defendant”) on October 12, 2018. . . . Plaintiff P/K alleges that it owns certain professionally-taken photographs,

Joshua L. Simmons joshua.simmons@kirkland.com

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and that Benchmark has violated P/K’s federally-registered copyrights by using such photographs without or in excess of licenses from P/K. Before this court is Defendant’s motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). . . . For the following reasons, Defendant’s motion is GRANTED in part and DENIED in part. . . . I. Copyright Infringement Pleading Requirements . . . a. Identification of Specific Photographs . . . Plaintiff alleges that it has “identified at least 12 acts of infringement by Benchmark of its Photographs,” which are set forth in a chart attached to the Complaint. . . . The chart includes the photograph’s title, “photograph ID,” the relevant copyright registration, publication date(s), and “infringing title(s).” . . . In the Complaint, Plaintiff provides additional details regarding seven of the Images in the chart: Image Nos. 2, 3, 4, 5, 8, 10 and 11. . . . Plaintiff, however, notes that the works identified in the Complaint represent “a fraction of the acts of copyright infringement that Benchmark committed,” and suggests that “access to Benchmark’s records” would reveal the “full scope of infringing publications.” . . . In this vein, Plaintiff references “additional” Photographs, “other ... editions” “other ... titles” and “additional licenses” that it implicates in the infringement. . . . Plaintiff has enumerated twelve works that are the subjects of its action in Exhibit A to the Complaint. Accordingly, the Court will not dismiss Plaintiff’s claims wholesale. The Court finds that Plaintiff has adequately identified only those works listed in Exhibit A of the Complaint, and therefore any claims as to works other than those listed in Exhibit A are dismissed without prejudice. b. P/K’s Ownership of the Images’ Copyright . . . Plaintiff alleges that it is the exclusive owner to the copyrights of the Images, which are each subject to one of three registrations listed in the Complaint. . . . Exhibit A notes which registration applies to each Image listed. . . . Because Defendant does not challenge this averment, the Court finds that the second Kelly element has been adequately plead. c. Validity of P/K’s Copyright Registrations . . . Defendant asks this Court to apply the principles of collateral estoppel to dismiss the ’623 claims, or, in the alternative, make a referral to the Register of Copyrights. As for the request to dismiss the ’623 claims, Defendant plainly overreaches—Rosen Book Works I did not hold that the ’623 registration was invalid, only that referral to the Copyright Office was warranted. . . . Therefore, the Court will not dismiss the ’623 claims on that basis. . . . Rosen Book Works II did not address an “identical issue” to the instant case—it determined that the ’358 registration was invalid as to five photographs that are not the subject of this litigation. Defendant has not argued that the current litigation involves any infringement claims pertaining to the five photographs deemed invalidly registered in Rosen Book Works II. Therefore, issue preclusion does not bar this Court from considering the ’358 Registration anew as it relates to the photographs included in Exhibit A of the Complaint. . . . Accordingly, Defendant’s motion to dismiss is denied as to the claims pertaining to the ’358 registration. . . .

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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The Court’s analysis of the ’724 Registration tracks its analysis of the ’358 Registration: because Rosen Book Works II’s holding regarding the ’724 Registration was limited to one image—an image that is not in dispute in the instant case—the issues before the Court are not “identical,” and therefore collateral estoppel will not apply for the reasons stated above. Defendant’s motion to dismiss is accordingly denied as to the claims pertaining to the ‘724 Registration. d. Acts and Timing of Alleged Infringement . . . Applying these principles to the instant case, the Court finds that Plaintiff has adequately alleged infringing “acts” by identifying the infringing titles for each Image listed in Exhibit A, with the exception of Image No. 6 (infringing title listed as “unknown.”). Although the Complaint does not provide narrative detail regarding the type of infringements for Image Nos. 1, 7, 9, and 12, it does at least list the infringing titles, and a complaint “need not specify which copyright is infringed by which act.” . . . Certain of plaintiff’s claims, however, fail to allege “during what time the defendant infringed the copyright.” . . . As summarized above, Image Nos. 2, 3, 4, 5, 8, 10, and 11 contain allegations regarding the time period of Defendant’s infringement. Because Image Nos. 1, 6, 7, 9, and 12 do not, they do not meet the muster of pleading requirements under Kelly. . . . The claims pertaining to Image Nos. 1, 6, 7, 9, and 12, are therefore dismissed without prejudice. Plaintiff is granted leave to replead to the extent it can specify the dates or periods of time in which Defendant is alleged to have infringed those six Images, and the infringing title or other facts supporting its infringement claim for Image No. 6. II. Copyright Act’s Statute of Limitations . . . Viewing the pleadings in the light most favorable to the non-movant, the Court finds that Defendant has not shown that Plaintiff was on inquiry notice of these alleged infringements. . . . III. Contributory/Vicarious Copyright Infringement . . . There are insufficient facts alleged from which this Court may reasonably infer that any contributory infringement took place either inside or outside the United States. . . . The complaint does not contain any factual support for the proposition that Defendant has the “right and ability to supervise” the infringing activity. INSURENT AGENCY CORP. V. HANOVER INS. CO. No. 16-CV-3076 (LGS) (JLC), 2020 WL 86813 (S.D.N.Y. Jan. 8, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Literary work - legal agreement Topics: Remedies - attorneys fees Plaintiffs Insurent Agency Corporation and RS Holdings Corporation brought this action against Defendants The Hanover Insurance Company, Guarantr LLC d/b/a The Guarantors Agency, and Ronald MacDonald, alleging, inter alia, copyright infringement, unfair competition, trade secret misappropriation, and several state law claims. The Court dismissed all claims against Hanover. The surviving claims against The Guarantors Agency and MacDonald were subsequently settled. Hanover now moves for attorneys’ fees and costs as authorized by the Copyright Act, Lanham

Joshua L. Simmons joshua.simmons@kirkland.com

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Act, Defend Trade Secrets Act, and the Court’s inherent power. For the reasons set forth below, I recommend that Hanover’s motion be denied. . . . FERRARINI V. IRGIT No. 19 CIV. 0096 (LGS), 2020 WL 122987 (S.D.N.Y. Jan. 9, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - clothing Topics: Defenses - statute of limitations, Preemption - unfair competition, Preemption - conversion, Preemption - intentional interference with prospective economic advantage Plaintiff Maria Solange Ferrarini brings this action against Defendants Ipek Irgit and Kiini, LLC (collectively, the “Defendants”), alleging copyright infringement . . . ; a violation of California’s Unfair Competition law . . . ; conversion and/or civil theft under California and New York common law; and intentional interference with prospective economic advantage. Defendants move to dismiss the Amended Complaint (the “Complaint”) under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is denied as to the copyright infringement claim, and granted as to the state law claims. . . . A. The Copyright Claim is Not Barred by the Statute of Limitations . . . Here, Defendants are correct that Plaintiff brings an ownership claim. However, because it is not apparent on the face of the Complaint that the claim accrued more than three years before Plaintiff brought this action, the copyright infringement claim is not dismissed. . . . 2. The Complaint’s Claim of Violation of California’s Unfair Competition Law is Preempted by Federal Copyright Law . . . Here, the state law claim of unfair competition relies entirely on the previous allegations supporting the copyright claims and is therefore preempted. . . . The Complaint’s allegations that Defendants made misrepresentations regarding the bikini do not provide the extra element necessary to avoid preemption. . . . 3. The Complaint’s Claim of Conversion is Dismissed as Preempted and for Failure to State a Claim . . . The Complaint’s conversion claim is preempted because it “ ‘assert[s] rights equivalent to those protected within the general scope’ of the Copyright Act . . . namely, the alleged reproduction and distribution of copyrighted material.” . . . Indeed, the Complaint alleges that such conversion occurred “through the act of registering the copyright in Ms. Ferrarini’s original design for herself through a false claim of authorship.” . . . Plaintiff’s argument -- that conversion requires the extra element of wrongful exercise of dominion over the personal property of another -- is unavailing where the personal property allegedly converted is Plaintiff’s intellectual property rights. . . . 4. The Complaint’s Claim for Intentional Interference with Prospective Economic Advantage is Dismissed as Preempted and for Failure to State a Claim . . . Claims for tortious interference based on unauthorized publication of a work protected by the Copyright Act are preempted. . . . Here, the conduct alleged in support of this claim is the same conduct the Complaint alleges in support of the copyright infringement claim -- that Defendants misappropriated Plaintiff’s bikini

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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and used the bikini to create knockoffs sold as Defendants’ own creation, which “destroyed or fraudulently [took] over the market for Ferrarini Bikinis.” . . . Plaintiff’s claim for interference with prospective economic advantage is therefore preempted. BAYOH V. AFROPUNK FEST 2015 LLC No. 18CV5820 (DLC), 2020 WL 229978 (S.D.N.Y. Jan. 15, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Defenses - fraud on the Copyright Office, Defenses - license, Defenses - equitable estoppel, Defenses - statute of limitations Photographer Mambu Bayoh brought this lawsuit alleging copyright infringement by Afropunk LLC (“Afropunk”), its co-CEOs Matthew Morgan and Jocelyn Cooper, and related entities Afropunk Fest 2015 LLC and Afropunk Global Initiative LLC. Plaintiff asserts that the defendants used his photographs at music festivals during 2015 and 2016 in ways that exceeded the limited permission he had given them. Plaintiff filed copyright registrations for the photographs in 2017 and this lawsuit in 2018. Defendants have moved for summary judgment. For the following reasons, the defendants’ motion is denied, except as to the related entities Afropunk Fest 2015 LLC and Afropunk Global Initiative LLC. . . . II. The Validity of Plaintiff’s Copyright Registrations . . . The defendants’ request to invalidate Bayoh’s registrations is denied. Section 411(b)(2) does not allow a court to find that a certificate of copyright registration is invalid on the basis of inaccuracy without first making a referral to the Copyright Office. Having waited until the close of discovery to attack the validity of the plaintiff’s copyright registrations, the defendants must point to some evidence that the registrations were obtained through knowing misrepresentations. Applying that standard here, the Court finds that no referral to the Copyright Office is appropriate. The defendants have provided no evidence that Bayoh knew that the completion and publication dates he provided with his applications were inaccurate on the dates of submission. Bayoh asserts that he made an innocent error. Defendants have provided no controverting evidence. His registrations are therefore sufficient for him to bring suit under § 411(a) and this litigation need not be delayed to accommodate a referral to the Copyright Office. III. The Scope of Defendants’ License . . . Here, it is undisputed that Bayoh gave the defendants a license in 2015 to use some of his photographs. There is, however, a genuine dispute concerning the scope of the license: Defendants say Bayoh gave them an unlimited license, while Bayoh says he licensed certain photographs to be used on Afropunk’s 2015 festival website and Instagram page only. Given the conflicting evidence, the scope of the license cannot be resolved on summary judgment. . . . IV. Equitable Estoppel . . . Bayoh has presented sufficient evidence to raise a genuine dispute of material fact about the second element -- whether he intended that the defendants rely on his acts or omissions or acted or failed to act in such a manner that permitted the defendants to believe

Joshua L. Simmons joshua.simmons@kirkland.com

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that they were intended to rely on his conduct. According to Bayoh, he placed limitations on the license that he was granting to the defendants and repeatedly raised objections to the defendants’ more expansive use of his photographs. This is sufficient to create a genuine dispute about whether Bayoh is equitably estopped from asserting infringement. . . . V. The Statute of Limitations . . . Here, there is no evidence to suggest that Bayoh should have discovered the alleged infringement prior to attending the Brooklyn Afropunk festival on August 22, 2015. None of the claims at issue are time-barred. OTTO V. HEARST COMMC'NS, INC. No. 1:17-CV-04712-GHW, 2020 WL 377479 (S.D.N.Y. Jan. 23, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees Before the Court is Plaintiff Jonathan Otto’s motion for attorney’s fees pursuant to 17 U.S.C. § 505. For the reasons that follow, Otto’s motion is DENIED. TOWN & COUNTRY LINEN CORP. V. INGENIOUS DESIGNS LLC No. 18 CIV. 5075 (LGS), 2020 WL 470234 (S.D.N.Y. Jan. 29, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - graphic work Topics: Copyrightability - useful article Plaintiffs Town & Country Linen Corp. and Town & Country Holdings, Inc. (“Plaintiffs”) bring this action against Defendants Ingenious Designs LLC, Joy Mangano and HSN, Inc. (collectively, the “Defendants”), alleging patent infringement under 35 U.S.C. § 271; copyright infringement under 17 U.S.C. §§ 106, 501; trade secret misappropriation under 18 U.S.C. § 1836; and trade secret misappropriation, misappropriation of ideas, quantum meruit, unjust enrichment, unfair competition, breach of contract and tortious interference under New York common law. Defendants move to dismiss the claims of patent infringement, copyright infringement, misappropriation of ideas, quantum meruit, unjust enrichment and unfair competition, in whole or in part, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the following reasons, the motion to dismiss is granted as to the claims of copyright infringement and misappropriation of ideas as to all Defendants, and granted as to the claim of patent infringement only against Defendant Mangano. The motion to dismiss is otherwise denied. . . . The Complaint alleges that Defendants’ “CloseDrier” product copied the control panel from Plaintiffs’ “CloseDrier” product, thereby violating Plaintiff’s copyright of the design. As the allegedly infringed work is not copyrightable, the claim fails as a matter of law. . . .

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Plaintiffs’ copyrighted work is a control panel, providing the means by which the CloseDrier is operated; it includes an ON/OFF button, a START button and a MODE button, along with additional features to permit ease of operation such as lights indicating the selected mode, and + and – buttons to control the timer. Although the control panel “can be identified separately from” the CloseDrier . . . it is not “capable of existing independently of” “the utilitarian aspects” of the CloseDrier because the control panel itself is a utilitarian aspect of the CloseDrier. . . . The control panel is therefore not copyrightable. . . . The copyright claim is accordingly dismissed. HUGHES V. BENJAMIN No. 17-CV-6493 (RJS), 2020 WL 528704 (S.D.N.Y. Feb. 3, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Audiovisual work - video Topics: Defenses - fair use, Limitations on liability relating to material online - misrepresentations Plaintiff Akilah Hughes brings this action against Defendant Carl Benjamin and ten “John Doe” Defendants for copyright infringement under 17 U.S.C. § 501 and misrepresentation under the Digital Millennium Copyright Act (“DMCA”) . . . principally alleging that Benjamin’s YouTube video, SJW Levels of Awareness, unlawfully copied Hughes’s YouTube video about the 2016 presidential election, We Thought She Would Win. Now before the Court is Benjamin’s motion to dismiss the Complaint in its entirety. . . . For the reasons set forth below, the motion to dismiss is GRANTED. . . . A. Copyright Infringement . . . Here, it is clear from the face of Hughes’s Complaint that Benjamin copied portions of We Thought She Would Win for the transformative purposes of criticism and commentary. Beginning with the title of Benjamin’s work, SJW Levels of Awareness, Hughes herself acknowledges that “SJW” or “social justice warrior” is a term “routinely used by Benjamin in a demeaning context to belittle proponents of perceived liberal social policies and stances.” . . . Although Hughes contends that her own subjective awareness of the term’s meaning does not establish that a “reasonable observer” would interpret the term “SJW” in a pejorative manner . . . the Court concludes that “SJW” or “Social Justice Warrior” has sufficiently entered the modern lexicon such that there can be no serious dispute as to its pejorative meaning in this context. . . . And “levels of awareness” is plainly used in a sarcastic manner when combined with “SJW,” implying a lack of awareness concerning social or political matters. Moreover, the critical nature of SJW Levels of Awareness is apparent from the broader context of Benjamin’s YouTube channel, where it was posted. . . . As the Complaint alleges, Benjamin “routinely engages and criticizes viewpoints on various social and political issues” on his YouTube channels, specifically targeting topics such as feminism, “the left,” and Black Lives Matter. . . . Thus, whether SJW Levels of Awareness is accessed by searching for “SJW”-related content on YouTube or by going directly to Benjamin’s YouTube channel (or in some other way), a reasonable observer who came across the video would quickly grasp its critical purpose.

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Furthermore, although courts have found transformative uses even in cases involving exact copying, the Court notes that SJW Levels of Awareness is not an exact copy of We Thought She Would Win. Rather, Benjamin excerpted We Thought She Would Win to depict the specific moments he felt exemplified Hughes’s political identity and lack of awareness. For example, Benjamin included Hughes’s prediction and hope that Secretary Clinton would win the election, while omitting footage that did not support his message, like Hughes’s statement that Secretary Clinton won the popular vote with “record numbers.” And he excluded content unrelated to his criticism, like Hughes’s commentary on the societal benefits of YouTube. In this way, Benjamin excerpted We Thought She Would Win to maximize his criticism of Hughes’s liberal viewpoint. Finally, although the commercial nature of an allegedly infringing work is not necessarily a significant factor . . . the Court notes that the Complaint barely mentions the commercial or non-commercial nature of SJW Levels of Awareness. At most, the Complaint alleges generally that “Defendants have unfairly derived profits from [SJW Levels of Awareness] in the form of advertising revenues generated from its upload to and availability on YouTube,” and “from increased popularity of their YouTube channel attributed to [SJW Levels of Awareness].” . . . The Complaint, however, does not specify how the increased popularity of Benjamin’s YouTube channel commercially benefited Benjamin himself, nor does the Complaint indicate whether the referenced advertising revenues accrued to Benjamin or to YouTube. In any event, insofar as there is a commercial aspect to SJW Levels of Awareness, it pales in significance to the considerations discussed above. . . . Here, the second fair use factor is essentially neutral and of little import. As for the first Blanch consideration, Hughes’s work is “factual or informational” in that it provides a first-hand account of a newsworthy event, but it also has “expressive or creative” value in both its commentary and production. . . . With respect to the second Blanch consideration, We Thought She Would Win is a published work, and thus the scope of fair use in this context is not “considerably narrower” than it would be if it had been unpublished. . . . Given these countervailing considerations, and the fact that SJW Levels of Awareness is plainly transformative, the second fair use factor has little impact here. . . . Here, SJW Levels of Awareness copied 20% of We Thought She Would Win, a percentage which, while greater than that found unreasonable in some cases in this Circuit . . . was still far less than the entire video . . . . In addition, although the selected excerpts were important to Hughes’s video (at least as important as any other part of her video), they were also linked to the critical purpose of SJW Levels of Awareness. As noted above, Benjamin did not copy parts of Hughes’s video that undermined or were unrelated to the critical purpose of SJW Levels of Awareness. Notably, Benjamin also did not copy every part of We Thought She Would Win that evinced Hughes’s progressive views. Rather, Benjamin copied as much of We Thought She Would Win as was deemed reasonably necessary for him to convey his critical message. In these circumstances, the third factor tips in favor of Benjamin. . . . Here, there is no danger that SJW Levels of Awareness will usurp the market of progressive commentaries such as We Thought She Would Win. Benjamin’s target audience (generally political conservatives and libertarians) is obviously not the same as Hughes’s target audience

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(generally political liberals). . . . Moreover, although SJW Levels of Awareness is comprised entirely of portions of We Thought She Would Win, there is no reason to think that Hughes’s audience will abandon her progressive YouTube channel to watch the derisively-titled SJW Levels of Awareness on a conservative YouTube channel simply because it contains parts of her work. Thus, the fourth fair use factor, like the first and third factors, favors Benjamin. Because three of the four statutory fair use factors favor Benjamin, including the most important factor (purpose and character of use), and the least important factor (nature of the copyrighted work) is neutral, the Court concludes that the fair use defense clearly applies based on the face of Hughes’s Complaint and a review of the videos themselves. Accordingly, Hughes has failed to state a claim of copyright infringement for purposes of Rule 12(b)(6). B. DMCA Misrepresentation . . . Here, Hughes alleges that Benjamin knowingly and materially misrepresented in his counter notification that SJW Levels of Awareness was fair use, “entirely transformative,” and “intended for parody.” . . . These allegations fall short. Benjamin’s implied statement that his video constituted fair use (the counter notification itself does not actually use the term “fair use”) was accurate for the reasons stated in this Opinion and Order. . . . Similarly, Benjamin did not misrepresent that his video was “transformative.” . . . Last, the Complaint fails to plausibly plead a misrepresentation in the form of Benjamin’s statement that SJW Levels of Awareness was “intended for parody.” . . . Even if SJW Levels of Awareness was not, strictly speaking, “parody” as that term has been defined in the case law . . . the difference between “parody” and non-parodic copying for the purpose of mocking criticism is subtle, and ultimately immaterial here. Moreover, it is implausible to suggest that Benjamin knowingly adopted one of these two characterizations over the other in an effort to mask his intentions. Because the Complaint therefore does not plausibly allege that Benjamin made misrepresentations in his counter notification, let alone knowing and material misrepresentations, Hughes’s DMCA claim fails. HIRSCH V. REHS GALLERIES, INC. No. 18-CV-11864 (VSB), 2020 WL 917213 (S.D.N.Y. Feb. 26, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Defenses - statute of limitations, Integrity of Copyright Management Information - statute of limitations Plaintiff Steven Hirsch (“Plaintiff”) brings this action against Defendant Rehs Galleries, Inc. (“Defendant”), asserting claims under the Copyright Act . . . , including copyright infringement . . . and removal or alteration of copyright management information . . . . Defendant moves to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiff’s claims are time-barred under the Copyright Act’s three-year statute of limitations provision . . . . Defendant also moves to disqualify Plaintiff’s counsel under the advocate-witness rule, arguing that Plaintiff’s counsel will be a necessary fact witness for Defendant’s statute of limitations defense. Because Plaintiff’s claims cannot be dismissed as untimely at this stage in the litigation, Defendant’s motion to dismiss is DENIED. Similarly,

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because under the applicable statute of limitations, Plaintiff’s counsel will not be a necessary fact witness, Defendant’s motion to disqualify is DENIED. . . . I find that because Psihoyos interpreted 17 U.S.C. § 507(b) to require application of the discovery rule, and because that same provision governs claims under 17 U.S.C. § 1202(b), the same statute of limitations standard set forth above applies to Plaintiff’s § 1202(b) claim. Defendant makes two primary arguments in support of dismissal of the Amended Complaint’s Copyright Act claims: (i) that because Plaintiff discovered an infringement of one of his other photographs as early as March 27, 2016, he was on “constructive notice,” . . . to investigate and discover the instant infringement of the Photograph; and (ii) that because on February 6, 2016, Plaintiff hired a firm that “specializes in searching the internet for infringing conduct,” . . . Plaintiff should have discovered his claims earlier. These arguments completely fail for the simple reason that, even if Defendant is right and Plaintiff should have discovered the infringing conduct as early as March 27, 2016 or February 6, 2016, his claims would still not be time-barred as they were filed on December 17, 2018, less than three years after the earliest dates on which Defendant argues Plaintiff should have discovered his claims. Defendant raises an additional argument that Plaintiff was under a general duty to police the internet to discover Defendant’s use of his Photograph, particularly “given the notoriety of the story and the [Photograph] at the time” it was taken and published. . . . However, I have considered and rejected this argument before, as have other judges in this district. ADINA'S JEWELS, INC. V. SHASHI, INC. No. 19 CIV. 8511 (AKH), 2020 WL 950752 (S.D.N.Y. Feb. 27, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - jewelry Topics: Preemption - unfair competition, Preemption - unjust enrichment, Preemption - deceptive acts and practices This matter arises out of a dispute between two jewelry merchants—Adina’s Jewels, Inc. (“Adina”) and Shashi, Inc. (“Shashi”). Adina first filed a complaint in New York state court, alleging that Shashi had ordered jewelry from Adina’s website, and then used this merchandise to create “knock offs” of Adina’s jewelry, which Shashi offered for sale to its own customers. Adina’s complaint includes three state-law causes of action: (1) unfair competition; (2) unjust enrichment; and (3) violation of N.Y. Gen. Business Law (“GBL”) § 349. . . . Shashi timely filed a notice of removal pursuant to 28 U.S.C. § 1441, arguing that removal is proper because Adina’s complaint, although technically framed in terms of state causes of action, in fact sounds in copyright infringement . . . thus triggering exclusive federal-question jurisdiction under 28 U.S.C. §§ 1331 and 1338(a). Now before the Court are (1) a motion by Adina to remand the case back to state court, and (2) a motion by Shashi to dismiss the complaint for failure to state a claim and due to “complete preemption.” For the reasons that follow, Shashi’s motion to dismiss is granted and Adina’s motion to remand is denied. . . .

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i. Unfair competition . . . Here, Adina alleges that Shashi is “copying and knocking off Adina’s highly stylized jewelry products” without permission. . . . Under Adina’s theory of this case, the acts of copying and unauthorized use trigger Shashi’s liability. This neatly falls within the bounds of the infringement protection offered by § 106 of the Copyright Act. . . . That Adina alleges in passing that Shashi’s copying has damaged Adina’s “trademark” and caused “confusion” in the general public . . . —claims that in different circumstances might state a claim of trademark infringement beyond the scope of the Copyright Act’s preemptive force . . . —the alleged confusion here “arises only from [the] alleged copying,” . . . . Adina’s unfair competition claim is bereft of all the requisite markers of a trademark infringement claim. For instance, Adina does not claim that Shashi is selling knock off jewelry and representing it as Adina’s. . . . Nor does the fact that Adina alleges that Shashi copied its jewelry in a “deceptive” manner . . . meaningfully change the picture. Shashi’s purported bad faith in copying does not alter the reality that the harm in this case stems wholly from the alleged copying. . . . Adina’s unfair competition claim is, for all these reasons, preempted, subject to this Court’s jurisdiction, and dismissed. ii. Unjust enrichment . . . The crux of Adina’s thinly pleaded unjust enrichment claim is that Shashi has been enriched by selling jewelry that is either identical or nearly identical to jewelry designed by Adina. . . . This claim “falls squarely within the ambit of [17 U.S.C.] § 106 of the Copyright Act, because it is simply alleging harms arising from ... alleged copying,” . . . Adina’s unjust enrichment claim is therefore dismissed. iii. GBL § 349 . . . Finally, Adina’s claim under GBL § 3492 is preempted. While in some cases, “rights asserted in a GBL § 349 claim ... may not be preempted,” . . . preemption is the fate of GBL § 349 claims that, as here, target alleged harm arising out of a defendant’s copying of the plaintiff’s copyrightable material . . . . Adina seeks refuge in In re Houbigant Inc. . . . but that dispute involved allegations of false advertising of counterfeit goods—allegations wholly absent here—and, as such, only bolsters the Court’s finding of preemption. LEE V. BLACK ENTM'T TELEVISION, LLC No. 19-CV-02751 (LAK), 2020 WL 1140795 (S.D.N.Y. Mar. 6, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Audiovisual work - video Topics: Copyright registration - registration requirement, Infringement - substantial similarity The Court previously dismissed this action for failure to state a claim for copyright infringement. . . . Plaintiff filed her First Amended Complaint (“FAC”) in November 2019. . . . Defendants move to dismiss all claims. . . . Here, plaintiff registered the sizzle reel with the Copyright Office seven months after the original complaint was filed, but prior to the filing of the FAC. The Court agrees with the reasoning in Malibu Media, LLC v. Doe, a recent case from this district, extending the registration

Joshua L. Simmons joshua.simmons@kirkland.com

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requirement to amended complaints. . . . Plaintiff’s infringement claim as to the sizzle reel is therefore dismissed. Nor can plaintiff maintain an infringement claim as to the treatments. The FAC suffers from the same deficiencies identified in the original complaint. Critically, the FAC does not provide the Court with any useful new insight into what specific elements of the copyrighted work plaintiffs believes to be protected. The FAC is virtually unchanged from the complaint dismissed for failure to state a claim. TURN ON PRODUCTS, INC. V. FULL CIRCLE TRENDS, INC. No. 19CV5594, 2020 WL 1272286 (S.D.N.Y. Mar. 17, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - design Topics: Infringement - substantial similarity Plaintiff Turn On Products, Inc. brings this copyright infringement action against Defendant Full Circle Trends, Inc. for alleged copying of a rose-patterned dress design. Defendant moves for summary judgment on the ground that the designs are not substantially similar. This Court agrees and Defendant’s motion for summary judgment is granted. . . . The idea of a rose pattern—and indeed, a dress depicting roses—is an unprotectible element. As the Second Circuit has noted, because of “the rose’s very nature[,] one artist’s rendering of it will closely resemble another artist’s work.” . . . Thus, in comparing these two works, the court must look beyond the mere inclusion of roses—an unprotectable element—and instead look to the total look and feel of the work. . . . After visually inspecting the parties’ designs, this Court concludes that no jury could find that the works are substantially similar. Most notably, the samples that counsel brought to court revealed far more negative space between the flower bunches in Plaintiff’s design. That negative space significantly alters the overall look and feel of the two works. Plaintiff’s dress includes daisies interspersed among the roses while Defendant’s design does not. Plaintiff’s roses contain more contrast between the shadowed portions of the roses than Defendant’s. Defendant’s design contains numerous smaller bunches of roses between the larger roses, while Plaintiff’s design only has larger flowers. The leaves surrounding the rose bunches in each design differ. Defendant’s design contains leaves within the bunches while Plaintiff’s design only contains leaves surrounding the bunches. Defendant’s larger leaves also contain far more texture than Plaintiff’s. The primary similarity between these two works is the fact that they include rose bunches over negative space. But the mere inclusion of roses is not protectable. . . . Accordingly, “no reasonable trier of fact could find the works substantially similar, [and] summary judgment is appropriate.”

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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DOMINICK R. PILLA, ARCHITECTURE-ENG'G P.C. V. GILAT No. 19-CV-2255 (KMK), 2020 WL 1309086 (S.D.N.Y. Mar. 19, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Architectural work - drawing, Architectural work - design Topics: Infringement - substantial similarity, Integrity of Copyright Management Information - pleading requirements Plaintiff Dominick R. Pilla, Architecture-Engineering P.C. (“Plaintiff”) brings this Action against Orly Gilat (“Gilat”) and W 108 Development LLC (“W 108”; with Gilat, “Defendants”), alleging copyright infringement under 17 U.S.C. § 101, et seq. (the “Copyright Act”), false designation of origin under 15 U.S.C. § 1051, et seq. (the “Lanham Act”), and violations of 17 U.S.C. § 1202 (the “Digital Millennium Copyright Act,” or “DMCA”). . . . Before the Court is Defendants’ Motion To Dismiss (the “Motion”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. . . . For the reasons explained herein, Defendants’ Motion is granted in part and denied in part. . . . Defendants argue that the two sets of Designs are not substantially similar for a number of reasons, such as the layout and number of residential units . . . the treatment of the backyard . . . and the location of the common and utility areas . . . . Although there are certainly differences between the two sets of designs—and Plaintiff appears to concede as much with respect to these specific elements . . . —at this early stage, the Court cannot conclude as a matter of law that the works as a whole are not substantially similar. With respect to some of Plaintiff’s Designs, an “average lay observer [c]ould recognize the alleged copy as having been appropriated from the copyrighted work.” . . . The Court finds that at this early stage of the litigation, and drawing all inferences in favor of Plaintiff, Plaintiff has stated a claim for removal of CMI, albeit barely. First, Plaintiff alleges the existence of CMI on Plaintiff’s Designs. . . . The Designs attached to the Complaint include Plaintiff’s logo, name, and seal, as well as a note stating, “[t]he entire contents of this document ... and all copyrights therein[ ] are and shall remain the sole and exclusive property of [Plaintiff]. The documents and their contents may not be used, photocopied[,] or reproduced digitally, electronically[,] or in any other manner without the express written consent of [Plaintiff].” . . . Such information appears to be sufficient to constitute CMI under the DMCA. . . . Next, Plaintiff states that Defendants “intentionally removed” its CMI from the Designs. . . . Although Plaintiff does not allege how, when, or where this removal occurred, such details are not necessary at the pleading stage for a claim under the DMCA, and Defendants set forth no case law arguing that they are. . . . Further, Plaintiff does plead that Defendants “copied ... [Plaintiff’s] Designs without [Plaintiff’s] authorization or approval, and submitted certain derivative designs ... to the [DOB],” and that Defendants “continued or allowed to continue implementation of the Project based upon designs ... that were illegally copied [from] ... [Plaintiff’s] Designs.” . . . Drawing all inferences in favor of Plaintiff, as the Court must do at this stage, Plaintiff plausibly alleges that the CMI was removed at the time of the unlawful copying. . . . Although sparse, Plaintiff alleges sufficient facts to suggest that Defendants acted intentionally. For example, Defendants allegedly “were aware at all times” of Plaintiff’s copyrights, had access

Joshua L. Simmons joshua.simmons@kirkland.com

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to Plaintiff’s designs, copied the designs and submitted derivative designs, and “may have used, distributed, marketed, and displayed ... [Plaintiff’s] Designs for other construction projects.” . . . Taken together, these allegations are sufficient to give rise to a plausible inference that Defendants were aware of the appropriate uses of Plaintiffs’ CMI and, in allegedly copying the designs, intentionally altered or removed Plaintiff’s CMI. . . . Further, although Plaintiff does not provide a copy of the allegedly infringing work, this, too, is not required for Plaintiff to state a claim under the DMCA. . . . The Court therefore denies Defendants’ Motion with respect to Plaintiff’s claims under the DMCA. SOLID OAK SKETCHES, LLC V. 2K GAMES, INC. No. 16-CV-724-LTS-SDA, 2020 WL 1467394 (S.D.N.Y. Mar. 26, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - tattoo, Audiovisual work - video game Topics: Defenses - de minimis use, Defenses - license, Defenses - fair use Solid Oak Sketches, LLC (“Solid Oak” or “Plaintiff”), brings this action against Defendants 2K Games, Inc., and Take-Two Interactive Software, Inc. (collectively, “Take Two” or “Defendants”), asserting a claim of copyright infringement pursuant to the Copyright Act of 1976 . . . (the “Copyright Act”). Following this Court’s granting of Defendants’ motion to dismiss Plaintiff’s claims for statutory damages and attorneys’ fees on August 2, 2016, Plaintiff filed a Second Amended Complaint (“SAC”) on October 24, 2016. . . . On August 16, 2016, Defendants filed counterclaims for declaratory judgment pursuant to the Copyright Act and the Declaratory Judgment Act . . . (“Def. Countercl.”). . . . The Court denied Plaintiff’s motion to dismiss the counterclaims on May 16, 2017 . . . and, on March 30, 2018, denied Defendants’ motion for judgment on the pleadings (“March Op.,” . . . ). . . . Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56, requesting (i) an order dismissing Plaintiff’s copyright infringement claim and (ii) entry of declaratory judgment in Defendants’ favor on their de minimis use and fair use counterclaims. . . . Plaintiff has cross moved to exclude the four expert declarations filed in support of Defendants’ summary judgment motion. . . . The Court has considered carefully the parties’ submissions in connection with the motions. For the following reasons, Defendants’ motion for summary judgment is granted and Plaintiff’s cross motion to exclude is denied. . . . De Minimis Use . . . Here, Defendants are entitled as a matter of law to summary judgment dismissing Plaintiff’s copyright infringement claim because no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak. The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the Tattoos are not featured on any of the game’s marketing materials.

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When the Tattoos do appear during gameplay (because one of the Players has been selected), the Tattoos cannot be identified or observed. . . . The Tattoos are significantly reduced in size: they are a mere 4.4% to 10.96% of the size that they appear in real life. The video clips proffered by Defendants show that the Tattoos “are not displayed [in NBA 2K] with sufficient detail for the average lay observer to identify even the subject matter of the [Tattoos], much less the style used in creating them.” . . . The videos demonstrate that the Tattoos appear out of focus and are observable only as undefined dark shading on the Players’ arms. Further, the Players’ quick and erratic movements up and down the basketball court make it difficult to discern even the undefined dark shading. The uncontroverted evidence proffered by Defendants demonstrates that the Tattoos often do not appear during the NBA 2K video game and, when they do, they are so small and distorted by the camera angles and other game elements that they are indiscernible to the average game users. . . . The undisputed evidence of record shows that Defendants’ use of the Tattoos in NBA 2K falls below the quantitative threshold of substantial similarity. No reasonable fact finder could conclude that Plaintiff has carried its burden of proving that Defendants’ use of the copyrighted material was substantially similar to Plaintiff’s copyrighted work. Thus, Defendants are entitled as a matter of law to judgment dismissing Plaintiff’s SAC, which asserts only a copyright infringement claim, and a declaration that Defendants’ use of the Tattoos is de minimis. Implied License . . . Here, the undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses, and did so prior to any grant of rights in the Tattoos to Plaintiff. According to the declarations of Messrs. Thomas, Cornett, and Morris, (i) the Players each requested the creation of the Tattoos, (ii) the tattooists created the Tattoos and delivered them to the Players by inking the designs onto their skin, and (iii) the tattooists intended the Players to copy and distribute the Tattoos as elements of their likenesses, each knowing that the Players were likely to appear “in public, on television, in commercials, or in other forms of media.” . . . Thus, the Players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the Tattoos as elements of their likenesses. Defendants’ right to use the Tattoos in depicting the Players derives from these implied licenses, which predate the licenses that Plaintiff obtained from the tattooists. The Players “have given the NBA the right to license their likeness to third-parties,” and the NBA has granted such license to Take-Two. . . . The Players also granted Take-Two permission to use their likeness. . . . Therefore, Defendants had permission to include the Tattoos on the Players’ bodies in NBA 2K because the Players had an implied license to use the Tattoos as part of their likeness, and the Players either directly or indirectly granted Defendants a license to use their likenesses. Defendants are therefore entitled as a matter of law to summary judgment dismissing Plaintiff’s copyright infringement claim for this reason as well. Fair Use Counterclaim . . . Purpose and Character of the Use . . . Here, the undisputed evidence demonstrates that Defendants’ use of the Tattoos is transformative. First, while NBA 2K features exact copies of the Tattoo designs, its purpose in displaying the Tattoos is entirely different from the purpose for which the Tattoos were originally created. The Tattoos were originally created as a means for the Players to express themselves through body art. Defendants reproduced the

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Tattoos in the video game in order to most accurately depict the Players, and the particulars of the Tattoos are not observable. The uncontroverted evidence thus shows that the Tattoos were included in NBA 2K for a purpose—general recognizability of game figures as depictions of the Players—different than that for which they were originally created. Second, Defendants “significantly reduced the size of the [Tattoos]” in the video game. . . . It is undisputed that, when comparing the size of the Tattoos as they appear in NBA 2K to the size they appear on the Players’ skin in real life, the Tattoos appear at 4.4% to 10.96% of their actual size because the player figures are themselves proportionately smaller than in real life. This reduction in size, along with the other game elements discussed above, makes the Tattoos more difficult to observe. Thus, NBA 2K does not “offer more than a glimpse of [the Tattoos’] expressive value[,]” as the Tattoos are too small and distorted for game users to even recognize them in NBA 2K. . . . Third, the Tattoos’ expressive value is minimized in NBA 2K. The Tattoo images are infrequently and only imprecisely observable and are combined with myriad other auditory and visual elements, like the other players, referees, the sound of shoes against the court’s surface, the noise of the crowd, the horns and other audible warnings signaling elapsing shot clocks, ending timeouts, television announcers performing play-by-play—elements all included to simulate an actual NBA game. As discussed above, the uncontroverted factual record shows that the Tattoos were not included for their expressive value, but rather to most accurately recreate certain NBA players’ likenesses. Fourth, the Tattoos constitute an inconsequential portion of NBA 2K. As noted above, it is undisputed that they only appear on three out of 400 available players, they comprise only 0.000286% to 0.000431% of the total game data, and they cannot be seen clearly during gameplay. Game users can see that the Players have tattoos, but cannot identify the specific Tattoos at issue. Lastly, NBA 2K’s purpose is commercial and, as a result, the Tattoos’ inclusion in the game is also commercial. However, as discussed above, the Tattoos are indistinguishable during gameplay and they do not feature in any of the game’s marketing materials. Further, the Tattoo images are merely “incidental to the commercial ... value of the [game],” because “consumers do not buy NBA 2K video games for the tattoos on LeBron James, Eric Bledsoe or Kenyon Martin.” . . . Nature of the Copyrighted Work . . . The nature of the copyrighted works at issue here weighs in favor of finding fair use. First, Plaintiff concedes that the Tattoos were previously published. . . . Second, the Tattoo designs are more factual than expressive because they are each based on another factual work or comprise representational renderings of common objects and motifs that are frequently found in tattoos. The “Child Portrait” tattoo is factual—it is a reproduction of a photograph of Mr. James’s son, which was copied “as closely as possible” from the picture Mr. James provided. . . . The “330 and Flames” tattoo was created by adding flames—a common tattoo motif—to a number tattoo that Mr. James already had on his skin. The “Script with a Scroll” tattoo was based on a design Mr. James selected from one of Mr. Rome’s sketchbooks.

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The “Wizard” tattoo was “copied ... directly from the pre-existing design” that Mr. Martin chose from a selection of tattoo designs featured on the walls and in books in Mr. Cornett’s parlor. . . . Similarly, the “Basketball with Stars and Script” tattoo is based on common tattoo motifs such as basketballs and stars. . . . Amount and Substantiality of the Use . . . Here, the undisputed evidence shows that, while the Tattoos were copied in their entirety, Defendants did so in order to effectuate the transformative purpose of creating a realistic game experience. Considering this purpose, it would have made little sense for Defendants to copy just half or some smaller portion of the Tattoos, as it would not have served to depict realistically the Players’ likenesses. Furthermore, much like the copied images at issue in Bill Graham, the Tattoos were reduced in size, such that “the visual impact of their artistic expression [was] significantly limited.” . . . Unlike the images at issue in Bill Graham, the Tattoos depicted in Defendants’ game are not recognizable, reducing further the impact of their artistic expression. Accordingly, the third factor does not weigh against fair use. Effect on the Market . . . Defendants’ use of the Tattoos in NBA 2K is transformative: the Tattoos as featured in the video game cannot serve as substitutes for use of the Tattoo designs in any other medium. Indeed, Plaintiff has conceded that “NBA 2K is not a substitute for the TATTOOS.” . . . Therefore, use of the Tattoos in NBA 2K could not “deprive the rights holder of significant revenues” because potential purchasers of the Tattoo designs are unlikely to “opt to acquire the copy in preference to the original.” . . . For this reason alone, the fourth factor does not weigh against fair use. Further, there is no evidence from which a reasonable fact finder could conclude that a market for licensing tattoos for use in video games or other media is likely to develop. The Court may consider only the “impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets.” . . . Plaintiff’s hypothetical market for licensing tattoos in video games or other, unspecified media does not satisfy this standard. Defendants have proffered uncontroverted evidence that such a market is unlikely to develop and that, if it did, Plaintiff could not capitalize on such a market because the Tattoos are imprinted on the bodies of the Players and Plaintiff is not licensed to use the Players’ publicity rights. Plaintiff has failed to proffer any evidence from which a reasonable fact finder could conclude that a market for licensing tattoos for use in video games or other media is a “traditional, reasonable or likely to be developed market[ ].” . . . Thus, the fourth fair use factor weighs in Defendants’ favor. SYNTEL STERLING BEST SHORES MAURITIUS LTD. V. TRIZETTO GRP. No. 15 CIV. 211 (LGS), 2020 WL 1528129 (S.D.N.Y. Mar. 30, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Literary work - computer program Topics: Copyright registration - scope of registration The parties filed cross-motions for partial summary judgment in this dispute over their past business dealings. Plaintiffs Syntel Sterling Best Shores Mauritius Limited’s (“Syntel Mauritius”) and Syntel, Inc. (together, “Syntel”) bring claims of breach of contract (Count I),

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intentional interference with contractual relations (Counts II and III), and misappropriation of confidential information (Count IV). Defendants The TriZetto Group (“TriZetto”) and Cognizant Technology Solutions Corp. (“Cognizant”) counterclaim for breach of contract and breach of the implied covenant of good faith and fair dealing (Counterclaim Counts I and II), misappropriation of trade secrets (Counterclaim Counts III and IV), unfair competition (Counterclaim Count V), tortious interference with prospective business relations (Counterclaim Count VI), and copyright infringement (Counterclaim Count VIII). Plaintiffs move for partial summary judgment on Defendants’ copyright infringement counterclaim and on Plaintiffs’ breach of contract claim based on a rebates provision (the “Transition Rebates Claim”). Defendants move for summary judgment on their trade secrets counterclaim and on all of Plaintiffs’ claims, except the Transition Rebates Claim. The parties do not seek summary judgment on the remainder of Defendants’ counterclaims. On January 27, 2020, the Honorable Stewart D. Aaron issued a Report and Recommendation (the “Report”), which recommended denying Plaintiffs’ partial motion for summary judgment and granting in part and denying in part Defendants’ partial motion for summary judgment. The Report also denied Defendants’ motion to strike portions of Plaintiffs’ summary judgment filings. The parties timely filed objections. For the reasons below, the objections are overruled or deemed waived, and the Report is adopted in full. . . . The Report correctly concludes that a reasonable jury could decide that Data Dictionary and Facets have shared protected elements, based on Mr. Sanders’ testimony and standard customer documents describing Data Dictionary -- i.e. the “Facets® Release 5.01 Physical Package Document” and “Facets® Data Dictionary Guide.” Customers receive Data Dictionary as part of the delivery of the Facets software. Data Dictionary helps customers implement and build out the Facets system to suit their needs. The Sanders Declaration explains, citing the customer documents, that Data Dictionary is * * * provides * * * available in Facets, and * * * This evidence raises at least an issue of fact regarding whether Data Dictionary incorporates protected elements of Facets itself. WAITE V. UMG RECORDINGS, INC. No. 19-CV-1091 (LAK), 2020 WL 1530794 (S.D.N.Y. Mar. 31, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Music - sound recording Topics: Defenses - statute of limitations, Ownership - termination of transfers and licenses Aspiring singers, musicians, authors and other artists – sometimes young and inexperienced and often not well known – tend to have little bargaining power in negotiating financial arrangements with recording companies, publishers, and others who promote and commercialize the artists’ work. They often grant copyright in that work as part of the bargain they strike for promotion and commercialization. Accordingly, when an artistic work turns out to be a “hit,” the lion’s share of the economic returns often goes to those who commercialized the works rather than to the artist who created them. Section 203 of the Copyright Act of 1976 established a limited opportunity for artists to terminate the copyright ownership that they had granted to

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commercializers decades earlier in order to address this issue. The idea was that termination of these rights would more fairly balance the allocation of the benefits derived from the artists’ creativity. Termination is effectuated by serving the grantee with written notice. This notice lists, among other information, the effective date of termination. Once the effective date of termination has passed, the grantee becomes the owner of the copyright and therefore holds exclusive right to reproduce and distribute the sound recordings. This is a purported class action by recording artists whose albums were released by predecessors in interest of defendant UMG Recordings, Inc. (“UMG”) pursuant to agreements the artists signed in the 1970s and 1980s that granted copyright in their works to UMG’s predecessor recording companies. These grants allowed those companies (and now UMG) to market, distribute, and sell the artists’ sound recordings. Each member of the class allegedly has terminated that grant as to the sound recordings comprising certain albums. UMG disputes the validity of those terminations. Plaintiffs argue that UMG is infringing the artists’ copyrights by continuing to market and sell the recordings for which the effective date of termination has passed. With regard to recordings for which termination notices have been served but the effective dates of termination have not yet been reached, plaintiffs seek a declaratory judgment of certain legal rights and duties of the parties. Plaintiffs seek also an injunction restraining defendant from continuing to deny and disregard the termination notices. The matter is before the Court on UMG’s motion to dismiss the first amended complaint (“FAC”). . . . For the foregoing reasons, the Court concludes that the statute of limitations for plaintiffs’ infringement claim accrued after the effective date of termination passed. Plaintiffs brought these claims within the three-year statutory period and are not time-barred. . . . Because the notices’ defects were harmless and not made with an intent to deceive, mislead, or conceal information, defendant’s motion is denied as to its claim that plaintiffs’ termination notices are facially invalid. . . . The unambiguous text precludes Waite and Ely from terminating the copyrights granted by third parties. Defendant’s motion to dismiss claims related to grants executed by Waite’s loan-out companies or Ely’s third party company is granted. . . . Accordingly, defendant’s motion is granted as to sound recordings made pursuant to Ely’s 1976 agreement that were created prior to January 1, 1978. JOHANSEN V. SONY MUSIC ENTM'T INC. No. 19 CIV. 1094 (ER), 2020 WL 1529442 (S.D.N.Y. Mar. 31, 2020) Outcome: Motion to dismiss - denied

Joshua L. Simmons joshua.simmons@kirkland.com

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Works of Authorship: Music - sound recording Topics: Ownership - termination of transfers and licenses David Johansen (“Johansen”), John Lyon (“Lyon”) and Paul Collins (“Collins”, and with Johansen and Lyon, “Plaintiffs”), bring this putative class action against Sony Music Entertainment (“Sony”) for declaratory judgment and copyright infringement. Pending before the Court is Sony’s motion to dismiss all claims. . . . For the reasons discussed below, the motion is DENIED. . . . a. Timeliness . . . Drawing all reasonable inferences in favor of Plaintiffs, the Court finds that it is possible that this was a “scrivener’s error” and that the harmless error rule may apply to excuse it. . . . b. Gap Works . . . Because the Court accepts that as true for purposes of this motion, dismissal is inappropriate on the basis that Lyon’s notice failed to comply with the statutory requirements for gap works. c. Identification of Grants Being Terminated . . . Here, the termination notices included more than just boilerplate language, specifically identifying grants of rights in sound recordings set forth in the schedules attached to the notices. Accordingly, dismissal on this basis is also inappropriate. . . . d. Dates of Execution of Grants Being Terminated . . . Accordingly, because the Court finds that the termination notices contained sufficient information to afford Sony a reasonable opportunity to identify the grants at issue, such that the general harmless error rule may apply, Sony’s arguments on the basis of 37 C.F.R. § 201.10(e)(2) cannot invalidate the notices. SINCLAIR V. ZIFF DAVIS, LLC No. 18-CV-790 (KMW), 2020 WL 1847841 (S.D.N.Y. Apr. 13, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Defenses - license Plaintiff Stephanie Sinclair (“Plaintiff”), a professional photographer, brings this copyright suit against Mashable, Inc. (“Mashable”) and its parent company, Ziff Davis, LLC (“Ziff Davis”) (together, “Defendants”), alleging that Defendants infringed Plaintiff’s copyright when Mashable posted one of Plaintiff’s copyrighted photographs on its website. Defendants have moved to dismiss Plaintiff’s Second Amended Complaint. The Court finds that Mashable used Plaintiff’s photograph pursuant to a valid sublicense from Instagram, and that Plaintiff fails to state a claim for copyright infringement against Ziff Davis. Therefore, the Second Amended Complaint is DISMISSED. HINES V. ROC-A-FELLA RECORDS, LLC

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No. 19-CV-4587 (JPO), 2020 WL 1888832 (S.D.N.Y. Apr. 16, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Music - sound recording Topics: Infringement - pleading requirements, Copyright registration - registration requirement In the 1960s, Ernie Hines coauthored the soul single “Help Me Put Out The Flame (In My Heart).” Hines claims that a sample from that song has been incorporated, without his permission, into two modern-day hip-hop songs. Accordingly, Hines brings suit against four record labels, as well as the artists Jay-Z and Timbaland. The defendants have moved to dismiss on various grounds. For the reasons that follow, the motions are granted. . . . The Record Label Defendants first argue that Hines’s complaint is defective because it does not specify what material from “Help Me” was copied in either “Paper Chase” or “Toe 2 Toe.” . . . The Record Label Defendants are correct. . . . The complaint in this case entirely fails to identify which elements of “Help Me” were infringed or which elements of “Paper Chase” and “Toe 2 Toe” are infringing. The complaint contains only broad allegations of similarity. . . . These “vague and general allegations of similarity” do not suffice. . . . The Record Label Defendants separately seek dismissal on the ground that the complaint fails to allege “whether and when the copyright ... was registered pursuant to statutory requirements.” . . . Specifically, the Record Label Defendants fault Hines for failing to indicate which of several different copyright registrations covers the protectible elements of “Help Me” allegedly infringed by “Paper Chase” and “Toe 2 Toe.” . . . Such particularity, however, is not ordinarily required to plead registration. . . . Rather, it is enough that the complaint “allege[s] that plaintiff owns the copyright[ ] in th[e] work[ ] and that the copyright[ ] ha[s] been registered in accordance with the statute.” . . . Here, Hines has done so. Dismissal on this ground is therefore denied. BROOKS V. DASH No. 19-CV-1944 (JSR), 2020 WL 1847548 (S.D.N.Y. Apr. 13, 2020) Outcome: Bench trial - judgment for plaintiff Works of Authorship: Literary work - book, Audiovisual work - motion picture Topics: Ownership - joint work, Remedies - actual damages, Remedies - permanent injunction This copyright and trademark infringement case concerns the film “Mafietta,” which is adapted from a book series of the same name. Plaintiff Edwyna Brooks is the author of the Mafietta book series, and defendant Damon Dash is a movie and music producer and the Chief Executive Officer of the co-defendant Poppington LLC, d/b/a Dame Dash Studios. In July 2015, Brooks and Dash started working on producing together a film version of Mafietta, but during the course of 2015 and 2016, their collaborative relationship fell apart. In 2017, defendants started marketing and selling the film on iTunes and on Dame Dash Studios' website, all without Brooks' consent. On February 28, 2019, Brooks brought the instant action against defendants, claiming: (1) copyright infringement in violation of the Copyright Act (“Count One”); (2) trademark

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infringement in violation of the Lanham Act (“Count Two”); and (3) common law trademark infringement (“Count Three”). . . . On March 19, 2019, the parties entered into a stipulated preliminary injunction, whereby defendants agreed not to market, advertise, promote, distribute, sell, or utilize the film in any fashion during the pendency of this litigation. On September 30, 2019, the Court granted summary judgment in favor of Brooks with respect to her trademark claims, but denied her motion with respect to the copyright claim as the Court found genuine disputes of material facts regarding that claim. . . . A bench trial of the copyright claim, as well as to determine damages for all three claims, commenced on January 21, 2020 and lasted for three days. The Court received 19 exhibits and heard testimony from five witnesses: Brooks, Dash, Edwin Rush (attorney for Brooks in negotiating an unexecuted contract regarding the film), Eric Howard (attorney for Dash in negotiating the same unexecuted contract), and Alvin Williams (damages expert for Brooks). On March 30, 2020, the parties submitted post-trial memoranda in lieu of oral summations. Having now carefully reviewed all of the materials, the Court hereby grants judgment in favor of Brooks on her copyright infringement claim, issues a permanent injunction against defendants, and awards Brooks $300,000.00 in total damages, based on the findings of fact and conclusions of law set forth below. The Court's findings of fact are based on its assessment of the evidence received at trial, including its assessment of the credibility of the witnesses (based on their demeanor at trial, the consistency and internal logic of their accounts, and other pertinent factors). In particular, the Court finds generally credible the testimony of Brooks. In contrast, even disregarding the fact that Dash was throughout the trial disruptive and apparently incapable of exercising ordinary civility, the Court finds Dash's testimony to be unworthy of belief. To the extent there are conflicts between the testimony of Brooks and the testimony of other witnesses, the Court credits the former unless otherwise noted. . . . [T]he Court finds that the parties did not mutually intend Dash to be a co-author of the film and therefore Dash did not co-own the copyright in the film. The Court further finds that Brooks was the dominant author between the two. . . . Accordingly, the Court concludes that defendants infringed Brooks' copyright by reproducing and distributing the film on iTunes and Dame Dash Studios without her permission. . . . The Clerk is directed to enter final judgment in favor of plaintiff Edwyna Brooks, and against both defendants, jointly and severally, in the amount of $300,000.00, plus post-judgment interest at a rate of 0.22% per annum accruing from the date hereof . . . and to close the case. Furthermore, defendants are permanently enjoined from marketing, advertising, promoting, distributing, selling, or copying the film without Brooks' consent. HARBUS V. MANHATTAN INST. FOR POLICY RESEARCH, INC. No. 19 CIV. 6124 (ER), 2020 WL 1990866 (S.D.N.Y. Apr. 27, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Defenses - fair use

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Richard Harbus (“Harbus”), brings this action against Manhattan Institute for Policy Research, Inc. (the “Manhattan Institute”) under the Copyright Act . . . alleging that the Manhattan Institute infringed on his copyright in a photograph of New York Governor Cuomo speaking in front of the old and new Tappan Zee bridges. The Manhattan Institute moves to dismiss the action on the basis that their use of the photograph was protected “fair use” under the Copyright Act. . . . For the reasons set forth below, the motion to dismiss is GRANTED. . . . A. Factor One: The Purpose and Character of the Use. . . . 1) Transformative Use . . . Here, Harbus and the Manhattan Institute used the Photograph for different purposes. By Harbus’ own account, he created the Photograph to show what Governor Cuomo looked like delivering a speech in front of the Tappan Zee bridges. . . . The Manhattan Institute, on the other hand, did not use the Photograph to that end. Indeed, neither Governor Cuomo’s face nor the Tappan Zee bridges are even visible in the portion of the Photograph displayed on the Website. Furthermore, the Photograph and the Article were placed in the “Publications: Commentary” section of its Website, along with thousands of articles written by the Manhattan Institute’s fellows published in various prominent news outlets. It is thus readily apparent that the Manhattan Institute displayed the Photograph along with the Article to educate the public about its work, and to document the Article’s publication in the New York Post. The fact that the Manhattan Institute displayed the Photograph in this new context and to serve a different purpose than Harbus’ original purpose, weighs in favor of a finding of fair use. . . . This conclusion is further bolstered by the fact that the Manhattan Institute’s use of the Photograph furthers its research, scholarship and educational efforts. 2) Commercial Use . . . Here, this factor weighs decidedly in favor of a finding of fair use. The Manhattan Institute is a qualified 501(c)(3) non-profit organization. Although the Manhattan Institute engages in general fundraising and sells books on the Website, nothing in the record indicates that it used the Photograph to solicit donations or to promote sales of those books. . . . 3) Bad Faith . . . Recognizing the lack of factual allegations of bad faith, Harbus nevertheless contends that more discovery is needed to determine if the Manhattan Institute consulted with counsel about copyright law and the fair use defense prior to its use of the Photograph. However, as another court within this district recently held, a defendant’s alleged failure to consult counsel alone is not indicative of bad faith. . . . In any event, the Second Circuit has instructed that the bad faith of a defendant generally contributes little to fair use analysis, and is not dispositive of a fair use defense, or even the first factor. . . . B. Factor Two: The Nature of the Work . . . Here, the Photograph is a factual and informational, as opposed to creative, work that Harbus plainly acknowledged was taken to “show what Governor Cuomo looked like delivering a speech” and thus to document Governor Cuomo at a public event. . . . Also weighing in the Manhattan Institute’s favor is the fact that the Photograph has been published by the New York Post. . . . C. Factor Three: The Amount and Substantiality of the Portion Used . . . Given the manner in which the Manhattan Institute displayed the Photograph, the Court concludes this factor also

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weighs in favor of a finding of fair use. Contrary to Harbus’ assertion, the Manhattan Institute did not engage in wholesale reproduction of the Photograph. Instead, a darkened and cropped portion of the Photograph is displayed on the Website. The portion of the Photograph displayed is further obscured by overlaid text such as the Article’s title, the author’s name, the date of publication, and the subject matter of the Article. . . . As a result of the substantial cropping and overlaid text, neither Governor Cuomo’s face nor the Tappan Zee bridges are visible in the portion of the Photograph displayed on the Website. Indeed, as the Manhattan Institute correctly points out, the only things arguably visible from the Photograph are two hands holding a microphone and the outline of a man’s chest—and even those are obscured by the text and appear in a darkened tone. . . . D. Factor Four: The Effect of the Use Upon the Market for or Value of the Original . . . Here, the Court concludes that the last factor tips in favor of a finding of fair use as well. As a threshold matter, Harbus is not entitled to a presumption of market harm. . . . [B]ecause the Manhattan Institute’s use of the Photograph is transformative and noncommercial, there is no presumption of market harm here. Furthermore, the Manhattan Institute’s use of the Photograph does not supplant or usurp the market for licensing the Photograph. Here, Harbus acknowledges that he licenses his photographs to online and print media for a fee. . . . The Manhattan Institute, however, is not a media company, nor did it use the Photograph to illustrate any independent news story. Also weighing in defendant’s favor is the manner in which the Photograph was displayed on the Website, on which neither Governor Cuomo’s face nor the Tappan Zee bridges are even visible. Even drawing all reasonable inferences in Harbus’ favor at this stage, it is implausible that potential buyers would opt to license the significantly cropped and darkened version of the Photograph, further obscured by overlaid text as displayed on the Website, rather than the original Photograph. Accordingly, the secondary use of the Photograph could not be seen as a “significant competing substitute” because it does not compete against the original in any way in its market—licensing to online or print media outlets. NINGBO MIZHIHE I&E CO. V. DOES 1-200 No. 19 CIV. 6655 (AKH), 2020 WL 2086216 (S.D.N.Y. Apr. 30, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - graphic work Topics: Limitations on liability relating to material online - misrepresentations, Limitations on liability relating to material online - pleading requirements On July 17, 2019, Plaintiff Ningbo Mizhihe I&E Co., Ltd. (“Mizhihe”) filed suit against Defendants alleging copyright infringement in violation of 17 U.S.C. § 101, et seq., and related state common law claims. . . . In short, Plaintiff is a Chinese company that makes children’s apparel, bags, and luggage products, which display copyrighted depictions of a unicorn; Plaintiff alleges that Defendants—various entities and individuals—create, market and sell products containing this unicorn design, thus infringing on Plaintiff’s copyrights. . . . Defendants Deng Kai, Dreshow, and 4Memorys (hereinafter, the “Defendants”), filed three counterclaims: (1)

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Plaintiff knowingly misrepresented that Defendants were infringing on Plaintiff’s copyrights in violation of the Digital Millennium Copyright Act . . . ; (2) Plaintiff made unauthorized use of promotional images owned by Defendants in violation of the Lanham Act . . . ; and (3) Plaintiff used these promotional images in a manner that deceived customers, in violation of New York unfair competition laws. Now before the Court is Plaintiff’s motion to dismiss Defendants’ counterclaims for failure to state a claim. For the reasons that follow, Plaintiff’s motion is granted. . . . To start, Defendants do not dispute that Plaintiff is the owner of the copyrights referenced in the take-down notice to Amazon. Instead, Defendants focus their energies on their claim that Plaintiff made “misrepresentations to the U.S. Copyright Office” (not to Amazon), and that these alleged misrepresentations are “fatal to the ultimate enforceability of the Copyrighted Works.” . . . Plaintiff made no misrepresentations to Amazon about the enforceability of their copyrights (indeed, Plaintiff made no representations whatsoever regarding enforceability). . . . Defendants will have the chance in due course to raise their argument as to the unenforceability of Plaintiff’s copyrights, but as a defense to liability . . . not as a counterclaim cognizable under the DMCA. Plaintiff reported to Amazon that it owns several copyrights and that Defendants’ activity was infringing; this representation was accurate, calling for the dismissal of Defendants’ DMCA claim. . . . Next, even if it were enough for liability under the DMCA for Plaintiff to have notified Amazon of the existence of certain copyrights that were lawfully secured, there is insufficient material in the pleadings to support the inference that Plaintiff knew their copyrights were not enforceable. . . . Defendants do not include any allegations as to whether or when Plaintiff was made aware that it (allegedly) was seeking to procure or enforce a copyright for a unicorn design that was already in use. . . . Rather, Defendants claim that the “unicorn theme elements were all [available] widely online,” such that knowledge is imputable to Plaintiff and it can be inferred that Plaintiff “purposefully” hid from the Copyright Office the preexisting materials. . . . But aside from the conclusory allegations as to Plaintiff “knowingly” making misrepresentations, this contention effectively is one accusing Plaintiff of failing to perform an adequate investigation of the available prior art, which sounds merely in negligence. INT'L CODE COUNCIL, INC. V. UPCODES, INC. No. 17 CIV. 6261 (VM), 2020 WL 2750636 (S.D.N.Y. May. 27, 2020) Outcome: Motion for summary judgment - denied Works of Authorship: Literary work - model building codes Topics: Copyrightability - government edicts, Scope of protection - merger, Defenses - fair use, Remedies - willful infringement Plaintiff International Code Council, Inc. (“ICC”) filed this action alleging one count of copyright infringement by defendants UpCodes, Inc. (“UpCodes”), Garrett Reynolds, and Scott Reynolds (collectively, “Defendants”). ICC claims that Defendants have infringed its copyrights in forty model building codes (the “I-Codes”) by posting the I-Codes and derivative works on their website, UpCodes. . . . Defendants deny ICC’s claims and counterclaim for a declaratory

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judgment that none of their copying constitutes copyright infringement, because the material they post on UpCodes is either in the public domain or otherwise protected under copyright defenses including merger and fair use. Now before the Court are the parties’ cross-motions for summary judgment. . . . For the reasons set forth below, the Court DENIES both motions at this time. . . . PUBLIC DOMAIN . . . The main dispute in this case is whether the I-Codes as Adopted are in the public domain. . . . The Court concludes . . . that the case law is ultimately consistent. It compels a holding that the I-Codes as Adopted are in the public domain, because they are in fact enacted state and local laws binding on the enacting jurisdictions’ constituents. . . . At bottom, the controlling authorities make clear that a private party cannot exercise its copyrights to restrict the public’s access to the law. Applying that principle to the facts of this case, ICC cannot claim actionable infringement based only on Defendants’ accurate posting of the I-Codes as Adopted, which are essentially enacted state and local laws. This conclusion does not preclude the possibility that Defendants infringed ICC’s copyrights by posting the I-Codes as model codes or the I-Code Redlines, though. Defendants’ other forms of copying must be assessed under different doctrinal frameworks. And while the law of public domain is favorable to Defendants, Defendants’ Motion must be denied at this time because the record is ambiguous as to whether what the Defendants actually post constitutes “the law” alone. . . . MERGER . . . The Court ultimately agrees with Defendants’ framing of the law, and ambiguities in the factual record again preclude summary judgment on ICC’s Motion. However, these ambiguities similarly prevent the Court from concluding that Defendants’ alleged copying of the I-Codes as model codes is fully protected by merger with the law. . . . [T]he Court concludes that, when assessing Defendants’ alleged infringement, it should consider whether previously copyrighted language has become essential to the expression of, or integrated with, a legal conception. At least in the Second Circuit, courts need not ignore changes that transpire between a work’s initial creation and its alleged infringement, particularly because the manner in which people use or rely on that work may fundamentally change in the interval. . . . The current record is ambiguous as to whether Defendants were expressing the idea of enacted laws, rather than the model codes as such. There are some pages on Historic UpCodes where Defendants appear to have posted model building codes without mentioning adopting jurisdictions. . . . On still other pages, the model code is accompanied by a section listing states that adopted the model code, but it is unclear whether those states adopted the code without amendment (such that the model code was the only way to express their laws, even if not explicitly identified as such) or whether those states amended the model codes (such that the model code text was not the only way to express those laws). . . . That Defendants made government amendments to the I-codes available only to paying users may also cut against the notion that they meant only to express the law. . . . FAIR USE . . . On balance, the Court is persuaded that accurate posting of the I-Codes as Adopted is a fair use as a matter of law. As noted above, the first and second fair use factors together weigh heavily in Defendants’ favor. The I-Codes as Adopted are clearly factual rather than fictional, and Defendants posted the works in their capacity as laws, rather than model codes. The purpose for which the I-Codes as Adopted were copied, displayed, and distributed is

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thus transformative. The third factor does not weigh against such copying either, as accurate copying would entail posting only “ten-tenths of the law.” . . . Finally, the Court notes that the overall impact of the fourth fair use factor is ambiguous. While there is reason to doubt that holding the I-Codes as Adopted were not infringed would seriously harm ICC, the manner in which Defendants posted the I-Codes as Adopted might effectively allow for substitution of the I-Codes. Even so, the Court concludes that accurate copying of the I-Codes as Adopted would be a fair use as a matter of law in this context. . . . Given the clear weight of the first three factors and the numerous considerations detailed above in Section II.C., it is clear that the potential harms to ICC’s markets for its works cannot outweigh the benefits and necessity of enabling unfettered access to enacted laws. These considerations necessitate a finding of fair use in the limited context of accurate copying of the I-Codes as Adopted. However, the Court cannot so conclude with regard to the I-Code Redlines. While the second factor still favors a finding of fair use given the redlines’ predominantly factual quality, none of the other factors clearly favors either ICC or Defendants. Whether the I-Code Redlines are transformative is debatable; while there is an argument that they might help educate members of the public regarding their legal obligations, the redlines are also arguably direct substitutes for ICC’s derivate works. Similarly, while the third factor need not weigh against Defendants if use of the I-Code Redlines is truly transformative, the significant copying of unadopted model code text tends to cut against a finding of fair use. Finally, the numerous factual disputes regarding how much Defendants’ copying harms ICC’s markets for the I-Codes and derivative works are both genuine and material in this context. While the Court could confidently conclude that copying of the I-Codes as Adopted is protected given the strong implications of public domain law, the same cannot be said of the I-Code Redlines. Again, the parties’ genuine dispute regarding whether copying of the I-Code Redlines was a fair use requires resolution in favor of the non-movant. The Court must consequently deny ICC’s Motion for this reason too. . . . WILLFULNESS . . . Because ICC’s Motion must be denied for the many reasons explained above, it is not yet clear that Defendants are actually liable for infringement. Accordingly, the Court need not address ICC’s remedy-related requests for a permanent injunction and a finding of willfulness that might entitle ICC to heightened statutory damages. Nevertheless, the Court addresses the matter of willfulness below in order to narrow the potential issues for subsequent motion practice (if any). . . . Here, conceivably a reasonable jury could find that any infringement by Defendants was willful. “Still, it is not beyond peradventure that a reasonable jury would conclude otherwise. And that is enough to make summary judgment on the issue of willfulness inappropriate.” . . . Given the numerous genuine factual disputes presented throughout the record before the Court, at this stage of the proceedings the Court cannot find purely as a matter of law that any infringement Defendants may have committed was willful. BROWN V. NETFLIX, INC. No. 19 CIV. 1507 (ER), 2020 WL 2749571 (S.D.N.Y. May. 27, 2020) Outcome: Motion to dismiss - granted

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Works of Authorship: Music - sound recording, Audiovisual work - film Topics: Defenses - fair use Tamita Brown, Glen S. Chapman, and Jason T. Chapman (collectively, “Plaintiffs”) are musicians who created the song Fish Sticks n’ Tater Tots (the “Song”). In 2017, a documentary film titled Burlesque: Heart of the Glitter Tribe (the “Film”) depicts a group of burlesque dancers in Portland, Oregon, one of whom incorporated the Song in a performance. Amazon.com, Inc. (“Amazon”), Netflix, Inc. (“Netflix”), and Apple Inc. (“Apple”) (collectively, “Defendants”) are corporations that provide, among other products, video streaming services. The Film is available to view on Defendants’ platforms. Plaintiffs allege that the use of the Song in the Film was unauthorized, and bring suit against Defendants for willful copyright infringement. Before the Court is Defendants’ joint motion to dismiss the claims against Netflix and Apple, and for judgement on the pleadings for Amazon. . . . Because the Court finds the Film’s incorporation of the Song to be fair use, Defendants’ motion is GRANTED. . . . Factor One: Purpose and Character . . . Here, while Defendants do not alter the Song and reference its concept of “fish sticks,” the performance serves a “new and different function” from the Song, rather than offering merely a substitute for its tale of a student on her way to lunch. . . . Indeed, even Plaintiffs repeatedly note the differences in purpose and character between the performance and the Song: the Song was created “with children being the intended audience,” whereas the Film is “centered on strippers” and uses the Song “while a scantily clad woman ... begins to perform a strip dance routine.” . . . These descriptions only confirm that Defendants’ use transforms the Song: Whereas the Song communicates a light-hearted children’s story about a student looking forward to lunch in the school cafeteria, the Film depicts decidedly mature themes that portray fish sticks not as a lunch food, but as a component of a “reverse mermaid.” . . . These are, undoubtedly, “new aesthetics.” . . . Even if the Film were purely commercial, as Plaintiffs allege, because the secondary use is of a transformative nature, the first factor still weighs in favor of Defendants. . . . Factor Two: Nature of the Copyrighted Work . . . Notwithstanding Plaintiffs’ characterization of the Song, the transformative nature of the Film renders the second factor “of limited usefulness.” . . . And while Plaintiffs argue that Defendants have not provided an adequate justification for their use, such requirement is satisfied when the secondary use is found to be transformative. . . . Factor Three: Amount and Substantiality . . . Quantitatively, the Film uses eight seconds of the Song’s 190 seconds, or 4.21 percent of the Song. . . . Plaintiffs argue that because the segment used is repeated three times in the Song, that the total used is more accurately 12.63 percent of the Song. . . . Yet Plaintiffs do not point to a single instance in which a copyrighted work’s repeated refrain was counted more than once for the quantitative assessment. . . . Even assuming that this segment is the “heart” of the Song, . . . use of the “heart” of a work is permissible when it is necessary to achieve its transformation. Such is the case with Defendants’ use — the dance depicted in the Film requires the phrase “fish sticks and tater tots” to communicate the “reverse mermaid” transformation.

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Factor Four: Effect Upon the Potential Market or Value . . . Plaintiffs repeatedly acknowledge that the Film targets a different audience from their own, noting that they “created the Song with children being the intended audience,” whereas the Film is “centered on strippers” and is used “during a scene in which a woman dances to the Song while removing her clothing.” . . . As the Film’s use is transformative of the original, the potential market — children or those who would acquire the Song on behalf of children — would not “opt to acquire the copy” of a limited eight seconds of the Song “in preference to the original.” . . . Put another way, it is unlikely that parents would purchase copies of the film for their minor children so that they could hear the excerpt of the Song in the Film. . . . Here, it is unreasonable to consider the potential uses named by Plaintiffs, which were unalleged in their complaint and only provided in response to Defendants’ motion. Because Defendants met their burden by showing that the Film’s secondary use would not usurp that of the original, other similarly hypothetical uses would equally not deprive them of prospective audiences. Thus, the fourth factor weighs in favor of Defendants. NOLAND V. JANSSEN No. 17-CV-5452 (JPO), 2020 WL 2836464 (S.D.N.Y. Jun. 1, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - sculptural work Topics: Infringement - extraterritoriality, Defenses - fair use, Rights of certain authors to attribution and integrity - effective date, Rights of certain authors to attribution and integrity - authorship In 1990, Defendant Wilhelm Schürmann, a German art collector, purchased a wooden sculpture by renowned visual artist Cady Noland. The sculpture, which resembles the façade of a log cabin and is aptly titled “Log Cabin Façade,” was displayed outdoors in Germany for several years on the bare ground. The elements took their toll, and in December 2010, at the direction of Defendant Schürmann and Defendant KOW, a conservator replaced the sculpture’s original, then-rotted wooden components with new parts fabricated by the same Montana manufacturer as the original logs. Noland claims that the refurbishment and later attempt to sell the refurbished work infringed her copyright in the work and violated her moral rights under the Visual Artists Rights Act (“VARA”), 17 U.S.C. § 106A. Now before the Court is Defendants’ motion to dismiss the Third Amended Complaint. . . . For the reasons that follow, the motion is granted. . . . A. Extraterritoriality . . . Noland has failed to allege a predicate act that would render Defendants liable for their conduct occurring in Germany. And “[b]ecause ‘VARA is part of the Copyright Act,’ ... this conclusion applies with equal force to both her infringement and VARA claims,” to the extent those claims rest on conduct abroad. B. Domestic Allegations . . . As to the first factor . . . [t]he Court is persuaded by the reasoning of other courts that have found that disseminating photographs of copyrighted works “to provide information to legitimate purchasers under the first sale doctrine” rather than for “the artistic purpose of [the creator’s] original” work is transformative. . . .

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Moving on to the second fair use factor, the Court recognizes that the creative nature of the copyrighted work — a sculpture intended as a means of artistic expression — would typically weigh against fair use. But “[t]his factor ... has rarely played a significant role in the determination of a fair use dispute,” . . . and is of “limited usefulness where the creative work of art is being used for a transformative purpose.” . . . The third factor . . . also weighs against fair use, given that the images allegedly depicted the entire work. But like the second factor, the third factor is of limited significance in the context of a legitimate sale: “A buyer cannot be expected to purchase a work of art having seen only a snippet of it.” . . . Noland does not argue that the photographs and plans adversely impacted the market for the original work; to the contrary, she admits that the dissemination of those copies “helped establish the market [for the original] at a considerable price.” . . . Noland instead contends that this factor nonetheless tips in her favor because the sellers were not entitled to the benefits of the sale of the refurbished Log Cabin Façade, as the sale was not protected by the first sale doctrine. . . . But Defendants’ entitlement to sell the refurbished work is orthogonal to the impact of the photographs and plans on the market for the original work. And it is the dissemination of those photographs and plans — not the refurbishment and sale of Log Cabin Façade — that is under consideration. In any event, as the Court has already held, the first sale doctrine does apply with full force to the sale of the refurbished work. The fourth factor tips decidedly toward fair use. . . . VARA Claims . . . Noland faces an uphill battle in defending her VARA claims: the creation of the original Log Cabin Façade concededly predates VARA’s effective date . . . and the original work as sold in 1990 does not qualify for that statute’s protection. Noland does not contest that the sculpture did not initially qualify for protection under VARA. Rather, she argues that she authored a derivative work when she permitted Schürmann to stain the sculpture sometime after the effective date of the statute, and that derivative work is entitled to VARA protection. . . . Even if the Court were to make many of the leaps required by Noland’s line of reasoning — that the staining created a copyrightable derivative work, that the derivative work qualifies for protection under VARA, and that the marketing of the refurbished stained work violated those rights — Noland still would not prevail on her claim. That is because the author of the derivative work — and therefore the holder of any VARA rights vis-à-vis the staining — would be Schürmann, not Noland. According to Noland’s own allegations, the idea and request to stain the work originated with Schürmann and it was Schürmann who effectuated the staining. . . . He would therefore be the author of the stained derivative work. LATIN AM. MUSIC CO. V. SPANISH BROAD. SYS., INC. No. 13-CV-1526 (RJS), 2020 WL 2848232 (S.D.N.Y. Jun. 1, 2020) Outcome: Motion for attorneys fees and costs - granted Works of Authorship: Music - sound recording Topics: Remedies - attorneys fees

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Plaintiffs Latin American Music Company, Inc. (“LAMCO”) and Asociación de Compositores y Editores Musica Latinoamericana de Puerto Rico, Inc. (“ACEMLA,” and together with LAMCO, “Plaintiffs”) brought this action for copyright infringement against Spanish Broadcasting System, Inc. (“SBS” or “Defendant”). On May 17, 2017, after presiding over a bench trial, the Court concluded that Plaintiffs failed to carry their burden of proof and directed entry of judgment in favor of Defendant. . . . On October 4, 2018, the Second Circuit affirmed the Court’s judgment. . . . Now before the Court is Defendant’s motion for attorneys’ fees pursuant to 17 U.S.C. § 505, or alternatively pursuant to Federal Rules of Civil Procedure 11, 26, and 37 and the Court’s inherent authority. For the reasons set forth below, the Court grants Defendant’s motions and concludes that Defendant is entitled to $845,040.95 in attorneys’ fees and costs. MCGUCKEN V. NEWSWEEK LLC No. 19 CIV. 9617 (KPF), 2020 WL 2836427 (S.D.N.Y. Jun. 1, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - photograph Topics: Defenses - license, Defenses - fair use, Remedies - willful infringement, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements Plaintiff Elliot McGucken is a photographer who focuses on landscapes and seascapes. On March 13, 2019, Plaintiff posted on his Instagram account a photograph of an ephemeral lake (the “Photograph”) that had appeared in Death Valley, California. The following day, Defendant Newsweek published an article about the ephemeral lake (the “Article”), embedding Plaintiff’s Instagram post of the lake as part of the Article. Plaintiff brought this action for copyright infringement, alleging that Defendant reproduced and displayed the Photograph on its website without his consent. Defendant moves to dismiss the action for failure to state a claim, arguing, inter alia, that it either had a valid sublicense to use the Photograph as a result of Plaintiff’s public post on Instagram, or that its publication of the Photograph constituted fair use. For the reasons set forth in the remainder of this Opinion, Defendant’s motion is granted in part and denied in part. . . . 1. The Court Cannot Find at This Stage That Defendant Acted Pursuant to a Valid Sublicense . . . [T]he Court cannot dismiss Plaintiff’s claims based on this licensing theory at this stage in the litigation. As Plaintiff notes in his supplemental opposition brief, there is no evidence before the Court of a sublicense between Instagram and Defendant. . . . Although Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content . . . none of them expressly grants a sublicense to those who embed publicly posted content. Nor can the Court find, on the pleadings, evidence of a possible implied sublicense. . . . Given the limited review permitted at this stage, the Court cannot find that Defendant acted pursuant to a sublicense from Instagram. . . . 2. Defendant’s Embedding of the Photograph Did Not Constitute Fair Use as a Matter of Law . . . Comparing the Photograph with its use in the Article, as the Court must do on a motion to

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dismiss, the Court cannot find as a matter of law that Defendant’s use of the Photograph was transformative. . . . Plaintiff posted the Photograph as an illustration of a phenomenon he observed, and Defendant similarly used the Photograph primarily as an illustrative aid depicting the subject of the Article. . . . And while it is true that the Article incorporates quotes from Plaintiff about the taking of the Photograph, the mere addition of some token commentary is not enough to transform the use of a photograph when that photograph is not itself the focus of the article. . . . Drawing all reasonable inferences in Plaintiff’s favor, the Court finds that the second factor favors neither party. Although Defendant does not attempt to argue that the second factor weighs in its favor — instead asserting that the second factor is largely inconsequential . . . — it certainly seems that the Photograph required some element of creative expression through its framing and coloration. . . . Given the purpose for which the Photograph was used in the Article, it is difficult for the Court to see how less than the entirety of the Photograph could have been used. . . . Defendant’s use of the Photograph was both commercial and a mere duplication of the original, as opposed to constituting a transformative use. Thus, the presumption applies here. . . . And given the applicability of the presumption and the lack of any countervailing considerations in the pleadings, the Court finds that the final factor favors Plaintiff. . . . 3. Plaintiff Has Adequately Pleaded Willfulness . . . Plaintiff alleges that he sent a cease and desist letter to Defendant regarding the Photograph, and that Defendant maintained its use of the Photograph in spite of that letter. . . . Although the pleadings are sparse, they are enough to raise a plausible inference that Defendant acted willfully in its infringement of the Photograph. . . . The Court Grants Defendant’s Motion to Dismiss Plaintiff’s Claims for Contributory and Vicarious Infringement . . . Defendant is correct that the Amended Complaint fails to allege any facts that would support a claim of either contributory or vicarious liability. Indeed, apart from alleging that unidentified defendants “contributed to the infringement of Plaintiff’s copyrights, or have engaged in one or more of the wrongful practices alleged herein” . . . there are no facts supporting the existence of any third parties, as both theories clearly require. All of Plaintiff’s allegations regarding his claims for contributory and vicarious infringement are no more than “threadbare recitals of the elements of a cause of action,” . . . and therefore fail to meet the pleading standards required by Iqbal and Twombly. Accordingly, Defendant’s motion to dismiss Plaintiff’s claims for contributory and vicarious infringement is granted. WALSH V. TOWNSQUARE MEDIA, INC. No. 19-CV-4958 (VSB), 2020 WL 2837009 (S.D.N.Y. Jun. 1, 2020) Outcome: Motion for judgment on the pleadings - granted Works of Authorship: Visual work - photograph Topics: Defenses - fair use Plaintiff Rebecca Fay Walsh brings this action against Townsquare Media, Inc., asserting a claim of copyright infringement in connection with Defendant’s unlicensed publication in an online article (the “Article”) of a copyrighted photograph (the “Photograph”) taken by Plaintiff. Before me is Defendant’s motion for judgment on the pleadings. Because Defendant’s publication of the

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Photograph constituted fair use, Defendant’s motion for judgment on the pleadings is GRANTED. . . . Applying these principles and drawing all inferences in Plaintiff’s favor, this factor favors Defendant because the Article uses the Photograph for an entirely different purpose than originally intended. The Photograph was taken to “depict Cardi B at Tom Ford’s fashion show.” . . . However, as is apparent on the face of the Article, . . . Defendant published the Post, which incidentally contained the Photograph, because the Post—or, put differently, the fact that Cardi B had disseminated the Post—was the very thing the Article was reporting on. . . . Here, the Photograph contains “both informational and creative elements”: it was taken to “document [its] subject,” a celebrity, but also displays some “technical skill and aesthetic judgment.” . . . As a quantitative matter, the Post included an uncropped, though resized, version of the Photograph. As a qualitative matter, however, although Plaintiff complains that Defendant could have used any other image of Cardi B to accompany its article or requested a license from Plaintiff, . . . the Post is the only image that could have accomplished XXL Mag’s journalistic objective of describing a social media story and providing readers with the relevant posts. Even the Photograph itself, on its own, would not have been a reasonable substitute. Further, within its objective, Defendant used only as much of the Photograph as was already included in Cardi B’s Post; in other words, “no more was taken than necessary.” . . . Here, because the Photograph did not appear on its own, but as part of the Post, alongside text and another image, it is implausible that Defendant’s use would compete with Plaintiff’s business or affect the market or value of her work. CHIYKOWSKI V. GOLDNER No. 19-CV-2272 (AJN), 2020 WL 2834225 (S.D.N.Y. May. 31, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - game Topics: Ownership - pleading requirements, Copyright registration - registration requirement, Infringement - pleading requirements Plaintiff Peter Chiykowski, a visual artist, comics illustrator, and an author of songs, short stories, webcomics, and comic books and strips, brings this suit against Defendants Marc Goldner and two limited liability companies of which Goldner is an officer and member, Golden Bell Entertainment, LLC and Golden Bell Studios, LLC, alleging copyright infringement, fraudulent inducement, and breach of contract claims, and seeking a declaratory judgment. Before the Court is Defendants’ partial motion to dismiss the copyright infringement and declaratory judgment claims for failure to state a claim upon which relief can be granted. For the reasons that follow, Defendants’ partial motion to dismiss is DENIED. . . . Applying the elements articulated above, the Court concludes that the Second Amended Complaint sufficiently pleads a claim for copyright infringement. First, it identifies the specific original works that are the subject of the copyright claim as the illustrations that Defendants submitted in support of their trademark applications to the United States Patent and Trademark

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Office. . . . Second, it alleges that Plaintiff owns the copyright in those illustrations under Canadian law. . . . Third, it alleges that these illustrations are not United States works—and are thus exempt from § 411’s registration requirement—because they were published for the first time in Canada or are unpublished. . . . And fourth, it alleges that Defendants infringed Plaintiff’s copyrights when they used Plaintiff’s illustrations in support of trademark applications they submitted to the United States Patent and Trademark Office. CAPSTONE LOGISTICS HOLDINGS, INC. V. NAVARRETE No. 17 CIV. 4819 (GBD) (BCM), 2020 WL 3429775 (S.D.N.Y. Jun. 23, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Literary work - computer program Topics: Copyrightability - originality, Scope of protection - merger, Vicarious infringement - right and ability to control, Vicarious infringement - financial benefit Plaintiffs Capstone Logistics Holdings, Inc., Capstone Logistics, LLC, and Pinnacle Workforce Logistics, L.L.C. (collectively, “Plaintiffs” or “Capstone”) bring claims against Defendants Humano, LLC, Pedro Navarrete, David Poffenberger, Steven Willis, and Mario Rojas (collectively, “Defendants”), for breach of contract, misappropriation of trade secrets, breach of fiduciary duty, tortious interference, fraud, unjust enrichment, copyright infringement, and unfair competition. . . . Pending before this Court are Plaintiffs’ motion for summary judgment . . . . Additionally, Defendants move to vacate the preliminary injunction, which this Court upheld in its October 25, 2018 Findings of Fact and Conclusions of Law (“FFCL”). . . . The relevant factual background is set forth in the FFCL and is incorporated by reference herein. Plaintiffs’ motion for summary judgment is GRANTED. Plaintiffs are entitled to monetary damages to the extent they can prove them. The preliminary injunction is hereby replaced by a permanent injunction. Defendants are permanently enjoined from directly or indirectly accessing, using, disclosing, disseminating, or otherwise misappropriating any of Plaintiffs’ confidential and proprietary information and trade secrets, including but not limited to, Plaintiffs’ MobilTrak technology. . . . Regarding the first issue, the evidence in the record supports a finding that MobilTrak is “original.” Plaintiffs describe, in detail, the “creative choices” made throughout the development of MobilTrak, as well as the fact that the program was written “from scratch.” . . . Plaintiffs further rely upon testimony and expert opinions to support their argument that MobilTrak is original and incorporates creative choices by its builders. . . . Defendants, however, assert that the merger doctrine applies—arguing that the question of whether MobilTrak was original is better left to the jury. . . . Defendants’ theory is unavailing. As Plaintiffs correctly note, while Defendants assert that there is a merger, they do not provide any evidence demonstrating that the idea behind the creation of MobilTrak is not distinguishable from its expression, or that there are no other methods or constructions that may be used to create the same type of technology. . . . Indeed, Plaintiffs’ expert agreed that there are other ways to reach the same result . . . and even Townsend admitted during his deposition that he could have built Genesis on a different program

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or used a different code, and that there were alternative ways to reach the same result . . . . Defendants therefore fail to carry their burden of demonstrating that the merger doctrine applies. It is also clear that Defendants are responsible for the infringement of MobilTrak technology. . . . To support their claim that Defendants caused the infringement, Plaintiffs point to the undisputed facts that Defendants told Townsend to create a platform similar to MobilTrak and that Defendants were aware that those building the technology had the ability to infringe, evidenced by the fact that Defendants told Theraytow not to copy and paste MobilTrak. . . . Defendants argue that they “reasonably relied upon Townsend’s representations that the new program was built from scratch” and that they “stopped using Genesis after analysis of the source code revealed potential copying.” . . . Based on the evidence in the record, however, it was not reasonable for Defendants to rely upon any such assurances. First, Defendants used documentation virtually identical to that of Plaintiffs’, and offer no explanation as to how they would not have noticed this. Additionally, it was unreasonable for Defendants to accept that Townsend was able to complete building Genesis in such a short period of time, given the extensive work he previously put into building MobilTrak. This is particularly unreasonable because Defendants were aware that individuals who were working on Genesis—who previously worked on the creation of MobilTrak—had access to and were capable of copying MobilTrak functionality and documentation, The Defendants, therefore, acted unreasonably in not checking on the program to ensure that there was no infringement on any copyright. . . . The evidence minimally demonstrates that Defendants did not properly supervise the creation of Genesis, and instead, rushed a project that should have taken a great deal of time, causing Townsend and others to copy the MobilTrak technology. Regarding the question of whether Defendants benefited from the infringed material, there is no genuine factual dispute. Humano utilized this technology to assist with its work in acquiring and keeping clients, including by transitioning DPI and other customers from Capstone to Humano. . . . Defendants do not dispute that Genesis was a major selling point in transitioning DPI over to Humano. Therefore, Plaintiffs have properly demonstrated that Defendants infringed on their copyrighted material. HELLO I AM ELLIOT, INC. V. SINE No. 19 CIV. 6905 (PAE), 2020 WL 3619505 (S.D.N.Y. Jul. 2, 2020) Outcome: Motion to dismiss - granted, Motion for preliminary injunction - denied Works of Authorship: Literary work - computer program Topics: Ownership - declaratory judgment, Copyright registration - registration requirement Plaintiffs Hello I Am Elliot, Inc. (“Hello I Am Elliot”), and Sergio Villasenor, Hello I Am Elliot’s Chief Executive Officer, bring this action against defendant Derek J. Sine, along with defendants Vander Holdings LLC, Vander Global, LLC, and Vander Group, LLC (together, the “Vander Entities”). Plaintiffs bring claims in trademark, copyright, defamation, and tortious interference with prospective business relations under both federal and state law. Plaintiffs allege that defendants improperly used Hello I Am Elliot’s trademark (the “ELLIOT” mark) on their website and social media postings, and defamed Villasenor to Hello I Am Elliot’s investors and

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board of directors. Defendants move to dismiss plaintiffs’ Amended Complaint, while plaintiffs move for a preliminary injunction. For the reasons that follow, the Court grants defendants’ motion to dismiss in full and denies plaintiffs’ motion for a preliminary injunction. . . . Even if there were an actual controversy, the AC faces a second obstacle: It has not alleged an independent cause of action. While the AC does not state as much, the Court assumes that plaintiffs base their copyright claim on the Copyright Act. But neither the Copyright Act, nor any other relevant statute, supplies a cause of action for the relief the AC seeks: a declaration of copyright ownership. . . . Further, the AC cannot rely on the Copyright Act’s cause of action for copyright infringement. That is because a plaintiff cannot bring a copyright infringement suit “until preregistration or registration of the copyright claim has been made[.]” . . . Plaintiffs here have not registered their copyright in Hello I Am Elliot, and thus would be barred from pursuing that cause of action—and a corresponding declaratory judgment. PEARSON EDU., INC. V. ABC BOOKS LLC No. 19-CV-7642 (RA), 2020 WL 3547217 (S.D.N.Y. Jun. 30, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - book Topics: Infringement - pleading requirements Plaintiffs Pearson Education, Inc., McGraw-Hill Global Education Holdings, LLC, Cengage Learning, Inc., Bedford, Freeman & Worth Publishing Group, LLC, and Elsevier Inc. filed this action for copyright infringement, trademark infringement, and breach of contract. Now before the Court is Defendant Christopher Claude Ault’s motion to dismiss the First Amended Complaint pursuant to Federal Rules of Civil Procedure 8(a), 12(b)(2), and 12(b)(6). For the reasons that follow, Defendant Ault’s motion is denied. . . . Not only are the Complaint’s allegations as to Ault sufficient to put him on “fair notice,” . . . but also the exhibits attached to the Complaint further clarify—to the extent not already evident—which claims are asserted by which Plaintiffs against him. Based on Exhibits A and C, for instance, it is clear that Plaintiffs assert copyright infringement claims against Ault based on his alleged infringement of the copyrights of Plaintiffs McGraw-Hill, Cengage, Pearson, and Bedford. . . . The Complaint, particularly in conjunction with its exhibits, sufficiently gives Ault notice of the allegations and claims asserted against him. . . . For similar reasons, the Court agrees with Plaintiffs that, at this time, there is no “claim by Elsevier,” “trademark counterfeiting claim by [Bedford],” or “secondary copyright infringement” claim asserted against Ault for the Court to dismiss under Rule 12(b)(6). . . . Accordingly, Ault’s motion under Rules 8(a) and 12(b)(6) is denied. MARANO V. METROPOLITAN MUSEUM OF ART No. 19-CV-8606 (VEC), 2020 WL 3962009 (S.D.N.Y. Jul. 13, 2020) Outcome: Motion to dismiss - granted

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Works of Authorship: Visual work - photograph Topics: Defenses - fair use Plaintiff Lawrence Marano (“Marano” or “Plaintiff”) sued the Metropolitan Museum of Art (“Met” or “Defendant”) for willful copyright infringement under Sections 106 and 501 of the Copyright Act . . . . The Court ordered Plaintiff to show cause why this case should not be dismissed under the fair use exception of the Copyright Act . . . . As detailed below, because Plaintiff has failed to show why the Met’s use of his photograph (the “Photo”) is not protected by the fair use exception, the case is DISMISSED. . . . A. Purpose and Character of the Use . . . The Second Circuit’s decision in Bill Graham all but decides this case. . . . The Met’s use of the Photo is analogous on all three dimensions. First, Plaintiff and the Met used the Photo for entirely different purposes. Plaintiff asserts that he created the Photo to show “what Van Halen looks like in Performance” and that “the original meaning” behind the Photo was to “convey the message that Van Halen is a groundbreaking and unorthodox musician.” . . . In contrast, the Met spotlights the “Frankenstein” guitar—using the Photo to reference and contextualize the exhibition object, which Van Halen pieced together himself “to achieve the ultimate guitar for tone, playability, dependability, and functionality.” . . . Just as the defendant in Bill Graham used the concert poster “as a recognizable representation of the [Grateful Dead] concert,” . . . the Met used Plaintiff’s Photo as an historical artifact and a “recognizable representation” of the “Frankenstein” guitar in action . . . . Second, the Met used Plaintiff’s Photo in a scholarly context. Considering that the “instruments used in rock and roll had a profound impact on this art form that forever changed music,” the “Frankenstein” guitar is historically significant within the world of hard rock music. . . . As with images in biographical books, museum exhibitions often incorporate other source material for “optimum treatment of their subjects.” . . . Plaintiff’s Photo is displayed on the biographical page for the exhibition object—the very instrument depicted in the Photo—in order to “document and represent the [use of the guitar],” . . . that “spawned legions of copies ... and inspired generations of fans to design their own instruments,” . . . . Third, the Photo constitutes an “inconsequential portion” of the Met’s online catalogue. Plaintiff’s Photo is a single image surrounded by pages of navigable textual, visual, and audio content. . . . The Photo is located several page-clicks within the actual catalogue of 185 object pages. . . . And even on the “Frankenstein” guitar’s page—the primary focus of which is historical and descriptive text and photographs of the guitar—the Photo is almost an afterthought. . . . In short, the online catalogue’s layout is designed to enrich and elaborate the guitar’s historical significance, primarily utilizing other photographs and text to do so. . . . Plaintiff argues that because the Met charges a general admission fee to out-of-town visitors to the museum, it is a commercial enterprise and therefore the use at issue is commercial, notwithstanding the Met’s status as a nonprofit organization. . . . While discovery might be helpful in providing additional information about the Met’s revenue structure or how profitable this particular exhibition was, the relevant issue is not the Met’s business model but whether the use at issue is commercial in nature. Even in the unlikely event that discovery would reveal that

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Plaintiff’s Photo drove viewers to visit the Met’s galleries and pay admission fees, the Court would not place much significance on that fact due to the transformative nature of the secondary use. . . . B. Nature of the Copyrighted Work . . . The Photo is indisputably creative and published. . . . C. Amount and Substantiality of the Portion Used . . . While the Photo is displayed in its entirely, such use is reasonable in light of the purpose and character of the use. The Met uses the Photo as an historical artifact providing visual context for the exhibition object and the accompanying factual information about the object. . . . In order to achieve this purpose, it is reasonable that the Met included the full picture of Van Halen playing the “Frankenstein” guitar. . . . D. Effect of the Use Upon the Market for or Value of the Original . . . Plaintiff argues that museums are a potential market for his work because they are shifting towards more modern, pop-culture centered exhibits. . . . He requests discovery to establish whether that market is “likely to be [a] developed market.” . . . But Plaintiff “cannot prevent others from entering fair use markets merely by developing or licensing a market [for] transformative uses of [his] own creative work.” . . . A traditional market for the Photo would be collectors of photographs of rock legends or other persons seeking to showcase Van Halen. Being generous, that market might even extend to museums exhibiting musicians. But the Met’s use of the Photo to visualize the “Frankenstein” guitar as played by Van Halen falls into a different, transformative market. It is thus unlikely that markets for the Photo’s original expressive purpose would be affected in any way. In any event, Plaintiff has offered only conclusory assertions that the Met’s use has caused “a meaningful or significant effect upon the potential market for the copyrighted work.” FEINGOLD V. RAGEON, INC. No. 18-CV-2055 (KMW), 2020 WL 4003152 (S.D.N.Y. Jul. 15, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Copyright registration - collective work, Infringement - evidence of copying, Limitations on liability relating to material online - financial benefit, Limitations on liability relating to material online - expedtiousness Plaintiff Deborah Feingold has brought an action for copyright infringement against Defendant RageOn, Inc. Pending before the Court are the parties’ cross-motions for summary judgment. At issue is whether Plaintiff owns valid copyrights for two photographs—one of Madonna and one of Keanu Reeves. For the reasons set forth below, the Court grants Plaintiff’s motion for summary judgment and denies Defendant’s motion for summary judgment. . . . A. Ownership of a Valid Copyright . . . Bright Moments—Plaintiff’s book of photographs, including the Madonna Photograph—is an unpublished collective work. . . . Plaintiff claims that her copyright for Bright Moments under Copyright Registration No. VAu 1-091-877 protects the Madonna Photograph. Defendant argues that the Madonna Photograph falls outside of the coverage of the Bright Moments copyright because the photograph was published prior to its

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inclusion in Bright Moments. . . . The Court finds that the Madonna Photograph remained unpublished when it appeared in Bright Moments and when Bright Moments was registered. The Bright Moments copyright therefore protects the Madonna Photograph. . . . B. Actual Copying and Appropriation . . . Defendant cannot and does not deny that RageOn offered for sale an item bearing a reproduction of the Reeves Photograph that is nearly identical to the original work. Defendant notes, and Plaintiff acknowledges, that the RageOn image is a “mirror” of the Reeves Photograph, so that it shows Keanu Reeves facing to the left rather than to the right. But this type of manipulation can be accomplished in a matter of seconds by anyone with a basic image-editing application. The similarities between the RageOn image and the original work remain highly probative of copying, and a lay observer would readily recognize that the RageOn image was appropriated from the Reeves Photograph. Plaintiff is entitled to judgment as a matter of law on her claim that Defendant infringed her valid copyright of the Reeves Photograph. . . . The Digital Millennium Copyright Act Safe Harbor . . . Defendant does not qualify for the protections of the DMCA for at least two reasons. First, Defendant received a financial benefit directly attributable to the infringing activity—in the form of revenue from the sale of infringing merchandise—and Defendant had the right and ability to control that activity. . . . Here, RageOn sold t-shirts bearing infringing images. The connection between the infringing activity and RageOn’s financial benefit could hardly be more direct. Second, Defendant did not expeditiously remove the infringing merchandise. . . . Defendant admits that it took at least 18 days to remove the infringing Reeves item, and 18 to 23 days to remove the infringing Madonna items. . . . In this context—and, particularly, in light of Defendant’s initial assurance that it would act within 24 hours—Defendant’s efforts to remove the infringing items cannot be considered expeditious. KRISKO V. MARVEL ENTM'T, LLC No. 1:19-CV-9256-GHW, 2020 WL 4194940 (S.D.N.Y. Jul. 21, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Music - musical work Topics: Infringement - striking similarity, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements Professor Xavier’s School for Gifted Youngsters was built to defend the different. Mutants travel (or teleport) from all over the world to shelter within the institute’s walls, and learn to cultivate their abilities to protect what makes them unique. For those of us who sadly lack the X-gene, copyright law provides something similar: it safeguards the rights of the unique and gifted by protecting their original creations. This is a case about an alleged invasion of those rights. The question before the Court is whether Zoltan Krisko has adequately pleaded that two pieces of music—one written in Hungary and one in California—are so strikingly similar that he will be permitted to take discovery to try to prove

Joshua L. Simmons joshua.simmons@kirkland.com

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his claims of copyright infringement. Because the Court finds that he has, and for the reasons that follow, the motions to dismiss are granted in part and denied in part. . . . Krisko details enough facts that, taken together, sufficiently permit his complaint to survive Defendants’ motions. Indeed, he asserts that the “subject” is exactly the same in both songs—and numerous courts in this district have recognized that “it is the melody which is the most important feature of the music.” . . . Krisko alleges a laundry list of similarities between the two theme songs. Plus, the mere existence of differences does not preclude two works from otherwise being strikingly similar; as Judge Hand put it, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” . . . Krisko alleges that, among other things, the melodies in the two songs are strikingly similar—not just that two short musical phrases “are in the same key, have about the same tempo, share a harmonization, and ... use a synthesizer with rhythm accompaniment.” . . . Krisko has not alleged any facts supporting the inference that Chappell or BVT are secondarily liable under a theory of contributory infringement—just that Saban and Levy might be. . . . The complaint certainly pleads facts supporting a theory of contributory infringement against both Saban and Levy. Both are alleged to have copied Linda’s theme song while composing the X-Men song, and then, as the owners of Saban Entertainment, distributed it to Marvel. But there is no factual support in the complaint for the conclusion that Chappell or BVT or (or Saban Entertainment itself) knew or had any reason to know of the copyright infringement at issue here. Only one paragraph in the complaint even mentions Chappell’s involvement . . . . The rest of the complaint mentions Chappell only to either describe Chappell’s ownership of the copyright of the X-Men theme song . . . or to note Chappell’s “substantial[ ]” profits from “the stolen work,” . . . . Similarly, BVT is mentioned in only a few places, and only with respect to its role as a distributor of the X-Men television show. . . . This is plainly insufficient to plead contributory infringement. . . . With the exception of Saban and Levy, Krisko has also failed to plead enough facts to support a claim for vicarious liability against any of the defendants. . . . And aside from a single paragraph in the complaint where Krisko conclusorily states that “Defendants Marvel, Chappell, Disney, BVT, Saban, and Levy have had the right and ability to control other infringers and have derived a direct financial benefit from that infringement such that Defendants should be found to be vicariously liable,” . . . nothing in the complaint adduces any facts that Marvel, Chappell, Disney, or BVT had any “right” or “ability to supervise” any infringing activity. The mere fact that “Saban Entertainment, Chappell, and Marvel have each profited directly from their licensing of the X-Men theme” does not, despite Plaintiff’s assertions to the contrary, “render[ ] them vicariously liable for their licensee distributors’ infringement.” . . . Similarly, the fact that “Marvel and Disney’s predecessor, Genesis Entertainment, created and produced the X-Men show, which contains the X-Men theme” and the fact that “they profited by distributing it to the other defendants for re-distribution” does not, alone, support a claim for vicarious liability. HUGHES V. BENJAMIN No. 17-CV-6493 (RJS), 2020 WL 4500181 (S.D.N.Y. Aug. 5, 2020)

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Outcome: Motion for attorneys fees and costs - granted Works of Authorship: Audiovisual work - film Topics: Remedies - attorneys fees Defendant Carl Benjamin, also known as “Sargon of Akkad,” brings this motion for attorneys’ fees pursuant to 17 U.S.C. § 505 following the Court’s dismissal of the copyright infringement action brought by Plaintiff Akilah Hughes against Benjamin and ten “John Doe” defendants. For the reasons set forth below, the Court grants Benjamin’s motion and concludes that he is entitled to $38,911.89 in attorneys’ fees and costs. HUDSON FURNITURE, INC. V. MIZRAHI No. 20 CIV. 4891 (PAC), 2020 WL 5202118 (S.D.N.Y. Sep. 1, 2020) Outcome: Motion for preliminary injunction - granted Works of Authorship: Visual work - design Topics: Remedies - preliminary injunction Plaintiffs Hudson Furniture and Barlas Baylar (“Plaintiffs” or “Hudson”) have moved against Defendant Alan Mizrahi and his company Lighting Design Wholesalers, Inc. (LDW) (together “Defendants” or “Mizrahi”) for a preliminary injunction pursuant to Rule 65. Plaintiffs proceed on the basis that Mizrahi is distributing, offering for sale and/or selling counterfeits of Plaintiffs’ lighting designs, which infringe on several of Hudson's design patents. According to Hudson, Mizrahi has taken copyrighted images of Hudson's products and displayed them on his websites thereby deceiving consumers into believing that Hudson is the source of the offending products. Hudson brings various copyright infringement claims, under 17 U.S.C. § 101, trademark infringement under Section 32 of the Lanham Act, 15 U.S.C. § 1114(1)(a), unfair competition and false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and patent infringement, under 35 U.S.C. § 289. . . . The Court denies Defendants’ motion to dismiss for lack of personal jurisdiction. For the reasons below, the Court grants the motion for a preliminary injunction in part against Mizrahi and Lighting Design Wholesalers, Inc. . . . Plaintiffs have submitted sufficient evidence to establish that they are likely to succeed on the merits of a copyright infringement claim. Plaintiffs have submitted evidence that they own or control valid copyrights of the relevant images. . . . Hudson has also submitted evidence that Mizrahi, without permission from Plaintiffs, posted and hosted unauthorized copies of Hudson's images on the Mizrahi websites to advertise its sale of unauthorized reproductions of Hudson's lighting fixtures. . . . Mizrahi does not deny unauthorized use of Hudson's images. According to Mizrahi, if Hudson had sent a cease and desist letter he would have removed images of Hudson's fixtures. . . . The images posted by Mizrahi create a fictitious association with Hudson and confuse consumers about the origin, sponsorship, or endorsement of Mizrahi's products. MOURABIT V. KLEIN

Joshua L. Simmons joshua.simmons@kirkland.com

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No. 18 CIV. 8313 (AT), 2020 WL 5211042 (S.D.N.Y. Sep. 1, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - makeup Topics: Remedies - attorneys fees Plaintiff, Sammy Mourabit, brought this action against Defendants, Francois Nars, Shiseido America, Inc., Shiseido International (the “Shiseido Defendants”); Steven Klein, Steven Klein Studio, Inc., and Steven Klein Studio, LLC (the “Klein Defendants”) alleging copyright infringement under the Copyright Act of 1976 . . . and several state law claims. . . . The Shiseido Defendants and the Klein Defendants moved to dismiss the amended complaint under Rule 12(b)(6) . . . . On July 2, 2019, the Court entered an order granting Defendants’ motions to dismiss and motions for sanctions against Plaintiff's counsel under 28 U.S.C. § 1927 (the “July Order”). . . . On September 13, 2019, the Court granted a motion for reconsideration filed by Plaintiff's counsel, and vacated the portion of the July Order awarding sanctions. . . . Now before the Court are motions for attorney's fees under the Copyright Act . . . brought by the Shisheido Defendants and the Klein Defendants. . . . For the reasons that follow, Defendants’ motions are DENIED. GREAT MILL ROCK LLC V. STELLEX CAPITAL MGMT. LP No. 20 CIV. 3056 (CM), 2020 WL 5370626 (S.D.N.Y. Sep. 4, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - Internet work Topics: Ownership - assignment Plaintiffs Great Mill Rock LLC (“GMR”), Christopher Whalen (“Whalen”), and Adi Pekmezovic (“Pekmezovic”) bring this action alleging claims for unfair competition under 15 U.S.C. § 1125(a) (“Lanham Act”), common law trademark infringement and unfair competition, as well deceptive trade practices, false advertising, conversion, fraudulent inducement, and tortious interference with prospective economic advantage under New York law. Plaintiffs also seek declarations of ownership and non-infringement of related trademarks and copyrights. Plaintiffs allege that Defendants Stellex Capital Management LP and Stellex Capital Management LLC (collectively, “Stellex”) have misappropriated their intellectual property in the form of trademarks and website text, and that they and Defendant J. Anthony Braddock (“Braddock”) interfered with Plaintiffs’ business dealings by withholding their mail, emails, and electronic files. . . . Before the court is Defendants’ Fed. R. Civ. P. 12(b)(6) Motion to Dismiss each of the complaint's eleven counts for failure to state a claim. . . . Defendants’ motion to dismiss is DENIED. . . . There is no great need to analyze why each and every claim survives the motion. In the end, they all survive for the same reason: the outcome depends on whether the MOU was binding and for what purposes – a matter of considerable importance, since the Proposed Funds were never ultimately raised, so Plaintiffs were never called on to perform the services contemplated by the MOU.

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GOGO APPAREL, INC. V. TRUE DESTINY, LLC No. 19 CIV. 5693 (GBD), 2020 WL 5578336 (S.D.N.Y. Sep. 17, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - design Topics: Preemption - unfair competition Plaintiff Gogo Apparel, Inc. brings this action against Defendants True Destiny, LLC and Does 1–10 for copyright infringement, unfair competition, and tortious interference with business relations. . . . Plaintiff is an apparel wholesaler and supplier that owns exclusive rights to several graphic artworks for use on textiles and garments, and sells products bearing these designs for profit. . . . Defendant True Destiny, LLC is a competitor in the women's wholesale apparel market and Defendants Does 1–10 are unidentified affiliated parties. . . . Plaintiff alleges that Defendants used one of its copyrighted designs without authorization. . . . That is, Defendants allegedly knowingly manufactured and sold products containing a design that is identical or substantially similar to Plaintiff's design with Copyright Registration Certificate No. VA 2-120-379. . . . Defendant True Destiny, LLC (“True Destiny”) moves to (1) disqualify counsel for Plaintiff based on prior representation of True Destiny and (2) dismiss Count II of the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). . . . True Destiny's motions to disqualify Plaintiff's counsel and dismiss Count II for failure to state a claim are GRANTED. IANTOSCA V. ELIE TAHARI, LTD. No. 19-CV-04527 (MKV), 2020 WL 5603538 (S.D.N.Y. Sep. 18, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Copyright registration - registration requirement, Defenses - fair use, Defenses - de minimis use, Defenses - attribution This action arises from the unauthorized posting of a photograph to social media. Before the Court is a motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1, on Defendant's liability for copyright infringement under 17 U.S.C. § 501. For the reasons set forth below, Plaintiff's motion for partial summary judgment is GRANTED. . . . For the reasons set forth above, the Court finds that Plaintiff holds a validly registered copyright. Defendant has not attempted to argue that this registration was the result of a fraud on the copyright office. . . . Accordingly, there is no triable issue of fact as to whether Plaintiff has a valid copyright for the Photograph. Plaintiff has made out a prima facie case of copyright infringement and, absent a valid affirmative defense, is entitled to summary judgment on liability with respect to copyright infringement. . . .

Joshua L. Simmons joshua.simmons@kirkland.com

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Defendant has failed to substantiate its fair use defense. Indeed, each of the four fair use factors outlined in Section 107 weighs in favor of Plaintiff. First, and significantly, Defendant has not demonstrated that its use was anything other than a “commercial use” intended to advertise and sell its clothing. . . . Moreover, Defendant's use is in no way “transformative” because it does not add “new insights and understandings” for the “enrichment of society.” . . . Second, Plaintiff's work, a photograph of a model, is a typical “creative” work and therefore entitled to copyright protection. . . . Third, Defendant reposted the Photograph without modification . . . therefore, the “amount and substantiality” of the use in relation to the copyright work as whole weighs in Plaintiff's favor. . . . Finally, under the fourth factor, Defendant's unauthorized postings of the photograph “on their face invade plaintiff[’s] statutory right to license” his copyrighted work to others for reproduction. . . . Equally unavailing is Defendant's argument that its use of the Photograph is de minimis simply because reposting another's picture has become commonplace on social media. . . . Defendant offers no support for this contention, which, if credited, would represent a seismic shift in copyright protection. There is nothing “trivial” about a business utilizing a professional photographer's work to promote its products. . . . Finally, Defendant has not pointed to any precedent supporting its theories that because Defendant credited the photographer in the caption of the Photograph or because Plaintiff hired the model to wear Defendant's clothing, Defendant has a right to use the Photograph. Simply put, attribution is not a defense against copyright infringement. . . . Additionally, an original copyrightable photograph rendition concerns not “what is depicted, but rather how it is depicted.” . . . Here, the Photograph's originality is clearly exemplified through the angle of the photo, the lighting, the selected pose of the model, and other artistic choices. Since Defendant reposted an identical copy of the Photograph to its social media, Defendant's argument that the model is wearing Defendant's clothing line has no bearing on liability for copyright infringement. MATTEL, INC. V. 2012SHININGROOM2012 No. 18-CV-11648 (PKC), 2020 WL 5743517 (S.D.N.Y. Sep. 25, 2020) Outcome: Bench trial - judgment for plaintiff Works of Authorship: Visual work - style guide Topics: Copyright registration - registration requirement, Remedies - willful infringement, Defenses - license, Remedies - statutory damages, Remedies - attorneys fees, Remedies - permanent injunction Plaintiff Mattel, Inc. (“Mattel”) commenced this action on December 13, 2018, alleging trademark counterfeiting, trademark infringement, and false designation of origin, passing off, and unfair competition, in violation of the Lanham Act, 15 U.S.C. §§ 1114, 1116(d), 1117(b)-(c), and 1125(a); copyright infringement, in violation of 17 U.S.C. § 501(a); and parallel state law claims. . . . Defendants are individuals and/or entities located in China that operate merchant storefronts on the eBay.com platform, where they sold the allegedly infringing products. . . .

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Only ten defendants—lucky992016 (also known as aux992016), ccs_online999, ebbpop, go-gift1225, herpop, ilante, popular888 (also known as jingxia2019), keepupop, ovepop2009, and prcbey (collectively, the “Wang Defendants”)—have appeared in this case. These are “doing-business-as” entities, respectively owned and operated by four individuals (the “Storefront Owners”). . . . The Court held a bench trial on July 21, 2020. No witnesses were called to testify. Mattel rested on the stipulated facts in the JPO, along with those set forth in the “Infringement Chart” provided to the Court at trial, to which the Wang Defendants stipulated. . . . Mattel introduced additional documentary evidence, including its trademark and copyright registrations . . . , copyright deposit materials . . . , images of the Wang Defendants’ allegedly infringing storefront listings . . . , and Mattel's first set of requests for production of documents and things, with the Wang Defendants’ responses . . . . Mattel and the Wang Defendants each made post-trial submissions, including proposed judgments. As set forth below, Mattel has established that certain of the Wang Defendants counterfeited one of Mattel's Barbie Marks, and willfully infringed this registered Barbie Mark and several of its registered Barbie Works. Accordingly, the Court will award statutory damages in the amount of $200,000 from each of the individual Storefront Owners, along with reasonable attorneys’ fees, will enter a permanent injunction, and will impose a continued asset restraint and transfer of frozen assets in full or partial satisfaction of the damages award. . . . A certificate of registration is prima facie evidence of ownership of a valid copyright. . . . It is undisputed that Mattel owns various, valid registered Barbie Works, and is the exclusive owner of these Works. . . . The Wang Defendants do not dispute that the lucky992016, popular888, ilante, herpop, keepupop, ovepop2009, and ccs_online999 Products incorporated substantially similar, if not identical, elements of the registered Barbie Works . . . . At the very least, the Wang Defendants recklessly disregarded Mattel's rights in the Barbie Works. It is undisputed that Mattel's “Barbie” brand is world-famous, and that the Barbie Works are owned exclusively by Mattel. . . . It is also undisputed that the Wang Defendants were not authorized to use the Barbie Works in their Products. ACADEMY ORTHOTIC & PROSTHETIC ASSOCS. IPA, INC. V. FITANGO HEALTH, INC. No. 19-CV-10203 (JPO), 2020 WL 6135762 (S.D.N.Y. Oct. 16, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - computer program Topics: Preemption - breach of contract, Preemption - implied covenant This case arises out of actions undertaken by Defendants Fitango Health, Inc., Dov Biran, and Christina Vorvis to protect their intellectual property rights in software developed for Plaintiffs Academy Orthotic & Prosthetic Associates IPA, Inc. and Acadacare, LLC. Plaintiffs claim that Defendants, by sending cease-and-desist letters and making negative comments about Plaintiffs

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to Plaintiffs’ business associates, (1) defamed them, (2) tortiously interfered with their prospective business relations, and (3) breached the express terms of, as well as the implied covenant of good faith and fair dealing in, the software-development contract between Plaintiffs and Defendants. Plaintiffs claim (4) that they are entitled to declaratory relief to establish that their conduct did not infringe on Defendants’ copyrights. Separate from the dispute about Defendants’ cease-and-desist letters and negative comments, Plaintiffs claim (5) that Defendants breached their software-development contract and the implied covenant by failing to develop the agreed-upon software and by overbilling. Defendants now move to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendant's motion is granted in part and denied in part. . . . In their first contract claims, Plaintiffs plead that “it is a breach of the covenant and the substantive provisions of the [May 2017] Agreement for Fitango to falsely assert that Acadacare (as agent for Academy) has breached the Agreement by misappropriating the purported intellectual property.” . . . The claims are contingent on Fitango misapprehending the scope of its copyrights and wrongfully sending cease-and-desist letters. They “simply reframe[ ] the single [Copyright Act] question presented in this litigation, that is, whether the Defendants’ copyright is valid” and has the scope Defendants believe it has. . . . Because “preemption cannot be avoided simply by labeling a claim ‘breach of contract,’ ” . . . Plaintiffs’ first contract claims are foreclosed by § 301. NYC IMAGE INT'L, INC. V. RS USA, INC No. 19-CV-10355 (VSB), 2020 WL 6135763 (S.D.N.Y. Oct. 16, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - design Topics: Copyrightability - creativity, Infringement - substantial similarity Plaintiff NYC Image International, Inc. (“Plaintiff” or “NYC Image”) brings this action for copyright infringement pursuant to Section 501 of the Copyright Act . . . . Before me is Defendants RS USA, Inc.’s (“RS USA”) and MD Rustom Ali's (“Ali” and together with RS USA, “Defendants”) motion to dismiss NYC Image's Complaint. . . . For the reasons that follow, the motion to dismiss is DENIED. . . . An examination of the Design confirms that these elements involve more than a modicum of originality. The particular distressed appearance of the American flag in the Design employs unique coloring, shading, highlighting, and a tattered edge pattern that distinguishes the Design from a standard American flag. Indeed, the Design in this way deviates from the specific criteria set forth in federal law for how American flags must be displayed. . . . I note that “even though a particular color is not copyrightable, the author's choice in incorporating color with other elements may be copyrighted.” . . . In this instance, the subdued variations on the red, white, and blue colors appear to be a deliberate artistic choice to incorporate vintage-looking coloring into the Design, complementing the tattered edge, and giving the Design a dirty or soiled look. In

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addition, although the words “New York City” themselves are not original, the placement of the words below a vintage-looking American flag may constitute a protectible element. . . . Plaintiff has clearly alleged that Defendants have copied protectable elements of the Design and that the Infringing Design is substantially similar to the Design. Although the Infringing Design contains different coloration and highlighting, the layouts of the Design and Infringing Design are nearly identical. Furthermore, although Defendants claim that “all of the frays ... on all sides of the flags are different,” . . . this is demonstrably false. Instead, a close examination of the tattered edge patterns in the Design and Infringing Design reveals that the pattern on the Infringing Design appears to be a vertical mirror image of the Design. Again, “a defendant may infringe on the plaintiff's work not only through literal copying of a portion of it,” in this case the tattered edge pattern, “but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiff's work of art ... are considered in relation to one another,” in this case the particular vintage-looking, tattered edge flag design accompanied by the words New York City. . . . Thus, Plaintiff plausibly alleges that Infringing Design copies the “total concept and overall feel” of both works . . . in addition to particular copyrightable elements, and I cannot conclude as a matter of law that “ ‘no reasonable jury ... could find that the two works’ are strikingly similar,” . . . . YANG V. MIC NETWORK, INC. No. 18-CV-7628 (AJN), 2020 WL 6562403 (S.D.N.Y. Nov. 9, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees Plaintiff brought this action in 2018 for copyright infringement, alleging that Mic Network used his photograph without authorization. Defendant then moved to dismiss and, in September 2019, the Court granted that motion in full and dismissed Plaintiff's complaint with prejudice. After that decision, Plaintiff moved for reconsideration of the Court's opinion, and Defendant moved for attorney's fees and sanctions. For the reasons that follow, the Court denies Plaintiff's motion for reconsideration and denies Defendant's motion for fees and sanctions. ABKCO MUSIC, INC. V. SAGAN No. 15 CIV. 4025 (ER) (SLC), 2020 WL 6690641 (S.D.N.Y. Nov. 13, 2020) Outcome: Motion for a new trial - denied, Motion for attorneys fees and costs - granted Works of Authorship: Music - musical work Topics: Remedies - attorneys fees On March 12, 2020, after a nine-day trial, a jury awarded Plaintiffs a total of $189,500 in statutory damages for infringing Plaintiffs’ copyrights for 197 musical works. . . . The jury also found that Defendants’ behavior constituted regular copyright infringement for the 30 works for which Defendants’ state of mind was at issue. . . . Plaintiffs now move for a new damages trial, arguing that the trial was fundamentally unfair because the jury was allegedly unable to

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deliberate as the COVID-19 pandemic was worsening in New York City. . . . Plaintiffs also move for attorneys’ fees and costs. . . . For the reasons discussed below, Plaintiffs’ motion for a new trial is DENIED and Plaintiffs’ motion for attorneys’ fees is GRANTED. However, this Court will reduce Plaintiffs’ fee award by 60%. KLAUBER BROS., INC. V. QVC, INC. No. 1:19-CV-09321, 2020 WL 7029088 (S.D.N.Y. Nov. 30, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - design Topics: Copyright registration - presumption of validity, Copyrightability - pleading requirements, Infringement - substantial similarity, Infringement - pleading requirements, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements Before the Court is Defendants’ Motion to Dismiss (the “Motion”) Plaintiff's First Amended Complaint (the “FAC”) on the grounds that Plaintiff has failed to state a claim of copyright infringement against Defendants. For the reasons stated herein, Defendants’ Motion is GRANTED. . . . A. Existence of a Valid Copyright . . . t some later stage of the case, Plaintiff may be required specifically to prove that they possess copyrights on the designs in question. However, at the pleading stage, inclusion of copyright certificates along with an assertion that they pertain to the designs in question, is sufficient. . . . Plaintiff has included both here. . . . B. Substantial Similarity . . . Design 3931/Design 9101 (“Design A”) . . . In the Court's view, any minor differences in the shading or texture of Defendants’ designs, as compared to Plaintiff's works, is not sufficient to change the overall feel of the work. Indeed, Plaintiff's design and Defendants’ products both include practically identical floral patterns with similar designs, interconnectedness, and overall appearance. The Court concludes that an ordinary observer could view the two designs as identical and with the same aesthetic appeal. As a result, on the current record, the Court finds that Defendants’ allegedly infringing works are substantially similar to Plaintiff's protected Design A. . . . Design 608 (“Design B”) . . . An ordinary observer clearly would detect a difference between Design B and the example infringing products—garments marketed under the “Isaac Mizrahi Live!” brand. Plaintiff's repeating five round “floral” figures are noticeably less opaque than Defendants’ designs. Indeed, Defendants characterize the designs as depicting two entirely separate images, a peacock in Plaintiff's design and “flooded ovals” in Defendants’ work. . . . The “train track” patterns across Plaintiff's design are entirely absent from Defendants’ works, along with the “supporting stems” which are also not present in the Defendants’ products. These differences are enough to convince the Court that Plaintiff's design is not substantially similar to Defendants’ products and that the claim related to Design B fails as a matter of law. . . .

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Design 410 (“Design C”) . . . To start, Defendants’ product presents as a gossamer, three-dimensional work, while Plaintiff's design is a harsher, two-dimensional piece with much thicker lines and design elements. Defendants correctly point out that Plaintiff's work resembles “a gothic fish net stocking pattern” that is not reflected in Defendants’ work. . . . Like other designs at issue in this case, Plaintiff's Design C also incorporates “whiskering” at the bottom of the work, while Defendants’ product has none. This is especially notable since Plaintiff has pointed to that element as integral to other designs at issue, but ignores that element with regard to this design. . . . Defendants also point out specific differences in the number of leaves and petals in the works’ floral elements. Def. Br. at 14. While the Court does not solely rely on that observation, it strengthens the conclusion that Design C and the allegedly infringing product are not substantially similar. As a result, Plaintiff's claim related to Design C fails as a matter of law. . . . Design 39111 X (“Design D”) . . . Defendants’ product includes a floral pattern that practically is identical to the Plaintiff's work. While Plaintiff's individual flowers may be slightly further apart, the overall feel of the designs is similar. An ordinary observer viewing the designs would struggle to differentiate them and would likely understand them to be aesthetically similar. As a result, Plaintiff's claim related to Design D survives. . . . Design 3886 (“Design E”) . . . Even if the Court looks more closely, the design elements of the works remain distinct. In contrast with the Court's findings regarding Design C, Plaintiff's Design E is airy and light, while Defendants’ work is substantially darker and more solid. In whole, Defendants work has far more contrast for its floral design elements than Plaintiff's design, which alters the overall feel of the work. This is especially true when one looks at the flowers along the bottom edge of each design. While a viewer may have trouble differentiating the flower from the other elements along the bottom border of Plaintiff's design, Defendants’ work separates each flower from the other detail. As a result, Plaintiff's claim related to Design E fails as a matter of law. . . . Design 845 (“Design F”) . . . As it does with other challenged designs, Plaintiff points to “identical flowers,” “identical supporting leaf elements,” and an “identical border” to argue that Design F is similar to Defendants’ product. However, these elements and others are markedly different. To begin, Defendants’ work is noticeably darker overall than Plaintiff's, leading to less distinction between design elements. Plaintiff's design, by contrast, successfully highlights each individual item (flower, leaf, etc.) in the design. The distinctions go beyond this level. Several of the elements Plaintiff identifies as similar are actually different from Defendants’ work. While Plaintiff's design includes a five-petal “floral shape,” Defendant's work has only four petals on the allegedly identical flower. The “supporting leaf elements” in each design, as Plaintiff describes them, are differently shaded in the works, with Plaintiff's appearing to add a more translucent shading on the upper side of the leaf. Finally, the whiskering on Plaintiff's design is shorter, giving the appearance of air, while Defendants’ whiskering is longer, allowing the whiskers to tangle, and complicating the design. In short, Defendants’ product is not substantially similar to Plaintiff's Design F, and therefore Plaintiff's claim related to Design F fails as a matter of law. . . .

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Design 615 (“Design G”) . . . Plaintiff identifies “identical placements” of floral elements, paisley shapes, and whiskering as the similarities between the designs. . . . However, Plaintiff's assertion of specific similarities ignores that the designs “feel” different. Defendants’ work feels cluttered and is opaque as compared to Plaintiff's brighter and more distinguishable design elements. Additionally, several of the elements to which Plaintiff points are noticeably different. For example, the paisley elements on Defendants’ design are oriented in different directions as compared to Plaintiff's Design G. They are also thinner and solid, while Plaintiff's include a ladder-like detail. Defendants’ floral element presents as a light flower with heavy emphasis on the leaves beneath it, while Plaintiff's design does not appear to contain a flower at all, but instead has a fern-like element. The designs, therefore, are distinct and an ordinary observer would not regard the aesthetic appeal as the same between them. Plaintiff's claim related to Design G fails as a matter of law. C. Knowledge of Plaintiff's Designs . . . In particular, Plaintiff's allegation does not provide any detail about how much of the lace was sampled or sold, when it was sampled or sold, or, importantly, to whom it was sampled or sold. Without those details, the Court is unable to infer, to any degree of plausibility, whether Defendants saw or could have seen the protected designs at or around the time its products were made. . . . D. Vicarious and Contributory Infringement Liability . . . As described in the previous section, Plaintiff has not established that any Defendant had knowledge of Plaintiff's designs, much less knowledge of any infringing activity by a third party. Plaintiff does not include any facts attempting to plead such knowledge. . . . However, Plaintiff's vicarious liability claim nonetheless fails to state a plausible claim for relief since Plaintiff has failed to allege any primary infringement liability against Defendants or as to any third party.

Western District of New York

LISA COPPOLA LLC V. HIGBEE No. 1:19-CV-00678-CCR, 2020 WL 5350427 (W.D.N.Y. Sep. 4, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees In May 2019, Plaintiff Lisa Coppola LLC d/b/a The Coppola Firm filed suit against Defendants Mathew K. Higbee, Esq., Higbee & Associates (together, the “Higbee Defendants”), Nicholas Youngson, and RM Media, Ltd. (“RM”) (collectively, “Defendants”) alleging that it was a victim of a fraudulent scheme in which Defendants offer images on the internet “free for use” subject to certain licensing requirements and then claim damages for copyright infringement from those who use the images without attribution. On April 28, 2020, the Higbee Defendants filed a motion for attorney's fees pursuant to the Copyright Act of 1976, 17 U.S.C. § 505, or, in the alternative, pursuant to 28 U.S.C. § 1927. . . . On May 26, 2020, Plaintiff opposed the motion, and the Higbee Defendants replied on June 9, 2020, at which time the court took the motion under advisement.

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SCHWARTZWALD V. OATH INC. No. 19-CV-9938 (RA), 2020 WL 5441291 (S.D.N.Y. Sep. 10, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Defenses - fair use Plaintiff Lawrence Schwartzwald brings this action against Defendant Oath Inc., which owns and operates www.HuffPost.com, alleging copyright infringement in violation of Section 501 of the Copyright Act . . . . Schwartzwald asserts that Oath unlawfully reproduced a photograph he took of the actor Jon Hamm (the “Photograph”) without seeking his authorization or paying him a licensing fee. The Photograph, which Schwartzwald alleges “illustrates what Jon Hamm looks like wearing trousers in public while he walks down the street, ostensibly without any underwear,” . . . was subsequently included in altered form in a Huffington Post article entitled, 25 Things You Wish Your Hadn't Learned In 2013 And Must Forget in 2014 . . . . Now before the Court is Oath's motion to dismiss Schwartzwald's First Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court agrees with Oath that its use of the Photograph is protected by the fair use doctrine. Oath's motion is therefore granted. MORNING SUN BOOKS, INC. V. DIVISION POINT MODELS, INC. No. 18-3510, 2020 WL 5543036 (3d Cir. Sep. 16, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees Appellant Uncle Dave's Brass Model Trains (“Uncle Dave's”) claims that the District Court erred in denying its motion for attorney's fees and costs under the Copyright Act, 17 U.S.C. § 505, and its request for sanctions. We will affirm.

Third Circuit

Court of Appeals for the Third Circuit

AM. BD. OF INTERNAL MEDICINE V. RUSHFORD No. 19-2461, 2020 WL 7663193 (3d Cir. Dec. 24, 2020) Outcome: Appeal - reversed Works of Authorship: Literary work - exam Topics: Defenses - statute of limitations At issue in this case is whether the three-year statute of limitations for copyright infringement under 17 U.S.C. § 507(b) begins to run from the date of discovery or from the date of injury in circumstances where the plaintiff discovers the identity of the defendant within three years of the injury. The District Court held it begins to run as of the date of injury. For the reasons outlined below, we will reverse that judgment. . . .

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Based on our precedent, there is no basis for the District Court's proposition, now echoed by Rushford, that the equitable underpinning of the discovery rule renders the rule inapplicable when the plaintiff discovers the basis for his claim within the statute of limitations period. Rather, the discovery rule means that the statute of limitations period begins to run as of the date of the discovery of the cause of action. Once the statute of limitations begins to run, the plaintiff has three years to bring his claim. In this case, ABIM discovered Rushford's (intentionally concealed) identity in January 2012, when it was tipped off by another test taker. The three-year statute of limitations therefore began to run as of January 2012. Thus, when ABIM brought suit against Rushford in October 2014, it was within the three-year statute of limitations period, and, hence, timely.

District of Delaware

TEXASLDPC INC. V. BROADCOM INC. No. CV 18-1966-RGA, 2020 WL 1285916 (D. Del. Mar. 18, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - computer program Topics: Infringement - pleading requirements Plaintiff TexasLDPC Inc. brought this action for patent and copyright infringement against Defendants Broadcom Inc., LSI Corp., and Avago Technologies U.S., Inc. Currently before me is Defendants’ Motion to Dismiss. . . . The motion is granted with respect to the copyright claims and Wi-Fi patent claims, but it is otherwise denied. . . . I do not find these allegations are sufficient to state a claim under Rule 12(b)(6). Plaintiff’s key factual contention is that Defendants produced programs that have “the same basic program structure and logic” as the asserted copyrights. That, however, is not enough to allege infringement. “It is axiomatic that copyright does not protect ideas, but only expressions of ideas.” . . . Thus, not all elements of software code are protectable by copyright. . . . Plaintiff has failed to identify what “basic program structure and logic” Defendants copied or to provide other facts about the accused software that could support an inference that it infringes copyrightable elements. It is unclear whether Plaintiff is alleging infringement under the “substantial similarity” test, but without more facts about the asserted and accused works, it is impossible to compare their similarity or infer infringement. PUROHIT V. LEGEND PICTURES, LLC No. CV 18-1907-RGA, 2020 WL 1441614 (D. Del. Mar. 24, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Literary work - book, Audiovisual work - video, Audiovisual work - motion picture Topics: Infringement - substantial similarity, Infringement - attribution and integrity rights

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Before the Court is Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(6). . . . The Court has reviewed Plaintiff’s Book . . . and YouTube Video . . . as well as Defendants’ Krampus Film . . . and Graphic Novel . . . . In the instant case, there is no substantial similarity between Plaintiff’s works (the Book and YouTube Video) and Defendants’ Film, Graphic Novel, or promotional materials. Thus, Plaintiff’s amended complaint fails to state a claim of copyright infringement. . . . Plaintiff’s copyrighted work is a book, which is explicitly exempt from being “a work of visual art.” Plaintiff argues that the Book is a “work of visual art” because it contains paintings and drawings. . . . In doing so, Plaintiff ignores the requirement that the painting or drawing must be limited to 200 copies or fewer. . . . Plaintiff has sold “over 500 copies” of the Book. . . . The Book is therefore not eligible for moral rights protection under § 106A. FINANCIALAPPS, LLC V. ENVESTNET, INC. No. CV 19-1337-CFC-CJB, 2020 WL 3640063 (D. Del. Jul. 6, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - computer program Topics: Preemption - fraud, Preemption - tortious interference, Preemption - unfair competition, Preemption - deceptive trade practices Plaintiff FinancialApps, LLC (“Plaintiff” or “FinApps”) filed this action against Defendants Envestnet, Inc. (“Envestnet”) and Yodlee, Inc. (“Yodlee” and collectively with Envestnet, “Defendants”) asserting 14 counts, including claims for misappropriation of trade secrets, fraud, tortious interference with prospective business opportunities, unfair competition, copyright infringement, violation of state deceptive trade practices statutes, breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. . . . Presently pending before the Court is Defendants’ partial motion to dismiss Counts II-X and Count XIV of Plaintiff’s Complaint, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). . . . For the reasons set forth below, the Court recommends that the District Court GRANT-IN-PART and DENY-IN-PART the Motion. . . . Here, Plaintiff’s fraud claim is not merely a disguised copyright claim. . . . Instead, Plaintiff’s claim relies upon specific false misrepresentations that Yodlee made about, inter alia, the nature of its planned partnership with Plaintiff regarding Risk Insight. See supra n.7. These purported misrepresentations are not the equivalent of assertions that Defendants wrongly “represented copyright materials as [their] own,” nor are they acts that otherwise amount to copyright infringement. Thus, these allegations sufficiently distinguish Count III from Plaintiff’s copyright claim in Count VI. . . . Defendants argue that this claim is preempted by the Copyright Act and UTSA because the first three of these four allegations essentially amount to allegations that Defendants copied, created and sold copyrightable technology and stole and misused trade secrets. . . . Defendants’

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arguments as to the first three allegations appear well-founded, for the reasons set out by Defendants. . . . With regard to that fourth allegation, Plaintiff’s Complaint alleges that the clients at issue were “Risk Insight clients” and that these clients would still be using the platform that Plaintiff created had it not been for Defendants’ improper interference. . . . In other words, the allegation seems to be that these clients represented not just a business opportunity for Defendants, but also for Plaintiff—such that if the Risk Insight partnership did not flounder, Plaintiff would have had a reasonable probability of maintaining a business relationship with these companies (in the present and in the future). And Defendants are said to have taken actions that interfered with Plaintiff’s ability to maintain such business opportunities going forward. This all seems like a viable allegation of the claim—an allegation that is not preempted by the Copyright Act or the UTSA . . . as Defendants seem to concede . . . . Counts V, VII, VIII and X are based on the same set of allegations, which include 10 bullet points describing various acts allegedly taken by Defendants. . . . These claims should survive at this stage, as at least five of these 10 bullet points describe conduct that does not appear to be preempted by the Copyright Act or the UTSA, because the essence of those bullet points is not that Defendants stole copyrighted material or misappropriated trade secrets. . . . Considering the facts in the light most favorable to Plaintiff, it is plausible to read this reference to a “legacy product” as simply a signal to customers that Risk Insight was an older product (and not as a necessary claim to ownership of the Platform utilized therein). LIVE FACE ON WEB, LLC V. ROCKFORD MAP GALLERY, LLC No. CV 17-539, 2020 WL 5821750 (D. Del. Sep. 30, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Literary work - computer program Topics: Defenses - statute of limitations This is a copyright infringement action brought pursuant to the Copyright Act of 1976 . . . . Plaintiff Live Face on Web, LLC (“Plaintiff”) claims that Defendants Rockford Map Gallery, LLC, First State Map & Globe Co., and Patrick Keane (“Defendants”) distributed its copyrighted computer code without authorization. Presently before the Court is Defendants’ motion for summary judgment based on statute of limitations. Because Plaintiff's claims are barred by the applicable statute of limitations, the Court will grant Defendants’ motion. . . . The Court concludes that Defendants have met their burden of establishing adequate storm warnings and that, in the light most favorable to Plaintiff, no reasonable jury could find otherwise. The burden now shifts to Plaintiff to show that even though it exercised reasonable due diligence, it was unable to discover earlier its injuries attributable to Defendants. . . . The Court concludes that no reasonable jury could find that Plaintiff has met its burden of showing that it exercised reasonable due diligence but was still not able to uncover Defendants’ alleged infringement until Shcherbakov viewed Defendants’ videos in early 2015. Not only did Plaintiff have in its possession or available all of the evidence it needed to uncover the alleged

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infringement in late 2013, it had also identified one of the Defendants’ websites during that time. . . . As a result, the Court concludes that Plaintiff's claims against Defendants accrued sometime before January 2014. Therefore, it had three years from that time, i.e. January 2017, to file suit. Plaintiff did not file its suit against Defendants until May 2017. Under these circumstances, Plaintiffs claims are barred by the statute of limitations and summary judgment must be awarded in Defendants’ favor. TOM HUSSEY PHOTOGRAPHY, LLC V. BDG MEDIA, INC. No. CV 20-404-MN, 2020 WL 7481770 (D. Del. Dec. 18, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Infringement - volitional conduct Plaintiff Tom Hussey Photography, LLC (“Plaintiff”) sued Defendant BDG Media, Inc. (“BDG”) for copyright infringement. . . . Pending before the Court is BDG's motion to dismiss or, in the alternative, to transfer venue to the Southern District of New York pursuant to 28 U.S.C. § 1404(a). . . . For the reasons set forth below, the motion to dismiss is GRANTED. . . . Plaintiff has failed to allege that BDG committed a volitional act of copyright infringement. The only volitional conduct alleged is that BDG acquired and thereafter managed Flavorwire, which hosts a 2011 article displaying Plaintiff's copyrighted work. Plaintiff has not alleged that BDG caused Flavorwire to display the copyrighted images. To the extent Plaintiff argues that BDG should be liable for declining to take down the 2011 article after it acquired Flavorwire . . . this omission is neither volitional conduct nor infringing conduct as contemplated by the Copyright Act.

District of New Jersey

WOODSON V. ATL. CITY BD. OF EDU. No. CV 19-14572, 2020 WL 1329918 (D.N.J. Mar. 23, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Literary work - document, Literary work - article Topics: Defenses - statute of limitations, Ownership - work made for hire This matter comes before the Court on separate Motions to Dismiss by Defendants James Knox and Atlantic City Board of Education . . . and by Defendant National Association of Elementary School Principals . . . ; and Plaintiff’s Cross-Motion to Amend . . . . The Court has considered the parties’ written submissions pursuant to Fed. R. Civ. P. 78 (b). For the reasons stated below, the Court will grant Defendants’ Motions to Dismiss and deny Plaintiff’s Motion to Amend. . . . Here, there is no dispute that Plaintiff’s “original work” was created in 2010, and that Defendants allegedly infringed on her copyright of that work in “January/February 2011.” . . . Plaintiff filed her Complaint in this matter on July 1, 2019. Thus, Plaintiffs claim is based on an alleged harm occurring almost nine (9) years prior to her commencement of this action. Nonetheless, Plaintiff contends that she “can establish that she did not discover, nor in the

Joshua L. Simmons joshua.simmons@kirkland.com

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exercise of reasonable diligence should have discovered, the basis for her claim against the Defendants until after July 1, 2016.” . . . Accordingly, Plaintiff requests leave to amend her claim, to properly allege that the statute of limitations period on her copyright claim is tolled by the discovery rule. . . . In fact, not only does Plaintiff fail to allege that she discovered the infringement in 2018, but the proposed Amended Complaint fails to allege when she discovered the alleged harm at all. The proposed amendment provides only when Plaintiff created her Work and when Defendant Knox’s article, allegedly borrowing/plagiarizing Plaintiff’s Work, was published. . . . As there is no dispute that Plaintiff was an employee, whether Plaintiff’s work was for hire will turn on whether that work was done within the scope of her employment. . . . The Court finds that together, these factual allegations establish that Plaintiff, although an employee of Defendants, created the work at issue outside the scope of her employment as a teacher; without guidance, instruction, or control from Defendants; as a bonus to Defendants and not for hire. Thus, Plaintiff’s amendment plausibly alleges she owns a copyright and, therefore, would withstand a Motion to Dismiss on this issue. ENVOY TECHS., INC. V. NORTHROP GRUMMAN CO. No. CV 19-13976 (FLW), 2020 WL 2079376 (D.N.J. Apr. 30, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - computer program Topics: Ownership - pleading requirements, Preemption - breach of contract, Preemption - fraud, Preemption - misappropriation, Preemption - unjust enrichment Plaintiff Envoy Technologies Inc. (“Plaintiff” or “Envoy”) brings this copyright infringement action against Defendant Northrop Grumman Corporation (“Defendant” or “Northrop”), for engaging in the alleged unauthorized use of a computer software product that Plaintiff owns. Pending before the Court is Defendant’s Motion to dismiss Plaintiff’s First Amended Complaint (“FAC” or the “Amended Complaint”), wherein Plaintiff asserts five causes of action, including: (1) fraud; (2) infringement under United States and United Kingdom laws; (3) breach of contract; (4) misappropriation; and (5) unjust enrichment. For the reasons expressed herein, Defendant’s Motion to dismiss is GRANTED as to the claims for fraud, misappropriation, and unjust enrichment, and its improperly pled claims under United Kingdom law are dismissed without prejudice, but DENIED as to the infringement and breach of contract causes of action. . . . B. INFRINGEMENT . . . Here, while Paragraph 9 of the Amended Complaint is arguably vague, I nevertheless find that, under the liberal pleading standard, the FAC and the exhibits attached, support Plaintiff’s version of events. However inartful, the disputed language in Paragraph 9 of the Amended Complaint can be interpreted to assert three separate transactions: (1) Level 8 acquired Momentum in 1998; (2) on an unspecified date, Momentum transferred the rights in XIPC to Level 8 through the execution of an assignment agreement; and (3) in 2002, Level 8 executed a written assignment transferring the rights in XIPC to Plaintiff. . . . As such, based on these allegations, the Court can draw the reasonable inference that the initial assignment between Momentum and Level 8 occurred after the Registrations were filed in 2000, but before the

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subsequent assignment between Level 8 and Plaintiff in 2002. . . . Indeed, Plaintiff would not have otherwise entered into the subsequent assignment agreement with Level 8, unless Level 8 had first acquired the registered rights in XIPC through an assignment from Momentum. Moreover, irrespective of the temporal dispute that Defendant raises, Plaintiff has asserted ownership over a valid, registered interest in XIPC, and that Defendant paid a significant annual usage fee to use and sublicense the software for six years. These alleged facts and circumstances provide further support for Plaintiff’s alleged ownership of XIPC, and therefore, Defendant’s Motion to dismiss Count II is denied. . . . C. PREEMPTION . . . i. Breach of Contract . . . Plaintiff contends that Northrop has failed to remit a pre-determined usage fee that was required for the continued use of the software, after the duration set forth in the parties’ agreement. In that connection, Plaintiff asserts a breach of contract claim that arises from Northrop’s alleged promise to provide an agreed upon usage fee which was never collected. . . . ii. Fraud . . . Plaintiff’s fraud and infringement claims are both based on Defendant’s alleged unauthorized continued use of a licensed product, and thus, the cause of action for fraud is preempted. . . . iii. Misappropriation and Unjust Enrichment . . . Plaintiff does not raise any argument as to why these claims can proceed along with its copyright infringement claim. And, of more importance, the pleadings reveal no difference between the factual assertions in support of the misappropriation and unjust enrichment causes of action and Plaintiff’s claim for infringement. In particular, as to the claims for misappropriation and unjust enrichment, Plaintiff avers that Northrop’s alleged “use” of the licensed software occurred “without permission,” while Plaintiff’s infringement claim, too, arises from Defendant’s alleged use of the licensed software without having secured a “license or permission” from Plaintiff. STRIKE 3 HOLDINGS, LLC V. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 173.71.68.16 No. 1:18-CV-12585-NLH-JS, 1:18-CV-12586-NLH-JS, 1:18-CV-16564-NLH-JS, 1:18-CV-16565-NLH-JS, 1:18-CV-16566-NLH-JS, 1:18-CV-17594-NLH-JS, 1:18-CV-17595-NLH-JS, 1:18-CV-2674-NLH-JS, 1:19-CV-00894-NLH-JS, 1:19-CV-00895-NLH-JS, 1:19-CV-14014-NLH-JS, 1:19-CV-14015-, 2020 WL 3567282 (D.N.J. Jun. 30, 2020) Outcome: Appeal - reversed Works of Authorship: Audiovisual work - film Topics: Discovery - subpoena The above-captioned matters, assigned to this Court pursuant to Local Civil Rule 40.1(e) and by Order of the Chief Judge,1 come before this Court on appeal by Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) of Magistrate Judge Schneider’s (the “Magistrate Judge”) order (1) denying Plaintiff expedited discovery in aid of identifying placeholder, John Doe defendants (all defendants will be collectively referred to as “Defendants”) and (2) denying Plaintiff an extension of time within which to serve Defendants with process. . . . For the reasons that follow, this Court will grant

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Plaintiff’s appeal and reverse the decision of the Magistrate Judge. Subject to entry of a protective order to be entered at the Magistrate Judge’s discretion, Plaintiff will be granted leave to serve a subpoena upon Defendants’ Internet Service Provider (“ISP”) pursuant to Rule 45 of the Federal Rules of Civil Procedure (“Rule 45”). That subpoena will be limited in scope, but will permit Plaintiff to seek the name and address of the subscribers to the Internet Protocol (“IP”) addresses identified in the captions of these matters for the time periods of alleged infringement as identified in the various complaints. Plaintiff will also be granted an extension of time within which to effectuate service. JOE HAND PROMOTION INC. V. EDSCO INC. No. 1:19-CV-12750-NLH-JS, 2020 WL 4345310 (D.N.J. Jul. 29, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Audiovisual work - film Topics: Ownership - assignment, Infringement - evidence of public performance, Remedies - willful infringement Now pending before the Court is Plaintiff’s Amended Motion for Summary Judgment (Doc. 35, filed November 7, 2019). The Court has carefully reviewed the pleadings, motion, documents filed in the case, and relevant law, and it is ripe for review. For the reasons discussed below, the motion is GRANTED in part and DENIED in part. . . . JHP has established that it contracted with Mayweather Promotions, LLC, the exclusive distributor of the Fight, and Showtime Networks, Inc. (“SNI”), the owner and operator of the copyright to the Fight, for the sole and exclusive rights to distribute the Fight on August 26, 2017, to commercial viewing locations in Alabama and elsewhere in the United States, including bars, taverns, public houses, restaurants, clubs, and other public viewing areas. . . . SNI also assigned JHP the exclusive right to commence legal action to enforce its contractual rights under federal copyright laws. . . . Thus, Plaintiff has established the first prong of its copyright infringement claim. JHP also has established that the Lucky Horseshoe exhibited the Fight without permission on August 26, 2017. JHP filed with its Amended Motion for Summary Judgment an affidavit signed by Kimberly Jones, an auditor, stating that Jones personally observed that Lucky Horseshoe exhibited the Fight on August 26, 2017, on three (3) television screens—one on each side of the dance floor and another in an upstairs area. See Doc. 35-6. Jones stated that she paid a $10 cover charge to enter the Lucky Horseshoe and observed the exhibition of the Fight. Id. In the affidavit, Jones estimated that the Lucky Horseshoe had a capacity of about 500 people, but noted that there were only 57 to 77 individuals in the establishment on the night of the Fight. Jones included with the affidavit photographs from inside the Lucky Horseshoe. Id. Plaintiff also filed a copy of an August 24, 2017 post by Lucky Horseshoe from its Facebook page stating that it would exhibit the Fight. . . . Joe Hand, Jr., President of JHP, submitted an affidavit stating that Defendants did not pay the commercial sublicensing fee to receive the Fight transmission through their cable or satellite

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provider, and thus, JHP did not authorize Defendants to exhibit the Fight to their patrons and did not notify Defendants’ cable or satellite provider to allow them to receive and exhibit the Fight. . . . Accordingly, Plaintiff has established that Defendants, as owners and operators of Lucky Horseshoe, infringed on JHP’s copyright under 47 U.S.C. § 106(3)-(5) by exhibiting the Fight without a license from JHP to do so. . . . The Court finds this showing insufficient to establish willfulness for purposes of summary judgment. Although Defendants failed to respond to Plaintiff’s summary judgment motion, they assert in their Answer to the Complaint that they have a commercial cable account through AT&T at their place of business, they were offered an opportunity to exhibit the Fight through their commercial cable carrier, they paid to exhibit the Fight, and they ordered and exhibited the Fight in good faith. . . . JHP asserts that Defendants intentionally circumvented or avoided full knowledge of the licensing requirements, but it provides insufficient evidence to demonstrate such. Plaintiff established that Defendants charged an entrance fee on the date of the Fight and promoted its exhibition of the Fight on Facebook, but this is the kind of conduct that could be anticipated by a commercial establishment exhibiting the Fight whether or not the establishment had the proper license to do so. It is not evidence, by itself, of willful infringement the copyright. . . . STOCKFOOD AM., INC. V. ADAGIO TEAS, INC. No. 2:18-CV-16678-KM-MAH, 2020 WL 4382479 (D.N.J. Jul. 31, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Ownership - assignment, Defenses - license, Remedies - willful infringement The plaintiff, Stockfood America, Inc. (“Stockfood”) alleges that the defendant, Adagio Teas, Inc. (“Adagio”) infringed its copyrights in two photographic images by posting the images to its website. Stockfood seeks summary judgment as to the two essential elements of a copyright infringement claim (ownership of a valid copyright and infringement by defendant), and also as to whether Adagio’s alleged infringement was willful. Adagio opposes each aspect of the motion. For the reasons stated herein, Stockfood’s motion will be granted as to ownership and infringement, but denied as to willfulness, which poses issues of fact. . . . Ownership of Copyright/Standing to Assert Infringement . . . Altogether, it is clear from the face of the Agency Agreement that the photographers intended to appoint Stockfood as their exclusive licensing agent. That appointment carried with it the grant of the exclusive right to act as a licensing agent, that is, to authorize the reproduction, distribution, and display of the Images in return for a fee that would be shared with the photographer. Moreover, that right was exclusive; under Minden, the photographers’ retention of limited licensing rights does not undermine exclusivity as a matter of law, and the Agency Agreements provide that Stockfood is the photographers’ sole and exclusive agent worldwide. . . . Infringement . . . Adagio does not dispute that posting the Images on its website without a license would infringe the rights of the copyright owner. Instead, Adagio suggests that it has raised a

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genuine dispute requiring a trial as to whether it did possess a license to use the images. . . . In support of that argument, Adagio proffers that its usual policy would have been to obtain a license. . . . This does not rise above the level of speculation. . . . Willfulness . . . There is enough conflicting evidence here to raise a genuine dispute. FMHUB, LLC V. MUNIPLATFORM, LLC No. CV 19-15595 (FLW) (DEA), 2020 WL 4581828 (D.N.J. Aug. 10, 2020) Outcome: Motion to dismiss - granted Topics: Circumvention of copyright protection systems - pleading requirements Plaintiff FMHUB, LLC d/b/a MuniHub (“Plaintiff”) has filed a Complaint against defendants Kevin Touhey (“Touhey”), Jill Mergel (“Mergel”), and Muniplatform, LLC (“Muniplatform”), asserting claims pursuant to the Computer Fraud and Abuse Act (“CFAA”) . . . and the Digital Millennium Copyright Act (“DMCA”) . . . and various state law claims. The Complaint alleges that Touhey and Mergel’s creation of Muniplatform, a business providing analytic reporting and digital marketing products for municipalities and investors, involved the wrongful sharing, provision, dissemination, and duplication of Plaintiff’s confidential and proprietary intellectual property. Presently before the Court is Touhey’s motion to dismiss Plaintiff’s CFAA and DMCA claims against him. For the reasons set forth below, Touhey’s motion is GRANTED; Plaintiff’s claims against Touhey pursuant to the CFAA and DMCA are dismissed without prejudice. . . . In the Complaint, there are only two mentions of “copyrighted works”; first, Plaintiff alleges that it “has devoted substantial money, time and resources to develop its ... copyrighted works,” . . . ; and second, Plaintiff claims that “Defendants’ actions constitute direct circumvention of a technological measure that effectively controls access to a copyrighted work.” . . . What is missing from these allegations, however, is an identification of, and direct statement that there are, any “copyrighted works.” Without such allegations, the Court cannot determine whether the information in question is eligible for protection under the Copyright Act or, further, whether Plaintiff even holds such a copyright. Accordingly, the Court grants Touhey’s Motion on Plaintiff’s DMCA claim. CIANELLI V. NOURISON INDUS., INC. No. 3:19-CV-19147(FLW), 2020 WL 4882500 (D.N.J. Aug. 20, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - rug Topics: Copyright registration - presumption of validity, Infringement - pleading requirements, Infringement - striking similarity, Scope of protection - originality This case arises out of a copyright dispute between Plaintiff Jaison Cianelli (“Plaintiff” or “Cianelli”) and Defendants Nourison Industries, Inc., Bed Bath & Beyond, Inc., Home Depot, U.S.A., Inc., Kohl's Corporation, Walmart, Inc., and QVC, Inc. (collectively, “Defendants”).1 In his Amended Complaint, Cianelli alleges that Defendants used his paintings to make and sell

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rugs, in violation of 17 U.S.C. § 101 et seq. . . . Defendants move to dismiss the Amended Complaint on the grounds that it is not timely and, in any event, does not state a plausible claim of copyright infringement. . . . For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED. . . . Defendants first take issue with the validity of Plaintiff's copyrights, questioning the timing of his copyright registration, which he obtained in September 2019, “just one month before this action was commenced,” despite painting Heart So Big and Mother Earth seven to nine years earlier. . . . While generally the issue is whether, at the time Plaintiff filed or amended his Complaint, Plaintiff had registered a copyright . . . it also matters when Plaintiff filed for registration. . . . Plaintiff attached to his Amended Complaint copyright certificates for both paintings . . . showing that, when he registered the copyrights, more than five years had passed since the date of first publication. As such, Plaintiff's copyrights are not entitled to a presumption of validity, which undermines the first element of Plaintiff's infringement claim. . . . Here, Plaintiff has not alleged any facts regarding access, much less facts plausibly showing that Defendants “had reasonable opportunity to view his works.” . . . With respect to Nourison, Plaintiff's sole allegation is that it “copied” his paintings and “distributed” them to retailers. . . . Yet that is precisely the type of “unadorned, the-defendant-unlawfully-harmed-me accusation,” . . . which this Court must reject, since it contains no factual allegations regarding how Nourison accessed the paintings in the first place. With respect to Bed Bath & Beyond, Home Depot, Walmart, Kohl's, and QVC, the Amended Complaint lacks any allegation of copying and any alternative theory of liability, such as vicarious or contributory infringement, which would be necessary to state a claim against these defendants. . . . Plaintiff's copyright infringement claim, therefore, cannot be sustained on the basis of direct access. . . . Here, no reasonable trier of fact could find a striking similarity between the protected aspects of Plaintiff's artwork and Defendants’ rugs, and “justice is best served by putting ‘a swift end to [this] meritless litigation.’ ” . . . While generally the rugs and paintings display vibrant colors in abstract patterns, nothing specific about them raises the inference that Defendants must have copied Plaintiff. Nor are the similarities, to the extent that there are any, sufficient to defeat the possibility that the works are independently created or derivative of some other, common work. In fact, the closest similarity between the rugs and Plaintiff's paintings is likely not protected by copyright at all. Two of the works—Plaintiff's Mother Earth and Defendants’ Seaglass—appear to depict a map of the globe from a vast, overheard perspective. Yet, to the extent that they are alike in this regard, they merely use the same source material or contain the same thematic element, which is not a protectible aspect of a work and must be excluded from my comparison. UMG RECORDINGS, INC. V. RCN TELECOM SERVS., LLC No. CV 19-17272 (MAS) (ZNQ), 2020 WL 5204067 (D.N.J. Aug. 31, 2020) Outcome: Motion to dismiss - granted, Motion to dismiss - denied Works of Authorship: Music - sound recording

Joshua L. Simmons joshua.simmons@kirkland.com

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Topics: Copyright registration - presumption of validity, Infringement - pleading requirements, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements This matter comes before the Court upon Defendants RCN Telecom Services, LLC; RCN Telecom Services of New York, L.P.; RCN Capital Corp.; RCN Telecom Services of Philadelphia, LLC; RCN Telecom Services of Massachusetts, LLC; Starpower Communications, LLC; RCN Management Corporation; RCN ISP, LLC; RCN Digital Services, LLC; RCN NY LLC 1; RCN Telecom Services (Lehigh), LLC; RCN Telecom Services of Illinois, LLC; 21st Century Telecom Services, Inc.; and RCN Cable TV of Chicago, Inc.’s (collectively, “RCN” or the “RCN Defendants”) Motion to Dismiss . . . , and upon Defendant Patriot Media Consulting, LLC's (“Patriot”) (with “RCN” the “Defendants”) Motion to Dismiss . . . . For the reasons set forth below, RCN's Motion to Dismiss is denied and Patriot's Motion to Dismiss is granted. Counts Three and Four of the Amended Complaint are dismissed without prejudice. . . . Plaintiffs Have Adequately Pleaded Direct Infringement by a Third Party . . . Plaintiffs attach, as an exhibit to their Amended Complaint, a partial list of sound recordings for which they own the copyright and plausibly allege that RCN's subscribers illegally downloaded and distributed those recordings without authorization. . . . This information is prima facie evidence of the validity of Plaintiffs’ copyrights. . . . Accepting the allegations of the Amended Complaint as true and construing the facts in Plaintiffs’ favor, the Court finds Plaintiffs have adequately pleaded an infringement of their distribution rights. . . . Indeed, Plaintiffs specifically allege “Rightscorp also repeatedly obtained a copy of the infringing file that was the subject of an infringement notice, ... Rightscorp obtained tens of thousands of these audio files, including copies of each of the Copyrighted Sound Recordings listed in Exhibit A, within the applicable statute of limitations period.” . . . The Court similarly finds that Plaintiffs have adequately pleaded a violation of their reproduction rights. . . . Plaintiffs specifically allege that RCN's subscribers “utilize RCN's service to download infringing music files using BitTorrent protocols.” . . . Plaintiffs further allege that RCN's subscribers “download and distribute Plaintiffs’ copyrighted works illegally through RCN's service.” . . . Plaintiffs Have Adequately Pleaded Contributory Infringement . . . As to actual knowledge, Plaintiffs aver that the five million notices sent to RCN by Rightscorp that provided the IP address of the user, the date and time of the activity, and the name of the infringed upon content is sufficient to confer actual knowledge to RCN. . . . Plaintiffs similarly argue that, at a minimum, such notices gave RCN “reason to know” that widespread infringement was being committed by its subscribers and, therefore, that RCN had constructive knowledge of infringement. . . . As to willful blindness, Plaintiffs allege that “[b]y ignoring the repeat infringement notifications and refusing to take action against repeat infringers, and instead providing those customers with ongoing internet service, Defendants made a deliberate decision to contribute to known copyright infringement.” . . .

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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[T]he Court finds Plaintiffs have adequately pleaded the material contribution or inducement element. Plaintiffs have alleged that “RCN facilitated, encouraged, and materially contributed to such infringement by continuing to provide its network and the facilities necessary for its subscribers to commit repeated infringements.” . . . “At the same time, RCN had the means to withhold that assistance upon learning of specific infringing activity by specific users, but failed to do so, purposefully ignoring and turning a blind eye to the flagrant and repeated infringement by its subscribers.” . . . Here, Plaintiffs allege that RCN “has the right and ability to supervise and control the infringing activities that occur through the use of its service.” . . . The Court finds that Plaintiffs have adequately pleaded the right or ability to supervise prong of vicarious infringement. . . . Here, construing the allegations of the Amended Complaint in Plaintiffs’ favor, and considering the lack of binding or persuasive authority on the issue of direct financial benefit, the Court finds RCN has failed to meet its burden at this stage of the litigation. . . . The Court disagrees and finds Plaintiffs’ allegations as to Patriot insufficient to state a claim. Unlike RCN, Patriot is not an ISP. Rather, Plaintiffs allege that Patriot “provides management services to RCN.” . . . Even in this action, Plaintiffs have only included threadbare allegations as to actual actions taken by Patriot. INTERNET PRODS. LLC V. LLJ ENTERS., INC. No. CV 18-15421 (RBK/AMD), 2020 WL 6883430 (D.N.J. Nov. 24, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - Internet work Topics: Copyrightability - originality, Defenses - fraud on the Copyright Office, Copyright registration - publication, Remedies - actual damages, Preemption - unfair competition This matter comes before the Court upon Defendants’ Motion to Dismiss Amended Complaint . . . . For the reasons stated herein, the Motion to Dismiss is DENIED. . . . 1. Whether Plaintiff's Copyrighted Material Contains Original Expression . . . Here, Plaintiff pleads that “Internet Products created an original website, TablePadShop.com, that included original text and a unique online ordering system[.]” . . . and that “Internet Products created an original website, PianoCoverShop.com, that included original text and a unique ordering system[.]” . . . Plaintiff further pleads that “Internet Products submitted to the United States Copyright Office an application to obtain copyright registration for the text formatting ... which was authored by Mr. Rick Janus by virtue of assignment to Internet Products.” . . . These allegations establish that the website text was the product of Rick Janus’ independent creation, the requirements for originality under the Copyright Act. Therefore, taking these allegations as true, at the motion to dismiss phase, the Court finds that Plaintiff has adequately pleaded that the website text was original. Defendants’ arguments about whether the text rises to the requisite level of creativity to be “original” are better reserved for a motion for summary judgment or trial.

Joshua L. Simmons joshua.simmons@kirkland.com

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Accordingly, at this stage, the Court finds that Plaintiff's allegations satisfy the originality requirements under Rule 12(b)(6). 2. Whether Plaintiff's Copyright Registration is Invalid . . . Absent binding law or even a clear consensus in case law supporting the assertion that material is “published” merely because it is posted online, the Court is not inclined to negate the copyrighted material's presumption of validity by finding that Plaintiff's text was “published” when it was posted on the webpage. Therefore, the Court cannot conclusively find that Plaintiff was dishonest when it stated that the text was “unpublished” when it submitted its application to the Copyright Office. Accordingly, the Court rejects this argument. 3. Whether Plaintiff Has Sufficiently Alleged Damages . . . Plaintiff pleads several general allegations with regards to damages. Plaintiff pleads “Defendants’ unlawful use of major portions of Plaintiff's TablePadShop.com has diminished the value of Plaintiff's business.” . . . Additionally, “Defendants’ unlawful acts have been and are interfering with and undermining Plaintiff's ability to market products from Plaintiff's TablePadShop.com[.]” . . . Further “Internet Products has been harmed as a direct result of Defendants’ infringements, and Internet Products is accordingly entitled to damages in an amount to be proven at trial.” . . . Plaintiff also pleads that “Internet Products is also entitled to Defendants’ profits attributable to their infringements ... including an accounting of and constructive trust with respect to such profits.” . . . At this stage, the Court finds that these allegations are sufficient to state a claim for damages. . . . 2. Whether the Claim is Preempted by the Copyright Act . . . In Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., this Court held that N.J. Stat. Ann. § 56:4-1 was not preempted by the Copyright Act. . . . The Court sees no reason to disagree with its prior ruling. . . . Accordingly, the Court rejects this argument.

Middle District of Pennsylvania

OFFICE FOR PLANNING & ARCHITECTURE, INC. V. CITY OF HARRISBURG No. 1:20-CV-00920, 2020 WL 6889198 (M.D. Pa. Nov. 24, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Literary work - form Topics: Ownership - standing, Defenses - license Presently pending before the Court is a Motion to Dismiss filed by Defendants City of Harrisburg (the “City”) and Wallace, Montgomery and Associates, LLP (“Wallace Montgomery”) (the “Motion”). . . . For the reasons that follow, the Motion shall be granted. . . . Though the apparent tension between the pleadings as drafted by Plaintiffs and the language in the Agreement renders this a moderately close call, we ultimately conclude that OPA has effectively conceded that it lacks standing. . . . Plaintiffs—multiple times in their complaint—clearly and unequivocally offered to the Court that OPA merely possessed a nonexclusive license to the Work Product. We are disinclined to displace Plaintiffs’ formal judicial admission that OPA as an entity only had nonexclusive rights to the Work Product. . . .

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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The contract, in other words, plainly envisions that substantial non-performance does not automatically result in termination of the license. Rather— according to the explicit language of the Agreement—substantial non-performance, including a failure to pay, would only give the non-defaulting party cause to terminate the Agreement, with the license only terminated upon termination. But for Plaintiffs’ theory to work, the termination of the license must have occurred automatically, since Plaintiffs do not allege that they actually terminated the Agreement pursuant to Section 5.4. Plaintiffs merely plead that the City failed to pay but continued to use the Work Product, thereby infringing on the copyright. Plaintiffs do not allege that they followed the termination procedures outlined in Section 5.4. As there is no allegation that the Agreement was ever terminated, then there is similarly no allegation that the nonexclusive license granted in Section 3.3 was ever terminated. This conclusion—that there was no condition precedent to the City's receipt of the nonexclusive license and Plaintiffs took no action to formally terminate the license pursuant to the Agreement—is bolstered by decisions of other courts, including those construing nearly identical contractual language.

Western Distict of Pennsylvania

PYROTECHNICS MGMT., INC. V. XFX PYROTECHNICS LLC No. 2:19-CV-00893-RJC, 2020 WL 2085251 (W.D. Pa. Apr. 30, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - protocol Topics: Ownership - pleading requirements, Copyright registration - presumption of validity, Infringement - pleading requirements Presently pending before the court is a Motion to Dismiss or in the Alternative, Motion for Summary Judgment . . . filed by defendant fireTEK. For the reasons stated herein, the motion will be denied. . . . Plaintiff herein has alleged with sufficient particularity the original work which is the subject of its claim and has offered proof of ownership by attaching the Copyright Office Registration. . . . Plaintiff has also pled facts sufficient to demonstrate that fireTEK engaged in unlawful copying. . . . Here, it is alleged the fireTEK Routers manufactured, distributed, and sold by Defendants contain or generate copies of the copyrighted FireOne Protocols. Thus, it is alleged the Defendants’ protocols are either unlawful copies or unlawful derivative works. HUBAY V. MENDEZ No. 2:19-CV-1327-NR, 2020 WL 6694406 (W.D. Pa. Nov. 13, 2020) Outcome: Motion for declaratory judgment - granted Works of Authorship: Visual work - photograph Topics: Ownership - work made for hire Breaking up is hard to do, and the split at the heart of this case was no exception. In happier times, the parties were allies in activism, working together toward the admirable goal of ending sexual violence in the military. Now, after falling out amid personality conflicts and

Joshua L. Simmons joshua.simmons@kirkland.com

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disagreement over tactics, they find themselves in federal court, on opposing sides of a copyright-infringement lawsuit. But while the personal conflicts lurking beneath this case run deep, the primary question that the Court must answer is relatively straightforward: Who owns the photos? The crux of this case is that Plaintiffs want Defendants to stop using (and pay damages for their past use of) certain photographs, taken by Plaintiff Robert Losieniecki, to promote the work of Defendants’ nonprofit group, the Military Sexual Trauma Movement. Mr. Losieniecki took the photographs during a trip MSTM took to Washington, D.C. to protest and lobby elected officials on issues of interest to the group. Plaintiffs argue that Mr. Losieniecki owns the photographs from that trip—because he took them—and so Defendants’ alleged use of those photographs constitutes copyright infringement. Defendants counter that MSTM owns the photos. They say that Mr. Losieniecki agreed to serve as the group's photographer for the D.C. trip and participated in that event as an “official volunteer.” This, they argue, means the photographs are “works made for hire” under the Copyright Act, and thus belong to MSTM. The precise extent to which Defendants used or continue to use the photographs remains unclear, and further factual development is needed to sort that out. But at this stage, the Court's task is to determine the owner of the copyright. On that issue, the answer is clear. Based on the evidence submitted to the Court, including the testimony presented during the two-day hearing in this case, the Court finds that Mr. Losieniecki owns the photographs at issue. While the Court found much of Defendants’ testimony on the relevant issues to be credible, the inescapable fact is that the “work made for hire” doctrine does not apply here. Instead, that doctrine applies only to works produced by employees or, if a written contract exists, independent contractors. An unpaid volunteer for a nonprofit organization is neither. Alternatively, applying the familiar Reid factors, the Court finds that Mr. Losieniecki was not operating as the equivalent of an employee under the “work made for hire” doctrine, and so owns the photographs on that basis, as well. The Court will therefore enter a declaration in Mr. Losieniecki's favor on his copyright claim.

Fourth Circuit

Court of Appeals for the Fourth Circuit

QUETEL CORP. V. ABBAS No. 18-2334, 2020 WL 4013921 (4th Cir. Jul. 16, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - computer program Topics: Remedies - permanent injunction QueTel Corporation (“QueTel”) filed a civil action against Hisham Abbas, Shorouk Mansour, and Finalcover, LLC (“Finalcover”) (collectively, “Defendants”) raising claims, inter alia, of copyright infringement, under the Copyright Act . . . (“Count I”), and misappropriation of trade secrets, under the Virginia Uniform Trade Secrets Act (“VUTSA”) . . . (“Count II”). The crux of

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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QueTel’s claims was that Abbas—a former QueTel employee—misappropriated source code from QueTel’s copyrighted software, TraQ Suite 6, for Defendants’ competing software, CaseGuard. On appeal, Defendants contend that the district court abused its discretion in awarding judgment to QueTel as a sanction for Defendants’ spoliation of evidence and in imposing a permanent injunction against Defendants. We affirm.

Western District of North Carolina

OPPENHEIMER V. ACL LLC No. 3:19-CV-00024-GCM, 2020 WL 7060971 (W.D.N.C. Dec. 2, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Copyright registration - presumption of validity, Defenses - act of state, Infringement - liability of corporate officer, Defenses - fair use, Defenses - unclean hands THIS MATTER comes before the Court upon Plaintiff's Motion for Summary Judgment . . . , which was filed on March 23, 2020. . . . a. Defendants' Liability for Direct Copyright Infringement . . . Plaintiff sets forth that he holds a certificate of copyright registration for the Copyrighted Work issued by the United States Copyright Office. . . . Defendants make no attempt to dispute the validity of the copyrights for the Copyrighted Work. Therefore, Plaintiff has succeeded in establishing valid copyright ownership exists. . . . To say that the act of state doctrine applies is to argue that the outcome of this case turns on whether the Tribe validly gave the photo to Defendants in its official capacity and, thereby, made it so that Defendants' copying and posting of the Copyrighted Work was not infringement. This theory is far too attenuated where Defendants, who are not alleged to be part of the Tribe, took the Copyrighted Work and illegally copied it onto their website. Such a conclusion is especially true given that Defendants' theory in no way serves to promote the rationale behind the act of state doctrine. There is no risk of imperiling amicable relationships between the government and the Tribe. The Court finds that the act of state doctrine should not be invoked here, and Defendants have offered no evidence to dispute the validity of the copyrights or to dispute their acts in copying the Copyrighted Work. Therefore, there is no genuine dispute of material fact as to the direct copyright infringement that occurred when Defendants copied and published the Copyrighted Work on their website. b. Defendant Moore's Liability . . . Regardless of his role with Defendant ACL, Defendant Moore is personally liable for direct copyright infringement because he violated Plaintiff's exclusive copyrights based on the undisputed facts set forth in Plaintiff's Motion. Defendant Moore verified in deposition that he is “the sole owner of the ACL, LLC, which operates iplaycornhole.com.” . . . He also admitted the Copyrighted Work was published on iplaycornhole.com and that he was the individual who managed the website when it was published. . . . Defendants do not dispute these facts. Even if Defendant Moore was acting on behalf of Defendant ACL when he copied and pasted the Copyrighted Work to Defendant ACL's

Joshua L. Simmons joshua.simmons@kirkland.com

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website, he is liable for direct copyright infringement because he personally infringed on Plaintiff's exclusive copyrights. c. Defendants' Fair Use and Unclean Hands Affirmative Defenses . . . Applying these factors to the facts of this case, the purpose and character of Defendants' use appear to be of a commercial nature, where Defendants have not argued or presented evidence contrary to them having used the work to promote awareness about their cornhole championship. ECF Doc. 1-3; ECF Doc. 14-2 at 12. Additionally, while the photograph in question is simply one of the Harrah's lobby, it required some artistic element and creativity to decide the perspective to take, the placement and orientation of the camera, the settings to use, and the timing of the photograph. See U.S. Copyright Office, Circular 42: Copyright Registration of Photographs, https://www.copyright.gov/circs/ (last visited Nov. 19, 2020) (classifying photographs as “visual art works” and explaining why they are classified as such); ECF Doc. 14-2 at 2 (attesting to the care taken when creating the Copyrighted Work). Further, Defendants proceeded to copy the entire work to the website iplaycornhole.com. ECF Doc. 1-3. Nevertheless, when turning to the final factor, it seems that Plaintiff has failed to establish sufficient undisputed facts to support the effect Defendants' use had upon the potential market for or value of the copyrighted work. While Plaintiff argues he is a professional photographer and his income is derived from licensing his works, Defendants argue his income is derived from copyright infringement cases. Without more facts, perhaps those attesting to the value of the photograph, the expected profit from the photograph, or even the value or expected profits derived from similar photographs, the Court cannot make a determination as to the fourth factor of the fair use doctrine. Plaintiff has not established sufficient facts that the secondary use usurped the market for the original work. While the Court acknowledges that these factors are to be examined as a whole and no single factor is determinative, the fourth factor is undoubtedly the most important factor. A reasonable jury could find that Defendants' use of the work had minimal effect upon the potential market for or value of the copyrighted work and this would be key to analysis of the substantive law. Therefore, summary judgment is not appropriate for this affirmative defense. . . . . If Plaintiff's purpose in copyrighting the Copyrighted Work was to license it for use when individuals or companies need a photo of the Harrah's lobby, then Plaintiff is likely not misusing his copyrights. Yet, a reasonable jury could find Plaintiff is using copyrights to derive an income from infringement suits and this issue is one of fact that the Court should not decide. Surely there are only minimal facts alleged to support this theory but, given that the Court is to construe the facts in favor of Defendants, the Court finds that summary judgment is not appropriate as to this affirmative defense.

District of South Carolina

EARTHWORKS GRP., INC. V. A&K PROPS. OF S.C., INC. No. 4:17-CV-01486-SAL, 2020 WL 1703897 (D.S.C. Apr. 8, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - graphic work Topics: Defenses - statute of limitations, Infringement - architectural work, Remedies - attorneys fees, Remedies - statutory damages

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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This matter is before the Court on Defendants A&K Properties of South Carolina, Inc. (“A&K”), Hanco of SC, Inc. (“Hanco”), Kirk Hanna, Venture Engineering, Inc. (“Venture”), Steve S. Powell, and Ryan E. Harvey’s (collectively, “Defendants”) Motion for Summary Judgement . . . . The Court grants Defendants’ motion in part, finding that certain of Plaintiff’s copyright claims and Plaintiff’s state law claims are barred by the applicable statutes of limitations. Plaintiff has, however, established triable issues concerning Defendants’ alleged infringement occurring less than three years before it filed suit. . . . I. . . . The Court . . . finds that Plaintiff was chargeable with knowledge of Defendant’s alleged infringement in 2012. Plaintiff has carried its burden . . . to show that other independent claims of infringement are timely brought within the applicable three-year limitations period. Because each separate act of infringement begins a new limitations period, Defendants’ motion is granted in part and denied in part. Only acts of infringement that occurred after June 7, 2014, are recoverable, because Plaintiff was chargeable with knowledge that Defendants were violating its copyright prior to that date. . . . A. . . . [D]rawing all reasonable inferences in Plaintiff’s favor, as the Court must, a jury could find that Defendants distributed infringing plans to contractors and subcontractors after June 7, 2014, where construction is still in progress. Defendants have not adduced any evidence that this distribution did not occur, and the Court finds it reasonable if not probable that to construct the site, this distribution likely occurred within the limitations period. These claims of copyright infringement are timely, and the Court denies summary judgment with respect thereto. . . . B. . . . Because Plaintiff’s work is registered as a technical drawing and not an architectural work under the AWCPA, the Court holds that Defendants’ use of infringing plans to construct The Diamond is not an act of copyright infringement and grants Defendants’ motion as to these claims. The issue of whether such construction is relevant to the issue of damages is not before the Court. . . . C. . . . Because the record before the court presents genuinely disputed factual issues, Earthworks’ claim for copyright infringement arising from Defendants’ use for marketing on Hanco’s website survives summary judgment to the extent the conduct complained of occurred after June 7, 2014. IV. . . . Earthworks alleges, and Defendants have conceded, that Defendants first infringed Earthworks’ copyright by transmitting Earthworks’ original site plans to regulators on November 2, 2012. This act of infringement occurred prior to Earthworks’ registration on November 14, 2012, and thus Defendants’ infringement “commenced” prior to registration. 17 U.S.C. § 412 therefore precludes attorney’s fees statutory damages recovery in this case. Although there are genuine issues related to post-registration infringements, “[t]hese post-registration activities make no difference,” . . . regarding the availability of attorney’s fees and statutory damages. Defendants have carried their burden in establishing the lack of a triable issue on this question, and Earthworks has failed to demonstrate that one exists. Accordingly, Defendants’ motion is granted on the issue of attorney’s fees statutory damages.

Joshua L. Simmons joshua.simmons@kirkland.com

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OPPENHEIMER V. SCARAFILE No. 2:19-CV-3590-BHH, 2020 WL 6710864 (D.S.C. Nov. 16, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Infringement - pleading requirements, Remedies - willful infringement, Vicarious infringement - pleading requirements, Contributory infringement - pleading requirements, Integrity of Copyright Management Information - pleading requirements, Defenses - statute of limitations This matter is before the Court on Defendants Michael C. Scarafile, Patricia R. Scarafile, Sheila Glover Romanosky, and O'Shaughnessy Real Estate, Inc. doing business as Carolina One Real Estate's motion to dismiss Plaintiff David Oppenheimer's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. . . . For the reasons set forth in this Order, the motion to dismiss is denied. . . . A. Non-Willful Copyright Infringement . . . Plaintiff alleges that he discovered the Copyrighted Works were being publicly displayed online, without license or authorization, in advertisements for the sale of the Boat Slip. He further alleges that Carolina One (listing broker for the property), one or more of the Individual Defendants, or someone acting at their direction copied and distributed the Copyrighted Works to at least 34 different realtors, agents, brokers, and/or other entities, and that the Works were subsequently published on over 100 separate website URLs to advertise the property for sale. Plaintiff supports these allegations with “screen captures” of allegedly infringing real estate listings . . . and specific identification of the URLs displaying the Works without license . . . . Plaintiff contends that after his attorney notified Defendants of their infringing acts, one or more of the Defendants removed some, but not all, of the allegedly infringing images from the accused websites, leading to the inference that Defendants exercised control over at least some of the infringements. Oppenheimer does not appear to have knowledge as to each of the named Defendants’ precise role in the allegedly infringing activities, but such precise pleading is not required to state a claim that will survive a motion to dismiss. The allegations in the complaint, taken together with the supporting exhibits, provide sufficient factual content for the Court to “draw the reasonable inference that [Defendants] are liable for the misconduct alleged.” . . . Accordingly, Plaintiff has stated a facially plausible claim for non-willful copyright infringement and the motion to dismiss this cause of action is denied. B. Reckless/Willful Copyright Infringement . . . In addition to the infringing actions alleged in his first cause of action, Plaintiff avers that one or more of the Defendants—or a third party acting on their behalf—saw Oppenheimer's copyright notice on the face of the images prior to downloading them for their own purposes, thus giving them “knowledge” that their acts were infringing. . . . Plaintiff further alleges that after acknowledging the claims he made in the cease and desist letter, Defendants “falsely informed Oppenheimer that they had removed all instances of infringement from the Web,” even as they continued to display the Copyrighted Works on a specific URL. . . . The analysis need go no further. Accepting Plaintiff's allegations as true, Defendants were given formal notice that Oppenheimer was the sole author and owner of the

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Copyrighted Works, yet still used the Works without license or authorization. Plaintiff's second cause of action sufficiently alleges a plausible claim, in the alternative, for reckless/willful copyright infringement and the motion to dismiss this claim is denied. C. Vicarious Copyright Infringement . . . The Court finds that the complaint adequately pleads a claim for vicarious copyright infringement by the Individual Defendants. Plaintiff alleges that during the time period relevant to his infringement claims: (1) Michael Scarafile was the president, director, manager, and/or other genre of principal of Carolina One; (2) Patricia Scarafile was the chief executive officer, registered agent, director, manager, and/or other genre of principal of Carolina One; and (3) Romanosky was the licensed broker for the property in question. (Compl. ¶ 29.) He further alleges that the Scarafiles “controlled nearly all decisions” of Carolina One and “provided hands-on decision making with respect to the activities” of the company. . . . Moreover, he avers that Romanosky as listing broker and the Scarafiles as managing principals “had the right and ability to supervise and/or control [the] infringing conduct of [Carolina One], and/or stop the infringements once they began.” . . . Defendants, in their motion to dismiss, concede that Romanosky and Carolina One benefited financially from the sale of the Boat Slip . . . , demonstrating a financial interest for the Individual Defendants that is logically tied to the use of the Copyrighted Works to market the Boat Slip for sale. Thus, the allegations in the complaint, read in the light most favorable to Plaintiff, show that the Individual Defendants were decision-makers at Carolina One with the power to control the allegedly infringing conduct, and that they directly benefited from the profit derived in part by use of the Copyrighted Works. Plaintiff's vicarious infringement cause of action states a plausible claim for relief and the motion to dismiss the claim is denied. D. Contributory Copyright Infringement . . . Plaintiff alleges that Romanosky and the Scarafiles are the “dominant influences” at Carolina One, and that all three “provide hands-on decision making with respect to the activities of the entity, set and control the company's policies and protocols, and established corporate rules and cultures which encouraged the infringing activities.” . . . Moreover, Plaintiff avers that the Individual Defendants "had the right and ability to supervise and/or control the infringing conduct of [Carolina One] and of its employees, agents, and/or servants and/or to stop the infringements once they began, but either directly refused to exercise such rights or chose to remain willfully blind to the infringing activities while creating a work environment that encouraged and enabled the same." . . . Additionally, Plaintiff alleges that the Individual Defendants “had an obvious and direct financial interests [sic] in the infringing activities of the company they ran.” . . . Accepted as true, and taken in conjunction with Plaintiff's allegations regarding Defendant's reaction to the cease and desist letter—to wit, removing some but not all of the allegedly infringing content—Plaintiff's contributory infringement claim sets forth sufficient facts to state a claim, in the alternative, to his direct infringement and vicarious infringement claims. Accordingly, the motion to dismiss Plaintiff's fourth cause of action is denied. E. Violations of the Digital Millennium Copyright Act (“DMCA”) . . . The Court finds Plaintiff has properly pled that Defendants violated the DMCA . . . . Oppenheimer alleges that he marked the Copyrighted Works with his CMI on the face of the images in legible captions just below the image . . . , and within the metadata of the image. . . . He further alleges that one or more of the

Joshua L. Simmons joshua.simmons@kirkland.com

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Defendants, or a third party at their direction, violated the DMCA by removing and/or obscuring Oppenheimer's facial and metadata CMI. . . . Plaintiff attached two exhibits to the complaint showing that Oppenheimer's CMI was embedded in the metadata of his original Works but was stripped from the allegedly infringing images. . . . Oppenheimer avers that one or more of the Defendants distributed copies and/or derivatives of Oppenheimer's Works knowing that such facial and metadata CMI had been cropped-off, removed, or obscured beyond legibility, all without authorization. . . . Paintiff's allegations, along with the supporting exhibits, provide sufficient factual content for the Court to draw a reasonable inference that Defendants are liable for violating the DMCA. F. Statute of Limitations . . . Defendants have not demonstrated that Oppenheimer knew of the alleged copyright violation, or was chargeable with such knowledge, more than three years before filing suit on December 20, 2019. The fact that Romansky listed the Boat Slip for sale in November 2016 does not mean that Oppenheimer knew of the listing or was chargeable with knowledge thereof. The motion to dismiss on this basis is denied.

Eastern District of Virginia

TRANS-RADIAL SOLUTIONS, LLC V. BURLINGTON MED., LLC No. 2:18-CV-656, 2020 WL 6386970 (E.D. Va. Oct. 30, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Preemption - passing off Before the Court is Plaintiff Trans-Radial Solutions, LLC's (“TRS” or “Plaintiff”) Motion for Summary Judgment on Liability, Defendants Burlington Medical, LLC, Fox Three Partners, LLC, and Phillips Safety Products, Inc.'s Motion for Summary Judgment, and Defendant John Williams's Motion for Summary Judgment (the “cross motions”). . . . The parties' cross motions were filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, Plaintiff's Motion for Summary Judgment is DENIED. Defendants Burlington Medical, LLC, Fox Three Partners, LLC, and Phillips Safety Products, Inc.'s Motion for Summary Judgment is GRANTED on Count VI, GRANTED IN PART on Counts VII and XI, and DENIED on all remaining counts. Defendant John Williams's Motion for Summary Judgment is DENIED. . . . Plaintiff alleges that Burlington and Phillips “remov[ed] or obliterate[ed] TRS's trademark from TRS's copyrighted photographs to create derivative marketing materials.” . . . Accordingly, because all of Plaintiff's copyright claims involve the alleged infringement of its photographs, and because photographs are pictorial works within the scope of copyright infringement, the first prong of this inquiry is established. . . . Here, the allegations undergirding Plaintiff's reverse passing off claim are one in the same as the copyright claims

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Fifth Circuit

Court of Appeals for the Fifth Circuit

S. CREDENTIALING SUPPORT SERV., L.L.C. V. HAMMOND SURGICAL HOSP., L.L.C. No. 18-31160, 2020 WL 104342 (5th Cir. Jan. 9, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Literary work - packet Topics: Copyrightability - originality, Infringement - evidence of copying, Remedies - statutory damages A plaintiff must usually prove damages to recover in a lawsuit. But to encourage compliance, some laws provide automatic damages. The Copyright Act of 1976 is an example. It has a provision allowing a copyright holder to elect statutory damages—in an amount the court sets between $750 and $30,000 per infringed work, rising to a possibility of $150,000 per work for willful infringement—instead of actual damages. . . . Statutory damages are not available, however, in all copyright cases. A plaintiff cannot recover statutory damages, and sometimes more importantly, attorney’s fees, for “any infringement” a defendant commences before the plaintiff registered the copyright. . . . That limitation encourages authors to register their works quickly, allowing potential infringers to readily determine whether a work is protected. . . . We have interpreted section 412 to bar statutory damages even for a defendant’s postregistration copying of a plaintiff’s map if copying also occurred before registration. . . . The question this case poses is whether that bar also applies when the defendant engages in a different type of infringement after registration. For example, what if a defendant distributes the work after registration rather than continuing with the earlier copying? . . . II. We first address whether Southern Credentialing possessed valid copyrights in its credentialing packets. . . . Southern Credentialing’s forms meet the low bar for originality. Southern Credentialing selected and arranged information in an efficient way. Among other things, the forms eliminate unnecessary questions that appear on competitors’ forms. Indeed, Hammond admits that Southern Credentialing’s forms enabled Southern Credentialing to process applications at a much faster than average rate. Presumably the efficiency of Southern Credentialing’s forms is why Hammond continued to use them with the new credentialing company, even after Southern Credentialing protested. Although laws and hospital policies dictate the contents of the credentialing forms, Southern Credentialing’s unique selection and arrangement of information exhibit creative expression. That distinctive arrangement distinguishes the credentialing applications from the once-ubiquitous white pages that the Supreme Court held lacked originality because market forces required alphabetical phone directories. . . . In contrast to the uniform arrangement used in the phone directory business, competing health care credentialing servicers use forms that are compiled and arranged in different ways. Such differentiation within the industry demonstrates originality. . . .

Joshua L. Simmons joshua.simmons@kirkland.com

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Southern Credentialing has valid copyrights protecting the selection and arrangement of information in its credentialing forms. III. The next question is whether Hammond infringed those copyrights. . . . Hammond copied Southern Credentialing’s packets. Large portions of Hammond’s new application are taken verbatim from Southern Credentialing’s packets—approximately 50% of Southern Credentialing’s materials are included in the new forms. Although the copyright in factual compilations is necessarily thin, wholesale duplication of half of a protected work necessarily incorporates its protected elements. . . . IV. . . . We agree that section 412 bars statutory damage awards when a defendant violates one of the six exclusive rights of a copyright holder preregistration and violates a different right in the same work after registration. ENERGY INTELLIGENCE GRP., INC. V. KAYNE ANDERSON CAPITAL ADVISORS, L.P. No. 18-20350, 18-20615, 2020 WL 219008 (5th Cir. Jan. 15, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Literary work - newsletter Topics: Defenses - failure to mitigate, Integrity of Copyright Management Information - defenses, Remedies - statutory damages, Remedies - attorneys fees Plaintiffs Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited (“EIG”) collectively publish information and news relevant to the global energy industry. One of EIG's publications is Oil Daily, a daily newsletter that provides news and analysis about the North American petroleum industry. . . . The issue presented in EIG's appeal is one of first impression: whether failure to mitigate is a complete defense to liability for statutory damages under the Copyright Act and the DMCA. The parties agree that EIG's failure to mitigate is a relevant factor in deciding what statutory damages ought to be imposed, but they disagree over whether failure to mitigate can preclude liability altogether. EIG says it cannot and urges the court to instate an award of $25,752,500 ($15,000 for each of 1,646 works infringed plus $2,500 for each of 425 DMCA violations) in EIG's favor. KA counters that mitigation is a complete defense to liability and that the district court's award of $585,000 in statutory damages was appropriate. Two other issues are raised in KA's appeal. First, KA contends that the district court erred in denying its § 411 motion for referral to the Copyright Register. Second, KA argues that it should have received post-offer attorney's fees under Rule 68. We hold that failure to mitigate is not a complete defense to copyright or DMCA claims for statutory damages; the district court properly denied KA's referral motion; and the district court properly denied KA's post-offer attorney's fees under Rule 68. Remand is necessary to determine copyright damages because we cannot determine whether the jury intended to award EIG

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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$15,000 per infringed work. Remand is also necessary to re-calculate appropriate awards, attorney's fees, and costs. If total damages ultimately amount to more than $5 million (KA's Rule 68 offer), KA may no longer be eligible to recover post-offer costs. We AFFIRM the district court's denial of KA's § 411(b) referral motion. We VACATE the judgment in full and instate an award of $1,062,500 for EIG's DMCA claims. We REMAND as to copyright damages, attorney's fees, and costs, with the clarification that non-prevailing copyright and DMCA defendants may not recover post-offer attorney's fees under Rule 68. BRADFORD V. NATIONWIDE INS. CO. No. 19-50555, 2020 WL 1230317 (5th Cir. Mar. 12, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - computer program Topics: Copyright registration - pleading requirements Mark Bradford appeals the dismissal with prejudice of his copyright infringement claims, contending that he sufficiently stated his claims and that, if not, he should be allowed to amend his complaint. We AFFIRM the judgment. . . . Bradford’s exhibit simply fails to name which product or copyright registration the source code pertains to. . . . The deficiencies pointed out by the district court go to more than mere semantics or misbranding. Inconsistencies in Bradford’s own pleadings undermine the plausibility of his contention that the WinSketch Nationwide Insurance product is identical for copyright purposes with his two registered copyrights. DIGITAL DRILLING DATA SYS., L.L.C. V. PETROLINK SERV., INC. No. 19-20116, 2020 WL 3603953 (5th Cir. Jul. 2, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Literary work - database Topics: Infringement - substantial similarity, Circumvention of copyright protection systems - technological protection measure, Preemption - unjust enrichment, Remedies - attorneys fees Digital Drilling Data Systems, L.L.C. (“Digidrill”), a company that provides software used in oil drilling operations, sued its competitor, Petrolink Services, Inc. (“Petrolink”), alleging Petrolink hacked into its software at various oil drilling sites in order to “scrape” valuable drilling data in real time. The district court granted Petrolink’s motion for summary judgment on Digidrill’s copyright claims, but allowed Digidrill’s unjust enrichment claim to proceed to trial, where a jury ultimately returned a verdict in Digidrill’s favor. Both parties appealed. We affirm in part, vacate in part, and remand for further proceedings. . . . In sum, we affirm the district court’s ruling on copyright infringement because, even if Digidrill’s qualitative importance argument is not waived, no reasonable jury could find

Joshua L. Simmons joshua.simmons@kirkland.com

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substantial similarity based on the qualitative importance of the copied schema to DataLogger as a whole. . . . We agree with Petrolink—and the district court—that no DMCA violation occurred. While the USB dongle and Interface Process may have effectively restricted certain unauthorized uses of the DataLogger software—for example, by preventing MWD companies from duplicating and running the program on laptops at other drilling sites without purchasing additional licenses—these security measures did not effectively control and indeed were not designed to control access to the protected database schema, as evidenced by Digidrill’s public acknowledgement that the data was stored in an open database file to allow users to query the database using off-the-shelf products. The database—including its schema—was protected only by an internal-facing password, and Digidrill does not appeal the district court’s holding that Petrolink did not circumvent that measure when Petrolink employed the commonly-known Firebird default credentials. . . . Applying these cases to Digidrill’s unjust enrichment claim, we hold Digidrill’s claim is not preempted by copyright because—like the claim in GlobeRanger—it requires establishing that Petrolink engaged in wrongful conduct beyond mere reproduction: namely, the taking of an undue advantage. Under Texas law an unjust enrichment claim requires showing that one party “has obtained a benefit from another by fraud, duress, or the taking of an undue advantage.” . . . Digidrill does not allege fraud or duress, but instead contends Petrolink obtained a benefit by taking undue advantage when it surreptitiously installed RIG WITSML on various MWD companies’ laptop computers, causing those MWD companies to violate the terms of their DataLogger licenses. This is the claim Digidrill put to the jury. Like the alleged misappropriation-of-trade-secrets claim in GlobeRanger, which required establishing improper means or breach of a confidential relationship, Digidrill’s alleged unjust enrichment claim requires establishing wrongful conduct—i.e., inducing the MWD companies to violate the express terms of their DataLogger licenses—that goes beyond mere copying. . . . Because the district court both failed to treat Petrolink as the prevailing party under the statutes and failed to apply the correct legal standard from Fogerty, we vacate the district court’s denial of Petrolink’s motion for fees and remand for the district court to properly analyze the motion. Although the district court may, on remand, exercise its discretion to deny Petrolink’s motion for fees, “[t]he district court should provide a Fogerty analysis in its ensuing opinion so that its ruling can, if needed, be reviewed on appeal.” BATISTE V. LEWIS No. 19-30400, 19-30889, 2020 WL 5640589 (5th Cir. Sep. 22, 2020) Outcome: Appeal - affirmed Works of Authorship: Music - sound recording Topics: Infringement - access, Infringement - striking similarity A local jazz musician, Paul Batiste, sued an internationally famous hip-hop duo for copyright infringement. He says the group digitally sampled his songs. Finding no evidence of copying, the

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district court granted summary judgment for the defendants and then ordered both Batiste and his attorney to pay the defendants’ attorneys’ fees. Batiste appealed. We lack jurisdiction to review the fee award against Batiste's attorney but otherwise AFFIRM the district court's judgments. . . . On the record before us, no reasonable jury could find more than a bare possibility that the defendants had an opportunity to hear and copy Batiste's music. Thus, Batiste failed to create a genuine dispute on access. . . . In sum, because Batiste didn't produce evidence for a reasonable jury to infer that the defendants had access to his music or to find striking similarities between his songs and those of the defendants, Batiste can't prove factual copying. Without proof that the defendants copied his works, Batiste's copyright claims fail. Thus, the district court correctly granted summary judgment for the defendants.

Eastern District of Louisiana

EXPRESS LIEN, INC. V. HANDLE, INC. No. CV 19-10156, 2020 WL 1030847 (E.D. La. Mar. 3, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - Internet work Topics: Ownership - pleading requirements, Infringement - pleading requirements Before the Court is defendants’ motion to dismiss for lack of personal jurisdiction and motion to dismiss for failure to state a claim. Because defendants consented to jurisdiction in the Eastern District of Louisiana, the Court denies defendants’ motion to dismiss for lack of personal jurisdiction. And for the reasons set forth below, the Court denies defendants’ motion to dismiss for failure to state a claim with respect to plaintiff’s breach of contract, Louisiana Unfair Trade Practices and Consumer Protection Law, and copyright claims. The Court grants defendants’ motion to dismiss for failure to state a claim with respect to plaintiff’s fraud and trade dress claims. . . . i. Ownership . . . The complaint states: “For all of the works at issue in this matter, Plaintiff is the owner and creator of the copyright-protected works.” Plaintiff attaches two exhibits demonstrating “content-product plagiarism/reverse engineering examples” and “word-for-word” violations. It also alleges that plaintiff is the registered copyright holder of eight U.S. copyrights, and it enumerates those copyrights by copyright number. This is sufficient to plead ownership. . . . ii. Actionable Copying . . . In its complaint, plaintiff adequately pleads that defendant had access to the copyrighted work. It also adequately pleads substantial similarity by attaching two exhibits to its complaint, one containing conduct-product plagiarism and reverse engineering examples, and the other containing “word-for-word” violations. EDWARDS V. TAKE FO' RECORDS, INC., ET AL. No. CV 19-12130, 2020 WL 3832606 (E.D. La. Jul. 8, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Music - sound recording

Joshua L. Simmons joshua.simmons@kirkland.com

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Topics: Defenses - statute of limitations, Infringement - pleading requirements Before the Court are three motions: (1) a motion to dismiss pursuant to Rule 12(b)(5) by Sony/ATV Music Publishing LLC (improperly sued as Sony/ATV Allegro), Epic Records, a division of Sony Music Entertainment (improperly sued as Epic Records), and Quality Control Music, LLC; (2) a motion for reconsideration of judgment by the plaintiff, Kirk Edwards (professionally known as DJ JMK); and (3) a motion to dismiss pursuant to Rule 12(b)(6) by Take Fo’ Records, Inc., Take Fo’ Publishing, Positive Black Talk, Inc., Darwin Turner (professionally known as Choppa), and Earl Mackie. For the reasons that follow, the Rule 12(b)(5) motion to dismiss is GRANTED in part and DENIED in part; the plaintiff’s motion for reconsideration is GRANTED in part and DENIED in part; and the Rule 12(b)(6) motion to dismiss is DENIED. . . . In considering whether dismissal is appropriate, the Court’s task is hindered by the defendants’ singular focus on their own factual narrative. The defendants’ submission previews their statute of limitations defense along with other defenses. However, the narrative’s source is not the complaint’s allegations, which is the focal point for a Rule 12(b)(6) motion. Anchored as it is to purported facts absent from the plaintiff’s complaint, the defendants fail to persuade the Court that the plaintiff’s copyright infringement claims are facially time-barred. . . . The defendants fail to persuade the Court that the plaintiff states no plausible copyright infringement claim. To be sure, recordation is a prerequisite to file a lawsuit claiming copyright infringement, but the defendants do not dispute that the plaintiff claims (indeed, they admit) that he registered his copyright for “Choppa Style” prior to filing this lawsuit. Insofar as the defendants challenge the timing of the plaintiff’s recent copyright recordation, the defendants offer no legal support for their insinuation that the plaintiff’s claim fails as a matter of law because the defendants first had a copyright in 2001 for what the Court is asked to presume is the same sound recording. The Court is left to speculate as to the grounds the defendants advocate for dismissal. If validity is tethered to timing and exclusivity, as the defendants vaguely suggest (and clearly fail to brief), such are findings that will be made on the record, not on the pleadings. . . . Defendants’ submission into the record of a recording contract between Take Fo’ and Choppa -- a contract, which defendants suggest demonstrates Take Fo’s exclusive ownership rights to “Choppa Style” -- fails to persuade the Court that dismissal of the plaintiff’s copyright infringement claims are warranted. At this stage, Edwards need only allege, not prove, that (1) he owns a valid copyright in “Choppa Style”; and (2) the defendants copied protected aspects of the work. The defendants do not challenge sufficiency of the allegations pertaining to the second element; and their limp and unsupported arguments as to the first element fail to persuade the Court that dismissal of the plaintiff’s copyright infringement claims is warranted. BERTUCCELLI V. UNIVERSAL CITY STUDIOS LLC No. CV 19-1304, 2020 WL 6163402 (E.D. La. Oct. 21, 2020) Outcome: Motion for summary judgment - denied Works of Authorship: Visual work - image Topics: Infringement - substantial similarity

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Before the Court is a Motion for Summary Judgment1 filed by University City Studios LLC, Universal City Studios Productions LLLP, Blumhouse Productions, LLC, Tree Falls In The Woods, L.L.C., Anthony “Tony” Robert Gardner, The Alterian Ghost Factory, Inc., Trick or Treat Studios, and Foe Paw Films, LLC (“Defendants”). . . . For the following reasons, the Motion for Summary Judgment is DENIED. . . . [A]fter reviewing the competent summary judgment evidence and conducting “a side-by-side comparison” of the works, the Court finds that Plaintiffs have submitted evidence establishing that a factfinder could find substantial similarities between KCB and the HDD Mask. BEATRIZ BALL, LLC V. BARBAGALLO No. CV 18-10214-WBV-KWR, 2020 WL 6938524 (E.D. La. Nov. 25, 2020) Outcome: Bench trial - judgment for defendant Works of Authorship: Visual work - tableware Topics: Ownership - standing This is a copyright and trademark infringement case concerning tableware products. On October 31, 2018, Fabulous Pewterware, LLC, which is now known as Beatriz Ball, LLC (hereafter, “Plaintiff”), filed a Complaint and Request for Preliminary and Permanent Injunction in this Court against Barbagallo Company, LLC d/b/a Pampa Bay and Carlos Barbagallo, asserting claims for: (1) copyright infringement under the Copyright Act . . . ; (2) unfair competition under § 43 of the Lanham Act, in the form of false designation or false advertising under 15 U.S.C. § 1125(a) and dilution under 15 U.S.C. § 1125(c); and (3) violation of Louisiana's Unfair Trade Practices and Consumer Protection Law (“LUTPA”) . . . . Plaintiff alleges that Pampa Bay and Barbagallo have marketed several lines of products that copy the look and feel of Plaintiff's “Organic Pearl” designs of tableware and constitute unauthorized derivative works that infringe upon Plaintiff's registered copyrights under 17 U.S.C. §§ 101, 103. . . . Because the Assignment does not contain language explicitly transferring causes of action for prior infringements from Beatriz Ball, individually, and Beatriz Ball Collection to Fabulous Pewterware, LLC, which is now known as Beatriz Ball, LLC, the Court finds that Beatriz Ball, LLC lacks legal standing to assert any copyright infringement claims against Pampa Bay that existed prior to or as of October 30, 2018, the date of the Assignment. . . . The alleged copyright infringements at the heart of this litigation occurred prior to October 30, 2018. . . . Accordingly, Beatriz Ball, LLC lacks standing to assert its claims for copyright infringement of VA-1-638-637, ORGANIC nova pearl oval tray (Trial Exhibit 1), VA-1-928-830, ORGANIC PEARL Kristi rect. tray w/handles (Trial Exhibit 3), A-1-714-656, Organic pearl quad dip (Trial Exhibit 4), VA-1-928-829, ORGANIC PEARL sauce bowl (Trial Exhibit 2), which claims must be dismissed. . . . Because the Court finds that Plaintiff lacks standing, it need not determine whether there was any copyright violation.

Eastern District of Texas

VIRTUAL CHART SOLS. I, INC. V. MEREDITH

Joshua L. Simmons joshua.simmons@kirkland.com

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No. 4:17CV546, 2020 WL 896674 (E.D. Tex. Feb. 25, 2020) Outcome: Motion for attorneys fees and costs - granted Works of Authorship: Literary work - test Topics: Remedies - attorneys fees The above-entitled and numbered civil action was heretofore referred to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. On January 13, 2020, the Magistrate Judge issued a Report and Recommendation, recommending the Surgical Notes Defendants’ Proposed Bill of Costs and Brief in Support of an Award of Attorney Fees Pursuant to 17 U.S.C. § 505 . . . and Defendant MRI Centers of Texas, LLC’s Proposed Bill of Costs and Brief in Support of Award of Attorney’s Fees . . . be GRANTED as modified in the Report and Recommendation. Specifically, the Magistrate Judge recommended the Surgical Notes Defendants and Defendant MRI Centers of Texas, LLC be awarded attorneys’ fees (but not in the full amounts requested) and also be awarded the full amount of costs requested. . . . The Court conducts a de novo review of the Magistrate Judge’s findings and conclusions. . . . KAZEE, INC. V. CALLENDER No. 4:19-CV-31-SDJ, 2020 WL 994832 (E.D. Tex. Mar. 2, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - computer program Topics: Infringement - pleading requirements Before the Court is Defendants Dr. David L. Callender and Todd Leach’s Motion to Dismiss. . . . The Magistrate Judge entered a report and recommendation that the motion be denied. . . . The Defendants filed objections . . . . The Court, having conducted a de novo review of the motion and the record, adopts the factual findings and legal conclusions of the report under the reasoning set forth herein. . . . This . . . is a case that involves direct evidence of copying. It is beyond dispute that KaZee provided UTMB the source code and other copyrighted materials through the Agreement and that UTMB then used those materials to implement PEARL. This is sufficient evidence of direct copying to survive Defendants’ Rule 12(b)(6) challenge. . . . Even if UTMB’s actions did not constitute direct copying, the same facts clearly show access to PEARL and substantial similarity between the copyrighted materials provided to UTMB under the Agreement and currently being used by UTMB. . . . Here, Defendants had—and continue to have—access to the copyrighted PEARL system. Substantial similarity may be shown when the works, “compared as a whole, are adequately similar to establish appropriation.” . . . While Defendants allege that UTMB has “largely recreated PEARL” to tailor the system to its specific needs, there is no dispute that the underlying system—its fundamental essence and structure—has not substantially changed from the copyrighted PEARL system initially provided to UTMB. For these reasons, KaZee has provided sufficient evidence of copyright infringement to survive Defendants’ motion to dismiss.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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GOLDSTEIN V. FACEBOOK, INC. No. 6:19-CV-00389, 2020 WL 4696457 (E.D. Tex. Aug. 12, 2020) Outcome: Motion to dismiss - granted Topics: Copyright registration - registration requirement Leonid Goldstein filed this civil action against Facebook, Inc., on August 28, 2019. . . . The case was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28 U.S.C. § 636(b). . . . On October 18, 2019, Facebook filed a motion to dismiss or transfer venue. . . . On May 26, 2020, Judge Mitchell entered a report and recommendation that Facebook's motion to dismiss be granted and that Goldstein's complaint be dismissed for failure to state a claim. . . . Goldstein filed an objection to the report and recommendation on June 9, 2020. . . . The portions of the magistrate judge's report and recommendation that discussed his claims against Facebook for aiding and abetting international terrorism and for copyright infringement are reviewed de novo on Goldstein's objections thereto, and the section in the report and recommendation that addressed his claim against Face-book for conspiracy to interfere with civil rights is reviewed for clear error upon no specific objection thereto. . . . Goldstein does not claim that he registered copyrights for the materials as to which he claims infringement. . . . Therefore, his copyright-infringement claim fails. GOODE TIME PRODS., L.L.C. V. JUST No. 4:19-CV-58-SDJ, 2020 WL 5518098 (E.D. Tex. Sep. 14, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Music - sound recording Topics: Defenses - fraud on the Copyright Office, Ownership - joint work, Ownership - work made for hire, Remedies - actual damages, Remedies - disgorgement of profits “Christmas may not bring a single thing; still, it gives me a song to sing.” So said Charles Dickens, author of the 1843 classic, A Christmas Carol. The business of singing Christmas carols professionally is the origin of the strife between Plaintiff Goode Time Productions, L.L.C. (“Goode Time”) and Defendant Joel Just. Goode Time, a Christmas caroling company, filed this copyright-infringement action against Just, the founder and owner of a competing Christmas caroling company, for allegedly copying and performing Goode Time's “show.” According to Goode Time's Amended Complaint . . . Goode Time's show consists of copyrighted sound recordings, a copyrighted compilation of Christmas songs, and a copyrighted script, all of which Goode Time alleges Just copied in order to train performers at his company to perform a virtually identical show. Goode Time has filed a Motion for Partial Summary Judgment . . . asking the Court to find Just liable for infringing Goode Time's copyright in eighteen sound recordings and a script. Goode Time further requests an award of actual damages, disgorgement of Just's profits, and a permanent injunction enjoining Just from further infringing Goode Time's copyrights.

Joshua L. Simmons joshua.simmons@kirkland.com

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Having considered the motion, the record, and the applicable law, the Court concludes that Goode Time has produced evidence, not subject to any genuine dispute, that conclusively establishes Just infringed copyrights owned by Goode Time in eighteen sound recordings. However, a genuine dispute exists as to whether Just infringed a copyright owned by Goode Time in the script. And, although Just is liable as a matter of law for infringement with respect to Goode Time's eighteen sound recordings, there is a genuine dispute regarding Goode Time's actual damages and Just's infringement-related profits. For this reason, the Court is unable to determine at this stage whether Goode Time is entitled to a permanent injunction. Goode Time's Motion for Partial Summary Judgment . . . is therefore GRANTED in part and DENIED in part. SAS INSTITUTE INC. V. WORLD PROGRAMMING LTD. No. 2:18-CV-00295-JRG, 2020 WL 6271230 (E.D. Tex. Oct. 26, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Literary work - computer program Topics: Infringement - substantial similarity The Court conducted a Copyrightability Hearing on October 14, 2020. Having considered the arguments of the parties, the related briefing, the evidence presented, and the relevant authorities, the Court finds that the works asserted in the above-captioned case have not been shown to be copyrightable, and therefore plaintiff's copyright claims should be and hereby are DISMISSED WITH PREJUDICE. . . . A. Abstraction . . . The six layers of abstraction laid out by WPL are taken from the framework laid out in Gates Rubber Co. v. Bando Chemical Industries, Ltd. . . . The Gates Rubber framework was adopted by the Fifth Circuit in Engineering Dynamics. . . . Accordingly, the Court proceeds with the layers of abstraction set out by WPL, as rooted in the AFC case law. . . . B. Filtration . . . The present copyrightability dispute between the parties largely centers around a difference in the scope of filtration. . . . The filtration analysis therefore may result in filtering out as unprotectable all elements of an asserted work, or filtering out no elements of an asserted work, or somewhere in-between (i.e., finding that some but not all elements of an asserted work are entitled to protection). However, without performing any filtration at all, the subsequent comparison element of the test is flawed by definition because it is potentially burdened with unprotectable material. The goal of the filtration analysis is to lead to an accurate and fair comparison, which facilitates the ultimate infringement determination by the finder of fact. C. Burden of Proof Framework . . . The initial copyrightability burden rests on the party asserting copyright infringement. . . . However, that initial burden is not heavy. A registered copyrighted work should be entitled to a presumption of protectability. A copyrighted work comprises numerous elements, many of which may be protectable, and many of which may be unprotectable. Thus, once a plaintiff has established some extent of protectability, the burden

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shifts to the defendant to show there are elements within the work which are not entitled to protection. It only makes sense that the burden should shift to the defendant once the plaintiff establishes a threshold of protectability. . . . Once the plaintiff establishes that he has something protectable, the defendant may come forward with evidence that what it has copied—as preliminarily established by plaintiff—is not protectable. The defendant's burden “merely requires him to identify the species of unprotectability that he is alleging and to present supporting evidence where appropriate.” . . . Should the defendant establish that at least some of the copyrighted work is not protectable expression, the burden shifts back to the copyright holder to undertake the “manageable task” of establishing which parts of its asserted work are, in fact, properly entitled to protection. . . . D. Burden Shifting As Done By The Parties . . . Here, Plaintiff SAS showed that it holds a registered copyright, amply argued that its asserted works are creative,9 and presented repeated evidence of factual copying. Accordingly, SAS shifted the burden to WPL. Defendant WPL then came forward with evidence showing that material within the copyrighted work was unprotectable. However, SAS thereafter failed to show any remaining protectability, either by affirmatively showing some elements of the work to be protectable or by combatting Defendant's showing of unprotectability. CORECLARITY, INC. V. GALLUP, INC. No. 4:20-CV-00601, 2020 WL 6741962 (E.D. Tex. Nov. 17, 2020) Outcome: Motion for attorneys fees and costs - granted Topics: Remedies - attorneys fees Pending before the Court is Plaintiff CoreClarity, Inc.’s Motion to Dismiss With Prejudice . . . . Having considered the Motion and relevant briefing, the Court finds the Motion is GRANTED . . . . CoreClarity, Inc. will pay Gallup Inc.’s costs of court in this matter.

Northern District of Texas

WINDSOR V. OLSON No. 3:16-CV-934-L, 2020 WL 1493556 (N.D. Tex. Mar. 27, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Literary work - plan Topics: Remedies - attorneys fees Before the court is Defendants Jeff Olson and Nerium International, LLC.’s (“Defendants”) Motion for Attorney’s Fees (“Motion”) . . . . After careful consideration of the Motion, response, reply, record in this case, and the applicable law, the court denies Defendants’ Motion for Attorney’s Fees . . . . LONGHORN LOCKER CO. V. HOLLMAN, INC.

Joshua L. Simmons joshua.simmons@kirkland.com

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No. 3:19-CV-02872-K, 2020 WL 3963732 (N.D. Tex. Jul. 13, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - photograph Topics: Infringement - substantial similarity, Infringement - pleading requirements, Copyright registration - registration requirement, Preemption - trade secret Before the Court is Defendant Hollman, Inc.'s Motion to Dismiss (Doc. No. 23) (the “Hollman Motion”) and Crystal Clear Creative, LLC and Kellie Mathas' Motion to Dismiss . . . (the “Crystal Motion”). After careful consideration of the arguments presented by the parties and the pleadings before the Court, the Court GRANTS IN PART the Hollman Motion and the Crystal Motion and DENIES IN PART the Hollman Motion and the Crystal Motion. . . . Copyright Claims Based on Longhorn's ‘424 Copyright Registration. . . . In the Hollman Motion and the Crystal Motion, Hollman, Crystal, and Ms. Mathas all assert that these claims should be dismissed because the alleged infringing renderings of the Hollman lockers only contain, as a matter of law, unprotected standard features and configurations of a locker. . . . The identification of the protected elements of the copyrighted work and the factual determination of whether those elements are present in the accused works are not appropriately resolved in a motion to dismiss. Because these claims raise issues that are not appropriately resolved in a motion to dismiss, the Court DENIES the Hollman Motion's and the Crystal Motion's request to dismiss the claims of copyright infringement based on the ‘424 registration. . . . Hollman also argues that Longhorn's claims of copyright infringement based on alleged derivative works of the ‘424 registration should be dismissed because Longhorn fails to identify any Hollman works that could be considered derivative of the ‘424 registration. Crystal and Ms. Mathas assert that the scope of the registration is limited to two dimensional art work. . . . The Court agrees that Longhorn has properly plead sufficient plausible facts to put Hollman on notice as to the works and types of work that Longhorn asserts infringe the ‘424 registration, including those that Longhorn alleges are derivative works. For this reason, the Court DENIES Hollman's, Crystal's, and Ms. Mathas' request to dismiss these copyright claims based on the ‘424 registration. . . . Copyright Claims Based on Longhorn's ‘571 Copyright Application. . . . The Court agrees with the Defendants in that Longhorn's copyright infringement claims based on the ‘571 application must be dismissed because Longhorn currently has no right to sue or recover based on the ‘571 application. . . . The ‘571 application has not been registered, as required by statute. The application also does not meet the one statutory exception. . . . Misappropriation Claims. . . . While a portion of Longhorn's state-law-based misappropriation claims may be based on the design of Longhorn's lockers, the alleged trade secrets are not the same as what is protected by Longhorn's copyright. Longhorn's copyright protects the visible expressive elements of Longhorn's registered copyright. Longhorn's misappropriation claim, as it relates to Longhorn's lockers, seeks to protect alleged secret or concealed features of the lockers that are not normally visible and that are not depicted in Longhorn's copyrighted images of the lockers. In addition, Longhorn's misappropriation claim is based on more than features of the

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lockers, such as the financial information included in Longhorn's bid to the Saints, which has nothing to do with Longhorn's right in its copyright. For these reasons, the Court holds that Longhorn's misappropriation claims are not preempted by the Copyright Act. REILLY V. LOUDER WITH CROWDER, LLC No. 3:20-CV-0395-S, 2020 WL 4016252 (N.D. Tex. Jul. 16, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Defenses - fair use This Order addresses Defendant Louder With Crowder, LLC's (“Defendant”) Rule 12(b)(6) Motion to Dismiss (“Motion”) . . . . For the following reasons, the Court DENIES the Motion. . . . Because the potential market for or value of the Photograph cannot be evaluated from the face of Plaintiff's Complaint, . . . it is inappropriate to conduct the fact-intensive fair-use analysis at this stage of the litigation . . . . Therefore, the Court need not address the other factors, and denies the Motion.

Southern District of Texas

GEOPHYSICAL SERV., INC. V. TGS-NOPEC GEOPHYSICAL CO. No. CV H-14-1368, 2020 WL 821879 (S.D. Tex. Feb. 19, 2020) Outcome: Motion for attorneys fees and costs - granted-in-part Works of Authorship: Literary work - survey Topics: Remedies - attorneys fees In 2014, Geophysical Service, Inc., sued TGS-NOPEC Geophysical Company (“TGS”) for allegedly infringing its copyright by purchasing copies of seismic data that Geophysical had provided to the Canadian government in the early 1980s. After two motions to dismiss, a motion for reconsideration, a motion for summary judgment, and two appeals to the Fifth Circuit, TGS has moved for attorney’s fees and costs incurred defending against Geophysical’s claims. Based on the parties’ briefs, the record, and the applicable law, the court grants in part and denies in part TGS’s motion, awarding $878,314.00 for the fees it reasonably incurred in defending this action, and $4,168.75 in taxable costs. M-I L.L.C. V. Q'MAX SOLUTIONS, INC. No. CV H-18-1099, 2020 WL 4549210 (S.D. Tex. Aug. 6, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Literary work - computer program Topics: Infringement - substantial similarity, Scope of protection - merger, Scope of protection - scenes a faire

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M-I L.L.C. d/b/a M-I SWACO (“M-I”) filed this action against Q'Max Solutions, Inc., Q'Max America, Inc. (together “Q'Max”), and Sanjit Roy (collectively, “Defendants”) alleging the theft and use of M-I's intellectual property and software. M-I alleges claims for copyright infringement, misappropriation of trade secrets, and conversion against all Defendants and breach of contract and breach of fiduciary duty claims against Roy. Pending before the court are . . . Defendants' Motion for Summary Judgment as to Copyright Infringement (“Defendants' MSJ”) . . . . For the reasons explained below, . . . Defendants' MSJ will be granted . . . . It is well established in this circuit that courts should use the abstraction-filtration-comparison test to assess copyright infringement claims involving nonliteral elements of computer programs. . . . Abstraction . . . Combining the parties' arguments, the court will analyze the program as divided into the following levels of abstraction: (1) coefficients and constants; (2) formulas and algorithms; (3) architecture and modules, (4) test results and data structures, and (5) user interfaces and outputs. . . . Filtration . . . Coefficients and Constants . . . A constant or coefficient used by a computer program that reflects scientific observation and physical relationships is therefore not protected by copyright. . . . The coefficients accordingly must be filtered out and cannot be used as the basis for finding copyright infringement. . . . Formulas and Algorithms . . . Hooper's expert report concludes that MAXSITE copied the algorithms for calculating pressure and temperature changes solely because the MAXSITE code and the PPRT code for those functions returned the same result. At most this shows that the MAXSITE algorithms use the same process as the PPRT algorithms; it does not show that MAXSITE copied any algorithm expressive component of the algorithm. . . . Because M-I seeks protection of the processes carried out by the algorithms rather than their specific expression, the algorithms cannot support a finding of copyright infringement. . . . Architecture and Modules . . . The court is persuaded that this evidence shows no genuine issue of material fact as to whether modules for pressure loss, surge and swab, and hole cleaning are standard features in predictive hydraulics modeling programs. Because the undisputed summary-judgment evidence shows that the presence of these modules is dictated by industry standards and M-I has pointed to no particular aspect of the modules in its Copyrighted Works that are more than the standard expressions incidental to industry demand, the court concludes that the modules are not protectable. . . . Test Results and Data Structures . . . M-I suggests that these databases should be considered at the level of abstraction of “data structures.” M-I does not, however, argue that MAXSITE infringes on these data structures nor provide any analysis or authority to suggest that the data structures as used by the computer programs are protectable under the abstraction-filtration-comparison test. Accordingly, the court concludes that Defendants are entitled to summary judgment that MAXSITE does not infringe on either the raw data in the databases or the data structures. . . .

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Graphical User Interfaces and Outputs . . . For example, the GUIs' use of labels such as “well geometry,” “casing,” “lining,” “length,” and “weight” to show the user where to input variables is necessary to implement the idea of allowing users to input the well geometry variables. The idea of users inputting variables therefore merges with the functional labels that show where each variable should be placed and renders the labels unprotectable. The court need not examine every example in detail to conclude that the naming and labeling used in the GUIs are not protectable expression. . . . The evidence establishes that customers of these programs require a complete hydraulics analysis report that displays all of the results and presents them using graphs that plot the results versus the depth of the analyzed well. Moreover, the industry standard is to plot the graphs vertically because that is an intuitive way to display data that varies by the depth of a well. The court concludes that under the scenes a faire doctrine, the general selection, display, and direction of data and charts on the graphical output are unprotectable. . . . This filtering leaves only the arrangement and presentation of elements in the GUI as protectable under copyright. . . . The court is not persuaded, however, that the arrangement and presentation of the data table, header bar, and vertical graphs on the Virtual Hydraulics Snapshot are totally devoid of originality. . . . To the extent that M-I's GUI is protectable, however, it is limited to these protectable elements. Infringement of the GUI cannot be found based on a similarity of the unprotectable elements described above. Comparison . . . Because M-I has pointed to no evidence that the protectable arrangement, presentation, and coloring of the results screen are a “substantial part” of the program, the court must conclude that there is no genuine issue of material fact as to MAXSITE's substantial similarity to the Copyrighted Works. Accordingly, Defendants' MSJ will be granted as to the allegation that MAXSITE infringes on the Copyrighted Works' non-literal elements. . . . Source Code . . . Defendants argue that there is no genuine issue of material fact as to literal infringement because M-I's expert identified at most 44 lines that appear similar between the two source codes - amounting to 0.0022% of the over two million lines in M-I's original source code. The court agrees that no reasonable jury could find that these 44 lines could establish substantial similarity on the basis of quantitative importance. . . . And M-I has not pointed to any summary judgment evidence as to the 44 lines' qualitative importance to its overall programs. RECIF RESOURCES, LLC V. JUNIPER CAPITAL ADVISORS, L.P. No. CV H-19-2953, 2020 WL 5739138 (S.D. Tex. Sep. 24, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - map Topics: Defenses - license, Infringement - distribution, Defenses - de minimis use, Integrity of Copyright Management Information - knowledge, Remedies - statutory damages This case involves the aftermath of unsuccessful discussions for Plaintiff and Defendants to work together on an oil-and-gas development project. The case is now before the Court on three

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motions seeking summary judgment in connection with Defendants’ copyright infringement and related counterclaims. The first is the Motion for Summary Judgment on Copyright Counterclaims (“Recif's First Motion”) . . . filed by Counter-Defendants Recif Resources, LLC (“Recif”), Paul C. Langlois, and Steven M. Jones (collectively, “Recif”). . . . Also pending is Recif's Motion for Partial Summary Judgment on Copyright Counterclaims (“Recif's Second Motion”) . . . . Additionally, Juniper filed a Motion for Partial Summary Judgment (Copyright Infringement and DMCA) (“Juniper's Motion”) . . . . Having reviewed the record and the applicable legal authorities, the Court denies both of Recif's Motions. Juniper's Motion is granted. . . . Permission to Use Copyrighted Works . . . Recif's evidence that its pricipals, Langlois and Jones, subjectively believed that the May 3 Email granted them permission to use Juniper's Copyrighted Works does not raise a genuine issue of material fact regarding whether the unambiguous email applied beyond the clear, express terms of the email exchange. There being no genuine issue of material fact regarding whether Juniper authorized Recif to use the Copyrighted Works, Juniper is entitled to summary judgment on the “unauthorized copying” element of the copyright infringement counterclaims. . . . Distribution of Six Map Poster to Renee Porter . . . With reference only to the copyright infringement claim based on the Six Map Poster, Recif argues that distribution to Renee Porter was not distribution to a third party because Porter was considered an “integral member” of Recif. It is undisputed that Porter was not an employee, officer, director, or other legal representative of Recif. Recif has cited no legal authority that publication of the Copyrighted Works to an unaffiliated colleague, however trusted, is exempt from the copyright laws. Porter's friendship with the Recif principals does not provide a defense to, or preclude summary judgment on, Juniper's copyright infringement claim based on distribution of the Six Map Poster. . . . De Minimis Use . . . Recif admits that it used the entire Six Map Poster in a “pitch” to Outfitters Energy Capital (“Outfitters”) on May 23, 2018. . . . Recif admits also that, at a different meeting with Outfitters in June 2018, Recif used a 24-slide PowerPoint presentation that included 8 slides from the Copyrighted Works. . . . The 8 slides from the Copyrighted Works constituted one-third of the PowerPoint presentation. As a matter of law, these uses of the Copyrighted Works were significantly above the level of “trivial.” The de minimis use affirmative defense is without merit and does not preclude summary judgment for Juniper on its copyright infringement counterclaims. . . . Implied License . . . Recif relies on the May 3 Email as evidence of conduct by Juniper indicating that Recif's use of the Copyrighted Works was permissible. As was true in connection with the copyright infringement requirement that copying and disclosure be unauthorized, Recif's subjective belief that the May 3 Email indicated Juniper's intent to grant permission for Recif to use the Copyrighted Works is not supported by any admissible evidence. Recif has not raised a genuine issue of material fact on the existence of an implied license.

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Under any recognized test for establishing the existence of an implied license, Recif has failed to present evidence that raises a genuine issue of material fact that Juniper intended to grant Recif an implied license to copy and use the Copyrighted Works. Recif's request for summary judgment on the existence of an implied license is denied. . . . DMCA Claim . . . In this case, there is no dispute that Recif intentionally removed Juniper's CMI from the Copyrighted Works without Juniper's permission. . . . Juniper has presented evidence that Voelte, Recif's investment banker, questioned Recif's prior failures to identify the source of its information, writing “Source???” on Recif's presentation whenever the source was not disclosed. . . . This served to remind Recif of the importance of having accurate source information on documents. Recif clearly had reasonable grounds to know that removing Juniper's CMI and replacing it with Recif's logo “would have wrongfully implied that [Recif] had permission to use the [Copyrighted Works], thus concealing its infringement.” . . . As discussed above, Juniper in the May 3 Email unambiguously agreed to split the $5,000.00 cost of the “land and legal work,” and Cumming stated that Recif would be allowed to access and use “this information.” . . . There is nothing in the May 3 Email that suggests Juniper is authorizing Recif to copy and use Juniper's Copyrighted Works. The May 3 Email is not evidence that Recif did not know or have reasonable grounds to know that it was engaging in copyright infringement and that its intentional removal of Juniper's CMI (and replacing it with Recif's own logo) would enable, facilitate, and/or conceal Recif's infringement. Juniper has presented evidence that Recif, without Juniper's permission, intentionally removed Juniper's CMI from the Copyrighted Works, knowing or having reasonable grounds to know that it would induce, enable, facilitate, or conceal Recif's own copyright infringement. Recif has failed to present evidence to the contrary that raises a genuine issue of material fact. As a result, Juniper is entitled to summary judgment on Recif's liability for violation of the DMCA. . . . No Statutory Damages Available . . . Juniper does not seek statutory damages under Sections 504 and 505 but, instead, seeks them under § 1203. . . . A plain reading of the DMCA does not indicate that it is subject to the registration requirement found in 17 U.S.C. § 411(a). . . . Therefore, no prior registration is required under the DMCA. JOE HAND PROMOTIONS, INC. V. BELLA'S BAR & GRILL LLC No. 1:19-CV-00140, 2020 WL 6585717 (S.D. Tex. Nov. 9, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Audiovisual work - series Topics: Infringement - evidence of public performance, Defenses - laches, Infringement - liability of corporate officer, Remedies - statutory damages, Remedies - attorneys fees Plaintiff Joe Hand Promotions, Inc. (JHP) is a commercial licensor of sports and entertainment programming to commercial businesses. JHP brings suit against Defendants Bella's Bar & Grill LLC, d/b/a Bella's Bar & Grill, and its owner and manager, Daniel Zuniga, alleging that they aired the boxing match Floyd Mayweather, Jr. vs. Conor McGregor (the Event) without

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authorization and without paying a sublicense fee to JHP. . . . JHP moves for summary judgment on its cause of action under the Copyright Act. . . . 1. Right to Performance . . . In the present matter, Defendants have admitted that Bella's was a commercial business open on the day of the Event, and that Bella's broadcasted the Event without having obtained a license from JHP to do so. . . . These admissions, coupled with the uncontroverted fact that JHP held the exclusive right to license the broadcast of the Event, entitle JHP to summary judgment. . . . 2. Laches . . . Laches “cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window.” . . . C. Zuniga's Liability . . . Turning to the present matter, Zuniga was Bella's principal, owner, member, and manager. . . . On the date of the Event, he was at the restaurant, supervised activities there, and witnessed the broadcast of the Event. (Id.) Zuniga possessed a financial interest in and received a financial benefit from the activities at Bella's that day. . . . He also arranged the cable service at Bella's. . . . The summary judgment record conclusively establishes that Zuniga personally engaged in the infringing conduct, had the right and ability to control that activity, and had a direct financial interest in that activity. . . . D. Damages . . . Based on the summary judgment record, the Court finds that JHP is entitled to statutory damages, and that $33,500 constitutes a just amount. . . . E. Attorneys’ Fees and Costs . . . Based on the summary judgment record, JHP has prevailed on its claims under 17 U.S.C. § 106(4) and is entitled to recover its attorneys’ fees and costs as to this claim. But as JHP has other causes of action not raised in the Motion, the amount of those attorneys’ fees and costs must await disposition of those claims. ENERGY INTELLIGENCE GRP., INC. V. KAYNE ANDERSON CAPITAL ADVISORS, LP No. CV H-14-1903, 2020 WL 7388624 (S.D. Tex. Dec. 16, 2020) Outcome: Motion for judgment - denied, Motion for new trial - granted Works of Authorship: Literary work - newsletter Topics: Remedies - statutory damages Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited (together, “Plaintiffs” or “EIG”) sued Kayne Anderson Capital Advisors, LP and KA Fund Advisors, LLC (together, “Defendants” or “Kayne”) for violations of the Copyright Act . . . and the Digital Millennium Copyright Act (“DMCA”) . . . . Pending before the court are EIG's Motion for Entry of Judgment Pursuant to Rule 58(d) (“EIG's Motion for Judgment”) . . . , Defendants' Kayne Anderson Capital Advisors, L.P. and KA Fund Advisors, LLC's Motion to Enter Judgment Following Remand (“Kayne's Motion for Judgment”) . . . , and Kayne's request, in the alternative, that the court order a new trial on damages. For the reasons stated below, the parties' cross-motions for entry of judgment will be denied, Kayne's request for a new trial on damages will be granted . . . .

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Kayne has failed to cite any authority in support of its argument that this court should enter a judgment that includes an award of $750, the minimum amount available for statutory damages, for the 1,607 copyright infringements that the jury found EIG could have avoided with reasonable diligence, and the court is not persuaded that it may do so without usurping the jury's role. Accordingly, Kayne's Motion for Judgment will be denied. . . . Kayne's argument that the jury intended to award the minimum amount of damages available for the 1,607 copyright violations that it found EIG could have mitigated and avoided is not persuasive because the court instructed the jury that “Plaintiffs may not recover for any item of damage that they could have avoided through reasonable effort,” and that “you should deny them recovery for those damages that they would have avoided had they taken advantage of the opportunity.” The Fifth Circuit has since held that these jury instructions were erroneous.

Western District of Texas

HAAS OUTDOORS, INC. V. DRYSHOD INT'L, LLC No. 1:18-CV-596-RP, 1:18-CV-978-RP, 2020 WL 555385 (W.D. Tex. Feb. 4, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - pattern Topics: Infringement - access, Infringement - probative similarity, Defenses - fraud on the Copyright Office Before the Court are cross-motions for partial summary judgment filed by Plaintiff Haas Outdoors, Inc. (“Haas”) . . . and Defendants Dryshod International, LLC, and James K. Donahue (collectively, “Dryshod”) . . . . Having considered the parties' arguments, the evidence, and the relevant law, the Court will grant Haas's motion for partial summary judgment and deny Dryshod's motion for partial summary judgment. . . . The Court concludes that Haas has provided sufficient circumstantial evidence of access and probative similarity to create a fact question on the issue of factual copying. Indeed, Haas's evidence suggests Donahue had a longstanding familiarity with the Mossy Oak camouflage line. First, Donahue was the founder and president of the Muck Boot Company, a well-known boot manufacturer and licensee of Mossy Oak camouflage patterns. . . . Donahue himself admits the Mossy Oak line of camouflage patterns was an important part of that company's success, and when he set out to create the new Dryshod brand and product line, he applied to license the Mossy Oak line again. . . . In licensing talks with Haas representatives, Donahue compared Haas's Mossy Oak pattern with True Timber, noting that while “True Timber is an adequate brand[,] I feel strongly that the new DS [Dryshod] hunting models will have a better chance of achieving mass appeal if we use the Mossy Oak patterns on the boots.” . . . . He only abandoned plans to license Mossy Oak pattern when costs got too high. . . . Later, Defendants created mockup boots featuring the Mossy Oak Pattern. . . . Donahue demonstrated further familiarity with the Mossy Oak pattern in emails to the artist he hired to aid in pattern design . . . . . Later, in discussing Hewett's preliminary drawings with distributors,

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Donahue noted that Hewett's drawings “looked very nice but [were] not as detailed as the prints from Mossy Oak.” . . . A reasonable juror could infer from this evidence that Donahue had a reasonable opportunity to access Haas's camouflage pattern before he developed the allegedly infringing pattern. As for probative similarity, the Court previously concluded at the motion to dismiss stage that Haas had plausibly alleged substantial similarity and Dryshod has not pointed to any evidence to occasion a reevaluation of this conclusion. . . . Haas points to evidence that Donahue had access to and was even using Haas's camouflage pattern before he took the iPhone photo from which the allegedly independently created camouflage pattern emerged. All of this is sufficient to create a fact issue precluding summary judgment on Dryshod's independent creation defense. . . . Absent evidence pertaining to Haas's intent to defraud the Copyright Office in its registration of the MOSSY OAK pattern, Dryshod has failed to create a question of material fact about the validity of the MOSSY OAK registration. And without evidence on these elements with respect to MOSSY OAK, Dryshod also cannot claim the BREAK-UP or NEW-BREAKUP patterns are unauthorized derivative works. Accordingly, Haas is entitled to judgment as a matter of law on Dryshod's fraud on the copyright claim. STROSS V. HEARST COMMC'NS, INC. No. SA-18-CV-01039-JKP, 2020 WL 5250579 (W.D. Tex. Sep. 3, 2020) Outcome: Motion for summary judgment - denied Works of Authorship: Visual work - photograph Topics: Defenses - license, Defenses - fair use, Remedies - willful infringement, Defenses - statute of limitations Before the Court is Plaintiff Alexander Stross's Motion for Partial Summary Judgment and Defendants' response. . . . Upon consideration, the Court concludes the motion shall be DENIED. While Defendants disagree with Stross's contention that he is entitled to summary judgment on their affirmative defenses of collateral estoppel and lack of personal jurisdiction, Defendants voluntarily withdraw these affirmative defenses. Accordingly, Defendants' asserted affirmative defense of collateral estoppel and Defendants' challenge to personal jurisdiction are stricken and dismissed with prejudice. . . . Defendants present summary judgment evidence to raise a genuine dispute of material fact regarding the extent of any authorization or licensure Stross gave them for use of his photographs, whether their use of the photographs exceeded the scope of any authorization given, and whether they acted with volitional conduct. In fact, dispute whether Defendants use of Stross's photos was within the authorization given is the core of this case. The parties dispute whether the email exchange in which Stross granted permission for Defendants' use of his photographs limited such use to a single article in the San Antonio Express News and Country Living Magazine and whether such use was conditioned upon the placement of a credit and hyperlink to Stross's website. . . .

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Defendants present summary judgment argument and evidence to raise a genuine dispute of material fact regarding the extent of any authorization Stross gave to Defendants for their use of his photographs and whether Defendants' use of any photographs exceeded the scope of any such authorization given. Based upon this genuine dispute, a reasonable trier of fact could reach more than one conclusion regarding whether Defendants' use of the subject photographs was “otherwise infringing”. If a jury could find Defendants' conduct was not “infringing” then the fair-use affirmative defense is never reached. . . . As previously discussed, Defendants present summary judgment evidence to raise a genuine dispute of material fact regarding the extent of any authorization Stross gave to Defendants for their use of his photographs and whether Defendants' use of any photographs exceeded the scope of any such authorization given. The focus of this dispute is the email exchange in which Stross contends he granted permission for only one article, and Defendants argue a reasonable trier of fact could construe the permission to be unlimited. . . . Similar to the previous affirmative defenses, Defendants present summary judgment evidence to raise a genuine dispute of material fact regarding the extent of any authorization Stross gave to Defendants for their use of his photographs and whether Defendants' use exceeded the scope of any such authorization given. Based upon resolution of these disputes, a reasonable trier of fact could reach more than one conclusion whether Defendants acted with “willfulness” in committing any infringing conduct. Consequently, triable disputes about the existence of, or scope of, any authorization given and whether any infringement was “willful” warrant denial of Stross's request for summary judgment on this asserted “affirmative defense.” . . . The Court finds the summary-judgment record contains evidence which raises issues of fact of when Stross discovered or should have discovered the copyright causes of action and whether he exercised due diligence. For this reason, Stross's request for summary judgment on the affirmative defense of statute of limitations is denied because issues of fact must be determined by a jury regarding the accrual of his causes of action. MALIBU MEDIA, LLC V. SCHMIDT No. SA-19-CV-00599-XR, 2020 WL 5351079 (W.D. Tex. Sep. 1, 2020) Outcome: Motion to strike - denied Works of Authorship: Audiovisual work - film Topics: Defenses - unclean hands, Defenses - abandonment, Remedies - innocent infringement On this date, the Court considered Plaintiff's motion to strike portions of Defendant's Answer. . . . After careful consideration, the Court issues the following Order. . . . If proven, a scheme in which a copyright holder intentionally tricks an individual into infringing the copyright so that the holder can sue the individual is the type of bad faith conduct that the doctrine of unclean hands is intended to deter. . . .

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If proven, Plaintiff's failure to enforce its copyright against “millions” of instances of infringement may constitute abandonment of that copyright. That is, even if Plaintiff does not intend to abandon its copyright, its inaction may constitute a waiver of its right to enforce the copyright. The Court finds that Defendant's affirmative defense of abandonment is not “insufficient as a matter of law.” . . . Whether Defendant could reasonably conclude that it is not infringing copyrighted works is a question of fact that should not be decided on a motion to strike.

Sixth Circuit

Court of Appeals for the Sixth Circuit

EVERLY V. EVERLY No. 19-5150, 2020 WL 2111312 (6th Cir. May. 4, 2020) Outcome: Appeal - reversed Works of Authorship: Music - musical work Topics: Defenses - statute of limitations, Ownership - authorship The Everly Brothers are one of the most famous duos in popular American music history. When Dick Clark introduced them to sing Cathy’s Clown on his American Bandstand television show, he said the song “has a sound all its own”—one he called a “little unusual, [a] little strange, but very, very successful, and it’s done in the inimitable style of the fellas who have done so many other hits.” This dispute over the authorship of Cathy’s Clown is likewise a little unusual and a little strange. And, as we discuss, it is the jury’s obligation to sort it all out. Each side to this appeal—Don Everly, on the one hand, and the successors-in-interest of his brother, the late Phil Everly, on the other—claims to have a copyright interest in Cathy’s Clown. Don maintains he authored the song by himself, but Phil’s successors contend the brothers wrote it together. Don sued Phil’s successors, seeking a declaration that Don was the sole author, while Phil’s successors counterclaimed for declaratory relief that both brothers were authors. The district court granted summary judgment to Don, finding that the claim of Phil’s co-authorship was barred by the statute of limitations because Don expressly repudiated Phil’s co-authorship, and thus triggered the statute of limitations, no later than 2011. Because there is a genuine factual dispute as to whether Don made such an express repudiation, we REVERSE. ENCHANT CHRISTMAS LIGHT MAZE & MARKET LTD. V. GLOWCO, LLC No. 19-6282, 2020 WL 2487598 (6th Cir. May. 14, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - sculptural work Topics: Infringement - substantial similarity Enchant Christmas Light Maze & Market Ltd. (“Enchant”) sought a preliminary injunction against Glowco, LLC and its operator Chris Stacey, and against Exhibau US, LLC and its operator Patrick Wallain (collectively “Glowco”). Enchant sought to enjoin Glowco from further

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infringing Enchant’s copyrights in a number of holiday light sculptures. The district court denied Enchant’s request. Enchant appealed and, for the reasons set forth below, we AFFIRM. . . . Protected Elements . . . Enchant’s sculptures portray a polar bear cub on its hind legs, a polar bear cub with all four paws on the ground, a polar bear mother walking, an adult deer sitting with its four legs tucked under its body, an adult deer grazing, an adult deer prancing, and a structure of ice crystals protruding from the ground. Each sculpture depicts an animal or natural phenomenon the way in which it would be found in nature. . . . We see no reason why, for example, a polar bear walking, a deer prancing, or a deer grazing should be considered differently than “ants marching in a straight line; geese flying in a ‘V’ as they migrate; a mother duck being followed by her ducklings out of a pond; a hummingbird hovering as it sucks nectar from a flower; and bats hanging upside down from a cave ceiling,” which are ideas first expressed by nature that warrant no protection. . . . It follows that qualities of Enchant’s sculptures that are inherent in the chosen subject—animal sculpture—are not subject to copyright protection. . . . The district court recognized the same and thus did not err. . . . To the extent that Enchant’s sculptures contained some original work warranting protection, the district court did not err when it determined that Enchant had a thin copyright at best. Substantial Similarity . . . Although there are some similarities between the designs, that is not enough for us to reverse the district court’s decision to deny a preliminary injunction. . . . The district court reasonably determined that any similarities between Glowco’s sculptures and Enchant’s were inherent in their subjects (animals and ice sculptures) and that Glowco’s designs were not substantially similar to what could be deemed Enchant’s original work. Enchant has not shown that the district court’s substantial-similarity finding was clearly erroneous. SINGLETARY CONSTR., LLC V. REDA HOME BUILDERS, INC. No. 19-5491, 2020 WL 2841816 (6th Cir. Jun. 1, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Architectural work - design Topics: Remedies - disgorgement of profits Defendants Reda Home Builders, Inc., Rick Reda, and Rae Gleason challenge the monetary awards for which they are liable to Plaintiff Singletary Construction, LLC. Singletary sued the defendants for copyright infringement and won a judgment of $296,208.75 against Reda and $14,440.50 against Gleason. On appeal, the defendants do not dispute that Singletary owned a valid copyright or that Reda infringed the copyright. Their sole argument is that the jury verdict is excessive. We agree as to Rick Reda and Reda Home Builders, Inc., and disagree as to Gleason. Therefore, we AFFIRM in part, REVERSE in part, and REMAND to the district court (as to Reda only) to calculate an appropriate remittitur and, if necessary, retry the damages issue. . . . In this case, gross revenue was undisputed, and Reda’s evidence as to deductible expenses was far from compelling. . . . In our view, the jury was entitled by statute to disbelieve Reda’s evidence regarding his deductible expenses, but . . . we are asked to uphold a profit amount that

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is plainly absurd, particularly in light of Reda’s estimated costs of $135,000 as submitted to Montgomery County—a number that Singletary did not challenge as unreasonable. . . . For the foregoing reasons, we conclude that the jury’s award shocks the conscience, and the district court erred in denying Reda’s motion for a new trial, or, in the alternative, a remittitur. We remand to the district court, as to Reda, for a calculation of an appropriate remittitur, or to retry the damages issue. ECIMOS, LLC V. CARRIER CORP. No. 19-5436, 19-5519, 2020 WL 4915629 (6th Cir. Aug. 21, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - computer program Topics: Infringement - evidence of copying, Defenses - de minimis use, Remedies - actual damages, Remedies - disgorgement of profits Carrier and ECIMOS once had a long-standing business relationship that has now deteriorated. Carrier is a leading manufacturer of residential Heating, Ventilation, and Air Conditioning (“HVAC”) systems and ECIMOS once produced the quality-control system that tested completed HVAC units at the end of Carrier's assembly line. The present dispute centers on Carrier's alleged infringement of ECIMOS's copyright on its database-script source code—a part of ECIMOS's software that stores test results. ECIMOS alleges that Carrier improperly used the database—indeed copied certain aspects of the code—to aid a third-party's development of a new testing software that Carrier now employs in its Collierville, Tennessee manufacturing facility. ECIMOS sued for copyright infringement and breach of contract and won a $7.5 million jury award. Following trial, Carrier filed a renewed Rule 50 motion for a judgment as a matter of law or, in the alternative, a Rule 59(e) motion to amend the judgment or for a new trial. It contended that it did not infringe on ECIMOS's copyright as a matter of law and objected to most of the $7.5 million jury award. The district court denied most of the motion, finding that there was no basis to conclude that there was no infringement as a matter of law; but it granted the motion in part, reducing Carrier's total damages liability to $6,782,800. Carrier now appeals those decisions. ECIMOS also filed a post-trial motion and asked the court to enjoin Carrier from using or disclosing ECIMOS's trade secrets and from using its third-party-developed database until a new, non-infringing database could be developed from scratch. ECIMOS also moved to amend the jury award so that it could receive even more damages from Carrier. The district court: (1) enjoined Carrier from using its new database, but stayed the injunction until Carrier could develop a new, non-infringing database subject to the supervision of a special master; (2) enjoined Carrier from disclosing ECIMOS's trade secrets, but also held that certain elements of ECIMOS's system were not protectable as trade secrets (such as ECIMOS's assembled hardware) and thus did not enjoin Carrier from using ECIMOS's system; and (3) rejected ECIMOS's motion to amend the jury award. ECIMOS now appeals those decisions.

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We hold that there are sufficient reasons to conclude that Carrier did infringe on ECIMOS's copyright, but that Carrier's liability to ECIMOS based on its copyright infringement and its breach of contract can total no more than $5,566,050. We also hold that the district court did not err when it crafted its post-trial injunctions. For the reasons that follow, we therefore affirm in part and reverse in part the district court's rulings. . . . We reject Carrier's de minimis defense. The fact that the Hoal Table only took up 167 lines of code is immaterial. What matters is not the quantity of code that was copied, but the significance of the code to the program, and—more importantly—the inferences that can be drawn from the copying. HILLER, LLC V. SUCCESS GRP. INT'L LEARNING ALLIANCE, LLC No. 19-6115, 2020 WL 5651087 (6th Cir. Sep. 23, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - manual Topics: Copyrightability - originality, Copyrightability - unauthorized derivative work Appellant Clockwork IP, LLC intervened in this copyright case to claim that it—not the plaintiff and registered copyright holder Hiller, LLC—owned the allegedly-infringed work, a customer-service training guide for HVAC technicians (the Guide). The jury rejected Clockwork's sole request for relief: a declaration invalidating Hiller's copyright in the Guide. Clockwork makes two arguments on appeal. First, Clockwork contends that the district court erred by denying its motion for judgment as a matter of law because no reasonable juror could have found that Hiller owns a copyright in any part of the Guide. Second, Clockwork asserts that the district court improperly instructed the jury that Hiller could hold a copyright in the Guide, even though it contained Clockwork-copyrighted material, so long as that material did not “pervade[ ] the entire work.” Clockwork is wrong on both points. The jury reasonably concluded that Hiller created enough original material to gain copyright protection, and the district judge correctly instructed the jury that the Guide's incorporation of some Clockwork-copyrighted content did not invalidate Hiller's copyright in the Guide's original parts. We affirm. RJ CONTROL CONSULTANTS, INC. V. MULTIJECT, LLC No. 20-1009, 2020 WL 6878106 (6th Cir. Nov. 23, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Visual work - technical drawing, Literary work - computer program Topics: Scope of protection - idea, Scope of protection - scenes a faire, Scope of protection - merger This is a copyright dispute over the use of software code and technical drawings for an industrial control system related to plastic injection molding. The district court held that Plaintiff-Appellant

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RJ Control Consultants, Inc. and its sole shareholder, Paul Rogers, (collectively, “Plaintiffs”) failed to establish copyright infringement because the use of a design to manufacture a control system does not constitute copyright infringement. The district court accordingly granted summary judgment against Plaintiffs on their copyright infringement claim. The district court further granted summary judgment against Plaintiffs as to their Lanham Act claim, declined to exercise supplemental jurisdiction over the remaining state law claims, and denied as moot Plaintiffs’ motion to compel discovery. Plaintiffs appeal the order denying reconsideration of the district court's grant of summary judgment as to the copyright claim as well as the denial of their motion to compel as moot. . . . A. Copying of the Technical Drawings . . . We first consider the copyright titled “Control System Turn Table Schematics: Design 3,” i.e., the technical drawings. We hold that although physical copying may have occurred, the basis for RJ Control and Rogers's complaint—that the drawings were copied to reproduce the control system contained therein—sounds in patent law rather than copyright. Accordingly, we agree with the district court that the manufacture of the control system from the copyrighted technical drawing was not copyright infringement because the recreation of a control system by using a copyrighted technical drawing is not “copying” for purposes of the Copyright Act. . . . B. Software Copyright . . . The technology here is complex, as are the questions necessary to establish whether that technology is properly protected under the Copyright Act. Which aspects or lines of the software code are functional? Which are expressive? Which are commonplace or standard in the industry? Which elements, if any, are inextricably intertwined? Without any record evidence—whether expert or not—to answer these material questions, there indeed remains a genuine factual dispute. Accordingly, we reverse the district court's grant of summary judgment as to the copyright-infringement claim regarding the software copyright, Copyright Registration Number TXu 1-978-284, and remand the matter to the district court for the taking of additional evidence.

Eastern District of Michigan

WILLIAMS V. 3DEXPORT No. 19-12240, 2020 WL 532418 (E.D. Mich. Feb. 3, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Literary work - book, Visual work - art style Topics: Copyright registration - scope of registration, Ownership - pleading requirements, Scope of protection - idea, Infringement - pleading requirements Plaintiff Terrance Williams contends that he invented anime, one of the world’s most popular styles of animation. Acting pro se, he has sued several media companies, alleging that they have violated his copyrights by publishing artwork and other graphics that infringe on his animation style. Most defendants have filed motions to dismiss. Various other motions have also been filed. For the reasons below, the Court will (1) grant the motions to dismiss, (2) deny Plaintiff’s motion for a more definite statement, (3) deny Plaintiff’s motion for contempt, (4) grant the pending motions to quash, and (5) summarily dismiss this case in its entirety. . . .

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a. Ownership . . . Williams attached a Certificate of Registration from the United States Copyright Office. . . . This Certificate indicates that, on January 29, 2019, Williams received a copyright in the text “Naruto.” . . . However, in this action, Williams is not alleging that the Defendants have infringed on a text. Rather, he is alleging that they have infringed on an art style. Although the Certificate indicates that Williams owns some copyright in some thing, it does not indicate that Williams owns a copyright in the anime art style. And Williams has failed to attach the work that the Certificate covers, so it is impossible to determine what Williams actually owns or how it has been infringed. Moreover, it is entirely implausible that Williams owns a copyright in the anime art style for two reasons. First, his factual allegations defy logic. To believe Williams would be to believe that he invented an animation style that was first introduced at least as early as 1917, and that was wildly popular worldwide by the time that he alleges that he—as a 10-year-old—first created it. Second, because copyright protection is “given only to the expression of [an] idea—not the idea itself,” . . . even if Williams was the first to think up the anime, he could only have a protectible copyright interest in his specific expression of that idea; he could not lay claim to all anime that ever was or will be produced. He has failed to point to any specific creative expression that would merit copyright protection. . . . b. Infringing Work . . . Here, Williams fails to describe how each individual defendant has infringed on his alleged copyright. He includes internet links to some websites that are associated with some defendants, but does not explain how the images on these websites are infringing. A review of the complaint makes it clear that Williams has failed to give Defendants adequate notice of his claims against them. Accordingly, the Court concludes that Williams has not adequately alleged this element of his copyright claim. EASTPOINTE DWC, LLC V. WING SNOB INC. No. 19-13768, 2020 WL 3412266 (E.D. Mich. Jun. 22, 2020) Outcome: Motion for preliminary injunction - denied Works of Authorship: Visual work - logo Topics: Infringement - access Plaintiff Eastpointe DWC, LLC d/b/a Detroit Wing Company (“DWC”) filed suit against Defendants Wing Snob Inc. and Wing Snob Franchising, LLC (collectively referred to as “Wing Snob”), bringing claims of trademark and trade dress infringement, unfair competition, and false advertising under federal and state law as well as a copyright infringement claim. The matter is now before the Court on Plaintiff’s motion for a preliminary injunction. . . . For the reasons discussed below, the Court DENIES Plaintiff’s motion for a preliminary injunction. . . . Here, there is no dispute that Plaintiff owns a valid copyright in its chicken logo. However, Defendants argue there is no evidence they copied this logo. Mr. Shunia’s alleged comment regarding copying Plaintiff’s business is in dispute, as discussed above. Moreover, a general comment that Defendants would open a business similar to Plaintiff’s is not direct evidence that Defendants copied Plaintiff’s chicken logo. And while the copyrighted work and the infringing

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work are similar, Defendants argue that they did not have access to the copyrighted work. Defendants note that while Plaintiff states its chicken logo was widely advertised, there is no evidence in the record to substantiate this claim. Mr. Shunia has testified that he lacked knowledge of the chicken logo until the filing of the complaint in this case, and Defendants have presented evidence that their logo was designed by a third party. Regardless of Plaintiff’s likelihood of success on its copyright infringement claim, however, the Court finds that injunctive relief is not warranted on this claim after a consideration of the remaining factors. DOERR V. QUICKCALL.COM, LLC No. 19-10774, 2020 WL 4366050 (E.D. Mich. Jul. 30, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Infringement - pleading requirements Sean Doerr is a Detroit resident and photographer who creates and licenses his photographs for commercial use. Doerr believed that Romanian-American Network, Inc. d/b/a Biserici.us (“RAN”) and Quickcall.com, LLC had copied and used one of his photographs without permission. So Doerr sued RAN and Quickcall for copyright infringement, seeking monetary damages and injunctive relief. Quickcall now seeks to be dismissed from the suit. For the reasons that follow, the motion is denied. . . . Considering the attachments to Doerr’s complaint, he plausibly links Quickcall to the copying of the Photograph. Doerr demonstrates through public records that AKA Investments, LLC, a prior alias of Quickcall, registered BlueTone as an associated name. Screenshots of the Website show BlueTone’s name appearing as a hyperlink on the bottom of the webpage containing the Photograph. These exhibits factually support Doerr’s allegations that “Quickcall, through BlueTone, manages, controls, owns and/or operates the Website” and that “[t]he Website serves as direct advertising for the BlueTone brand of Quickcall” via a hyperlink. . . . Although Doerr could have used more specific language in his complaint, the reasonable inferences drawn from the attached exhibits explain how Quickcall allegedly participated in the copying of the Photograph under its BlueTone name. Additionally, Doerr’s failure to differentiate between the implied actions of Quickcall and RAN does not automatically warrant dismissal. . . . Here, the exhibits together with the allegations in the complaint provide the requisite notice to Quickcall of its alleged connection to the copying through the BlueTone hyperlink appearing at the bottom of the Website.

Northern District of Ohio

MORRIS V. WISE No. 1:19 CV 2467, 2020 WL 2475839 (N.D. Ohio May. 13, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees

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This matter is before the Court on Defendants, James Wise and Holton-Wise Property Group, LLC’s Motion for Attorney Fees, pursuant to Fed. R. Civ. P. 11 and 54. . . . In this case, although the Court granted Defendants’ Motion to Dismiss, finding that the image at question was fair use, the Plaintiff appears to have had a legitimate concern and had a non-frivolous legal argument on which to base his copyright case. In addition, the Complaint raised other, non-copyright, claims that were closely intertwined with the facts and legal issues present in the copyright claim. The Defendants have made no showing that the inclusion of the copyright claim added significantly to the overall expenditures they faced in defending the case as a whole. For these reasons, the Court declines to award attorney fees to Defendants under 17 U.S.C. § 505.

Eastern District of Tennessee

CASTLE V. KINGSPORT PUBL'G CORP. No. 2:19-CV-00092-DCLC, 2020 WL 7348157 (E.D. Tenn. Dec. 14, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Defenses - fair use Defendant Kingsport Publishing Corporation (Defendant) has filed a Motion for Summary Judgment . . . . Plaintiff Brian Castle also filed a Motion for Partial Summary Judgment . . . . Both motions address the same issue: whether Defendant's use of Plaintiff's Photograph violated Section 501 of the Copyright Act . . . . On balance, Defendant's use of Plaintiff's Photograph provided a benefit to the community as it used the Photograph in a story about a topic of public concern. Its use was transformative because it provided a different interpretation of the Photograph than Plaintiff's purpose, which was to show the existence of sinkholes at the construction site. The Photograph was informative and had already been published when Defendant republished it. That Defendant used the Photograph in its entirety does not weigh against it in this context. Finally, Defendant's use did not have any adverse effect on the market for Plaintiff's Photograph. In consideration of these statutory factors, the Court holds that as a matter of law Defendant's use of Plaintiff's Photograph was fair.

Middle District of Tennessee

CAPITANI V. WORLD OF MINIATURE BEARS, INC. No. 3:19-CV-00120, 2020 WL 4805729 (M.D. Tenn. Aug. 18, 2020) Outcome: Motion for summary judgment - denied Works of Authorship: Visual work - illustration Topics: Defenses - first sale Dina Capitani brought this action against World of Miniature Bears, Inc. (“WMB”) and MiniBears Gems & Gifts, Inc. (“MBG”) (collectively, “Defendants”) under the Copyright Act . . . alleging that Defendants infringed on her copyright interests in a volume of illustrations titled

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“Doggie Doodles by Dina Volume II” (“Doggie Doodles”). Before the Court are three motions that are ripe for decision: (1) MBG’s Motion for Summary Judgment . . . ; (2) WMB’s Motion for Summary Judgment . . . ; and (3) Capitani’s Motion for Summary Judgment . . . . First, MBG’s motion for summary judgment will be denied because there are several factual disputes about whether the “first sale doctrine” protects MBG from copyright infringement liability. . . . Here, the parties dispute whether the 1,248 wall clocks MBG received from Minhou Bolai Arts & Crafts Co., LTD in September 2014, or the 2,000 clocks it received from Joaquin Imports and Exports in January 2019 were “lawfully made” to implicate the first sale doctrine. MBG argues that these wall clocks were lawfully manufactured pursuant to a licensing agreement between Capitani and Geoffrey & Cathy Roebuck . . . , whereas Capitani argues that the clocks were not lawfully made because they were impermissibly manufactured after the licensing agreement expired on August 1, 2014. The parties also dispute whether Mr. Roebuck’s $800 royalty payment to Capitani constituted a sale of the clocks at issue. Accordingly, there is a need for trial on this potentially dispositive issue because, based on the evidence presented on summary judgment, whether the first sale doctrine protects MBG from liability may reasonably be resolved in favor of either party.

Seventh Circuit

Court of Appeals for the Seventh Circuit

TIMOTHY B. O'BRIEN LLC V. KNOTT No. 19-2138, 2020 WL 3263007 (7th Cir. Jun. 17, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - design Topics: Remedies - attorneys fees David Knott, an employee of Wisconsin wellness retail store Timothy B. O’Brien, LLC (“Apple Wellness”), left the company and started a similar, competing wellness shop. Apple Wellness sued Knott for trademark and copyright infringement. Knott countersued. The district court found the copyright claims baseless but commented that the trademark claims might have merit. Nonetheless, Apple Wellness later voluntarily dismissed all its claims with prejudice, and the district court declined to exercise supplemental jurisdiction over the counterclaims. All that remained was Knott’s motion for attorneys’ fees. The district court denied that motion, and Knott appeals only as to the denial of fees on the copyright claims. Because the district court’s decision denying fees was well-reasoned and appropriate, we now affirm.

Northern District of Illinois

BLUE BOOK SERVS., INC. V. FARM JOURNAL, INC. No. 18 CV 07155, 2020 WL 419405 (N.D. Ill. Jan. 27, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Literary work - database Topics: Copyright registration - scope of registration, Copyright registration - refusal

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Plaintiff Blue Book Services, Inc. (“Blue Book”) brings this action complaining that defendant, Farm Journal, Inc. (“Farm Journal”), infringed Blue Book’s copyright in its “Blue Book Ratings” in violation of 17 U.S.C. § 106. Blue Book has moved for a preliminary injunction while Farm Journal has moved to dismiss the complaint pursuant to Federal Rule of Procedure 12(b)(6) for failure to state a claim. For the reasons set forth below, Farm Journal’s motion to dismiss is granted. Accordingly, Blue Book’s motion for a preliminary injunction is denied as moot. . . . I. The Scope of Blue Book’s Registered Copyright . . . In sum, the Copyright Office’s communication reads as a clear attempt to follow the holding of Feist: the Office rejected a claim in the text of the ratings because there was insufficient original authorship. Expressing no view on whether the determination was correct, the only plausible interpretation of the exchange is that the Office declined to register the individual Ratings and that the registration extended only to the database compilation. Further, although that exchange related only to the 2018 registration, it provides indirect evidence that the 2013 registration, which contained an equivalent description of the authorship, similarly did not cover the underlying ratings. The Court therefore concludes that Blue Book’s copyright registration extends to the compilation of its Blue Book Ratings, but not in the text of the individual Ratings. II. The Consequences of Failure to Notify the Copyright Office . . . Upon refusal of a registration, a party may institute a civil action for infringement “if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.” . . . Blue Book does not claim compliance with this requirement. . . . This Court will not disregard the procedural requirements specified by the legislature; failure to comply with § 411(a) requires dismissal of this case, albeit without prejudice to Blue Book’s ability to institute a new action upon compliance with § 411(a)’s requirements. BELL V. CHICAGO CUBS BASEBALL CLUB, LLC No. 19-CV-2386, 2020 WL 550605 (N.D. Ill. Feb. 4, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - book Topics: Infringement - pleading requirements, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements Plaintiff Keith F. Bell, Ph.D. (“Plaintiff”) brings suit against Defendants the Chicago Cubs Baseball Club (the “Cubs”) and Joshua Lifrak (“Lifrak”) (collectively, “Defendants”) for copyright infringement. Currently before the Court is Defendants’ motion to dismiss the governing amended complaint. . . . For the following reasons, Defendants’ motion to dismiss . . . is granted in part and denied in part. The claim for contributory copyright infringement and the claim for direct copyright infringement as to the Cubs only are dismissed. The claim for vicarious copyright infringement and the claim for direct copyright infringement against Lifrak will be allowed to proceed. . . . A. Direct Copyright Infringement . . . To the extent that Plaintiff intends to bring his direct copyright infringement claim against the Cubs, that claim is dismissed because the amended

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complaint does not allege any facts suggesting that “the Cubs” themselves created a copy of Plaintiff’s WIN passage. Instead, the amended complaint alleges that Lifrak created the copy by “retweeting” the Moawad tweet. Whether Lifrak himself created a “copy” is a more difficult question which, ultimately, this Court is unable to resolve at this early stage of the case. . . . Assuming without deciding that Defendants’ statement of the governing legal standard is correct, the Court nonetheless cannot resolve this issue on a motion to dismiss because it rests on facts that are not alleged in—and are contrary to—the governing amended complaint. According to the amended complaint, Lifrak’s act of retweeting the Moawad tweet resulted in “actual copies of ‘Winning Isn't Normal’ [to be] made, which existed on servers, devices, and computer systems owned or controlled by Defendants.” . . . Plaintiff’s allegations may very well be wrong as a factual matter, but at this stage of the case, the Court cannot simply rely on Defendants’ technological explanation of Twitter to dismiss Plaintiff’s claim. Defendants contend that the Court may also take judicial notice of information contained on various Twitter-operated web pages explaining how a “retweet” works. . . . Although the Court must deny Defendants’ motion to dismiss the copyright infringement claim against Lifrak, if and when Defendants generate a factual record to support their contention that judgment in their favor as a matter of law is appropriate, they may move for summary judgment at any time. B. Contributory Copyright Infringement . . . The amended complaint contains no facts from which it could plausibly be inferred that the Cubs knew that Lifrak was infringing Plaintiff’s copyright, yet failed to act to stop the infringement or willfully blinded themselves to the infringement. The print-out of Lifrak’s retweet (which is attached as an exhibit to the amended complaint) shows that Moawad Consulting’s tweet does not attribute the WIN passage to Plaintiff. Therefore there is no apparent way that the Cubs (or Lifrak, for that matter) would have known that Lifrak’s retweet infringed Plaintiff’s copyright. Plaintiff does not allege, for instance, that he notified the Cubs (or Lifrak) that they were using his copyrighted material without permission and Defendants refused to take the retweet down. Therefore, Defendants’ motion to dismiss the claim for contributory copyright infringement is granted. . . . C. Vicarious Liability for Copyright Infringement . . . Taking Plaintiff’s allegations as true, as the Court must for purposes of a motion to dismiss, Plaintiff has adequately alleged that the Cubs have “the right and ability to supervise and control” Lifrak’s alleged infringement. . . . [I]t is not wholly implausible to presume that Lifrak’s Twitter activity is intended to promote the Cubs. At the same time, Plaintiff may find it difficult to marshal any actual evidence that Lifrak’s single retweet of the WIN passage resulted in a direct financial gain to the Cubs or actually drew customers to the Cubs. SOOS & ASSOCS., INC. V. FIVE GUYS ENTERS., LLC No. 17 C 06577, 2020 WL 1027885 (N.D. Ill. Mar. 3, 2020) Outcome: Motion for judgment on the pleadings - denied Works of Authorship: Architectural work - plan Topics: Integrity of Copyright Management Information - pleading requirements

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Before the Court is Defendant Five Guys Enterprises, LLC’s (“Five Guys”) motion for judgment on the pleadings. . . . Five Guys seeks dismissal of Plaintiff Soos & Associates, Inc.’s (“Soos”) claims under the Digital Millennium Copyright Act (“DMCA”) . . . . For the reasons stated below, the motion . . . is denied. . . . 1. Count V—Removal of Soos’ CMI. . . . Soos alleges that Five Guys and DXU removed Soos’ CMI title blocks from Soos’ Construction Documents. Soos claims that Five Guys and DXU made some minor changes to the Construction Documents, such as changing the page numbers, but heavily used Soos’ format, layout, text, illustrations, and taxonomies. . . . Soos has plausibly stated a claim for removal of CMI. The complaint states that Five Guys knew Soos was asserting ownership over several Construction Docu-ments, yet Five Guys continued to use the copyrighted material and removed Soos’ CMI titled blocks from Construction Documents. Additionally, Soos attached several exhibits to its complaint that contain the CMI that Five Guys allegedly removed. . . . Soos also attached an example of a DXU plan with high-lighted portions that, Soos alleges, originated from Soos’ copyrighted Construction Documents with the Soos CMI removed. . . . Soos has thus sufficiently identified the CMI Five Guys allegedly removed. Unlike the cases cited by Five Guys, Soos did not allege that Five guys merely copied one or two aspects of the Construction Documents or only copied the “look and feel” of the Construction Documents. Soos alleges that Five Guys removed Soos’ CMI from the Construction Documents as a whole, with some minor alterations such as changing page numbers. . . . Soos’ complaint sufficiently alleges intent. It states that based on letters Soos sent to Five Guys, Five Guys knew Soos was asserting ownership of the Construction Documents. Soos has also alleged that Five Guys knowingly distributed templates where the CMI had been altered without the authority of the copyright owner, Soos. Finally, Soos alleges that Five Guys acted intentionally—Five Guys “attempted to mislead third party architects into believing Five Guys owned the copyrights in the templates Five Guys demanded they use.” . . . Soos has adequately alleged that Five Guys acted knowingly, and that Five Guys removed CMI with the intent to induce, enable, or conceal infringement. . . . 2. Count VI—Distribution of False CMI . . . Once again, Soos has sufficiently pled intent under the DMCA. Soos’ complaint states that Five Guys knew Soos was asserting ownership in the Construction Documents. . . . Soos alleges that it sent several letters to Five Guys claiming ownership of the Construction Documents, and that despite these letters, Five Guys continued to copy Soos’ work, removed Soos’ CMI from the Construction Documents, and placed false CMI on the Construction Documents. . . . Soos also alleges that “even though Five Guys knew that Soos claimed copyright ownership in materials created by Soos, Five Guys began requiring its out-side architects to place Five Guys [CMI] into the infringing Construction Documents using the Soos works.” . . . Soos claims that Five Guys required its architects to do this in an attempt to mislead other third party architects into believing that Five Guys owned the copyrights in the templates. . . . These allegations are sufficient to plead intent under § 1202(a) of the DMCA. . . .

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Soos’ complaint and attached exhibits demonstrate that each page of the ar-chitectural templates included a CMI title block stating:

THESE DRAWINGS AND SPECIFICATIONS ARE THE CONFIDENTIAL AND PROPRIETARY PROPERTY OF FIVE GUYS ENTERPRISES, LLC AND SHALL NOT BE COPIED OR REPRODUCED WITHOUT WRITTEN AUTHORIZATION.

. . . This title block appears directly on each page of the templates at issue. . . . And as mentioned above, Soos alleges that these templates contain Soos’ copyrighted work from the Construction Documents. This CMI title block is clearly conveyed in connection with the copyrighted work. Unlike the cases cited by Five Guys, where the CMI was physically separated from the copyrighted material, Five Guys’ CMI title block was physically proximate to the copyrighted work; it was directly on the page containing the copyrighted material. Soos has stated a claim under § 1202(a) the DMCA. HEALTH KING ENTER., INC. V. DALIAN HEALTH KING PRODS. CO. No. 19 C 1878, 2020 WL 1201533 (N.D. Ill. Mar. 12, 2020) Outcome: Motion for preliminary injunction - denied Works of Authorship: Literary work - packaging Topics: Ownership - work made for hire Health King Enterprise, Inc., (“Enterprise”), Xingwu Liu, and Joanne Liu have sued Dalian Health King Products Co., Ltd. (“Dalian”), Health King USA, and Liwen Su for, among other things, trademark infringement and false designation of origin under the Lanham Act . . . and copyright infringement under the Copyright Act . . . . Defendants have answered the complaint and filed counterclaims for, among other things, trademark infringement, breach of contract, and a declaration that Dalian owns the copyrights at issue. Plaintiffs have moved for a preliminary injunction on these claims. For the reasons below, the motion is denied . . . . The parties hotly contest whether the translations were works made for hire under their distribution agreements. As discussed in an earlier order, the language in the agreements is ambiguous as to whether the translations were works for hire. . . . Because both sides present plausible arguments as to who owns the copyrights, Plaintiffs have shown at least some likelihood of success on the merits. MOTTA & MOTTA LLC V. LAWYERS 777, LLC No. 18-CV-5811, 2020 WL 1433816 (N.D. Ill. Mar. 24, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - Internet work Topics: Infringement - pleading requirements Plaintiffs Motta & Motta LLC and Alison and Robert Motta (collectively, “Plaintiffs”) bring suit against Defendants Lawyers 777, Patrick Weiland, and Dominick Dolci (collectively,

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“Defendants”) under various state and federal theories. Before the Court is Defendants’ motion to dismiss . . . Plaintiffs’ amended complaint . . . . For the reasons set forth below, Defendant’s motion to dismiss . . . is granted in part and denied in part. . . . Although Exhibit A is a difficult read to say the least, the Court need not go down that path yet, because Plaintiffs’ complaint does specifically identify which websites they allege have been copied. . . . Similarly, Plaintiffs’ Exhibit B includes an attachment that highlights the language in each website that they believe has been copied. This is more than enough to provide notice of the nature of the claims, even under Defendant’s preferred test. RICHARDSON V. KHARBOUCH No. 19 C 02321, 2020 WL 1445629 (N.D. Ill. Mar. 25, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Music - sound recording Topics: Defenses - statute of limitations, Infringement - pleading requirements In 2012, when Eddie Lee Richardson was 16 years old, he created an instrumental song consisting of “a unique and artistic array of digital sounds and rhythms.” . . . He named it “*Hood* Pushin’ Weight.” . . . Seven years later, Richardson brought this lawsuit, alleging that Karim Kharbouch—who performs under the name French Montana—infringed on Richardson’s work in violation of federal copyright law . . . . The Complaint also names as a defendant Excuse My French, which is allegedly an unincorporated music-publishing company owned and controlled by Kharbouch. . . . The Defendants now seek to dismiss the complaint for lack of personal jurisdiction, improper venue, and failure to adequately state a claim. . . . In the alternative, the defense wants Richardson to provide a more definite statement of his claim under Rule 12(e). . . . For the reasons explained below, the Defendants’ motion is denied in its entirety. . . . Statute of Limitations . . . First, the Defendants assert that the copyright claims are time-barred under the Copyright Act’s statute of limitations. . . . But that argument does not get off the ground at all: the statute of limitations is an affirmative defense, and “plaintiffs need not anticipate and attempt to plead around all potential defenses.” . . . 2017 Infringement . . . With the ill-fated limitations defense out of the way for now, the next question is whether the July 2017 alleged infringement is sufficiently pled. . . . By alleging that the Defendants reproduced, published, performed, and distributed derivative works of Richardson’s copyrighted work, and by including a time frame and specific date . . . Richardson provided sufficient notice of the claim. . . What’s more, it is no great mystery what Richardson is alleging when he specifies July 11, 2017 as the date of infringement. The Complaint sets forth a YouTube link to a video of Kharbouch performing Ain't Worried About Nothin. . . . A visit to the link reveals (though it would have been better if Richardson simply alleged this in the Complaint) that the video was posted on July 11, 2017. . . . Giving Richardson the benefit of all reasonable inferences, and regardless of who published the video or when exactly the performance took place, the fact that the YouTube video was posted on July 11, 2017 and depicts

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Kharbouch performing a derivative work of *Hood* Pushin’ Weight supports Richardson’s plausible allegation that the Defendants engaged in acts of infringement in 2017. LIFE AFTER HATE, INC. V. FREE RADICALS PROJECT, INC. No. 18 C 6967, 2020 WL 1903956 (N.D. Ill. Apr. 16, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Audiovisual work - video Topics: Preemption - unjust enrichment, Preemption - tortious interference, Preemption - deceptive trade practices Plaintiff Life After Hate, Inc. (“LAH”) brought this suit against Defendants Christian Picciolini and Free Radicals Project, Inc. (“FRP”) (together “the Picciolini Defendants”). LAH states in its First Amended Complaint that one of LAH's co-founders, Picciolini, left LAH and started the competing organization Free Radicals Project and began to infringe upon LAH's registered trademarks. . . . LAH brings claims against Picciolini and FRP for trademark infringement and counterfeiting, tortious interference with a business expectancy, deceptive trade and business practices, cybersquatting, conversion, unjust enrichment, and breach of fiduciary duty. . . . LAH moved for a preliminary injunction to prevent Picciolini and FRP from using LAH's trademarks, which was entered on September 30, 2019. . . . Picciolini and FRP answered LAH's complaint and brought counterclaims against LAH and four individual third-party defendants who are affiliated with LAH, Tony McAleer, Sammy Rangel, Angela King, and Frank Meeink, for a variety of claims. . . . LAH and the third-party defendants then moved to dismiss Picciolini and FRP's claims in their entirety. . . . The Court granted the motion to dismiss in part and denied it in part. . . . Picciolini and FRP then filed an Amended Counter-Complaint (“ACC”) against LAH and third-party defendants Tony McAleer, Sammy Rangel, Angela King, and Frank Meeink. . . . The ACC alleges copyright infringement, violation of right of publicity, unfair competition, unjust enrichment, and deceptive trade practices against LAH; claims against LAH, McAleer, Rangel, King and Meeink for tortious interference with a business expectancy and conspiracy; and claims against LAH, McAleer, Rangel, and Meeink for defamation/disparagement. . . . LAH and the third-party defendants (which the Court will jointly refer to here as “LAH”) now move to dismiss Counts II, III, IV, VI, VII, part of VIII, and IX of Picciolini and FRP's ACC, arguing that all claims fail to state a claim for relief under Federal Rules of Civil Procedure 12(b)(6) and 9(b), and that Count IV, VI, and IX are preempted by the Copyright Act. . . . Unjust Enrichment (Count IV) . . . First, Picciolini and FRP only group the Fund Raising Video in with other videos featuring Picciolini. . . . Nowhere do Picciolini and FRP characterize the Fund Raising Video as being part of the Picciolini Copyrights, which are defined as “The Oak Creek Video,” “There is life after hate Video,” “The Formers Video,” and the “Life After Hate Website.” . . . Here, while the Fund Raising video is unregistered, this is not because it is otherwise uncopyrightable material. It could be subject to the Copyright Act if it were registered, however, it is not. This does not get at the policy considerations surrounding the claim that the

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Copyright Act can preempt state law even when the rights are claimed in uncopyrighted or uncopyrightable materials. Thus, while the Copyrighted Videos are preempted, the Fund Raising Video is not preempted. . . . Tortious Interference with a Business Expectancy (Count VI) . . . The Picciolini Defendants once again rely upon the Fund Raising Video. (Dkt. 153 at 7). As discussed above, to the extent that Picciolini and FRP rely upon the Copyrighted videos, the claim is preempted by the Copyright Act. . . . Deceptive Trade Practices (Count IX) . . . Picciolini and FRP provide a much more robust description of the alleged deceptive trade practices than in their first countercomplaint. . . . They no longer rely solely upon the Picciolini Copyrights and now allege that LAH has concealed his departure and that donors have made contributions to LAH under false pretenses due to their mistaken belief that Picciolini was still associated with LAH. MELLIN V. CAROL FOX & ASSOCS. No. 19 C 6799, 2020 WL 4676668 (N.D. Ill. Aug. 12, 2020) Outcome: Motion for judgment on the pleadings - denied Works of Authorship: Visual work - photograph Topics: Defenses - license Joshua Mellin, a photographer, has sued Carol Fox & Associates (Fox), alleging that it infringed his copyright by posting some of his photographs on Facebook without authorization. Fox has moved for judgment on the pleadings, arguing that it posted the photographs based on an implied license from Mellin. For the reasons stated below, the Court denies the motion. . . . The e-mails, viewed in the light most favorable to Mellin, support a reasonable inference that he did not deliver his photographs to Fox until October 3, when he imposed limitations on their use. Although Mellin had shared the Flickr, Instagram, and Twitter links prior to October 3, Fox's e-mail on that date requesting "the best way to download" the photos so that it could "use these photos for social media purposes" reflects that Fox did not yet have them in a usable format. Thus, a factfinder could reasonably conclude that Mellin's October 3 e-mail properly limited the scope of the implied license because he had not yet delivered the photos to Fox. Because Mellin may be able to prove that the Facebook posting of his photographs exceeded the scope of the implied license, Fox is not entitled to judgment on the pleadings. VERA BRADLEY DESIGNS, INC. V. LI No. 20-CV-2550, 2020 WL 4736413 (N.D. Ill. Aug. 14, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - design Topics: Infringement - pleading requirements

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Plaintiff Vera Bradley Design, Inc. (“Vera Bradley”) brought this lawsuit against individual defendants Aixin Li, Brian Benson, Danny Lu, Kevin Lu, Xia Lu (aka Xia Liu), Weina Niu, and Yanzin Yang for trademark counterfeiting, trademark infringement, unfair competition, false design of origin, and copy infringement, along with state law claims, based on defendants’ unlawful sale of counterfeit Vera Bradley® goods. Before the Court is defendants’ motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court denies defendants’ motion. . . . To give context, in the 28-page complaint, Vera Bradley lists and describes in detail the registrations that are most relevant to the present lawsuit. Attached to the complaint are trademark registration certificates and copyright registrations of Vera Bradley’s unique patterns and designs, including the designs themselves, that are at issue in this lawsuit. Vera Bradley also details the exact counterfeit products it purchased from defendants’ seller accounts on eBay linking the seller accounts to the individual defendants. Under the federal pleading standards, and viewing the detailed allegations and all reasonable inferences in Vera Bradley’s favor, it has adequately alleged its claims under Iqbal and Twombly. TERRIER MEDIA BUYER, INC. V. DISH NETWORK, L.L.C. No. 20 C 583, 2020 WL 5518479 (N.D. Ill. Sep. 14, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Audiovisual work - series Topics: Defenses - limitation on exclusive rights for secondary transmissions of local television programming by satellite Terrier Media Buyer, Inc. sued DISH Network for copyright infringement. DISH moved to dismiss. . . . DISH's motion is granted. . . . In sum, because the TRO ordered that the Cox Retransmission Agreement remained in full force and effect, DISH had consent to retransmit the Cox stations during the its pendency. And because Terrier bases its copyright claim on DISH not having had consent to retransmit the stations during that period, its claim fails. MASSARELLI'S LAWN ORNAMENTS, INC. V. CONTINENTAL STUDIOS, INC. No. 18-CV-03685, 18-CV-06760, 2020 WL 5819880 (N.D. Ill. Sep. 30, 2020) Outcome: Motion for summary judgment - denied Works of Authorship: Visual work - statue Topics: Infringement - evidence of copying, Defenses - independent creation, Defenses - first sale Before the Court are motions for summary judgment in two related copyright infringement actions. Massarelli's Lawn Ornaments, Inc. (“MLO”), the plaintiff in both cases, manufactures

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and distributes garden products, including ornamental garden statues. In April 2018, an MLO representative purchased from a HomeGoods, Inc. (“HomeGoods”) store a cement statue that looked very similar to MLO's own cement tortoise statue. TJX Companies, Inc. (“TJX”), the parent company of HomeGoods, informed MLO that HomeGoods had obtained the statue from Defendant Continental Studios, Inc. (“Continental”). MLO then saw two other garden statues on Continental's website that it believed also infringed upon its copyrighted statues—one of a lion and one of a basket. Accordingly, in May 2018, MLO filed suit against TJX, HomeGoods, and Continental pursuant to 17 U.S.C. §§ 101–1401, asserting claims for copyright infringement and removal of copyright management information. . . . In October 2018, after securing a federal copyright registration for its tortoise statue, MLO filed a second suit asserting the same causes of action with respect to the tortoise statue only. . . . Defendant Renato Motroni, the President and General Manager of Continental, was later added to both suits, and artist Dante DiBartolo was added as a defendant in Massarelli's I. . . . MLO has settled all claims against TJX, HomeGoods, and DiBartolo. Thus, Continental and Motroni are the only remaining Defendants. Now before the Court are Defendants Continental and Motroni's motions for summary judgment as to MLO's copyright infringement claims in both cases. . . . For the reasons stated below, Defendants’ motions are denied. . . . Copyrighted Tortoise . . . Defendants point to Motroni's testimony that Continental has “never made this turtle. Never. We've never bought it from a company with the intent to distribute it.” . . . They also point out that HomeGoods ordered Continental's Style 86166 turtle statues based off a picture that does not look similar to MLO's Copyrighted Tortoise. And when TXJ ordered all HomeGoods stores to remove all Style 130271 sculptures, none of the items the legal department received in response looked like the Copyrighted Tortoise. But as MLO emphasizes, none of the statues TJX collected looks like Continental's advertised Style 86166 either—one statue was actually of a frog, rather than a turtle. TJX also explains that its HomeGoods stores do not check merchandise to confirm that it appears as advertised before distributing it to its sales floors. These facts credibly suggest that when HomeGoods ordered 55 units of the Style 86166 turtle from Continental, Continental may have shipped back at least some goods that varied from its photograph of Style 86166. Finally, on April 21, 2018, an MLO representative purchased a sculpture that looks nearly identical to its Copyrighted Tortoise, labeled as Style 130271, a number HomeGoods identified with Continental's shipment. MLO's facts are sufficient at least to create a genuine issue as to whether Continental sold HomeGoods the statue that infringes upon MLO's Copyrighted Tortoise. Accordingly, Defendants’ motions for summary judgment must be denied as to the tortoise sculpture. . . . Copyrighted Lion . . . Defendants argue that their hired artist, DiBartolo, independently created Continental's lion statue, and therefore, its statue does not infringe on MLO's Copyrighted Lion. . . . To rebut Defendants’ assertion of independent creation, MLO has offered DiBartolo's deposition testimony stating that, at Motroni's direction, he relied on MLO's Copyrighted Lion to create Continental's sculpture. . . . Additionally, DiBartolo testified that while he made Continental's statue out of plaster, it was a plaster casting of the Copyrighted Lion, to which he then made certain modifications with clay. . . . MLO's evidence is more than sufficient to raise a genuine question of fact as to whether DiBartolo copied MLO's Copyrighted Lion or created

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Continental's statue independently. Thus, Defendants are not entitled to summary judgment as to the lion sculpture. . . . Copyrighted Basket . . . Defendants argue that they are entitled to summary judgment as to the Copyrighted Basket based on the first-sale doctrine of copyright infringement. . . . MLO has submitted evidence that Continental advertised basket sculptures on its website that appear nearly identical to MLO's Copyrighted Basket. Accordingly, under the first-sale doctrine, Defendants bear the burden of proving that they acquired a lawfully created copy of MLO's copyrighted item. Moreover, to succeed at the summary judgment stage, Defendants would need to show that there is no genuine factual dispute that they acquired a lawful copy of the Copyrighted Basket. Defendants fall far short of that burden. First, Motroni testified that he acquired Continental's baskets from Seifert and Desert Flower Wholesale. But MLO disputes that assertion with a sworn affidavit stating that it has never sold its Copyrighted Basket to Seifert or Desert Flower Wholesale. Second, Defendants present no evidence that Seifert or Desert Flower Wholesale's copies were legal, such that the first-sale defense would apply to Continental. Therefore, a genuine dispute clearly remains as to whether Defendants infringed on MLO's Copyrighted Basket, and Defendants are not entitled to summary judgment. KINON SURFACE DESIGN, INC. V. HYATT INT'L CORP. No. 19 C 7736, 2020 WL 7123068 (N.D. Ill. Dec. 4, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - design Topics: Defenses - statute of limitations Kinon Surface Design (“Kinon”) is a Florida corporation that designs decorative panels for placement in hotels, residences, retail establishments, offices, and the like. In 2010, an interior design firm working on the soon-to-be-constructed Grand Hyatt Dalian (the “Hotel”) in China purchased two panels from Kinon for use as sample headboards for the Hotel. The design company then sought a quote for Kinon to supply headboards for all the guestrooms in the new Hotel, but the parties could not come to an agreement. Years later, Kinon discovered that all guestrooms in the Hotel were outfitted with headboards identical to the two panels that the design firm had purchased. Believing that these headboards were copies of its copyrighted designs, Kinon filed a series of lawsuits alleging violations of U.S. and Chinese copyright law. The first of these cases, “Kinon I,” . . . which Kinon brought against Hyatt Corporation for copyright infringement in the Southern District of Florida, resulted in a jury verdict of no liability. Kinon then filed and voluntarily dismissed the second case (“Kinon II”), which it brought in the Southern District of Florida against several travel websites, China Resources, Hyatt International Corporation (“HIC”), Hyatt International Technical Services (“HITS”), Hyatt of China (“HOC”), and Hyatt International Hotel Management (“HIHM”) for the same alleged infringement. In the instant case, Kinon alleges copyright infringement against HIC, HITS, HOC, and HIHM (collectively, the “Hyatt Defendants”) as well as China Resources.

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The Hyatt Defendants now move to dismiss the claims against them on the grounds that (1) issue preclusion and judicial estoppel bar this action; (2) the Court lacks subject matter jurisdiction; (3) the Court lacks personal jurisdiction over HOC and HIHM; (4) the suit is time-barred under the Copyright Act's limitations period; and (5) the common-law doctrine of forum non conveniens dictates that this case should be tried in China, not the United States. China Resources also moves to dismiss because (1) the Court lacks personal jurisdiction over it; (2) Kinon did not properly effect service on it; and (3) pursuant to the doctrine of forum non conveniens, China is a more appropriate forum for this litigation. For the reasons set forth below, the Hyatt Defendants’ Motion to Dismiss (Dkt. 59) is granted in part and denied in part, and China Resources’ Motion to Dismiss (Dkt. 66) is granted. . . . Viewing the allegations of the Complaint in the light most favorable to Kinon, Mr. Satz did not become aware until early 2018 that the images of the headboards appearing in Hotel photos on hyatt.com depicted unauthorized copies of the Work. There is no basis for assuming at this stage that he should have known this sooner as he could have been under the impression that these were images of the mock-up designs that he sold to China Resources, not images of illegal copies of the Work. Kinon filed this lawsuit in November, 2019, well within the limitations period. At this stage of the litigation, dismissal on statute of limitations grounds is not appropriate. HIC and HITS can, if they wish, raise the statute of limitations issue at later stages of the litigation.

Southern District of Illinois

ALEXANDER V. TAKE-TWO INTERACTIVE SOFTWARE, INC. No. 18-CV-966-SMY, 2020 WL 1287734 (S.D. Ill. Mar. 18, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - tattoo, Audiovisual work - video game Topics: Copyright registration - registration requirement, Infringement - pleading requirements Plaintiff Catherine Alexander filed this action against Defendants Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., World Wrestling Entertainment, Inc., Visual Concepts Entertainment, Yuke’s Co., Ltd., and Yukes LA, Inc., asserting copyright infringement pursuant to 17 U.S.C. § 501. The case is now before the Court for consideration of the Motion to Dismiss filed by Defendants 2K Games, 2K Sports, Take-Two, Visual Concepts, Yuke's, and Yuke's LA . . . and the Motion to Dismiss filed by Defendant WWE . . . . For the following reasons, Defendants’ Motion . . . is GRANTED in PART and DENIED in PART and Defendant WWE’s Motion . . . is DENIED. . . . Here, five of Plaintiff’s tattoos were registered on March 13, 2018, prior to Plaintiff filing this lawsuit . . . . The United States Copyright Office Register rejected Plaintiff’s application for the Bible verse tattoo on the basis it lacked the authorship necessary to support a copyright claim . . . . Accordingly, because Plaintiff does not have proper registration for the Bible verse tattoo, Defendant’s Motion to Dismiss is GRANTED as to the Bible tattoo and DENIED as to the remaining five tattoos. . . .

Joshua L. Simmons joshua.simmons@kirkland.com

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Plaintiff’s allegations are sufficient to meet FRCP 8's liberal pleading requirements. Plaintiff holds certificates of registration for five tattoos and she alleges her tattoos are prominently displayed on Orton in the video games. She describes the original tattoos allegedly infringed upon. She also alleges that each defendant had either a developmental, marketing or promotional role in the bringing the infringing video games to market. . . . Dismissal for failure to state a claim is proper only if the plaintiff can prove no set of facts in support of her claims which would entitle her to relief. There are sufficient factual allegations in Plaintiff’s Amended Complaint to allow her claims to proceed against the defendants as to the remaining five registered tattoos. ALEXANDER V. TAKE-TWO INTERACTIVE SOFTWARE, INC. No. 18-CV-966-SMY, 2020 WL 5752158 (S.D. Ill. Sep. 26, 2020) Outcome: Motion for summary judgment - granted, Motion for summary judgment - denied Works of Authorship: Visual work - tattoo, Audiovisual work - video game Topics: Defenses - license, Defenses - fair use, Defenses de minimis use, Remedies - actual damages Plaintiff Catherine Alexander filed the instant lawsuit against Defendants Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., Visual Concepts Entertainment (the “Take-Two Defendants”), and World Wrestling Entertainment, Inc. (“WWE”) asserting copyright infringement under 17 U.S.C. § 501. The case is now before the Court for consideration of Plaintiff's Motion for Partial Summary Judgment (Doc. 139) and the Motion for Summary Judgment filed by the Take-Two Defendants (Doc. 141). The parties have filed responses (Docs. 170 and 215). For the following reasons, Plaintiff's Motion is GRANTED, and Defendants’ Motion is DENIED. . . . Alexander's Motion for Partial Summary Judgment . . . Alexander argues there is no dispute of material facts as to the issue of copying because Defendants have admitted to copying her original copyrighted tattoo artworks without permission. Defendants admit to copying Alexander's tattoos in their entirety in order to depict Orton in WWE 2K as he appears in real life (factual copying). However, citing Second and Fifth Circuit decisions, they argue Alexander cannot establish legally actionable copying, which she must also prove. . . . Defendants’ argument is contrary to Seventh Circuit copyright law under which Alexander only needs to show that Defendants used her property; the burden of proving the use was authorized falls squarely on Defendants. . . . It is undisputed that Alexander holds valid copyrights for the five tattoos at issue and that Defendants copied her copyrighted works. Accordingly, Alexander's Motion for Partial Summary Judgment as to the copying element is GRANTED. . . . Defendants’ Motion for Summary Judgment . . . It is unclear whether Alexander and Orton discussed permissible forms of copying and distributing the tattoo works or whether any implied license included sublicensing rights such that Orton could give permission for others to copy Alexander's tattoo works. Thus, the evidence raises a triable issue of fact as to the existence and scope of an implied license and Defendants’ motion is denied as to this affirmative defense. . . .

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Unlike in Bill Graham, there is a factual dispute in this case as to Defendants’ purpose in using the tattoo works. Alexander contends she created the tattoos for the purpose of displaying them on Orton's body and that Defendants used the tattoos for the same purpose; to display them on Orton's body in the videogames. Alexander also disputes Defendants’ characterization of the size of the tattoos and maintains they are prominently displayed and clearly visible in the videogames. These are material factual disputes. . . . Alexander has a copyright for five of Orton's tattoos. The art of creating a tattoo naturally entails creative and expressive efforts. Although Orton gave Alexander direction and input as to the tattoos, it was Alexander's creativity and design choices that were ultimately inked. . . . Although wholesale copying does not preclude fair use per se, it militates against a finding of fair use. . . . Market harm is a matter of degree and the importance of this factor varies depending on the amount of harm and relative strength of the showing on the other factors.” . . . Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question. The parties cite no Seventh Circuit decisions applying the defense and this Court is aware of none. Given the overlap between the defense and actionable copying, which Alexander is not required to prove to sustain her case in this circuit, the Court doubts the defense is viable generally. That said, the Court finds Defendants’ specific de minimis argument unavailing. The defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here. . . . There is disputed evidence regarding the value of the copyright tattoo works to the videogames. Defendants argue the evidence establishes that consumers do not purchase WWE 2K because of the tattoos. But other evidence shows that consumers did purchase WWE 2K for its authenticity to the wrestlers’ appearance. In particular, Defendants admit that consumer response is a consideration to their development of WWE 2K and the design choices made. They also acknowledge that consumers expect there to be authenticity in the videogames and that WWE would have rejected Orton's videogame persona if it appeared without his tattoos or appeared with tattoos that were different than Orton's actual tattoos. Additionally, Alexander's expert addresses the importance of authenticity to drive sales and profits. Thus, an issue of material fact exists as to whether Alexander suffered actual damages based on the value of the infringing use, defeating summary judgment.

Northern District of Indiana

AMBROSETTI V. OR. CATHOLIC PRESS No. 3:19-CV-00682-JD-MGG, 2020 WL 2219172 (N.D. Ind. May. 7, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Music - musical work Topics: Copyright registration - registration requirement Plaintiff Vincent Ambrosetti, individually and also as a trustee of The King’s Ministrels Charitable Trust also known as International Liturgy Publications (“ILP”), filed a complaint against Defendants Oregon Catholic Press and Bernadette Farrell (the “Defendants”) for copyright infringement in violation of the Copyright Act . . . . This matter is before the Court on

Joshua L. Simmons joshua.simmons@kirkland.com

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Defendant Oregon Catholic Press’ (“OCP”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). . . . For the reasons stated herein, the Court will grant the motion and dismiss the complaint without prejudice. . . . The Court first addresses OCP’s second argument that Mr. Ambrosetti’s filing of a copyright registration application for “Emmanuel” does not satisfy the infringement action prerequisite required by Section 411(a). . . . It is undisputed, even alleged by Mr. Ambrosetti in his complaint, that the registration application for the individual song “Emmanuel” was submitted two weeks prior to the filing of this action and a decision from the U.S. Copyright Office had not yet been administered. . . . On March 4, 2020, the Copyright Office issued a registration for “Emmanuel,” nearly 7 months after this action was filed. . . . Therefore, the Court finds that, consistent with Section 411(a) and the Supreme Court’s holding in Fourth Estate, the registration application filing for the individual song “Emmanuel” does not satisfy the requirements necessary to file an infringement action. . . . The Court’s analysis does not stop there, however. In the complaint, it is alleged that the infringed work “Emmanuel” was registered with the U.S. Copyright Office in April 1991 as part of the “I Will Sing” songbook collection registration and Mr. Ambrosetti argues the motion to dismiss should be denied because he properly alleged that “Emmanuel” was registered prior to filing the complaint. . . . For the following reasons, the Court finds “Emmanuel” does not gain the benefit of the registration of “I Will Sing.” Since no registration existed for “Emmanuel” prior to the filing of this action, the Court must now determine what effect the now obtained registration has on the outcome of this motion. . . . Here, since Mr. Ambrosetti has now obtained the registration for “Emmanuel,” a new suit may be filed and resolved on the merits. The Court does not see any indication that a fresh copyright suit would be untimely since, as alleged by Mr. Ambrosetti, the potentially infringing use of the song is ongoing and each new reproduction is a fresh wrong, with its own three-year period of limitations.

Southern District of Indiana

BELL V. MERCHANTS BANK OF INDIANA No. 1:18-CV-00056-JPH-DLP, 2020 WL 1987252 (S.D. Ind. Apr. 27, 2020) Outcome: Motion for summary judgment - granted, Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Ownership - evidence of ownership, Copyright registration - presumption of validity, Infringement - public display, Remedies - willful infringement Richard Bell alleges that Merchants Bank willfully used his copyrighted photo of the Indianapolis skyline on its website without his permission. He has moved for summary judgment on his claim of copyright infringement. . . . Merchants denies that it infringed and contends that even if it did, the infringement was not willful. Merchants has moved for summary judgment on Mr. Bell’s claim of infringement and as to willfulness. . . . For the reasons stated below, Mr.

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Bell’s motion is GRANTED, and Merchants’ motion is GRANTED in part and DENIED in part. . . . 1. Ownership . . . Mr. Bell has designated evidence that he owned a valid copyright of the Photo during the relevant timeframe. Mr. Bell testified that he was sole owner of the Photo and that he registered it with the Copyright Office. . . . He also provided a copy of his registration. . . . This creates a presumption that he owns the copyright of the Photo. . . . 2. Infringement . . . Merchants admits that it displayed the Photo on its website in 2016 and 2017. . . . Mr. Bell did not grant Merchants or Sonar permission to display his Photo. . . . Merchants argues that it did not infringe on Mr. Bell’s copyright, however, because it never uploaded the Photo to its website—Sonar did. . . . Once uploaded, the Photo existed on Merchants’ website only as a unique hyperlink. . . . According to Merchants, that makes this case similar to Flava Works, Inc. v. Gunter . . . and Perfect 10, Inc. v. Amazon.com, Inc. . . . which held that businesses that displayed copyrighted photos or videos on their websites did not infringe on the copyrights. But this case is different. In both of those cases, the defendants’ websites acted as middlemen, pointing visitors to content hosted on other websites. . . . Here, Merchants’ website was not a middleman; its website displayed the Photo without connecting its visitors to another website that hosted the Photo. Unlike the defendants above, Merchants stored the Photo on servers it leased. . . . Indeed, Merchants admits that the Photo was “being stored on its Website.” . . . Furthermore, Merchants “had the right and ability to control and supervise the content of its website.” . . . Ms. Marsh had “the keys” to the website, allowing her to decide what images visitors to the site could see. . . . This allowed Ms. Marsh to display the Photo or remove it entirely. . . . C. Was Merchants’ infringement willful? . . . The only evidence Mr. Bell has designated to show willfulness is the watermark statement that appeared on the page of Merchants’ website that contained the Photo, but not on the Photo itself: “© Copyright 2017 Merchants Bank. All Rights Reserved.” . . . But Ms. Marsh’s Declaration states that “[t]he purpose of the Merchants copyright language was to protect the Website generally. Merchants did not intend to claim ownership of the Photo or the Image.” . . . Mr. Bell has not designated evidence showing that Ms. Marsh’s sworn statement is not true.

Eighth Circuit

Court of Appeals for the Eighth Circuit

INFOGROUP, INC. V. DATABASELLC No. 18-3723, 2020 WL 1982213 (8th Cir. Apr. 27, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - database Topics: Copyrightability - originality, Infringement - evidence of copying, Remedies - disgorgement of profits

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After a jury trial and post-trial orders by the district court, Infogroup, Inc. received judgments against DatabaseUSA.com LLC for copyright infringement, and Vinod Gupta for breach of contract. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. Gupta founded Infogroup, a company that compiles a database of business information. In 2008, Gupta and Infogroup entered a separation agreement. Within two years, he founded DatabaseUSA to compile a database of business information. In 2014, Infogroup sued DatabaseUSA for, among other claims, copyright infringement of its 2011 database. It also sued Gupta for breach of the separation agreement. A jury returned a verdict for Infogroup, which after post-trial orders, awarded $11.2 million against DatabaseUSA for copyright infringement, and $10 million against Gupta for breach of the separation agreement. DatabaseUSA and Gupta appeal. They seek judgment as a matter of law, or in the alternative, a new trial. . . . A reasonable juror could have concluded that Infogroup made an independent selection and arrangement of facts that entail a minimal degree of creativity. Infogroup put into evidence its copyright’s Certificate of Registration from 2011, which protected the “text, Compilation” of its database. Certificates of Registration are “entitled to a rebuttable presumption of the validity of [the] copyright[ ].” . . . DatabaseUSA did not submit evidence rebutting this presumption. Infogroup, according to its CEO and its group president, merges overlapping data and purges inaccurate data (in its judgment). This process entails a minimal degree of creativity. . . . For the second requirement, a reasonable juror could have concluded that DatabaseUSA copied the original elements of Infogroup’s work. . . . First, a salesperson who worked for Infogroup and DatabaseUSA testified that the top executives at DatabaseUSA told him that “[n]othing has changed” between Infogroup’s data and DatabaseUSA’s data. . . . Second, DatabaseUSA’s database contained Infogroup’s “seed data”—fake data in Infogroup’s database to detect copying. . . . Third, the district court gave a spoliation instruction that the jury could “infer ... that the contents of the database were unfavorable” to DatabaseUSA if it found “that DatabaseUSA destroyed the database knowing that evidence would be relevant to an issue being litigated in this case.” This instruction implemented the district court’s sanction of DatabaseUSA for intentionally destroying its 2014 database after DatabaseUSA reviewed it to oppose Infogroup’s preliminary injunction in this case. . . . Finally, for the copyright infringement claim, this court affirms the $11.2 million in damages. . . . Infogroup presented evidence (verified by DatabaseUSA) of DatabaseUSA’s gross revenue from the sales divisions that used the infringing database, and evidence of two deductions. At trial, DatabaseUSA did not present any evidence that its gross revenue resulted from factors unrelated to infringement. MPAY INC. V. ERIE CUSTOM COMPUT. APPLICATIONS, INC.

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No. 19-2206, 2020 WL 4726523 (8th Cir. Aug. 14, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Literary work - computer program Topics: Defenses - license MPAY Inc. appeals the district court's denial of its motion for a preliminary injunction against Erie Custom Computer Applications, Inc.; PayDay USA, Inc.; Payroll World, Inc.; Proliant, Inc.; Proliant Technologies, Inc.; and Kevin Clayton (collectively, “Appellees”). We affirm in part, vacate in part, and remand. . . . Appellees demonstrated that their copying, disclosure, and possession of the source code were authorized by the Software Development and License Agreement. MPAY thus has not shown a likelihood of success on the merits of its copyright-infringement or trade-secrets-misappropriation claims, and the district court did not err in so concluding. This conclusion “strongly suggests” that the district court did not abuse its discretion in denying preliminary injunctive relief.

District of Minnesota

FAIR ISAAC CORP. V. FED. INS. CO. No. 16-CV-1054 (WMW/DTS), 2020 WL 1330214 (D. Minn. Mar. 23, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Literary work - computer program Topics: Defenses - license, Remedies - actual damages, Remedies - disgorgement of profits Plaintiff Fair Isaac Corporation (FICO) and Defendants Federal Insurance Company (Federal) and ACE American Insurance Company (ACE American) (collectively, Defendants) cross-move to exclude expert testimony and for summary judgment. . . . FICO also moves to strike aspects of Defendants’ summary judgment filings. . . . For the reasons addressed below, the parties’ motions to exclude expert testimony are granted in part and denied in part, FICO’s motion to strike and motion for summary judgment are denied, and Defendants’ motion for summary judgment is granted in part and denied in part. . . . 1. Reproduction and Distribution (Count II) . . . As addressed in Part III.A.1.b. of this Order, the scope of the phrase “Client and its Affiliates” in the December 2006 amendment to the License Agreement is ambiguous and depends on disputed material facts. Moreover, disputes of fact remain as to whether Federal distributed Blaze Advisor to third-party consultants without authorization. Because there are disputed facts as to Federal’s authorization to distribute Blaze Advisor to its affiliates and consultants, Federal is not entitled to summary judgment on this basis. . . . 2. Continued Use After Purported Termination of the License Agreement (Count III) . . . Count III of the second amended complaint is based on Federal’s continued use of Blaze Advisor after FICO purported to terminate the License Agreement in March 2016. Federal contends that FICO had no valid basis to terminate the License Agreement. But, as addressed herein, disputes of material fact preclude summary judgment as to whether the License Agreement was either

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breached or properly terminated. For this reason, Federal’s motion for summary judgment on Count III of the second amended complaint is denied. . . . 4. Copyright Damages . . . Here, as addressed above, the Court excludes as unreliable the actual damages opinions of FICO’s damages expert, Zoltowski, because Zoltowski’s selective application of the underlying facts leads to a subjective and skewed result that is inconsistent with the applicable legal standard. But there remains relevant evidence underlying those opinions that has not been excluded. This includes evidence of FICO’s standard pricing methodology that, together with evidence of Defendants’ use of Blaze Advisor, creates a genuine dispute of material fact as to actual damages. . . . FICO’s initial burden to prove attribution requires proof that the infringing use, at least in part, “contributed to” the relevant gross revenues. . . . FICO cannot meet this burden by proving gross revenues from everything Defendants sold, but instead must prove gross revenues from the sale of products or services that have a nexus to the infringing use. . . . Here, FICO presents evidence of gross revenue from the sale of insurance in connection with which Blaze Advisor was used. This evidence is not “undifferentiated,” as it is tied to Defendants’ use of Blaze Advisor. FICO also presents evidence about how Blaze Advisor contributed to Defendants’ gross revenue from the sale of insurance. This evidence is sufficient to demonstrate a genuine dispute of material fact as to disgorgement of profits and, therefore, preclude summary judgment on this issue. FAIR ISAAC CORP. V. FED. INS. CO. No. 16-CV-1054 (WMW/DTS), 2020 WL 3446872 (D. Minn. Jun. 24, 2020) Outcome: Motion to strike - granted Works of Authorship: Literary work - computer program Topics: Remedies - disgorgement of profits This matter is before the Court on Plaintiff Fair Isaac Corporation’s (Fair Isaac) appeal of the October 9, 2019 Order of United States Magistrate Judge David T. Schultz, which granted Defendants’ motion to strike Fair Isaac’s jury demand on the disgorgement of Federal Insurance Company’s profits attributable to infringement under the Copyright Act. . . . For the reasons addressed below, the Court affirms the magistrate judge’s October 9, 2019 Order. . . . [T]here is no statutory right to a jury determination as to the disgorgement of profits under Section 504(b) of the Copyright Act. . . . Here, any profit disgorgement would be based on Federal’s gains, not Fair Isaac’s losses. Fair Isaac need not suffer any actual damages to be awarded Federal’s improper profits. Section 504(b) expressly excludes any profits “taken into account in computing the actual damages.” . . . As these profits are measured exclusively based on Federal’s gains, they are restitutionary. There is no sound basis to conclude that, here, disgorgement is a legal remedy that serves to punish and deter. AAMOT V. PETERSON No. CV 18-1402 (JRT/LIB), 2020 WL 4926598 (D. Minn. Aug. 21, 2020)

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Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - illustration Topics: Remedies - attorneys fees Defendants Mark Peterson and Timothy Akers filed this motion for costs, attorney fees, and sanctions related to the voluntary dismissal of Plaintiff Susan Aamot's underlying copyright-infringement action. Because the Court finds that neither an award of costs and fees nor sanctions against Felsheim are warranted, the Court will deny Defendants’ motion.

Western District of Missouri

RAGAN V. BERKSHIRE HATHAWAY AUTO., INC. No. 4:18-CV-01010-HFS, 2020 WL 63106 (W.D. Mo. Jan. 7, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - questionnaire Topics: Scope of protection - blank forms Defendant, Berkshire Hathaway Automotive Inc. (“BHA”), has filed a motion to dismiss the complaint. BHA seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, and/or, pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. . . . The Guest Sheet here is somewhat cluttered; it would not commonly be described as a “blank form.” A cluttered document, however, is not fatal to a “blank form” defense; checks are included and are not notably less cluttered than the Guest Sheet. The requirement of “blank” thus seems to be satisfied by a document with considerable space provided to fill in responses. In that sense, the Guest Sheet qualifies. . . . Typical Blank Form illustrations deal with questions. The baseball example essentially presents questions as to the number of hits, runs and errors associated with a listed player. The number of questions in the Guest Sheet is considerably in excess of those located in other blank form cases found in my limited review of the case-law. Limited review, however, does not suggest that more than a few questions defeats qualification as a Blank Form. WILD V. ROCKWELL LABS, LTD. No. 4:19-CV-00919-W-RK, 2020 WL 1921127 (W.D. Mo. Apr. 20, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Defenses - license, Defenses - fair use This is a copyright infringement case. Now pending before the Court is Defendant Rockwell Labs, Ltd. d/b/a Maggie's Farm (“Rockwell”) and Dr. Cisse Spragins' (“Spragins”) (collectively, “Defendants”) Motion to Dismiss for Failure to State a Claim. . . . For the reasons set forth below, the Court finds that Plaintiff has adequately stated a claim against both Defendants. Consequently, the motion is DENIED. . . .

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I. Dismissal is Not Warranted Based on Defendants' Post-Infringement License. . . . Defendants' first argument is that the Complaint does not state a claim because they purchased a license for the Work before Plaintiff filed this lawsuit. . . . Defendants cannot rely on Spragins' Declaration and other materials outside the Complaint. The Complaint expressly alleges that Plaintiff never licensed the Work to Defendants or gave them permission to use it. . . . Defendants contend that these allegations are false, but they have raised a factual dispute that is not proper in the motion to dismiss context. To resolve the pending motion, the Court cannot consider the materials presented by Defendants which are not referenced in, or embraced by, the Complaint. Moreover, dismissal would not be proper even if the Court could consider such materials, and even if those materials established that Defendants purchased a license on October 30, 2020. Defendants argue that licenses “may be” applied retroactively, but it is not clear from the documents submitted that their purported license was both retroactive and in full satisfaction of Defendants' prior infringement. Under these circumstances, Defendants' first argument is rejected. II. Defendants' “Fair Use” Argument Does Not Warrant Dismissal . . . Upon review of the record, the Court finds that Defendants' fair use defense cannot be resolved at the motion to dismiss stage. In particular, Defendants' arguments rely on matters that are not within the four corners of the Complaint or otherwise embraced by the pleadings.

District of Nebraska

INFOGROUP INC. V. OFFICE DEPOT, INC. No. 8:20CV109, 2020 WL 6707359 (D. Neb. Nov. 13, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Literary work - database Topics: Ownership - pleading requirements, Infringement - pleading requirements, Defenses - license This matter is before the Court on defendant Office Depot, Inc.’s (“Office Depot”) motion to dismiss and to compel arbitration/mediation . . . . This is an action for copyright infringement under the Federal Copyright Act . . . . Office Depot moves to dismiss Infogroup's complaint for lack of subject matter jurisdiction, under Federal Rules of Civil Procedure 12(b)(1), for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), for improper venue under Federal Rule of Civil Procedure 12(b)(3), and for failure to state a claim for which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), or, alternatively, to compel mediation pursuant to a contract between the parties. . . . The Court finds that Infogroup has stated a claim for relief for copyright infringement. It has alleged ownership of the copyright and has alleged that the defendant's use of its copyrighted materials infringed its rights under the Copyright Act. It alleges the use is unauthorized and therefore outside the scope of any licensing agreement. Office Depot's alleged license is a potential affirmative defense. If asserted, the burden will be on Office Depot to prove that its use of Infogroup's U.S. Business Database was within the permitted scope of use under the terms of

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the license. At this point the plaintiff's complaint is sufficient to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.”

Ninth Circuit

Court of Appeals for the Ninth Circuit

PRETTY IN PLASTIC, INC. V. BUNN No. 19-55278, 2020 WL 618666 (9th Cir. Feb. 10, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - design Topics: Infringement - substantial similarity Plaintiff Pretty in Plastic, Inc. (PIP) appeals the district court’s grant of defendants Maryellis Bunn and 1AND8, Inc.’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss PIP’s copyright infringement action. . . . We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. . . . The district court properly concluded that the unicorn depiction over which PIP asserted copyright protection did not contain the “quantum of originality needed to merit copyright protection,” because it depicts a unicorn as the mythical creature is often portrayed. . . . The district court further properly concluded that, even if there were certain copyrightable elements of PIP’s design, the copyright protection would be “thin,” meaning that protection would be afforded “against only virtually identical copying.” . . . Given that the copyright protection here was—at best—“thin,” and that there are notable differences between the unicorn and rainbow elements in the Design Proposal and those in the Rainbow Room, the district court did not err in concluding that there was no infringement as a matter of law. SKIDMORE V. ZEPPELIN No. 16-56057, 16-56287, 2020 WL 1128808 (9th Cir. Mar. 9, 2020) Outcome: Appeal - affirmed Works of Authorship: Music - musical work Topics: Copyright registration - deposit copy, Infringement - substantial similarity, Infringement - inverse-ratio rule, Copyrightability - originality, Copyrightability - selection and arrangement Stairway to Heaven has been called the greatest rock song of all time. Yet, hyperbole aside, nearly 40 years after the English rock band Led Zeppelin released its hit recording, the song is not impervious to copyright challenges. The estate of guitarist Randy Wolfe claims that Led Zeppelin and its guitarist Jimmy Page and vocalist Robert Plant copied portions of Taurus, a song written by Wolfe and performed by his band Spirit. This appeal stems from the jury's verdict in favor of Led Zeppelin and a finding that the two songs are not substantially similar. Like the jury, we don't need to decide whether Stairway to Heaven has a place in the annals of iconic rock songs. Instead, we address a litany of copyright

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issues, including the interplay between the 1909 and 1976 Copyright Acts, the inverse ratio rule, the scope of music copyright, and the standards for infringement. The 1909 Copyright Act, which does not protect sound recordings, controls our analysis. The copyright at issue is for the unpublished musical composition of Taurus, which was registered in 1967. The unpublished work is defined by the deposit copy, which in the case of Taurus consists of only one page of music. We also join the majority of circuits in rejecting the inverse ratio rule and overrule our precedent to the contrary. Finally, we are not persuaded by the challenges to jury instructions and various other evidentiary and trial rulings. We affirm the district court's entry of judgment in favor of Led Zeppelin and related parties. DANIELS V. WALT DISNEY CO. No. 18-55635, 2020 WL 1240915 (9th Cir. Mar. 16, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - pilot, Audiovisual wok - motion picture Topics: Copyrightability - character Literary and graphic characters—from James Bond to the Batmobile—capture our creative imagination. These characters also may enjoy copyright protection, subject to certain limitations. Here we consider whether certain anthropomorphized characters representing human emotions qualify for copyright protection. They do not. For guidance, we turn to DC Comics v. Towle, our court's most recent explanation of the copyrightability of graphically-depicted characters. . . . Denise Daniels developed a line of anthropomorphic characters called The Moodsters, which she pitched to entertainment and toy companies around the country, including The Walt Disney Company. Under Towle, “lightly sketched” characters such as The Moodsters, which lack “consistent, identifiable character traits and attributes,” do not enjoy copyright protection. . . . We affirm the district court's dismissal of Daniels's complaint. . . . A. Application of the Towle Test to The Moodsters . . . Disney does not dispute that the individual Moodster characters meet the first prong of the Towle test: each has physical as well as conceptual qualities. Because they have physical qualities, The Moodsters are not mere literary characters. The second prong presents an insurmountable hurdle for Daniels. . . . Unlike, for example, the Batmobile, which “maintained distinct physical and conceptual qualities since its first appearance in the comic books,” the physical appearance of The Moodsters changed significantly over time. . . . Across the various iterations The Moodsters have consistently represented five human emotions, and those emotions have not changed. But other than the idea of color and emotions, there are few other identifiable character traits and attributes that are consistent over the various iterations. . . . Finally, in every iteration the five Moodsters each have a completely different name. . . .

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Finally, even giving Daniels the benefit of the doubt on Towle's second prong, we conclude that The Moodsters fail the third prong—they are not “especially distinctive” and do not “contain some unique elements of expression. . . . B. The Story Being Told Test . . . The Warner Brothers test is therefore available, but it affords no protection to The Moodsters. Neither the Bible nor the pilot episode exhibits any prolonged engagement with character development or a character study of The Moodsters. Although the characters are introduced in the Bible, along with short descriptions, these pithy descriptions do not constitute the story being told. The pilot contains even less character development—rather, each of The Moodsters serves primarily as a means by which particular emotions are introduced and explored. The Moodsters are mere chessmen in the game of telling the story. TRESÓNA MULTIMEDIA, LLC V. BURBANK HIGH SCHOOL VOCAL MUSIC ASSOC. No. 17-56006, 17-56417, 17-56419, 2020 WL 1429318 (9th Cir. Mar. 24, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Music - musical work Topics: Infringement - standing, Defenses - fair use, Remedies - attorneys fees In this copyright infringement action against Brett Carroll, the vocal music director at Burbank High School, the Burbank High School Vocal Music Association Boosters Club, and several individual Boosters Club parents, Tresóna Multimedia, LLC claims that the Burbank High School student show choirs failed to obtain licenses for their use of copyrighted sheet music in arranging a show choir performance. We conclude that Tresóna lacks standing to sue as to three of the four musical works at issue, and that the defense of fair use renders the use of the fourth noninfringing. We therefore affirm the district court’s grant of summary judgment in favor of Defendants, but reverse its denial of attorneys’ fees to Carroll and the Boosters Club. . . . Standing . . . The district court correctly held that Tresóna lacked standing under 17 U.S.C. § 501(b) to bring copyright infringement claims based on the songs “(I’ve Had) The Time of My Life,” “Hotel California,” and “Don’t Phunk With My Heart,” as Tresóna received its interests in those songs from individual co-owners of copyright, without the consent of the other co-owners, and therefore held only non-exclusive licenses in those works. . . . Fair Use . . . Carroll’s use of the musical work was in his capacity as a teacher in the music education program at Burbank High School. Such an educational use weighs in favor of fair use. . . . The Purpose and Character of the Use . . . This use was not of a traditional commercial nature, but rather for the nonprofit education of the students in the music program. Carroll distributed the sheet music arranged by Greene at no charge to the students. . . . This rearrangement of “Magic” along with other musical works was thus transformative. Greene did not “simply omit[ ] portions” of the original work while retaining the “same intrinsic entertainment value.” . . .

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The Nature of the Copyrighted Work . . . Because the original arrangement of the song “Magic” is undoubtedly creative, this factor weighs against a finding of fair use. . . . The Amount and Substantiality of the Portion Used . . . Here, the segment taken from the song “Magic” is approximately twenty seconds of a four-minute and twenty-two second song. The portion that was used, however, incorporates the song’s principle chorus, which is the central element of the musical work, and is repeated more than once. Thus, the copied portion is undoubtedly a qualitatively significant portion of “Magic.” . . . In this case, Greene’s rearrangement did not simply copy several lines from one chorus of the song and repeat it, but embedded that portion into a larger, transformative choir showpiece that incorporated many other works, and imbued that entire piece with new expression and meaning not contained within any of the individual works. Carroll thus “departed markedly from” the original lyrics . . . incorporating the chorus of “Magic” into a new and different story that also furthered high school students’ musical learning and development. The new work is not a verbatim copy, nor one in which the transformative use “is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the [Defendants].” . . . Effect of the Use Upon the Potential Market . . . Carroll and the Boosters Club submitted uncontroverted evidence that the sheet music incorporating twenty seconds of “Magic” was used only by students and their accompanists during the show choir’s extracurricular activities as part of their performance of a new work. Although the creation of sheet music incorporating the copyrighted work is a derivative use, the twenty seconds used in the “Rainmaker” choir piece is not a substitute for the song “Magic.” . . . Attorneys' Fees . . . The district court abused its discretion in denying Defendants’ motion for attorneys’ fees. We therefore award Defendants’ attorneys’ fees and remand to the district court for the calculation of the award. APPS V. UNIVERSAL MUSIC GRP., INC. No. 18-15889, 18-15987, 2020 WL 1514971 (9th Cir. Mar. 30, 2020) Outcome: Appeal - affirmed Works of Authorship: Music - musical work Topics: Remedies - attorneys fees Plaintiff Alissa Apps, a singer-songwriter, brought suit under the Copyright Act . . . alleging that the following defendants copied her song “Need to Know”: John Newman (singer of “Love Me Again,” the allegedly infringing song), Steve Booker (the song’s producer), Island Records (owner of the copyright to the allegedly infringing song and producer of the album containing the song), and Universal Music Group, Inc. (“UMGI”) . . . . A summons was issued for each defendant, but only UMGI was served, leaving UMGI as the sole defendant. . . . The district court carefully considered the Fogerty and Kirtsaeng factors and outlined its reasoning in detail. The district court did not abuse its discretion in concluding that “it was

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unreasonable for Apps to maintain this suit only after she deposed Ms. Gold.” Its award of attorneys’ fees and costs for UMGI’s expenses after the deposition was proper. SELLPOOLSUPPLIESONLINE.COM, LLC V. UGLY POOLS ARIZONA, INC. No. 18-16839, 19-15714, 2020 WL 1527774 (9th Cir. Mar. 31, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - Internet work Topics: Copyright registration - fraud on the Copyright Office, Copyright registration - registration requirement, Integrity of Copyright Management Information - definition of Copyright Management Information, Integrity of Copyright Management Information - conveyed, Remedies - attorneys fees These consolidated cases arise from a copyright infringement suit brought by SellPoolSuppliesOnline.com LLC (“Plaintiff”) against Ugly Pools Arizona, Inc. and its owner, Brian Morris (collectively, “Defendants”). In No. 18-16839, Plaintiff appeals from the district court orders granting summary judgment to Defendants on the copyright infringement and the Digital Millennium Copyright Act (“DMCA”) claims. In No. 19-15714, Defendants appeal from the district court’s order denying their request for attorneys’ fees under the Copyright Act. . . . 1. The district court properly granted summary judgment to Defendants on the copyright infringement claim. We agree with the district court that Plaintiff’s certificate of registration was invalid because (1) there is no genuine dispute over whether Plaintiff knowingly included inaccurate information on its application by falsely representing that the deposit material accompanying its application depicted the website as it appeared on the purported publication date of July 3, 2014; and (2) the Register of Copyrights told the court that it would have refused registration had it known about the inaccurate information. Because Plaintiff’s certificate of registration was invalid, Plaintiff failed to satisfy the registration precondition under 17 U.S.C. § 411 to bring a copyright infringement claim. . . . 2. The district court correctly determined that Plaintiff’s claim for the improper removal of copyright management information (“CMI”) under the DMCA fails because Plaintiff has not shown that Defendants removed any of Plaintiff’s CMI. . . . The information allegedly removed by Defendants did not identify Plaintiff as the owner or author of any content on the website. Indeed, Plaintiff admitted that the information was a fictitious name. The fictitious name also did not identify the title of Plaintiff’s website, “SPSO Website www.poolandspapartsnow.com.” Thus, the information that Defendants allegedly removed was not Plaintiff’s CMI. 3. The district court properly determined that Plaintiff’s false CMI claim under the DMCA fails because Defendants’ copyright notice was not “conveyed in connection with copies” of Plaintiff’s work. In analyzing Plaintiff’s false CMI claim, the district court properly limited the work to Plaintiff’s photos. Upon de novo review, we further find that there is no genuine dispute that Plaintiff’s work includes only the photos with the “©CVP” marking. . . .

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Defendants’ copyright notice did not meet the definition of CMI because it was not “conveyed in connection with” Plaintiff’s photos. Based on the following undisputed facts, Defendants’ copyright notice did not suggest that it was associated with or linked to Plaintiff’s photos: Defendants’ copyright notice was located at the bottom of the webpage in a shaded box, separating it from the rest of the content on the webpage; Defendants’ notice was generic and did not communicate that Defendants owned the photos; Defendants’ notice was not located on or next to Plaintiff’s photos; and Plaintiff’s photos were imprinted with their own copyright markings. 4. The district court did not abuse its discretion in denying Defendants’ motion for attorneys’ fees under § 505 of the Copyright Act. . . . Given the limited arguments that Defendants made below to show that an award would advance the goals of the Copyright Act, we cannot find that the district court abused its discretion in analyzing this factor. We also cannot find that the district court abused its discretion in analyzing the objective reasonableness factor. . . . Though the court found Plaintiff’s arguments unpersuasive, it ultimately concluded that they were not objectively unreasonable. Thus, the district court did not abuse its discretion in denying Defendants’ request for attorneys’ fees. DANIELS V. WALT DISNEY CO. No. 18-55635, 2020 WL 2119396 (9th Cir. May. 4, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - pilot, Audiovisual wok - motion picture Topics: Copyrightability - character The opinion filed on March 16, 2020, slip op. 18-55635, and appearing at 952 F.3d 1149, is hereby amended. An amended opinion is filed concurrently with this order. With these amendments, the panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. . . . The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted. DOC'S DREAM, LLC V. DOLORES PRESS, INC. No. 18-56073, 2020 WL 2464928 (9th Cir. May. 13, 2020) Outcome: Appeal - reversed Works of Authorship: Audiovisual work - recording Topics: Remedies - attorneys fees Since 2014, two camps have battled over the ownership rights and usage of video-recorded sermons created by the late religious leader Dr. Eugene Scott. One camp—copyright claimants

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Dolores Press, Inc. and Melissa Scott (collectively, Dolores)—alleges that the other camp—Patrick Robinson, Truth Seekers, Inc., Doc’s Dream, LLC, and Bobbi Jones (collectively, Doc’s Dream)—infringed copyrighted broadcasts via the Internet. Amid the litany of claims, counterclaims, and motions, the district court granted summary judgment in favor of Dolores on Doc’s Dream’s complaint seeking a declaration that Dr. Scott completely abandoned his works to the public domain. Doc’s Dream appealed and we affirmed. . . . Dolores then moved for recovery of attorney’s fees under the Copyright Act, which allows the court to award “a reasonable attorney’s fee” to the prevailing party “[i]n any civil action under this title.” 17 U.S.C. § 505. The district court denied Dolores’ motion, holding that attorney’s fees were not available under § 505 because the determination of copyright abandonment in this case did not require “construction” of the Copyright Act. Dolores timely appealed the district court’s denial of attorney’s fees, and we have jurisdiction under 28 U.S.C. § 1291. We hold that, even when asserted as a claim for declaratory relief, any action that turns on the existence of a valid copyright and whether that copyright has been infringed invokes the Copyright Act, and thus attorney’s fees may be available pursuant to § 505. UNICOLORS, INC. V. H&M HENNES & MAURITZ, L.P. No. 18-56253, 18-56548, 2020 WL 2781317 (9th Cir. May. 29, 2020) Outcome: Appeal - reversed Works of Authorship: Visual work - design Topics: Copyright registration - single unit of publication This is a copyright-infringement action brought by Unicolors, Inc. (“Unicolors”), a company that creates designs for use on textiles and garments, against H&M Hennes & Mauritz L.P. (“H&M”), which owns domestic retail clothing stores. Unicolors alleges that a design it created in 2011 is remarkably similar to a design printed on garments that H&M began selling in 2015. The heart of this case is the factual issue whether H&M's garments bear infringing copies of Unicolors's 2011 design. Presented with that question, a jury reached a verdict in favor of Unicolors, finding the two works at least substantially similar. On appeal, however, we must decide a threshold issue whether Unicolors has a valid copyright registration for its 2011 design, which is a precondition to bringing a copyright-infringement suit. . . . For these reasons, we hold that a collection of works does not qualify as a “single unit of publication” unless all individual works of the collection were first published as a singular, bundled unit. Therefore, it is an inaccuracy for a registrant like Unicolors to register a collection of works (such as the works identified in the '400 Registration) as a single-unit publication when the works were not initially published as a singular, bundled collection. At a minimum, the confined works included in the '400 Registration were initially made available only to individual, exclusive customers. CRIMINAL PRODS., INC. V. CORDOBA

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No. 18-15919, 2020 WL 3119026 (9th Cir. Jun. 11, 2020) Outcome: Appeal - reversed Works of Authorship: Audiovisual work - film Topics: Remedies attorneys fees Plaintiff-Appellant Criminal Productions, Inc. (Criminal) sued Defendant-Appellee Tracy Cordoba under the Copyright Act of 1976 for allegedly violating its copyright on the film “Criminal.” After refusing Cordoba’s repeated offers to cooperate and settle, Criminal voluntarily dismissed its suit against Cordoba. Cordoba then filed a motion for attorneys’ fees, which the district court granted, concluding that (1) Cordoba was the “prevailing party” in the litigation and (2) Cordoba was deserving of attorneys’ fees because of Criminal’s use of unreasonable litigation tactics. We review an award of attorneys’ fees for an abuse of discretion. . . . We review factual determinations underlying a fee award for clear error and the related legal analysis de novo. . . . Because we conclude that Cordoba was not the prevailing party as a matter of law, we reverse. ZINDEL V. FOX SEARCHLIGHT PICTURES, INC. No. 18-56087, 2020 WL 3412252 (9th Cir. Jun. 22, 2020) Outcome: Appeal - reversed Works of Authorship: Literary work - play, Audiovisual work - film Topics: Infringement - substantial similiarty David Zindel, the son of author Paul Zindel, brought this action alleging copyright infringement of his father’s play, Let Me Hear You Whisper, by Defendants’ film and book, The Shape of Water. Zindel appeals the district court’s Rule 12(b)(6) dismissal of his complaint on the ground that the film and book were not substantially similar to the play as a matter of law. . . . We reverse. . . . Here, the district court erred by dismissing the action because, at this stage, reasonable minds could differ on whether there is substantial similarity between Let Me Hear You Whisper and The Shape of Water. Though both works properly were presented to the district court, additional evidence, including expert testimony, would aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities that Zindel identified in the works’ expressive elements, particularly the plausibly alleged shared plot sequence. . . . Additional evidence would also illuminate whether any similarities are mere unprotectable literary tropes or scènes à faire. ALS SCAN, INC. V. STEADFAST NETWORKS, LLC No. 18-55615, 18-56173, 2020 WL 4038050 (9th Cir. Jul. 17, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Visual work - photograph Topics: Contributory infringement - contribution, Remedies - attorneys fees

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The key issue on appeal is whether a data-center service provider has taken adequate “simple measures” to avoid contributory copyright infringement if it forwarded notices of such infringement to the hosting website — and every alleged infringed material was taken down. We affirm the district court’s grant of summary judgment in favor of Steadfast Networks, LLC, the data-center service provider, because it has taken sufficient “simple measures” by forwarding the infringement notices. We, however, reverse the district court’s denial of attorneys’ fees to Steadfast and remand. . . . This court has held that a party may avoid liability for contributory copyright infringement if it takes “simple measures” to “prevent further damage to copyrighted works.” . . . Steadfast forwarded each notice to Imagebam’s owner, and every infringing work was taken down. Nor is there evidence that Steadfast had any other simple measures at its disposal. Steadfast did not operate, control, or manage any functions of Imagebam.com. It could not supervise, access, locate, or delete Imagebam accounts. It had no way of knowing, based on a URL hyperlink contained in the notices of copyright infringement, where the infringing works or the Imagebam accounts responsible for illegal uploads were located on Flixya’s servers. What measures were available to prevent further damage to ALS’s copyrighted images, Steadfast took. . . . Further, ALS apparently has not pursued other options that may ameliorate the “whack-a-mole” problem (e.g., taking action against Imagebam’s owner or the individuals uploading the unauthorized images). . . . The district court accurately discussed the various factors for awarding attorneys’ fees under the Copyright Act, but it also discussed whether there were “exceptional” circumstances (which is required under the Lanham Act but not the Copyright Act). In light of this ambiguity in the record, we reverse and remand on the issue of attorneys’ fees. ALFRED V. WALT DISNEY CO. No. 19-55669, 2020 WL 4207584 (9th Cir. Jul. 22, 2020) Outcome: Appeal - reversed Works of Authorship: Literary work - screenplay, Audiovisual work - film Topics: Infringement - substantial similarity, Infringement - inverse-ratio rule, Plaintiffs A. Lee Alfred, II, Ezequiel Martinez, Jr., and Tova Laiter appeal the district court’s 12(b)(6) dismissal of their copyright infringement suit against Defendant-Appellees (collectively, “Defendants”). They argue that the court (1) erred in granting Defendants’ motion to dismiss because Plaintiffs’ screenplay is substantially similar to Defendants’ Pirates of the Caribbean: Curse of the Black Pearl film; (2) abused its discretion in denying Plaintiffs leave to amend their complaint; and (3) abused its discretion in taking judicial notice of the Disney World Pirates of the Caribbean theme park ride as it existed in 2005. . . . For the reasons that follow, we reverse and remand. . . . We agree with Plaintiffs that the screenplay shares sufficient similarities with the film to survive a motion to dismiss. The Pirates of the Caribbean: Curse of the Black Pearl film and the screenplay both begin with a prologue that takes place ten years prior to the main story;

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introduce the main characters during a battle, at gunpoint; involve treasure stories that take place on islands and in jewelfilled caves; include past stories of betrayal by a former first mate; contain fearful moments driven by skeleton crews; focus on the redemption of a young, rogue pirate; and share some similarities in dialogue and tone. To be sure, there are striking differences between the two works, as well—but the selection and arrangement of the similarities between them is more than de minimis. . . . The district court erred by failing to compare the original selection and arrangement of the unprotectible elements between the two works. Because Plaintiffs sufficiently allege that there are substantial similarities between the works to survive Defendants’ motion-to-dismiss, we reverse the district court’s dismissal and remand. . . . The district court did not err by failing to apply the inverse-ratio rule. Sitting en banc, we overruled the inverse-ratio doctrine after the district court’s decision. . . . MASTERSON V. WALT DISNEY CO. No. 19-55650, 2020 WL 4435103 (9th Cir. Aug. 3, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - book, Literary work - script Topics: Infringement - substantial similarity Carla Masterson appeals from the district court’s dismissal of her copyright infringement claims against The Walt Disney Co. Masterson alleged that Disney’s Inside Out (the “Movie”) violated her copyrights in her book of poetry, What’s On the Other Side of the Rainbow? (A Book of Feelings) (the “Book”), and her movie script, The Secret of the Golden Mirror (the “Script”). . . . We affirm. . . . The district court did not err by considering substantial similarity in a motion to dismiss even though the works at issue are literary works. . . . Masterson fails to plausibly allege that the Book and the Movie are substantially similar. . . . All of the asserted similarities must be filtered out. Though the works share a general theme—i.e., every feeling has a reason—such a theme is too general to be protectible for the purposes of the extrinsic test. The fact that the Book and the Movie involve a journey through childhood emotions is also too general to be a cognizable similarity. Other supposed similarities fade away upon scrutiny. For example, the “golden mirror” in the Book, which is associated with the Book’s “Golden Rule” that commands the reader “to love myself and others the way I would want to be loved,” has no similarity with the Movie’s golden orbs, which are literal representations of memories. The alleged similarities between the characters are also unprotectable. That both works have a cloud-like character that talks is too general of a similarity to be an “objective detail” under the extrinsic test. And the presence of anthropomorphized emotion characters flows from the premise of doing a children’s story about human emotions, making it unprotectable scenes-a-faire.

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Finally, the combination of these unprotectable elements fails to show any cognizable similarity. . . . Here, there are few, if any, similarities between the works. At best, the similarities are that (1) both have the general theme of exploring emotions in childhood, (2) both include anthropomorphized characters embodying the emotions joy, sadness, fear, and anger, (3) both have a crying character whose tears fall on flowers, (4) both have a cloud-like character, and (5) both associate friendship with the color purple and arch shapes. Such a combination is not numerous or novel enough to warrant copyright protection—they do not show a “particular way in which the artistic elements form a coherent pattern, synthesis, or design.” . . . Rather, the similarities between the Movie and the Book are more like “random similarities scattered throughout the works,” of which this court has been “particularly cautious.” . . . Thus, Masterson failed to plausibly allege substantial similarity. ORACLE AM., INC. V. HEWLETT PACKARD ENTERS. CO. No. 19-15506, 2020 WL 4876833 (9th Cir. Aug. 20, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Literary work - computer program Topics: Defenses - statute of limitations, Defenses - license, Infringement - evidence of copying Oracle America, Inc. and Oracle International Corporation (together, Oracle) own the proprietary Solaris software operating system. Oracle periodically releases patches for this software to address functionality, improve performance, and resolve security issues. As is relevant here, Oracle restricts use of the Solaris software, including software patches. It grants a customer a limited use license, and it requires a customer to have a prepaid annual support contract to access patches for a server. Oracle brought copyright infringement claims, California state law intentional interference claims, and a California Unfair Competition Law (UCL) claim against Hewlett Packard Enterprise Company (HPE), alleging that HPE and nonparty Terix Computer Company, Inc. (Terix) improperly accessed, downloaded, copied, and installed Solaris patches on servers not under an Oracle support contract. On cross motions, the district court granted summary judgment for HPE. We affirm the district court's partial summary judgment for HPE on the infringement and intentional interference claims based upon the statute of limitations. We affirm in part and reverse in part the summary judgment on what remains of the infringement claims. We address all other issues in a concurrently filed memorandum disposition. CORBELLO V. VALLI No. 17-16337, 2020 WL 5361461 (9th Cir. Sep. 8, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - book, Dramatic work - play Topics: Scope of protection - fact, Scope of protection - scenes a faire, Infringement - substantial similarity

Joshua L. Simmons joshua.simmons@kirkland.com

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The musical Jersey Boys depicts the history of a popular musical quartet, the Four Seasons (“the Band”), from its origins in Belleville, New Jersey, in the 1950s, to the Band's induction into the Rock and Roll Hall of Fame in 1990. Four Seasons hits such as “Walk Like a Man,” “Big Girls Don't Cry,” and “Sherry” accompany the play's dialogue, recreating the Band's musical legacy on stage. Jersey Boys (“the Play”) debuted on Broadway in 2005 and ran for over ten years, toured the country repeatedly, and was adapted as a movie in 2014. In the late 1980s, Band member Tommy DeVito partnered with Rex Woodard to write a book telling “the whole story” of The Four Seasons. The result of this partnership was an autobiography of DeVito (“the Work”), ghostwritten by Woodard and completed before the Play was developed. Our question is whether Four Seasons front man Frankie Valli and other defendants associated with Jersey Boys infringed Woodard's copyright in the autobiography, now owned by Donna Corbello, Woodard's surviving wife. After many years of litigation, including several summary judgment orders, one previous appeal, and a trial, the district court granted judgment as a matter of law (“JMOL”) on the basis that much of the alleged infringement concerned unprotected elements of the Work, and that any infringement of protected elements was fair use. We affirm on the sole ground that Jersey Boys did not infringe DeVito's biography, and so do not reach the district court's fair use rationale. Our decision rests primarily on “the unremarkable proposition that facts, in and of themselves, may not be form [sic] the basis for a copyright claim.” . . . Although books generally contain the author's creative expression, protectable by copyright, a nonfiction biography like the work in this case is necessarily structured around historical facts and events, not themselves copyrightable. . . . On close examination, each of the alleged similarities between the Play and the Work are based on historical facts, common phrases and scenes-a-faire (scenes that are “indispensable, or at least standard, in the treatment of a given idea,” . . . or elements that were treated as facts in the Work and are thus unprotected by copyright, even though now challenged as fictional. Neither Valli nor the other defendants violated Corbello's copyright by depicting in the Play events in their own lives that are also documented in the Work. Because the Play did not copy any protected elements of the Work, we conclude, there was no copyright infringement. MICHAEL GRECCO PRODS., INC. V. ZIFF DAVIS, LLC No. 19-56465, 2020 WL 6948338 (9th Cir. Nov. 25, 2020) Outcome: Appeal - reversed Works of Authorship: Visual work - photograph Topics: Defenses - statute of limitations Plaintiff-Appellant Michael Grecco Productions, Inc. (MGP) appeals from the district court's dismissal on statute of limitations grounds of its copyright claims against Defendant-Appellee

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Ziff Davis, LLC (Ziff). . . . We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further proceedings. We apply the discovery rule when analyzing statute of limitations questions in copyright cases. . . . The statute of limitations discovery rule analysis is a factual one. . . . Here, it is not clear from the face of the First Amended Complaint that MGP's copyright infringement claims were untimely. For example, whether the Google reverse image search technology would have captured the images is a question of fact, inappropriate for dismissal at the motion to dismiss stage. The facts alleged in MGP's First Amended Complaint are sufficient to survive a motion to dismiss. CRAFTY PRODS., INC. V. FUQING SANXING CRAFTS CO. No. 20-55010, 2020 WL 7388083 (9th Cir. Dec. 16, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - design Topics: Ownership - standing, Preemption - intentional interference with prospective economic advantage, Preemption - unfair competition Appellants Crafty Productions, Inc. (“CPI”) and Crafty Productions, LLC (“CPL”) appeal from the district court's judgment dismissing their claims for copyright infringement, federal trade dress infringement, intentional interference with prospective economic advantage, and unfair competition. . . . As the parties are familiar with the facts, we do not recount them here. We affirm. . . . The district court did not err in holding that Appellants lacked standing to bring their copyright infringement claim. . . . First, CPI is not the legal or beneficial owner of an exclusive right under 17 U.S.C. § 501(b). The Contribution Agreement and the Operating Agreement clearly transfer all of CPI's assets to CPL, which would include copyrights. CPI did not retain ownership of its copyrights or any exclusive right by reserving the right to sue for intellectual property infringement. . . . Second, CPL never registered the copyrights. Therefore, neither CPI nor CPL had standing to bring their copyright infringement claim. . . . The district court did not err in dismissing Appellants’ claims for intentional interference with prospective economic advantage and unfair competition. . . . Here, Appellants’ crafts fall within the subject matter of copyright because they are “pictorial, graphic, [or] sculptural works” under 17 U.S.C. § 102(a)(5). The rights asserted under state law are also equivalent to exclusive rights under 17 U.S.C. § 106. In support of their state law claims, Appellants allege that Appellees went behind their backs, stole their designs, and bought the designs at lower prices. These allegations involve the right to reproduce the works, to prepare derivative works, and to distribute the copies to the public by sale—which are all exclusive rights under 17 U.S.C. § 106. Appellants fail to demonstrate that their claims rest on extra elements that make their state claims qualitatively different from copyright infringement claims. Appellants’ state law claims are therefore preempted by federal copyright law.

Joshua L. Simmons joshua.simmons@kirkland.com

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DR. SEUSS ENTERS., L.P. V. COMICMIX LLC No. 19-55348, 2020 WL 7416324 (9th Cir. Dec. 18, 2020) Outcome: Appeal - reversed Works of Authorship: Literary work - book Topics: Defenses - fair use In Dr. Seuss's classic book, Oh, the Places You'll Go! (Go!), the narrator counsels the protagonist on a path of exploration and discovery. The book closes with this note of caution: I'm sorry to say so/But, sadly it's true/That Bang-ups/And Hang-ups/Can happen to you. If he were alive today, Dr. Seuss might have gone on to say that “mash-ups can happen to you.” Enter Oh, the Places You'll Boldly Go! (Boldly). Authored by Star Trek episodes author David Gerrold, illustrated by Ty Templeton, and edited by fellow Trekkie Glenn Hauman (collectively, ComicMix), Boldly is a mash-up that borrows liberally—graphically and otherwise—from Go! and other works by Dr. Seuss, and that uses Captain Kirk and his spaceship Enterprise to tell readers that “life is an adventure but it will be tough.” The creators thought their Star Trek primer would be “pretty well protected by parody,” but acknowledged that “people in black robes” may disagree. Indeed, we do. The question we consider is whether Boldly’s use of Dr. Seuss's copyrighted works is fair use and thus not an infringement of copyright. Because all of the fair use factors favor Dr. Seuss, we reverse the district court's summary judgment in favor of ComicMix on the copyright infringement claim. We affirm, however, the Rule 12(c) dismissal and the grant of summary judgment in favor of ComicMix on the trademark claim.

District of Arizona

HOWARTH V. PATTERSON No. CV-19-00726-PHX-ESW, 2020 WL 209930 (D. Ariz. Jan. 14, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Infringement - pleading requirements, Vicarious infringement - pleading requirements This is a copyright infringement action. On September 26, 2019, with leave of Court . . . , Plaintiff filed a First Amended Complaint . . . . The two-count First Amended Complaint alleges that Defendants are liable for direct and vicarious copyright infringement. . . . Pending before the Court is the “Motion to Dismiss First Amended Complaint” . . . filed by Ryan Patterson and Patterson Homes, LLC (collectively, “Defendants”). Defendants seek dismissal of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained herein, the Court will deny Defendants’ Motion . . . . A. The Motion to Dismiss will be Denied as to Count I (Direct Copyright Infringement) . . . Here, the First Amended Complaint alleges that three versions of a marketing piece using Plaintiff’s copyrighted photograph were discovered online. In one version, Ryan Patterson was identified as the author. . . . Another version identified Patterson Homes as the author, and the

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final version identified Patterson Remodeling as the author. . . . The First Amended Complaint further alleges that “Defendant Patterson—as the dominant influence in Patterson Homes and Patterson Remodeling—determined and/or directed the policies that led to the infringements complained of herein, and is therefore jointly and severally liable for any direct copyright infringement committed by Patterson Homes and/or Patterson Remodeling.” . . . Plaintiff does not need to allege that Defendants owned the website on which the alleged infringing marketing pieces were posted. . . . Assuming the truth of all facts alleged in the First Amended Complaint and construing them in the light most favorable to Plaintiff, the Court finds that Count I sufficiently states a claim for direct copyright infringement against all Defendants. Defendants’ Motion to Dismiss . . . is denied as to Count I. B. The Motion to Dismiss will be Denied as to Count II (Vicarious Copyright Infringement) . . . The Court finds that the First Amended Complaint alleges facts sufficient “to raise a right to relief above the speculative level” as to a claim for vicarious copyright infringement against all Defendants. . . . The Motion to Dismiss . . . will be denied as to Count II. REILLY V. WOZNIAK No. CV-18-03775-PHX-MTL, 2020 WL 1033156 (D. Ariz. Mar. 3, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - graphic work Topics: Preemption - money had and received, Preemption - declaratory judgment, Preemption - accounting Plaintiff Ralph T. Reilly (“Plaintiff” or “Reilly”) filed suit against Steve Wozniak (“Wozniak”) and three entities . . . . The case arises from Plaintiff’s allegations that after he worked for years on—and obtained copyright protection for—his idea of the “Woz Institute of Technology,” Wozniak and his co-Defendants formed “Woz U” without compensating Plaintiff. . . . Plaintiff alleges claims of breach of an implied-in-fact-contract, money had and received, copyright infringement, declaratory relief, and accounting. Before the Court are two motions: Defendants’ Motion to Dismiss Counts II, IV and V of Plaintiff’s Complaint (“Defendants’ Motion”) . . . ; and Defendant Steve Wozniak’s Motion for Judgment on the Pleadings as to Count I of Plaintiff’s Complaint (“Wozniak’s Motion”) . . . . Defendants’ Motion is granted in part and denied in part; Wozniak’s Motion is denied. . . . a. Money Had and Received (Count II) . . . Plaintiff brings a claim for money had and received based on the benefit obtained from his “ideas, designs, business plans, curricula, images, sale strategies and education training concepts.” . . . Some of these works—including at least the “designs” and “business plans”—are specifically included in Section 102 as “original works of authorship” such as “pictorial” or “graphic” works. . . . As to the remaining components of “Reilly’s Work,” the works at issue need “not actually be protected, or even protectable, under the Copyright Act” to fall within the “subject matter of copyright.” . . . The Court therefore concludes that the subject matter of Count II falls within the subject matter of copyright. . . . The

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Court agrees with Defendants that Plaintiff’s state law claim for money had and received is functionally equivalent to the rights protected under the Copyright Act. . . . b. Declaratory Relief (Count IV) . . . When viewed in the light most favorable to Plaintiff, this suggests that the remaining claims— including Count IV—are brought under federal law. . . . c. Accounting (Count 5) . . . First, the Court finds that the subject matter of the accounting claim falls within the subject matter of the Copyright Act. . . . As noted, Plaintiff seeks an accounting of Defendants’ involvement in Woz U. Plaintiff argues that Defendants “used, applied and exploited Reilly’s Work in the creation, formation, operation, management and publicity of Woz U” and “infringed Reilly’s Copyrighted Work in the marketing and publicity of Woz U” . . . Accordingly, for the same reasons as stated with respect to Count II, the subject matter of Plaintiff’s Count V falls within the subject matter of copyright. . . . Second, the rights asserted in the accounting claim are equivalent to those exclusive rights identified in Section 106 of the Copyright Act. DELANO V. ROWLAND NETWORK COMMC'NS LLC No. CV-19-02811-PHX-MTL, 2020 WL 2308476 (D. Ariz. May. 8, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - photograph Topics: Defenses - statute of limitations, Ownership - pleading requirements, Defenses - fair use, Defenses - de minimis use Before the Court is Defendant’s Motion to Dismiss the Amended Complaint. (Doc. 24.) This case involves a photograph that Plaintiff took of the United States-Mexico border. Plaintiff claims that Defendant committed copyright infringement when it posted the photograph online without permission. Defendant moves to dismiss the Amended Complaint on five separate grounds. The motion is denied. . . . Time-Barred . . . The Amended Complaint states that Plaintiff discovered the photograph on Plaintiff’s website “on or about September 12, 2017,” such that the May 2, 2019 filing of the original Complaint was within the three-year statute of limitations. . . . Copyright Infringement . . . The Amended Complaint states that Plaintiff “has at all times been the sole owner of all right, title and interest in and to the Photograph, including the copyright thereto.” . . . Plaintiff also states that Defendant published the photograph on its website without permission or consent. . . . Defendant is free to argue that the “purported rights” belong to National Geographic after conducting discovery in this case. At this stage, however, Plaintiff has stated the elements of a copyright infringement claim. . . . Fair Use . . . [T]he Court will not dismiss on fair use grounds at this stage. De Minimis Use . . . The Court is not convinced that Defendant’s use of the photograph was de minimis. The Amended Complaint states that Defendant’s website “featured the Photograph in

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full color and full-scale, directly above the headline.” . . . The Court is also unable to confirm, upon review of the exhibits to the Amended Complaint, Defendant’s assertion that it used only “one one-thousandth use of one photograph from the National Geographic Article.” . . . The Court will therefore not dismiss on de minimis grounds.

Central District of California

PATEL BURICA & ASSOCS., INC. V. LIN No. 8:19-CV-01833 CAS (ADSX), 2020 WL 491467 (C.D. Cal. Jan. 30, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Architectural work - design Topics: Infringement - substantial similarity This case concerns the alleged infringement of a structural engineering firm's copyrighted designs, as well as the alleged misappropriation of that firm's other non-copyrighted trade secrets, by a former employee. . . . PBA satisfies the first element of ownership by alleging the valid copyright registration number that applies to the allegedly Copyrighted Material. . . . However, PBA still fails to satisfy the second element of copying pursuant to a substantial similarity theory. Specifically, while PBA alleges facts that, if true, would establish that defendants (i) had access to the Copyrighted Material . . . , PBA fails to allege facts that the defendants (ii) produced infringing designs that are substantially similar to protected elements of PBA's designs. . . . None of the three allegedly infringed architectural details identified in the first amended complaint are, standing alone, protectable elements under the copyright laws. . . . The design details that Lin and JKL allegedly infringed in this case all fall within the scope of these unprotected exclusions. The Typical Reinforcement design, for example, illustrates a method to construct ground-embedded reinforcements that functionally support a residential home's foundation, and secure it against seismic or geological events. The Vented Eave Blocks design details a method to build eaves that functionally permit ventilation by perforating holes in alternating bays. And the Typical Top Plate Splice merely displays a preferred method to splice the top plates that are placed above any shear, bearing, or exterior walls. These are “staple building components” and/or “methods of construction” that, even drawing all reasonable inferences in PBA's favor and accepting its allegations as true, plainly serve patently functional purposes, even if in allegedly innovative or novel ways. . . . They are not design elements that are protectable under the copyright laws, even if they are components of a larger design that has received copyright protection in the aggregate. . . . Furthermore, although a combination of unprotectable elements may be eligible for some form of copyright protection “if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship,” . . . PBA does not at this time allege any facts to support a theory that a combination or arrangement of the three unprotected elements it alleges forms a protected composition. MILLS V. NETFLIX, INC.

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No. CV 19-7618-CBM-(AGRX), 2020 WL 548558 (C.D. Cal. Feb. 3, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Audiovisual work - video Topics: Integrity of Copyright Management Information - pleading requirements, Integrity of Copyright Management Information - conveyed The matter before the Court is Defendants Netflix, Inc., Jerry Media, LLC, Exuma Films, LLC, Matte Projects, LLC, Library Films LLC, and Vice Media LLC's (collectively, “Defendants' ”) Motion To Dismiss Plaintiff's First Amended Complaint (the “Motion”). . . . The FAC fails to include “specific allegations as to how identifiable infringements ‘will’ be affected” by Defendants' alleged removing or altering of CMI, does not allege a pattern of conduct demonstrating Defendants knew or had reason to know their actions would cause future infringement, and fails to allege non-conclusory facts that Defendants intended to induce infringement by allegedly removing or altering any CMI. Moreover, the clips from the YouTube Video included in the Documentary include Plaintiff's name (“@AUSTINJMILLS”) on the bottom left corner, and Plaintiff's name is listed under the category “Additional Archival materials by” in the Documentary's credits. The inclusion of Plaintiff's name as the source of the clips demonstrates Plaintiff's conclusory allegations upon information and belief that Defendants knew and intended to induce infringement by altering CMI with respect to Plaintiff's name in the Documentary are not plausible. . . . Therefore, Plaintiff fails to plead sufficient facts regarding Defendants' knowledge and intent as required for his DMCA claim. Plaintiff's DMCA claim is also based in part on Defendants' alleged removal of the title “Fyre Festival COMPLETE Disaster. VLOG of Chaos!” from Plaintiff's YouTube Video. Courts have interpreted the DMCA to require that CMI be removed or altered from the body of or the actual work itself. Here, the title “Fyre Festival COMPLETE Disaster. VLOG of Chaos!” does not appear on Plaintiff's YouTube Video. Rather, the title is written on the website where Plaintiff's video was posted. However, Plaintiff's DMCA claim is based on Defendants' alleged infringement of the YouTube Video itself, not the website where the video was posted. Accordingly, Plaintiff's DMCA claim fails as a matter of law to the extent it is based on Defendants' alleged removal of the title “Fyre Festival COMPLETE Disaster. VLOG of Chaos!” from Plaintiff's YouTube Video. Plaintiff's DMCA claim is also based in part on Defendants' alleged removal of “other metadata.” . . . The use of the phrase “other metadata” is overly vague, and the FAC fails to identify the CMI contained in “other metadata” that was allegedly removed or altered by Defendants. Therefore, Plaintiff fails to state a claim for violation of the DMCA based on “other metadata.” TWELVE SIXTY LLC V. ITV STUDIOS No. CV 19-9959-GW-SKX, 2020 WL 1150935 (C.D. Cal. Mar. 3, 2020) Outcome: Motion to dismiss - granted

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Works of Authorship: Music - musical work Topics: Infringement - extraterritoriality Attached hereto is the Court's final ruling. Defendants' motion to dismiss is granted without leave to amend. . . . Defendant moves to dismiss the FAC arguing that Plaintiffs fail to allege any acts of infringement which occurred in the United States. . . . The Court would agree. The FAC alleges that Defendant approved, controlled, and financially benefited from the illegal use and exploitation of Plaintiffs' music in Talpa Content B.V.'s broadcasts of the television program “Utopia” in the Netherlands in November of 2019. . . . Given that the FAC contains no allegations of acts of infringement occurring within the United States, the Court would dismiss the FAC. Plaintiffs argue that the subject broadcasts using Plaintiffs' music were “reproduced here in the United States by TuneSat” a company which electronically tracks the broadcasts of composers' songs “most anywhere in the world.” It is unclear to the Court how the tracking of broadcasts of a song would constitute infringement, or how Defendant could be liable for TuneSat's actions. At the hearing, Plaintiffs did not delineate any factual allegations that could be added to an amended complaint to plausibly state a claim for copyright infringement occurring within the United States. GRAY V. PERRY No. 2:15-CV-05642-CAS-JCX, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020) Outcome: Motion for judgment as a matter of law - granted Works of Authorship: Music - musical work Topics: Infringement - substantial similarity, Infringement - access, Defenses - independent creation, Ownership - joint work, Remedies - disgorgement of profits, Remedies - apportionment Substantial Similarity . . . This copyright infringement action concerns the allegation that an 8-note ostinato from defendants' song “Dark Horse” infringes upon the plaintiffs' copyright in the musical composition of the 8-note ostinato in their song “Joyful Noise.” Following a jury trial, the jury found for the plaintiffs, awarded damages, and the Court entered judgment. Now before the Court are defendants' renewed motions for judgment as a matter of law, or in the alternative for a new trial, as well as plaintiffs' motion for prejudgment interest on its damages award. . . . In fact, the nine individual elements that plaintiffs identify in their opposition . . . are precisely the kinds of commonplace elements that courts have routinely denied copyright protection, at least standing alone, as a matter of law . . . . First, the key or scale in which a melody is composed is not protectable as a matter of law. . . . Second, plaintiffs concede that a phrase length of eight notes is not an independently protectable musical element. . . . Third, a pitch sequence, like a chord progression, is not entitled to copyright protection. . . . Fourth, because the way that the “Joyful Noise” ostinato resolves is determined by rules of consonance common in popular music . . . it is not the type of musical element that is protectable as a matter of law. . . . Fifth, plaintiffs concede that a “rhythm of eighth notes” is commonplace. . . . Sixth, an evenly-syncopated rhythm, standing alone, is also not a protectable element. . . . Seventh, because an

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ostinato is a “basic musical device” that is common in popular music . . . the use of an ostinato in a given composition is not, standing alone, protectable. . . . Eighth, even assuming the “pingy” synthesized timbre of the ostinato in “Joyful Noise” is part of a musical composition and not the sound recording or performance of the composition . . . , a synthesized timbre is a commonplace element of contemporary popular music that is not protectable as a matter of law. . . . And ninth, assuming that a composition's “texture” is a product of composition and not recording or performance . . . a composition's texture—which, according to Dr. Decker, refers to the way a composition is “mixed” to reveal “different elements” of sound and its absence . . . —is an inherent feature in any kind of music. . . . In view of these decisions, the Court now turns to whether the musical elements that comprise the 8-note ostinato in “Joyful Noise” are “numerous enough” and “arranged” in a sufficiently original manner to warrant copyright protection. . . . The Court concludes that they do not. . . . Even if the 8-note ostinato were protected expression as a combination, defendants would still be entitled to judgment as a matter of law since the evidence submitted at trial does not support a legal conclusion that the two ostinatos are, objectively, substantially similar. . . . Access . . . While “distinguishing a ‘bare’ possibility from a ‘reasonable’ possibility will present a close question,” . . . the Court believes the evidence presented by plaintiffs at trial was sufficient to support the jury's finding as to access. Plaintiffs presented evidence at trial that “Joyful Noise” was played more than 6 million times on YouTube and MySpace, that “Joyful Noise” was nominated for a Grammy, that “Joyful Noise” was performed at hundreds of concerts across the country, and that “Joyful Noise” ranked highly on the Billboard charts for popular music. A reasonable jury could have concluded from this evidence that the relevant defendants who composed the allegedly infringing ostinato in “Dark Horse” had a reasonable opportunity to have encountered “Joyful Noise.” . . . Independent Creation Defense . . . Defendants proffered extensive testimony from defendants Gottwald and Walter that they created the ostinato in “Dark Horse” on their own without knowledge of “Joyful Noise.” . . . The jury was entitled to credit or discredit this self-interested testimony as it saw fit. . . . After the jury decided that the testimony was not credible, or at least not so credible as to establish “proof of independent creation,” the Court must, at least on this issue of fact, yield to that determination. . . . The Court would accordingly not disturb the jury's verdict as to independent creation, had it reached this question. Failure to Establish Ownership of a Joint Work . . . Plaintiffs presented evidence at trial that Ojukwu and Gray contracted to become coauthors of “Joyful Noise.” . . . That is dispositive and establishes plaintiffs' ownership as a matter of law. . . . Additional evidence corroborates this conclusion, as well. . . . Damages Issues . . . In addition to their arguments on liability, defendants request judgment as a matter of law against the jury's damages award on grounds that the jury (1) failed to properly apportion damages, and (2) that the jury failed to deduct overhead costs from its award. . . . The

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jury's damages award in this case is not so clearly unsupported by substantial evidence as to warrant vacatur. AL-NASSER V. SERDY No. 2:20-CV-03582-ODW (EX), 2020 WL 3129206 (C.D. Cal. Jun. 12, 2020) Outcome: Motion for preliminary injunction - denied Works of Authorship: Literary work - course Topics: Copyright registration - registration requirement Plaintiffs Dr. Sumayyah Al-Nasser and Sumaya 369, LLC (“Plaintiffs”) apply ex parte for a temporary restraining order (“TRO”) and preliminary injunction against Defendant Shay Serdy (“Serdy” or “Defendant”). . . . For the reasons below, the Court DENIES Plaintiffs' application. . . . Plaintiffs have not shown they are likely to succeed on their copyright infringement claim. Plaintiffs allege that Serdy infringed Plaintiffs' copyrights by applying for copyrights of Plaintiff's materials as a co-author and by controlling Plaintiffs' online accounts. . . . Al-Nasser filed her applications for copyrights of these materials on April 30, 2020. . . . But a copyright owner may not sue for infringement of a copyright before the Register of Copyrights has registered the copyright, that is, processed and issued a decision on the application. . . . Plaintiffs submit no evidence showing that they have a valid registered copyright. . . . Accordingly, Plaintiffs have not shown they are likely to succeed on their copyright claim, nor have they raised serious questions going to its merits. GREG YOUNG PUBL'G, INC. V. ZAZZLE, INC. No. 2:16-CV-04587 SVW (KSX), 2020 WL 3871451 (C.D. Cal. Jul. 9, 2020) Outcome: Motion for permanent injunction - denied, Motion for attorneys fees and costs denied Works of Authorship: Visual work - image Topics: Remedies - permanent injunction, Remedies - attorneys fees Plaintiff Greg Young Publishing, Inc. (“GYPI” or “Plaintiff”) brings this motion against Defendant Zazzle, Inc. (“Zazzle” or “Defendant”) seeking a permanent injunction and attorney's fees. . . . GYPI alleges that they are entitled to injunctive relief because Zazzle has continued to infringe on GYPI's copyrights, causing irreparable harm. . . . GYPI also argues that they are entitled to attorney's fees because Zazzle's willful infringement requires deterrence in the form of attorney's fees. . . . For the reasons stated below, GYPI's motion for a permanent injunction is DENIED, and GYPI's motion for attorney's fees is DENIED. BEYOND BLOND PRODS., LLC V. HELDMAN No. CV 20-5581 DSF (GSJX), 2020 WL 4782745 (C.D. Cal. Aug. 14, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Audiovisual work - cartoon

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Topics: Preemption - tortious interference, Preemption - unfair competition, Preemption - trade libel Defendants Edward Heldman III, ComedyMX, Inc., and ComedyMX, LLC move to dismiss the Fourth through Six Causes of Action asserted in Plaintiff Beyond Blond Productions, LLC's Complaint and to dismiss the First and Second Causes of Action against Heldman and ComedyMX, Inc. . . . For the reasons stated below, the motion is GRANTED in part and DENIED in part. . . . At this stage, Plaintiff is entitled to assert her state law claims in the alternative, to the extent the takedown notice relied on purported trademark infringement and therefore would not be covered by the Copyright Act generally or the DMCA in particular. . . . It cannot be reasonably disputed that Plaintiff's state law claims, as currently alleged, depend solely on the takedown notices. . . . The Court concludes that, to the extent the takedown notices are based on copyright infringement rather than trademark infringement, Plaintiff's claims are preempted. BEYOND BLOND PRODUCTIONS, LLC V. HELDMAN No. CV 20-5581 DSF (GSJX), 2020 WL 4772796 (C.D. Cal. Aug. 17, 2020) Outcome: Motion for preliminary injunction - granted Works of Authorship: Visual work - logo Topics: Copyright registration - scope of registration Plaintiff Beyond Blond Productions, LLC requests a preliminary injunction ordering Defendants Edward Heldman III, ComedyMX, Inc., and ComedyMX, LLC to withdraw six Digital Millennium Copyright Act (DMCA) takedown notices issued to non-party Amazon for Plaintiff's “cartoon classics” videos and refrain from issuing any further DMCA takedown notices. . . . For the reasons stated below, the motion is GRANTED. . . . Plaintiff contends that the ‘644 Registration is invalid and unenforceable, and that Plaintiff's videos are non-infringing for three primary reasons: 1) the ‘644 Registration cannot, and does not, protect Defendants' cartoons classic logo, 2) Plaintiff did not access Defendants' works, and 3) the works are not substantially similar. . . . That Defendants obtained a copyright in their motion pictures does not equate to protection of design logos contained in those videos. . . . Here, Plaintiff's undisputed testimony shows that Defendants' “cartoon classics” logo uses “public domain off-the[-]shelf Freestyle Script type face” and “public domain and generic clipart eyes.” . . . The law and facts clearly favor the conclusion that this combination of two unprotectable elements is not sufficiently numerous or original to constitute original work entitled to copyright protection. This provides further evidence that the cartoon classics logo is not a protectible element of the works covered by the ‘644 Registration. Therefore, the Court agrees that the ‘644 Registration does not provide copyright protection to the “cartoon classics” logo displayed in Defendants' videos. . . .

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Plaintiff has shown that the facts and the law clearly favor the position that the ‘644 Registration does not protect the cartoon classics logo. Plaintiff has also rebutted the evidence provided by Defendant purporting to show direct copying of the potential protectible elements of the ‘644 Registration, and met its burden of showing that the facts clearly favor its independent creation. Therefore, the Court finds that the facts and the law clearly favor Plaintiff's position that it is entitled to a declaration that its videos do not infringe the ‘644 Registration. HALL V. SWIFT No. CV 17-6882-MWF (ASX), 2020 WL 5358390 (C.D. Cal. Sep. 2, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Music - musical work Topics: Scope of protection - merger, Copyrightability - selection and arrangement The Court granted Defendants Taylor Swift, Karl Martin Sandberg, Karl Johan Schuster, Sony/ATV Music Publishing, LLC (“Sony”), Kobalt Music Publishing America Inc. (“Kobalt”), Big Machine Label Group, LLC (“Big Machine”), and Universal Music Group, Inc.'s (“Universal”) Motion to Dismiss (the “Motion”), on the ground that the disputed lyrics lacked sufficient originality to enjoy copyright protection. . . . Plaintiffs Nathan Butler and Sean Hall chose not to amend their complaint, but instead appealed the dismissal to the Ninth Circuit. . . . The Ninth Circuit reversed the dismissal on the ground that the originality of the lyrics could not be determined as a matter of law. Specifically, the Ninth Circuit determined in an amended memorandum (the “9th Circuit Memorandum) that that the allegations in the Complaint “plausibly alleged originality.” . . . The Ninth Circuit also stated that the Court could “consider [Defendants]' alternative arguments” in support of the motion to dismiss “on remand.” . . . The Court has received the Ninth Circuit mandate. . . . Based on the 9th Circuit Memorandum and following a telephonic status conference, the Court ordered “Plaintiffs and Defendants to each file a memorandum of no more than five pages regarding only (1) whether Plaintiffs' claim fails because the unprotected ideas underlying the allegedly copied words merge with those words, rendering them unprotectable too; and (2) whether Plaintiffs' alleged decision to combine two public domain elements, players playing and haters hating, is not copyrightable, and whether plaintiffs' and defendants' alleged uses of these public domain elements are different in multiple respects and, as a result, are not virtually identical.” . . . Thereafter, Defendants filed their Supplemental Memorandum in Support of Their Motion to Dismiss (“Defendants' Memo”) on August 11, 2020. . . . On August 18, 2020, Plaintiffs filed their Response to Defendants' Memo (“Plaintiffs' Response”). . . . Thereafter, the parties also filed supplemental briefing regarding a new Ninth Circuit opinion. . . . The Court has read and considered all of the above filings.

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For the reasons set forth below, after considering the arguments raised, the Motion is DENIED. Plaintiffs' claim does not fail based on the doctrine of merger; Plaintiffs have sufficiently alleged a protectable selection and arrangement or a sequence of creative expression; and Defendants' use and Plaintiffs' use as alleged is similar enough to survive the Motion. The Ninth Circuit has already reversed this Court's legal conclusion that Plaintiffs' claim did not survive because it was not original; while the arguments Defendants advance here are somewhat distinct, they are indisputably interrelated. LA GEM AND JEWELRY DESIGN, INC. V. GROUPON, INC. No. 2:19-CV-00035-ODW (PLAX), 2020 WL 5440501 (C.D. Cal. Sep. 10, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - jewelry Topics: Copyrightability - creativity, Infringement - access, Infringement - probative similarity, Infringement - substantial similarity, Remedies - willful infringement, Defenses - laches, Defenses - copyright misuse, Defenses - independent creation, Remedies - innocent infringement, Defenses - release, Limitations on liability relating to material online - knowledge, Limitations on liability relating to material online - financial benefit Plaintiff LA Gem and Jewelry Design, Inc. (“LA Gem”) filed a copyright infringement suit against Groupon, Inc., Groupon Goods, Inc. (collectively, “Groupon”) and several jewelry businesses. Pending before the Court is LA Gem's Motion for Summary Judgment. . . . For the following reasons, the Court GRANTS in part DENIES in part LA Gem's Motion. . . . 1. Copyright Validity . . . Here, the Crescent Design and the Mom Design each present a common phrase in a unique font, with particularly arranged, darkened text on common symbols—a round sun and a crescent moon—in a distinct manner. . . . Thus, the more than “slight” amount of creativity in the designs suffices, and the Court finds them original. . . . 2. Copyright Infringement . . . LA Gem proffers undisputed circumstantial evidence that Golden Moon and Khafif had access to its copyrighted designs, and that the products sold on Groupon's website are similar to its work. . . . Golden Moon sells jewelry but does not manufacture it or employ jewelry designers to design it. . . . Instead, Golden Moon frequents trade shows with its foreign manufacturing partner where it discovers and identifies designs to reproduce and sell. . . . Specifically, Golden Moon attended the JCK trade show in Las Vegas between 2013 and 2019, and LA Gem had a booth at JCK during those years where it displayed the Crescent Design and Mom Design every year since 2015. . . . LA Gem lays out a clear chain of events between its works and Defendants' access to that work. Thus, there is no dispute of fact that Defendants had a reasonable possibility to access the Copyrighted Designs. . . . LA Gem also establishes that the infringing works are similar to the Copyrighted Designs. Specifically, LA Gem asserts that the two have the same text, text placement, font, design shape, and other similar characteristics. . . . Defendants do not dispute these facts, but argue that the works are dissimilar nevertheless. . . . Defendants conflate the similarity requirements of copying and unlawful appropriation. . . .

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The combination of LA Gem's unique font, the placement of the font on the crescent, the combination of the shapes with the placement of the crystal, the darkening of the text and the choice of capitalization are all unique expressions protected in its work. . . . The Court notes that there appear to be substantial similarities between the two works in the protectable elements. Thus, LA Gem adequately establishes the extrinsic test. However, as for the intrinsic test, the Court finds that a reasonable juror could conclude that Golden Moon's works “look and feel” different from LA Gem's work. . . . B. Willfulness of Infringement . . . LA Gem presents evidence demonstrating that Defendants may be aware of its products sold at tradeshows and online platforms. . . . However, LA Gem does not prove that Defendants had notice of its rights. Indeed, Defendants assert that because LA Gem's works combined common elements, they had no reason to believe LA Gem's products were protectable and that its products were infringing. . . . Thus, the Court finds that there is a material dispute of fact as to Defendants' awareness of LA Gem's copyrights. . . . C. Defendants' Affirmative Defenses . . . First, for the defense of laches, . . . No evidence is presented to establish that this suit was brought outside of the three-year statute of limitations. . . . Next, “[t]he defense of unclean hands by virtue of copyright misuse prevents the copyright owner from asserting infringement and asking for damages when the infringement occurred by his dereliction of duty.” . . . No evidence of LA Gem's dereliction of duty exists before the Court. . . . For independent creation, . . . as previously discussed, Defendants had access to LA Gem's designs yet do not argue, let alone proffer evidence, to support that they independently created their designs. . . . As for innocent intent, . . . The Court DENIES LA Gem's motion for summary judgment on the “innocent infringer” defense for the same reasons it denies the motion with respect to willfulness. . . . Finally, in its Reply, LA Gem seeks summary judgment on the issue of release as a defense. . . . Although the Court concurs that no evidence demonstrates that LA Gem released its claim, the Court DENIES summary judgment on this issue as LA Gem failed to raise it in its Motion, thereby denying Defendants an opportunity to oppose. . . . D. Digital Millennium Copyright Act . . . As Groupon selected and profited from Golden Moon's products, the Court finds that Groupon does not qualify for the safe harbor. ARMES V. POST No. 2:20-CV-03212-ODW (PJWX), 2020 WL 6135068 (C.D. Cal. Oct. 19, 2020) Outcome: Motion to dismiss - granted-in-part

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Works of Authorship: Music - musical work, Music - sound recording Topics: Ownership - pleading requirements, Ownership - joint work Defendant Austin Richard Post, professionally known as Post Malone (“Post”), is a well-known musical artist. . . . Plaintiff Tyler Armes claims he co-authored both the composition and sound recording of Post's popular song Circles (“Composition” and “Recording,” respectively) and deserves credit therefor and a share of the profits from Circle's success. . . . Now before the Court is a Motion to Dismiss the FAC (“Motion”) by Defendants Post, Adam King Feeney, professionally known as Frank Dukes (“Dukes”), and Republic Records, erroneously sued as Universal Music Group, Inc. (collectively, “Defendants”). . . . For the following reasons, the Court GRANTS in part and DENIES in part the Motion. . . . In this case, the Court first notes that Armes appears to have sufficiently pleaded a shared intent to be co-authors and that the audience appeal of the Recording turns on his contributions thereto. Indeed, taking the statements in the FAC as true, Armes alleges he was invited to write music together with Post and Dukes, and that both the Composition and Recording were created on August 8, 2018, as a result of their collaboration. . . . Further, Armes plausibly alleges that the Recording appeals to audiences particularly because Circles marked a departure from Post's prior musical style and possessed characteristics consistent with Armes's musical style. . . . Nevertheless, the Court finds that Armes fails to allege his co-authorship of the Recording because he does not plead facts showing “the most important factor”: that he superintended control over its creation. . . . Specifically, Armes alleges that he made several creative recommendations while Dukes created a recording of Dukes and Post performing the co-written musical composition. . . . These allegations do not establish that Armes exercised control over the creation of the Recording. . . . Armes similarly fails to allege that he made an independently copyrightable contribution to the Recording. . . . Here, as explained above, Armes only alleges that he supplied direction and ideas, while Dukes (and perhaps a recording engineer) actually recorded Dukes and Post performing the musical composition that Armes allegedly co-wrote. . . . Such allegations do not show that Armes made an independently copyrightable contribution to the Recording. ARCLIGHT FILMS INT'L PTY LTD. V. NETFLIX GLOBAL, LLC No. 2:20-CV-09917-CAS-PVCX, 2020 WL 7225415 (C.D. Cal. Dec. 7, 2020) Outcome: Motion to remand - granted Works of Authorship: Audiovisual work - film Topics: Ownership - standing On July 21, 2020, plaintiff Arclight Films International (“Arclight”) brought this action in the Los Angeles County Superior Court against defendants Netflix, Inc., Netflix Global, LLC (together, “Netflix”), Animal Crackers Movie LTD (“Animal Crackers”), and Does 1 through 25. . . . In the complaint, Arclight alleged claims for breach of contract and declaratory relief. . . . Arclight concurrently filed an ex parte application requesting a temporary restraining order to

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enjoin the distribution of the motion picture. . . . The Superior Court denied the ex parte application for a temporary restraining order on July 24, 2020. . . . Arclight thereafter filed the operative First Amended Complaint (“FAC”) on September 28, 2020, which added defendant MayDay Movie Productions, LLC (“MayDay”). . . . The FAC alleges claims for: (1) breach of contract against defendants Animal Crackers and MayDay; (2) copyright infringement pursuant to the Copyright Act of 1976 . . . (“Copyright Act”), against Netflix and MayDay; (3) intentional interference with contractual relations against Animal Crackers and MayDay; (4) unjust enrichment1 against Animal Crackers and MayDay; and (5) violations of California's Unfair Competition Law . . . (“UCL”), against Netflix and MayDay. On October 28, 2020, Netflix and MayDay (together, “moving defendants”) removed the action to this Court. . . . Moving defendants argue this Court has jurisdiction both based on diversity of citizenship pursuant to 28 U.S.C. § 1332, and pursuant to 28 U.S.C. §§ 1331 and 1338, because the claim for copyright infringement arises under federal law. . . . The moving defendants moved to dismiss the FAC on November 4, 2020. . . . But on November 9, 2020, Arclight moved to remand this case to the Superior Court. Dkt. 10 (“Remand Mot.”). . . . Here, Arclight's complaint alleges infringement and requests, among other things, statutory damages and profits pursuant to 17 U.S.C. § 504, and attorneys' fees pursuant to 17 U.S.C. § 505. . . . However, these allegations elide a threshold issue, namely, the question of whether the Sales Agency Agreement transferred ownership of the copyright to Arclight, or whether it simply authorized Arclight to serve as an agent with respect to the distribution of the Motion Picture—a service which includes the right to exhibit the Motion Picture for those limited purposes. To that point, the plain terms of the Sales Agency Agreement state that Animal Crackers engaged Arclight “as the sole and exclusive sales agent for the Picture,” . . . and that the “Producer [ ] appoint[ed] Agent ... to act as Producer's sole and exclusive sales agent ... with respect to the sales, marketing, licensing, and servicing of the Licensed Rights in the Picture,” . . . . Absent from the list of rights conferred to Arclight by the Sales Agency Agreement are those enumerated in 17 U.S.C. § 106, which are the only rights that confer standing to sue for infringement. . . . Furthermore, although the licensed rights enumerated in paragraph 4.a of the Sales Agency Agreement arguably include some rights found in 17 U.S.C. § 106, such as the right to “exploit, [and] exhibit” the Motion Picture . . . the licensed rights omit other rights associated with copyright ownership, such as the right to reproduce the Motion Picture . . . or produce derivative works . . . . The licensed rights are therefore something less than the rights that would have been available for Arclight to convey to third parties if Arclight was really in a position to grant the rights associated with copyright ownership. It therefore stands to reason that the Sales Agency Agreement conferred on Arclight only the authority to enter into licensing agreements with distributors on behalf of Animal Crackers, and does not confer copyright ownership on Arclight itself. . . . Therefore, because by its terms the Sales Agency Agreement does not confer ownership of the copyright to Arclight, but rather establishes Arclight as an agent with the

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authority to license the Motion Picture to distributors, “ownership is the sole question for consideration,” and this Court is without jurisdiction.

Eastern District of California

AOKI V. GILBERT No. 2:11-CV-02797-TLN-CKD, 2020 WL 6741693 (E.D. Cal. Nov. 17, 2020) Outcome: Bench trial - judgment for plaintiff Works of Authorship: Literary work - presentation Topics: Scope of protection - fact, Defenses - fair use, Remedies - statutory damages, Remedies - willful infringement, Remedies - permanent injunction, Remedies - attorneys fees On October 24, 2011, Plaintiffs Thomas T. Aoki, M.D. (“Dr. Aoki”), and Aoki Diabetes Research Institute (“ADRI”) (collectively, “Plaintiffs”) initiated the above-captioned action. . . . On April 2, 2013, Plaintiffs filed a First Amended Complaint asserting, inter alia, causes of action for patent infringement, copyright infringement, false and misleading advertising under federal and California law, and unfair competition under federal and California law against numerous defendants, of which the following remain (“Defendants”): Gregory Ford Gilbert; Bionica Inc. (“Bionica”); Bionica Int'l, LLC1 ; Trina Health, LLC (“Trina” or “Trina Health”); Trina Health of Newport Beach, LLC; MedEdCo, LLC; Diabetic Innovations, LLC; Melanie J. Kunz; Michael R. McCarthy; Marc R. Rose, M.D.; Kevin J. Buckman, M.D.; Timothy Tight; Faising S. Chui; Diabetic Life Pulse of Louisiana, LLC2 ; Limi Management, Inc.; Diabetic Life Pulse, Inc.3 ; Life Pulse Health, LLC4 ; John D. Mullen; Glenn A. Wilson; and Richard L. Girard. The FAC additionally asserts causes of action for breach of fiduciary duty and breach of confidential relationship against Defendant Gilbert only. . . . The Court will not recount the very lengthy procedural history of this case leading up to trial. The Court conducted a nineteen-day bench trial, beginning March 25, 2019, and concluding June 13, 2019. Put most succinctly, at trial Plaintiffs contended Defendants infringed Dr. Aoki's patents for his pulsed insulin diabetes treatment method5 ; infringed Dr. Aoki's copyrighted slides; and made false or misleading statements amounting to false advertising and unfair business practices. Plaintiffs additionally asserted that Mr. Gilbert breached a fiduciary duty to and confidential relationship with Plaintiffs by using confidential information received as both an attorney for Plaintiffs and officer, director, or board member of certain Aoki-owned entities in a manner adverse to those entities. Defendants defenses consisted of the following: (1) the patents are invalid due to obviousness and public use; (2) Defendants’ treatment did not infringe Dr. Aoki's patents; (3) the slides are not copyrightable; (4) Defendants’ use of the slides constitutes fair use; (5) Defendants made no false statements and engaged in no false advertising; and (6) Defendants did not engage in unfair business practices. Additionally, Mr. Gilbert claims he and/or Trina have a license to use Dr. Aoki's treatment protocol. . . . Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law submitted after trial, the Court sets forth the following findings of fact and conclusions of law, in accordance with Federal Rule of Civil Procedure 52(a). . . .

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Defendants concede that, at a minimum, the slides containing photographs of Dr. Aoki's patients are copyrightable. Additionally, the Court finds Dr. Aoki's body of work as a whole is an expression of his ideas and innovation, he was not simply reproducing facts. . . . The record establishes that the use of the slides in various contexts, as set forth in the findings of fact, was not fair use. Indeed, in light of the Court's finding of patent infringement it is clear Mr. Gilbert's use of the slides was not “transformative.” Rather, while he may have added to certain images, the images are nonetheless simply copied and used as if the findings were the result of APT. The slides themselves represent and reflect Dr. Aoki's life's work, including the results of studies surrounding his MAT treatment. Mr. Gilbert used those images for the commercial purpose of soliciting and informing potential investors about Trina, Bionica, and APT. Defendants put forth no evidence concerning the effect of their use on the market for or value of the copyrighted work but based on the evidence the Court concludes that, at best, Mr. Gilbert's use caused confusion in the market by representing the slides were the product of APT and not MAT. . . . The evidence demonstrates that this is not a situation of isolated, innocent instances of infringement, but multiple instances of willful unauthorized uses. Even after this lawsuit was filed in 2011, Defendants continued to use Dr. Aoki's copyrighted slides in promoting APT. Most glaringly, they used the foot wound photos of Dr. Aoki's patient whom he treated with MAT and which photos he copyrighted, to claim that the patient was treated with APT rather than MAT. These facts demonstrate Defendants knew their conduct was unlawful or at minimum engaged in reckless conduct sufficient to support a finding of willfulness. As such, the maximum statutory damages for willful infringement is appropriate. . . . For the same reasons discussed above in the context of patent infringement, the Court finds Plaintiffs have suffered an irreparable injury as a result of infringement of the protected copyright and that monetary damages provide inadequate compensation. Indeed, the copyright infringement demonstrated by Plaintiffs goes hand-in-hand with the infringement of Dr. Aoki's patents. Dr. Aoki's copyrighted slide deck represents the results of years of studies concerning MAT, and Defendants use of the slides for promotion of APT deceived investors and patients. Continued use is likely to have the same result, also indicating the public interest favors an injunction. The balance of hardships tips in favor of Plaintiffs as there is no potential harm to Defendants if they are forced to cease use of copyrighted materials to which they have no right. . . . As stated above, the record demonstrates Mr. Gilbert, Bionica, and Trina Health have willfully infringed the copyright at issue here and continued to do so even after this action was filed. Moreover, even if Defendants were able to put forth a reasonable defense of fair use of the slides in another (hypothetical) context, Defendants’ specific use of the slides as representative of APT is egregious and such repeated infringement should be deterred. See id. Reasonable attorney's fees and full costs are warranted.

Northern District of California

IN RE DMCA SUBPOENA TO REDDIT, INC.

Joshua L. Simmons joshua.simmons@kirkland.com

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No. 19-MC-80005-SK (JD), 2020 WL 999788 (N.D. Cal. Mar. 2, 2020) Outcome: Motion to quash - granted Works of Authorship: Literary work - document Topics: Defenses - fair use Darkspilver, a pseudonymous user of Reddit, the online social media and discussion site, seeks review of a magistrate judge's decision denying a motion to quash a subpoena issued under the Digital Millennium Copyright Act (“DMCA”) . . . . The Watch Tower Bible and Tract Society of Pennsylvania (“Watch Tower”) served the subpoena on Reddit to uncover Darkspilver's identity after he posted images of Watch Tower documents to criticize its fundraising and data collection practices. The Electronic Frontier Foundation (“EFF”) filed a motion to quash the subpoena on Darkspilver's behalf, which Reddit joined. . . . A magistrate judge denied the motion, with the qualification that Reddit produce the identifying information on an attorney's eyes-only basis. . . . Darkspilver did not consent to the magistrate judge's jurisdiction, and so the decision is a non-final report and recommendation subject to a de novo review. The Court concludes that the Reddit postings were a non-infringing fair use of copyrighted works. Consequently, the Court declines to adopt the recommendation, and grants the motion to quash. . . . With respect to the first factor of the purpose and character of the use . . . This was a transformative use. It is true that he copied the solicitation ad and chart largely in their original and unaltered states, but physical changes are not required for a new use to be transformative. . . . The “something new” was criticism of Watch Tower's fundraising and data collection practices, a quintessential fair use right expressly protected by Section 107. That use completely transformed the purpose and expressive content of the ad and chart, regardless of whether their physical text was changed. . . . There is also no serious dispute that Darkspilver did not use Watch Tower's works for a commercial purpose. He expressly declared that to be true . . . and Watch Tower has not proffered any evidence to the contrary. Watch Tower makes a passing comment that the Reddit posts might have boosted Darkspilver's status in social media . . . but that suggestion is entirely conclusory, and Watch Tower never explains how posting some criticisms of the Jehovah's Witnesses on a Reddit forum directed to former members could ever translate into a profit-making enterprise for Darkspilver. . . . For the second factor . . . They were factual works -- instructions on how to donate online and a summary of potentially applicable European data laws -- that are light-years away from the creative works at the core of copyright protection. . . . In addition, the solicitation ad had been published before Darkspilver used it, which also weighs in favor of fair use under this factor. . . . Under the third inquiry, the record shows that Darkspilver used a quantitative and qualitative amount of the documents proportionate to his message. . . . Whether the solicitation ad should be treated as a separate work, as Watch Tower now suggests, or as one page of a collected work, as it was copyrighted, Darkspilver copied what was reasonably necessary from it, and the chart, to

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make his criticisms and comments understandable. He did not help himself to an oversized portion of Watch Tower's works vis-à-vis his critical message. The fourth factor . . . To start, Watch Tower did not present any evidence to establish a potential market or value for the ad or chart. There is no dispute that the Watch Tower magazine is distributed to readers without charge, and that the chart was not published or distributed externally. In addition, Darkspilver's use of the ad and chart for criticism was fundamentally contrary to Watch Tower's purposes. There is no likelihood that this critical use could substitute for the originals and thereby harm their potential market or value. Watch Tower was not in the business of publishing or licensing its works to criticize its fundraising and data collection practices, which effectively removes “the very notion” of potential harm here. . . . Watch Tower no doubt disliked, and was possibly offended by, Darkspilver's use of its works, but that does not satisfy the loss of value inquiry. . . . The chart has the additional factor that Watch Tower did not obtain a certificate of copyright for it until after challenging Darkspilver's use. That further undercuts any possibility of loss of value for the chart. . . . Rather than establishing a potential copyright market or value, Watch Tower speculates that the Reddit postings might have diverted visitors away from its website. . . . That was the primary reason why the magistrate judge let the subpoena go forward. . . . The point is not well taken. To start, it runs counter to the principle of law that a diversion or suppression of demand from criticism is not a cognizable copyright harm. There is a crucial difference between “ ‘[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.’ ” . . . A parody, for example, can “kill[ ] demand for the original” without causing a copyright injury. . . . This makes the premise of Watch Tower's theory of harm doubtful as a matter of law. Watch Tower also made no effort to adduce any facts that might have made its theory less speculative, such as evidence of reduced or changed website traffic after the Reddit posts were made. Nor does Watch Tower explain how the posts were even capable of usurping copyright value. This not a case where a bootleg copy of a work was pirated to capture sales the original creator should have made. To the contrary, Darkspilver used the Watch Tower documents in a way entirely different from, and critical of, Watch Tower's use. CRISTO V. CAYABYAB No. 18-CV-00561-BLF, 2020 WL 1531349 (N.D. Cal. Mar. 31, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Music - musical work Topics: Defenses - exemption of certain performances and displays Plaintiff Iglesia Ni Cristo (“INC”), a non-profit religious corporation, sues eleven of its former ministers, officers, and members (“Individual Defendants”) and the non-profit religious corporation they formed, Defendant H2O Now USA (“H2O”). INC claims that Defendants hold themselves out as affiliated with INC, using INC’s trademarked name, Seal, Executive Seal, and Flag, and INC’s copyrighted hymns, thus causing confusion to INC’s members and to the public.

Joshua L. Simmons joshua.simmons@kirkland.com

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Before the Court is a motion for summary judgment filed on behalf of H2O and eight of the Individual Defendants (collectively, “Moving Parties”): Luisito E. Cayabyab (“Cayabyab”), Rolando Dizon, Jr. (“Dizon”), Lionel Roque De La Uso (“De La Uso”), Allan Monte De Ramos (“Ramos”), Jesle Llaban Kuizon (“Kuizon”), Liezl Diaz-DeoCampo (“DeoCampo”), Edwin Lionel R. Mora (“Mora”), and Allan Villaneuva (“Villanueva”). . . . For the reasons discussed below, the motion for summary judgment is GRANTED as to Defendants De La Uso, Ramos, Kuizon, Mora, and Villanueva, and GRANTED IN PART AND DENIED IN PART as to Defendants Cayabyab, Dizon, and H2O. . . . Claim 2, asserted against only Cayabyab, Dizon, and H2O, alleges that those Defendants infringed on INC’s copyrights in a number of hymns. In his declaration, Cayabyab states that neither he nor H2O used INC’s copyrighted hymns. . . . Dizon admits to performing INC’s hymns during worship services, but he denies copying, distributing, or publishing the lyrics of INC’s hymns. . . . Performance of the hymns during worship services is exempted from protection under the Copyright Act. . . . Accordingly, Moving Parties’ declaration statements are sufficient to meet their initial burden of showing that they did not infringe INC copyrights in its hymns. The burden shifts to INC to come forward with evidence that Cayabyab, Dizon, and H2O used its hymns in an infringing manner. INC argues that these Defendants posted videos displaying the lyrics of INC’s hymns on YouTube and other internet websites. Publishing the lyrics of the hymns would fall outside the exemption for “performance” of the hymns during worship services. INC relies on the declarations discussed above, submitted as Exhibit D to the Goss Declaration, and on screenshots submitted as Exhibit H to the Goss Declaration, to meet its burden. For the reasons discussed above, the screenshots in Exhibit H are inadmissible. Moreover, none of the declarations submitted by INC states that Cayabyab, Dizon, or H2O posted the hymns’ lyrics to the internet or published the hymns’ lyrics in any other form. Accordingly, INC has failed to meet its burden to present evidence sufficient to show the existence of disputed facts on that issue. Because Moving Parties have submitted evidence that they did not infringe INC’s copyrights, and INC has failed to submit evidence sufficient to show the existence of disputed facts as to copyright infringement, the motion for summary judgment is GRANTED as to Claim 2. PONDEROSA TWINS PLUS ONE V. IHEARTMEDIA, INC. No. 16-CV-05648-VC, 2020 WL 3481737 (N.D. Cal. Jun. 26, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Music - sound recording Topics: Music - pre-1972 sound recording Spicer's complaint arises out of the defendants' use of a sound recording in their internet radio services. He asserts state-law claims for copyright infringement (under the common law and section 980 of the California Civil Code), unfair competition, misappropriation, unfair business

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practices, and conversion. All claims are dismissed with leave to amend. Some of the defendants have also filed an anti-SLAPP motion as a motion to strike; it is denied without prejudice and may be brought again in response to the amended complaint. . . . Whatever the extent of common-law copyright in the 1960s, there is no indication that it included a right to prevent others from publicly playing a sound recording. In any event, there is every indication that whatever copyrights did exist under California law were lost when Spicer published his recordings. . . . And section 980(a)(2) cannot provide an independent basis for these claims: the 1982 amendment to California's copyright provision did not expand copyrights in sound recordings, and its drafters recognized that works lost state-law copyright protection if published before 1978. . . . Thus, it appears from the complaint that Spicer alleges infringement of a public-performance copyright that never existed, or of reproduction & distribution copyrights lost long ago. And it appears that Flo & Eddie Inc. v. Sirius XM Radio Inc. . . . to the extent they stand for contrary propositions, were incorrectly decided. UAB PLANNER5D V. FACEBOOK, INC. No. 19-CV-03132-WHO, 2020 WL 4260733 (N.D. Cal. Jul. 24, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - computer program Topics: Copyright registration - registration requirement, Copyrightability - selection and arrangement UAB Planner 5D (“Planner 5D”) operates a home design website that allows users to create virtual interior design scenes using a library of virtual objects (such as tables, chairs, and sofas) to populate the scenes. It claims that it owns copyrights in these three-dimensional objects and scenes, and in the compilation of objects and scenes, as well as trade secrets in the underlying data files. It filed this suit against defendants Facebook, Inc., Facebook Technologies, LLC (collectively “Facebook”), and The Trustees of Princeton University (“Princeton”) for copyright infringement and trade secret misappropriation. I granted Princeton’s and Facebook’s motions to dismiss the original Complaint and gave Planner 5D leave to address the deficiencies laid out in my order. . . . Princeton and Facebook now move to dismiss Planner 5D’s amended claims, as alleged in the First Amended Complaint filed in this case and the Copyright Complaint filed in Case No. 3:20-cv-2198-WHO, which has been consolidated with this case. For the reasons set forth below, the motions to dismiss the copyright infringement claims are GRANTED but the motions to dismiss the trade secret misappropriation claims are DENIED. Planner 5D has leave to amend its copyright infringement claims except for its claim in the alleged compilation of objects, which is dismissed with prejudice. . . . Planner 5D asserts that this record shows that the registration covers the objects created from 2011 through 2019 and the scenes created from 2012 to 2019, and accordingly covers all of the objects and scene compilations Princeton scraped from its website in 2016, and which Facebook subsequently copied as well. I suspect that is what Planner 5D intended to do with its application

Joshua L. Simmons joshua.simmons@kirkland.com

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but I cannot conclude that is what the Copyright Office granted when it issued the registration certificates, which clearly state that the year of completion is 2019. . . . Planner 5D cannot rely on the principle of derivative works to save the fact that its registration certificates do not identify any prior versions of the works on which the registered versions were based. Nor does it plead any facts that attempt to connect the 2019 registrations to the 2016 objects and scenes. . . . As a last resort, Planner 5D contends that the scope of its registrations is arguably a fact question that cannot be resolved at this stage. But even accepting all well-pleaded factual allegations as true and construing all inferences in its favor, I am unable to conclude that it has provided a plausible factual basis from which I can infer that there is a valid copyright registration covering the specific works alleged in this action. . . . Planner 5D now alleges that “[i]ts choices in assembling this [object] collection, from among the virtually infinite variety of possible ones, reflected both originality and creativity.” . . . This is not enough to allege a creative selection. A selection of “all” of its own works that it created (or commissioned as works for hire) in a compilation does not automatically make the compilation original because it could have created fewer or different works. Planner 5D cites no cases that support this argument. Instead, it relies on a number of cases holding that a registration for a compilation extends protection to its constituent elements. But Facebook is not arguing a failure to allege originality of the Objects themselves. Instead, the originality of the selection and arrangement in the Object Compilation are at issue here. DISH NETWORK L.L.C. V. JADOO TV, INC. No. 20-CV-01891-CRB, 2020 WL 5816579 (N.D. Cal. Sep. 30, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Audiovisual work - series Topics: Infringement - liability of corporate officer, Infringement - volitional conduct, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements In this copyright infringement case, Plaintiff DISH Network L.L.C. (“DISH”) sued Defendants Sajid Sohail and JadooTV, Inc., a company that sells set-top boxes and mobile applications that consumers use to receive television channels. DISH alleges that Defendants violated 17 U.S.C. § 501 by illegally transmitting television channels and content that DISH had exclusively licensed (“Protected Channels”). DISH alleges that JadooTV engaged in a multi-year effort to illegally transmit the Protected Channels to appeal to consumers but avoid paying licensing fees. Sohail is the founder, CEO, and president of JadooTV. DISH alleges that Sohail is personally liable either because he authorized, directed, or participated in JadooTV's infringement or, alternatively, because he individually satisfies each element of the offense. JadooTV has not challenged the sufficiency of the complaint against it, but Sohail has filed a motion to dismiss for failure to state a claim. Sohail argues that DISH has failed to plausibly allege that he controlled JadooTV's activities or was at all involved with any infringement.

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Because DISH has pled sufficient factual content to permit a reasonable inference that Sohail is personally liable for copyright infringement, this Court DENIES Sohail's motion to dismiss. . . . Liability under the Yost Rule . . . Taking all allegations as true and viewed in a light most favorable to DISH, DISH's new allegations raise a plausible inference that Sohail authorized, directed, or participated in the alleged infringement under the Yost standard. . . . Direct Infringement . . . These allegations, taken as true, make it plausible that Sohail specifically directed Shah to engage in infringing activities. . . . DISH plausibly alleged that Sohail's actions satisfy the volitional requirement of a direct infringement claim. . . . Contributory Infringement . . . DISH has pled sufficient factual content to state a plausible claim for contributory copyright infringement against Sohail under both the material contribution and inducement of infringement theories. . . . Vicarious infringement . . . Accepting DISH's allegations as true, because the availability of the Protected Channels resulted in an increase in JadooTV's sales and Sohail's annual compensation flows directly to him from those sales, DISH has plausibly alleged a direct financial benefit.

Southern District of California

HEMLOCK HAT CO. V. DIESEL POWER GEAR, LLC No. 19-CV-02422-AJB-AHG, 2020 WL 7013585 (S.D. Cal. Nov. 25, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - design Topics: Preemption - common law copyright, Preemption - unfair competition Diesel Power Gear, LLC (“DPG”), DIESELSellerz.com, LLC (“DIESELSellerz”), 4X4 Anything, LLC (“4X4 Anything”), Sparks Motors, LLC (“Sparks Motors”), David W. Sparks (“Sparks”), David Kiley (“Kiley”), Joshua Stuart (“Stuart”), and Keaton Hoskins (“Hoskins”) (collectively referred to as “Defendants”) move to dismiss with prejudice Hemlock Hat Company, Inc.’s (“Plaintiff”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. . . . For the reasons discussed herein, the Court GRANTS Defendants’ motion to dismiss and GRANTS Plaintiff's motion for leave to amend. . . . 1. Plaintiff's Common Law Copyright Infringement Claim . . . Thus, because the Court finds Plaintiff does not own a common law copyright, Plaintiff's claim for common law copyright infringement must be dismissed. . . . 2. Plaintiff's Unfair Competition Law (“UCL”) Claim . . . Plaintiff has no claim under the UCL because it is based entirely upon Plaintiff owning a common law copyright of the Design. Accordingly, the nature of Plaintiff's UCL claim is not qualitatively different from its copyright infringement claim, and thus preempted by the Copyright Act.

Joshua L. Simmons joshua.simmons@kirkland.com

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District of Hawai‘i

HUNTER KILLER PRODS., INC. V. AKA WIRELESS, INC. No. CV 19-00323 JAO-KJM, 2020 WL 4043317 (D. Haw. Jul. 17, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Audiovisual work - film Topics: Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements This action arises from Defendants AKA Wireless, Inc. d/b/a Victra's (“AKA”) and ABC Phones of North Carolina d/b/a Victra's (“ABC”) (collectively, “Defendants”) alleged promotion of piracy apps to customers and inducing them to infringe upon Plaintiff Hunter Killer Productions, Inc.'s (“Plaintiff”) copyright in the movie, Hunter Killer. Defendants move to dismiss Plaintiff's claims, or alternatively, to transfer this case to the United States District Court for the Eastern District of North Carolina. For the following reasons, the Court GRANTS Defendants' Motion to Dismiss the First Amended Complaint or to Change Venue. . . . Plaintiff's generalized allegation that Defendants had active/constructive knowledge of customers' infringement is insufficient. For this reason alone, Plaintiff's intentional inducement and contributory copyright infringement claims should be dismissed. But even if Plaintiff adequately pled knowledge, the Court would dismiss the claims. . . . Assuming Plaintiff alleged that Defendants had the requisite knowledge, its allegations regarding inducement are nevertheless deficient. Plaintiff claims that Defendants' employees installed piracy apps on devices sold to customers and those apps created direct links between said customers and infringing sources that provide streams and/or copies of copyrighted works. As pled, Plaintiff has not sufficiently alleged that Defendants intended—through the purported installation of piracy apps on devices it sold—for the devices to be used to infringe Plaintiff's copyright in Hunter Killer. . . . [Plaintiff's] allegations do little more than recite the elements of a contributory infringement claim. Plaintiff's factual background section of the FAC includes certain facts that might bolster this claim, but Plaintiff has not included those specific facts and allegations within the claim. It is not the Court's responsibility to piece together Plaintiff's factual and legal allegations, scattered throughout the FAC, to ascertain whether, when taken together, they sufficiently state a claim.

District of Idaho

PLATFORM ARCHITECTURE & DESIGN, PLLC V. ESCOBAR No. 1:20-CV-00012-WBS, 2020 WL 4785437 (D. Idaho Aug. 18, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Architectural work - design Topics: Scope of protection - scènes à faire, Infringement - substantial similarity Plaintiff Platform Architecture & Design PLLC (“Platform”) filed this action against defendants James L. Escobar, Marla Carson, neUdesign Architecture, LLC, Tyler Roberts, Holley Dryden,

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Infinity & Roberts, LLC, Jonathan Klutnick, James J. Klutnick, Does 1 through 5, and ABC Companies 1 through 5, arising from defendants’ alleged unlawful copying and use of plaintiff's architectural design plans. Before the court is defendants’ motion to dismiss plaintiff's Second Amended Complaint. . . . Here, the features defendant allegedly copied are geared more toward the feel and “overall form” of the complex, and not the pragmatic requirements of the project. Indeed, the whole purpose of plaintiff's specific layout was to “foster community.” . . . With no additional constraints by plaintiff's client and no relevant zoning restrictions, plaintiff chose the spacing and composition of the buildings, parking, and open space, the look of the roofs and trapezoidal shapes, the number of units and arrangement of the structures, the use, location, proportion and spacing of balconies, and the configuration that placed small units on the ground floor and larger two-story units on the combined second and third floors, which plaintiff specifically describes as “unusual” . . . and which does not appear “essential or common” to a multifamily residential development based on the information available to this court. . . . Here, at least as it appears from the allegations of the SAC, the range of expression is broad. Plaintiff has alleged that the Property was “a blank slate” and, as discussed above, the court cannot infer that the clients requested anything beyond a multifamily residential complex. Plaintiff submitted to this court four other concept sketches that drastically vary the placement and number of buildings, parking spaces, number of units, and the configuration of rooms within the buildings. . . . These features, along with the angles of the roof and the shapes of walkways and landscape areas, appear to give the architects a broad possibility of expression. . . . The court concludes that the complaint plausibly alleges that the plan drawings are substantially similar. Judges are not trained architects. Without the benefit of some expert testimony, on motions to dismiss, courts must rely on the impressions a layperson would draw from comparing the allegedly protected drawings with the allegedly infringing ones. Defense counsel's arguments at the hearing in many respects presumed a knowledge of architecture which a judge cannot be expected to have, and indeed, which would be improper for a judge to draw upon if he did have that knowledge. Comparing images from both parties, the court agrees with plaintiff that the overall form and proportion of the buildings appear identical, as does the arrangement and composition of spaces and elements. The size and shape of the open areas and the trapezoidal shapes of the walkways also appear identical. . . . While defendants are correct that the façades of the buildings are not identical, from the side and front elevation of the buildings, the roof angles, as well as the placement of balconies, staircases, and some of the windows, appear, as plaintiff alleges, largely indistinguishable. . . . In sum, although evidence developed in later stages, including expert evidence on the qualitative weight of the alleged similarities, could lead the court to a contrary conclusion, it is plausible at this stage of the proceeding that defendant did not produce a design “unmistakably different from [plaintiff's plan drawings] in material details.” . . . An ordinary observer, for example, could overlook the different colors or placement of some of the windows, when the layout of the entire complex and significant portions of the buildings, including most of the façade and the interior distribution of units is virtually identical to those created by plaintiff. . . . Plaintiff has therefore

Joshua L. Simmons joshua.simmons@kirkland.com

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plausibly alleged substantial similarity under the extrinsic test and is “entitled to offer evidence” in support of his claims.

District of Nevada

SHC HOLDINGS, LLC V. JP DENISON, LLC No. 2:17-CV-02718-KJD-BNW, 2020 WL 1308322 (D. Nev. Mar. 19, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - sculptural work Topics: Infringement - access, Remedies - statutory damages Presently before the Court is Plaintiff's Motion for Summary Judgment . . . . Here, Defendant had access to SHC's copyrighted design which was available on the internet beginning in 2013. . . . Further, Defendant submitted invoices for production of copies of the work after having been served the summons and complaint putting them on actual notice of the copyright registration. There is no argument that the works are not substantially similar. In fact, they are virtually identical with the original elements copied exactly in Defendant's Slot Machine Bungee Clips. Therefore, the Court grants Plaintiff's motion for summary judgment on its claim for copyright infringement. . . . Here, where there is evidence of willful infringement, the Court finds that statutory damages equal to Defendant's lost profits, $24,712.50 is sufficient to protect Plaintiff's intellectual property and punish and deter Defendant from future infringing activity. SUNDANCE MEDIA GRP., LLC V. YUNEEC USA, INC. No. 2:18-CV-00388-APG-BNW, 2020 WL 5502304 (D. Nev. Sep. 11, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Ownership - evidence of work, Remedies - actual damages, Remedies - statutory damages Plaintiff Sundance Media Group (SMG) sues defendant Yuneec USA, Inc. (Yuneec) for direct and contributory copyright infringement. SMG alleges that Yuneec used SMG's copyright protected photographs without a license or permission. Yuneec counterclaims, alleging it had a license to use the photographs, which SMG breached by attempting to alter or revoke the license. Yuneec moves for summary judgment on SMG's copyright claims, arguing that the photographs at issue have not been produced in discovery, so SMG's copyright claims fail because it cannot prove what it owned or that Yuneec copied any copyright-protected pictures. Yuneec also contends SMG has presented no evidence of actual damages and does not qualify for statutory damages or attorney's fees. Finally, Yuneec argues that even if it used copyright-protected photographs, it did so under an unlimited, non-exclusive license.

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SMG opposes Yuneec's motion and moves for summary judgment as to liability on its copyright claims, arguing that there was no license agreement but Yuneec nevertheless used SMG's copyrighted photographs and shared those images with third parties who also used them in marketing. SMG contends it can establish actual damages at trial and that it is entitled to statutory damages and attorney's fees. . . . I grant Yuneec's motion for summary judgment and deny SMG's motion for summary judgment. Because no party moved for summary judgment on Yuneec's breach of contract counterclaim, that claim remains pending. RIMINI ST., INC. V. ORACLE INT'L CORP. No. 2:14-CV-01699-LRH-DJA, 2020 WL 5531493 (D. Nev. Sep. 14, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Literary work - computer program Topics: Defenses - license, Defenses - statute of limitations, Defenses - laches, Defenses - equitable estoppel, Defenses - abandonment, Defenses - unclean hands, Infringement - evidence of copying, Defenses - fair use Plaintiff and counterdefendant Rimini Street, Inc. (“Rimini”) and defendants and counterclaimants Oracle International Corp. and Oracle America, Inc. (collectively “Oracle”) have filed a total of 7 motions for partial summary judgment: Oracle filed five motions for partial summary judgment . . . , and Rimini filed two motions . . . . For the reasons laid out in this Order, the Court grants in part and denies in part the parties’ motions. . . . i. Implied License and Consent Defense . . . After reviewing the record, the Court finds partial summary judgment is appropriate for Oracle. . . . The use of a cloud server by an Oracle licensee does not insulate Rimini from Oracle's claims of copyright infringement, such as illegal copying or cross-use. The terms of the licensing agreement do not suddenly expand or allow greater conduct by Rimini simply based upon the physical location of the licensee's software. Access to a licensee's cloud server may be subject to the exclusive control of the licensee, just as is software physically located within the licensee's “facilities.” . . . ii. Statute of Limitations Defense . . . The Court further finds that there are disputed questions of fact concerning when Oracle acquired knowledge of or is chargeable with knowledge of a prospective Rimini infringement beyond the three-year statute of limitations. . . . iii. Latches Defense . . . Pursuant to Petrella, Rimini cannot assert a laches defense to any copyright infringement claim brought within the statute of limitations absent an “extraordinary circumstance.” At this point, this means that it cannot assert a laches defense to any claim brought after February 17, 2012, unless it can demonstrate this situation is an “extraordinary circumstance.” In its response to Oracle's motion, Rimini does not explain how this case qualifies as an “extraordinary circumstance.” In fact, Rimini never addresses the issue. Therefore, the Court will grant Oracle summary judgment on this defense because, having failed its burden of persuasion, the only claims to which Rimini can lawfully assert a laches defense

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would already be barred by the statute of limitations, making this defense unnecessary and redundant. iv. Equitable Estoppel Defense . . . Rimini is unable to proffer sufficient evidence on each element of equitable estoppel to create a triable issue of fact. Here, Rimini's basic theory of the defense is that it relied on Oracle's repeated statements that “third-party support can be performed under its licenses,” but that when it changed its support processes, Oracle changed its theories of liability. . . . But whether third-party support is allowed under the licensing agreements is not at issue in this lawsuit, nor was it at issue in Oracle I. What was (and is) at issue is the manner in which Rimini performed that third-party support. Rimini has not provided any evidence that Oracle intended for Rimini to rely on its statements or other conduct when Rimini altered the manner in which it provided services to its clients. In any event, the statements to which Rimini cites were made by Oracle employees during depositions taken well-after the date that Rimini states it changed its support practices. For instance, Rimini cites to early 2018 depositions of Oracle founder Lawrence Ellison and co-CEO Safra Catz for the proposition that “the provision of third-party support ... is permitted by its software licenses.” . . . But Rimini cannot make a plausible argument that it relied on statements that did not yet exist when it changed its support service model in 2014 and 2015. Similarly, Rimini cites to a portion of Oracle's appellate brief, but that brief was not filed until February 2017, roughly two and a half years after Rimini claims to have altered course. . . . Rimini does not cite to any Oracle acts or statements that occurred prior to Rimini changing its business model, and therefore, there was nothing upon which it could rely to its detriment. . . . v. Abandonment/ Waiver Defense . . . Here, Rimini is unable to point to any overt acts by Oracle that would signal to the public that it was abandoning its rights to the facilities restrictions in the PeopleSoft licenses. Rimini asserts that “Oracle has never claimed that PeopleSoft licenses may not use the cloud” as evidence of overt acts. . . . But not stating something cannot constitute an overt act for purposes of abandonment, as the Ninth Circuit made clear in Hampton. . . . Rimini also asserts that Oracle has “encouraged” its licensees to use the cloud, but the evidence to which Rimini cites only reveals that Oracle stated that its customers had the option of hosting their software on cloud servers if they so desired. . . . In any event, Rimini does not explain how Oracle informing its customers that it could make use of cloud hosting constitutes its intent to abandon the entire facilities restriction in the PeopleSoft licenses. . . . vi. Unclean Hands Defense . . . Rimini argues that Oracle should be barred from asserting any copyright infringement claims by the doctrine of unclean hands because Oracle “misrepresented the scope of its copyrights to” the Court, Rimini, and the general public to “foreclose lawful competition in the software support market.” . . . But the documents that Rimini takes these quotes from are internal emails between Oracle employees, not direct statements to customers. . . . These internal emails do not show that Oracle ever communicated such language to Rimini customers, and Rimini has not provided any evidence that Oracle ever did. Rimini also asserts that Oracle's copyright infringement allegations in this lawsuit (namely that Rimini impermissibly engaged in cross use) constitutes unclean hands. . . . But as Oracle states, the mere filing of a lawsuit and the allegations within cannot “form the basis of an unclean hands defense.” . . .

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i. Oracle's Prima Facie Case of Copyright Infringement . . . Here, it is undisputed that the RAM copies of the at issue PeopleSoft software loaded into the Campbell Soup environments are “copies” within the meaning of the Copyright Act. . . . ii. Rimini's Express License Defense: RAM Copies . . . It is clear that Rimini's initial copying to create the development and/or testing environment, which it uses to create and test modifications to Campbell Soup's PeopleSoft software, is permitted by the license agreement. . . . Even though Campbell Soup and Rimini had a contract for third-party service, that does not mean that Rimini may act outside the scope of the license agreement and make copies of the PeopleSoft software that are not solely for the licensee's internal data processing operations. iii. Rimini's Express License Defense: Cross-Use . . . Rimini's delivery of the PPACA Phase 1 update HCM104286 to Toll Brothers violates the “internal data processing operations” provision of Campbell Soup's license. iv. Breach of the “Internal Data Processing Operations” provision is a Copyright Violation . . . [T]he Court finds that the limit to using the software for the Licensee's “internal data processing operations” is a copyright-enforceable condition rather than a contractual covenant. . . . Because a violation of the “internal data processing operations” provision is a copyright-enforceable condition, not a contract violation, both the RAM copies created when developing and testing the PPACA Phase 1 update HCM104286 and the delivery of that update to Toll Brothers, in violation of the provision, were outside the scope of Campbell Soup's license. And because Rimini's use was outside the scope of the license, Rimini is not entitled to an express license defense. . . . 3. Rimini's Seventh Affirmative Defense: Fair Use . . . The Court has analyzed the four statutory factors and finds that each is either neutral or weighs in favor of Oracle.

Western District of Washington

STRIKE 3 HOLDINGS, LLC V. DOE No. C17-1731 TSZ, 2020 WL 531996 (W.D. Wash. Feb. 3, 2020) Outcome: Motion for summary judgment - granted, Motion for attorneys fees and costs - granted Works of Authorship: Audiovisual work - motion picture Topics: Infringement - evidence of copying, Remedies - attorneys fees THIS MATTER comes before the Court on defendant John Doe’s motion for summary judgment . . . . Strike 3 has provided no evidence that John Doe copied any of Strike 3’s copyrighted motion pictures. At most, Strike 3 has shown that an entity with access to the IP address 73.225.38.130 downloaded certain materials identified by the “Hash” sequences listed in Exhibit A to the Complaint. Strike 3 cannot link John Doe to the activity associated with the IP address. . . and it has now abandoned any assertion that the items allegedly transferred over the BitTorrent system were themselves copyrighted motion pictures or viewable pieces thereof, as opposed to simply

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non-copyrightable data that may be used to find certain motion pictures and/or their constituent parts within the BitTorrent network. Consistent with Strike 3’s lack of proof of copying, John Doe’s expert has indicated that John Doe’s computer does not contain any of the motion pictures described in Exhibit A to the Complaint. No genuine dispute of material fact exists, and John Doe is entitled to judgment as a matter of law. John Doe’s motion for summary judgment is GRANTED, and a declaratory judgment of non-infringement will be entered. . . . Under the Copyright Act, attorney’s fees are not awarded to the prevailing party automatically or as a matter of course. . . . These guideposts indicate that attorney’s fees are warranted in this matter. SEATTLEHAUNTS, LLC V. THOMAS FAMILY FARM, LLC No. C19-1937JLR, 2020 WL 1674124 (W.D. Wash. Apr. 6, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Visual work - graphic work Topics: Ownership - pleading requirements, Infringement - pleading requirements Before the court is Defendant Thomas Family Farm, LLC’s (“Thomas Family Farm”) motion to dismiss or stay this case. . . . Being fully advised, the court DENIES Thomas Family Farm’s motion to dismiss. . . . In support of that claim, Seattlehaunts attaches its copyright registration certificate and the assignment agreement that allegedly transferred ownership of the copyright from Mr. Wondell to Seattlehaunts. . . . Seattlehaunts also alleges that Thomas Family Farm used Seattlehaunts’ copyright in the Wondell Graphic without authorization on its website, social media pages, and various print form at the Farm. . . . The court concludes that those allegations sufficiently allege a copyright infringement claim. VHT, INC. V. ZILLOW GRP., INC. No. C15-1096JLR, 2020 WL 2307492 (W.D. Wash. May. 8, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Copyright registration - registration requirement, Remedies - statutory damages Before the court are: (1) Defendant Zillow Group, Inc., and Zillow, Inc.’s (collectively, “Zillow” or “Defendants”) motion for judgment on the pleadings, or in the alternative, partial summary judgment . . . ; and (2) Plaintiff VHT, Inc.’s (“VHT”) cross-motion for partial summary judgment . . . . Being fully advised, the court construes Zillow’s motion for judgment on the pleadings as a portion of Zillow’s motion for partial summary judgment, DENIES Zillow’s motion for partial summary judgment, and GRANTS VHT’s motion for partial summary judgment. . . .

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Because § 411(a)’s registration requirement is not jurisdictional, the court rejects Zillow’s arguments that the court “must” dismiss VHT’s claims and “cannot excuse” a failure to comply. Before turning to whether the court should dismiss VHT’s claims—and vacate the corresponding judgment—based on any defects in VHT’s compliance with the registration requirement under Fourth Estate, the court addresses VHT’s procedural objection to Zillow’s motion for judgment on the pleadings. . . . Here, the purposes behind § 411(a)’s requirement would not be served by vacating the final judgment and dismissing this case in its entirety. . . . First, VHT has already obtained registrations for the images at issue, and dismissal would not require VHT to interact with the Copyright Office whatsoever in order to refile its claims. . . . Second, dismissal would result in a massive waste of judicial resources. The parties have litigated this case for five years through dispositive motions, trial, post-trial motions, an appeal, and now a remand. . . . VHT stores its images in a database and registers the database as well as its individual images. However, VHT’s organization of its images prior to issuance does not answer the question of how VHT’s images are organized or arranged when issued. . . . In fact, VHT licenses its images on a per-image or per-property basis. Thus, VHT’s images in its database are more akin to the television episodes in Twin Peaks than the collection of songs on an album in Bryant. . . . True, the fact that VHT group-registers its images as “compilations” weighs in favor of a “compilation” finding. . . . However, this factor is not controlling . . . and the court finds it outweighed by the form in which VHT issues its images. Finally, to the extent the images’ independent economic value remains a factor to consider in the “compilation” analysis . . . the court concludes, based on the jury’s finding, that this factor weighs against finding a “compilation.” . . . Therefore, the court concludes as a matter of law that VHT’s database does not constitute a “compilation” under 17 U.S.C. § 101. Accordingly, the court DENIES Zillow’s motion for partial summary judgment on the compilation issue, and GRANTS VHT’s motion for partial summary judgment on the same issue. ENTER. MGMT. LTD. V. CONSTRUX SOFTWARE BUILDERS, INC. No. 2:19-CV-1458-DWC, 2020 WL 2795198 (W.D. Wash. May. 29, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - chart Topics: Infringement - pleading requirements, Infringement - substantial similarity, Preemption - unfair competition Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. . . . Currently pending before the Court is Defendants Construx Software Builders, Inc. and Steve McConnell’s Motion to Dismiss. . . . After considering the relevant record, the Court concludes Plaintiffs Enterprise Management Limited, Inc. and Mary Lippitt have stated a copyright infringement claim regarding Defendants’ Change Model chart. Plaintiffs have not sufficiently stated a copyright infringement claim regarding Defendants’ Domino Change Model chart or a personality rights claim. Further, Plaintiffs’ Consumer Protection Act claim is preempted by the

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Copyright Act and fails to state a claim. For these reasons, Defendants’ Motion to Dismiss is granted-in-part and denied-in-part. . . . Copying . . . [I]n the FAC, Plaintiffs allege Defendants identify Plaintiff Lippitt and state the Change Model was inspired by Plaintiff Lippitt. . . . In this case, Defendants’ reference to Plaintiff Lippitt is sufficient to show a reasonable possibility that Defendants viewed Plaintiffs’ copyrighted works prior to creating the Change Model. Further, Defendants’ Change Model contains similarities that are probative of copying. For example, the Change Model, TX 2-124-202, and TXu 956-226/TX 50827-350 all consist of the same flow-chart format and use nearly identical words. The Domino Change Model does not reference Plaintiff Lippitt. However, the FAC alleges Defendants were aware that Plaintiff Lippitt was the source of the complex change idea at the time of publishing the Domino Change Model. . . . Plaintiffs have sufficiently alleged a reasonable possibility that Defendants viewed TX 2-124-202 and TXu 956-226/TX 50827-350 prior to publishing the Domino Change Model. Furthermore, the Domino Change Model contains nearly identical words to TX 2-124-202 and TXu 956-226/TX 50827-350. . . . Unlawful Appropriation . . . In this case, the FAC sufficiently alleges substantial similarities between the Change Model and both TX 2-124-202 and TXu 956-226/TX 50827-350. While the Court has highlighted the differences in each chart, the side-by-side images show substantial similarities in the selection and arrangement of the charts. At this stage, the Court finds the arrangement of the elements are similar enough that an “ordinary observer ... would be disposed to overlook” the differences. See id. Therefore, the FAC contains sufficient allegations to show the Change Model is substantially similar to TX 2-124-202 and TXu 956-226/TX 50827-350. . . . In contrast to the Change Model, the FAC fails to allege facts sufficient to show the Domino Change Model is substantially similar to TX 2-124-202 or TXu 956-226/TX 50827-350. The Domino Change Model uses nearly identical words as TX 2-124-202 and TXu 956-226/TX 50827-350 to show complex change. However, the Domino Change Model expresses complex change using domino images and only two words per tile. The Domino Change Model does not contain graphics that are substantially similar to TX 2-124-202 or TXu 956-226/TX 50827-350. Rather, the Domino Change Model expresses complex change in a completely different manner: placing each element with the corresponding result if the element identified on each domino is missing from the change process. While Defendants used the many of the same words to express complex change, Defendant also added an additional element and result, expanding the ideas expressed in TX 2-124-202 or TXu 956-226/TX 50827-350. The Court finds the use of the same words alone is insufficient to show unlawful appropriation in this case. . . . Consumer Protection Act . . . The rights in both the CPA and copyright claims stem from the Copyright Act and are qualitatively indistinguishable. Thus, Plaintiffs’ CPA claim related to Defendants use of copyrighted works and uncopyrighted ideas is preempted by the Copyright Act.

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SA MUSIC, LLC V. AMAZON.COM, INC. No. 2:20-CV-00105-BAT, 2:20-CV-00106-BAT, 2:20-CV-00107-BAT, 2020 WL 3128534 (W.D. Wash. Jun. 12, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Music - musical work Topics: Infringement - making available Pending in the above-referenced actions (the “Consolidated Cases”) are the identical motions to dismiss of Defendants Amazon.com and Amazon Digital Services LLC (“Amazon”). Amazon moves for the dismissal of one of the Plaintiffs’ asserted copyright infringement claims, i.e., the “making available” for sale unauthorized copies of copyrighted recordings in violation of Plaintiffs’ exclusive 17 U.S.C. § 106(3) distribution rights. . . . After careful consideration of the parties’ written submissions, the Court grants the motions without oral argument. . . . This court concludes that distribution of a copyrighted work under § 106(3) requires ‘actual dissemination’ of the copyrighted work and, in the context of a digital music store, actual dissemination means the transfer (or download) of a file containing the copyrighted work from one computer to another. SEATTLEHAUNTS, LLC V. THOMAS FAMILY FARM, LLC No. C19-1937JLR, 2020 WL 5500373 (W.D. Wash. Sep. 11, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - graphic work Topics: Preemption - tortious interference, Preemption - civil conspiracy, Copyright registration - registration requirement Before the court are (1) Plaintiff Seattlehaunts, LLC (“Seattlehaunts”) motion to dismiss several of Defendant Thomas Family Farm, LLC's (“Thomas Family” or “Thomas Family Farm”) counterclaims and strike Thomas Family's affirmative defenses . . . ; and (2) Third-Party Defendant Joseph Wondell's motion to dismiss several of Thomas Family's claims against him . . . . Being fully advised, the court GRANTS in part and DENIES in part Seattlehaunts’ motion and GRANTS Mr. Wondell's motion. . . . B. Seattlehaunts’ Motion . . . 1. Preemption . . . Thomas Family's tortious interference counterclaim against Seattlehaunts is based on the allegations that “[Mr.] Wondell licensed the Logo to Thomas Family” and that Seattlehaunts “interfered with this license and with Thomas Family Farm's reasonable expectation that this license would continue, by impelling [Mr.] Wondell to terminate or purport to terminate the license.” . . . The asserted right in Thomas Family's tortious interference claim is the right to its contractual arrangement with Mr. Wondell, not its intellectual property rights in the Revised Wondell Graphic. Thus, Thomas Family's asserted state law right is “qualitatively different than rights protected by copyright.” . . . Although Thomas Family's tortious interference claim is distinct from a breach of contract claim, it rests on Thomas Family's right against improper interference with its contractual arrangement

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with Mr. Wondell. Accordingly, the Copyright Act does not preempt Thomas Family's tortious interference claim. b. Civil Conspiracy . . . Thomas Family alleges a state-law civil conspiracy claim against both Seattlehaunts and Mr. Wondell. . . . The factual basis for this claim is that Mr. Wondell and Seattlehaunts “agreed to a scheme to falsely register copyright in the Derivative Logo, unlawfully, for the further unlawful purpose of infringement on Thomas Family Farm's copyright and Trademarks for commercial gain.” . . . The Copyright Act preempts this claim. As to the first element, the parties do not dispute that “the work at issue”—the Revised Wondell Graphic— “falls within the scope of copyright subject matter.” . . . As to the second element, and unlike the tortious interference claim, the asserted right is Thomas Family's intellectual property rights in the Revised Wondell Graphic. That is the same right at stake in Thomas Family's copyright infringement counterclaims against Seattlehaunts and third-party claims against Mr. Wondell. . . . C. Mr. Wondell's Motion . . . Thomas Family concedes that it has not applied for or received a copyright registration for the Hook Graphic. Therefore, the question before the court is whether counterclaimants or third-party claimants must meet Section 411(a)’s registration requirement before bringing an infringement counterclaim. The court concludes that it does. PHILIPS N. AM., LLC V. SUMMIT IMAGING INC. No. C19-1745JLR, 2020 WL 6741966 (W.D. Wash. Nov. 16, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - computer program Topics: Defenses - copyright misuse Before the court is Plaintiffs Philips North America, LLC, Koninklijke Philips N.V., and Philips India, Ltd.’s (collectively, “Philips”) motion to dismiss Defendants Summit Imaging Inc. and Lawrence R. Nguyen's (collectively, “Summit”) counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6). . . . Having considered the motion, the parties’ submissions regarding the motion, the relevant portions of the record, and the applicable law, the court GRANTS in part and DENIES in part Philips's motion to dismiss. . . . Although Philips argues that Summit's copyright misuse claim is barred by the Noerr-Pennington doctrine, that doctrine does not bar Summit's copyright misuse claim. . . . Philips also argues that Summit's counterclaim should be dismissed because the Ninth Circuit has not upheld a copyright misuse defense or claim under facts similar to those presented here. The Ninth Circuit cases Philips cites, however, were decided on more developed records in the context of motions for summary judgment or for preliminary injunction, rather than motions to dismiss. . . . The court, therefore, DENIES Philips's motion to dismiss Summit's copyright misuse counterclaim.

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Tenth Circuit

Court of Appeals for the Tenth Circuit

ZAHOUREK SYS., INC. V. BALANCED BODY UNIV., LLC No. 18-1300, 18-1312, 2020 WL 4133951 (10th Cir. Jul. 21, 2020) Outcome: Appeal - reversed Works of Authorship: Visual work - sculptural work Topics: Copyrightability - useful article These appeals involves a sculptural work called “the Maniken,” which portrays the human body. The overarching issue is whether the Maniken is a “useful article” under the copyright laws. If the Maniken is a useful article, it wouldn't ordinarily be protectible under the copyright laws. We conclude that a genuine issue of material fact exists on whether the Maniken is a useful article. . . . Like a toy airplane or nose mask, the Maniken has utility only because it portrays the appearance of something (the human body). Because the human body is accurately depicted, the Maniken helps students learn human anatomy. Without this accurate depiction of the human body, the Maniken could lack any utilitarian function. So a material factual issue exists on whether the Maniken fits the statutory definition of a useful article. . . . The Maniken might be useful for teaching anatomy, but a fact finder could reasonably attribute this usefulness to the information that the Maniken conveys about human anatomy. If the Maniken's usefulness lies solely in the information it conveys, the Maniken would not be a useful article. . . . Viewing the evidence in the light most favorable to Mr. Zahourek and his company, a fact finder could reasonably determine that the Maniken was not a useful article. So we reverse the award of summary judgment on the claim of copyright infringement and remand for further proceedings. CRAFT SMITH, LLC V. EC DESIGN, LLC No. 19-4087, 2020 WL 4590535 (10th Cir. Aug. 11, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - compilation Topics: Copyrightability - selection and arrangement, Infringement - substantial similarity Since 2007, EC Design, LLC, has been selling its popular personal organizer, the LifePlanner. In 2015, Craft Smith, Inc., wanting to enter the personal-organizer market, reached out to EC Design about a possible collaboration. Failing to join forces with EC Design, Craft Smith, with input from Michaels Stores, Inc., designed and developed a personal organizer to sell in Michaels stores, leading to this action in Utah federal district court. EC Design has asserted that the Craft Smith and Michaels product infringes on the LifePlanner’s registered compilation copyright and unregistered trade dress. The district court disagreed, granting summary judgment in favor of Craft Smith and Michaels (collectively, the Appellees) on both issues. On the copyright issue, the district court concluded that EC Design does not own a valid copyright in its asserted LifePlanner compilation. Though we disagree with how the court framed this issue, we affirm because no reasonable juror could conclude that the allegedly infringing aspects of

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Appellees’ organizer are substantially similar to the protected expression in the LifePlanner compilation. On trade dress, the district court held that EC Design had failed to create a genuine issue of material fact over whether the LifePlanner’s trade dress had acquired secondary meaning. We agree. Accordingly . . . we affirm the district court’s grant of summary judgment in favor of Appellees on both claims. . . . In sum, the LifePlanner’s protectable expression consists of the selection, coordination, and arrangement of the specific literary and graphic components that make up the LifePlanner as a whole. . . . Here, EC Design argues that the following four bases demonstrate substantial similarity between the LifePlanner compilation and the Recollections Planner: First, EC Design argues that Appellees used “the same monthly and weekly calendar forms, with the same banners and notes sections, and arranged them in the same order[.]” . . . Second, EC Design points out that “Appellees arranged their infringing planner compilation into the same three sections: introductory, monthly, and notes, with the same number of pages in each section.” . . . Third, EC Design argues that Appellees “selected the same number of sticker pages and arranged them in the same location in their planner.” . . . And fourth, EC Design argues that the “two works have the same tab size and font.” . . . From this, EC Design contends that a jury should resolve the question of whether the two works, when compared as a whole, are substantially similar. We disagree. In listing these similarities, EC Design does not claim that Appellees copied any of its planner’s artwork or text—the two most significant portions of protected expression in the LifePlanner compilation. In fact, EC Design does not even claim that Appellees employed similar artwork or similar text. Instead, EC Design claims that Appellees have adopted a similar format. But the format of the LifePlanner is not part of its protectable expression. Rather, EC Design’s protectable expression, for example, is the selection of the quotations “make room for good things to begin” and “everything you now know was once unknown” and the quotations’ arrangement on the pages immediately after the ownership page. DUTCHER V. BOLD FILMS LP No. 19-4126, 2020 WL 4811322 (10th Cir. Aug. 19, 2020) Outcome: Appeal - affirmed Works of Authorship: Audiovisual work - film Topics: Infringement - substantial similarity Plaintiff Richard Dutcher appeals from the order of the United States District Court for the District of Utah granting summary judgment in favor of Defendants on his copyright-infringement claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. . . . The district court held that no reasonable jury could conclude that the two films are “substantially similar.” This holding may seem inevitable, given the obvious differences in the plots of the two films, unless one is inclined to equate, for example, a stringer's search for the

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murderers with the murderers’ search for the stringer. In any event, the district court supported its ruling with an analysis and application of the pertinent copyright law. We see no need to repeat that analysis, which was more than adequate to the task.

District of Colorado

COLWELL V. ELEVEN CREATIVE SERVS. No. 18-CV-02784-CMA-STV, 2020 WL 417573 (D. Col. Jan. 26, 2020) Outcome: Motion for attorneys fees and costs - denied Works of Authorship: Visual work - photograph Topics: Remedies - attorneys fees This matter is before the Court on Defendant Eleven Creative Services’ Motion for Award of Attorney’s Fees and Costs. . . . Based on the following reasons, the Court denies the Motion. DERMANSKY V. UNIV. OF COLORADO No. 19-CV-02954-MEH, 2020 WL 1433498 (D. Col. Mar. 23, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Visual work - photograph Topics: Infringement - liability of states Before the Court are Defendant’s Motion to Dismiss Amended Complaint . . . and Opposed Motion to Stay Discovery . . . . The parties dispute whether Defendant is entitled to sovereign immunity from the Plaintiff’s claim for copyright infringement pursuant to 17 U.S.C. § 501 . . . . For the reasons that follow, the Court will grant the Defendant’s motion to dismiss and deny as moot Defendant’s motion to stay. . . . This Court concludes that without binding or persuasive authority, it is not convinced that Defendant’s status as an arm of the state must be “re-analyzed.” Accordingly, pursuant to prevailing law, the Court finds Defendant is entitled to sovereign immunity under the Eleventh Amendment in this case, unless such immunity has been abrogated. WARNER RECORDS INC. V. CHARTER COMMC'NS, INC. No. 19-CV-00874-RBJ-MEH, 2020 WL 1872387 (D. Col. Apr. 15, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Music - sound recording Topics: Vicarious infringement - pleading requirements This case is before the Court on Magistrate Judge Michael E. Hegarty’s recommendation . . . on defendant’s motion to dismiss . . . . For the following reasons the recommendation is adopted, and the motion to dismiss is denied. . . . A. Direct Financial Benefit . . . I find that plaintiffs’ allegations are sufficient to show that the ability to download infringing content served as a draw. Plaintiffs allege not only that Charter

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subscribers have used Charter services to infringe their content, but that subscribers are motivated to subscribe by Charter’s advertisement of features attractive to those who seek to infringe, such as fast download speeds for “just about anything.” . . . Plaintiffs allege hundreds of thousands of specific instances in which that Charter subscribers have illegally distributed and copied their works. Id. at 19. Plaintiffs also allege that infringing activity accounts for 11% of all internet traffic, indicating that though some subscribers may be drawn by the ability to download authorized content, a significant number of subscribers are likely drawn by the ability to download infringing content. . . . B. Ability to Supervise Infringing Activities . . . I agree with Judge Hegarty that plaintiffs have sufficiently alleged that Charter had the right and ability to control infringing activity. Because plaintiffs have stated a claim for vicarious copyright infringement, defendant’s motion to dismiss must be denied. XTOMIC, LLC V. ACTIVE RELEASE TECHNIQUES, LLC No. 14-CV-02901-RM-KMT, 2020 WL 2520191 (D. Col. May. 18, 2020) Outcome: Bench trial - mixed result Works of Authorship: Literary work - computer program Topics: Defenses - license This action arises from a dispute over copyrights in four software programs: the Admin Program, EPN Program, EHR Service Application, and PMS Program. Plaintiff filed this action alleging it created and developed all four programs and sought (1) a declaratory judgment that it is the owner of the programs and owns the copyrights to the programs; and (2) relief based on Defendants’ alleged copyright infringement of the programs. Defendants counterclaimed for declaratory judgment that Plaintiff granted Defendants a license to the programs, to the extent Defendants did not own the copyrights. Upon the joint request of the parties, the Court bifurcated this case into two phases. Phase I would address the parties’ competing declaratory judgment claims. Phase II would address Plaintiff’s infringement claim. As part of Phase I, the Court granted summary judgment in favor of Plaintiff, declaring that it is the author of, and the owner of the copyrights in, all four programs. Since then, Defendants have conceded they do not have implied licenses to the PMS Program or EHR Service Application. Thus, the only issues for trial in Phase I are which Defendants, if any, have implied licenses to the Admin Program or EPN Program. From February 19-20, 2020, the Court held a bench trial on the implied license issues which remain. During the trial, Defendants conceded that Defendant Art Business Solutions, LLC was not granted an implied license in either of the programs at issue. After examining the evidence, considering any concessions of the parties, evaluating the credibility of the witnesses, and analyzing the law, and being otherwise fully advised, the Court finds, concludes, and orders as follows. . . .

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Accordingly, the Court finds ART LLC and ART Corporate have a non-exclusive, royalty-free license to retain and use the Admin and EPN Programs, respectively, and may modify and make changes to the Programs for their respective use. Their respective licenses, however, extend no further. For example, they may not copy the Programs and share it with each other or with others, whether such sharing is for profit or gratuitous. They may not sublicense the Programs, even to a related entity. As to whether such license is perpetual, Xtomic has not shown otherwise. Here, the ART Defendants paid consideration for the Programs – those final invoices. Therefore, these licenses are irrevocable, i.e., they are granted in perpetuity. LIVE FACE ON WEB, LLC V. INTEGRITY SOLUTIONS GRP., INC. No. 16-CV-01627-CMA-STV, 2020 WL 3971640 (D. Col. Jul. 14, 2020) Outcome: Motion for attorneys fees and costs - granted Works of Authorship: Literary work - computer program Topics: Remedies - attorneys fees This matter is before the Court on Plaintiff Live Face on Web, LLC’s (“Plaintiff”) Motion for Attorneys’ Fees . . . wherein Plaintiff seeks $383,514 in attorneys’ fees, and $62,202.53 in expert witness fees against Defendant Integrity Solutions Group, Inc. (“Defendant”). For the reasons that follow, the Court grants the Motion as to the requested attorneys’ fees but denies the Motion as to the request for an upward lodestar adjustment and an award of expert witness fees. ALTIGEN COMMC'NS, INC. V. CTI COMMC'NS, LLC No. 19-CV-00488-RBJ, 2020 WL 6873951 (D. Col. Nov. 23, 2020) Outcome: Motion for attorneys fees and costs - granted-in-part Topics: Remedies - attorneys fees Altigen Communications, Inc. sued CTI Communications, LLC (“CTI”), a former reseller of Altigen systems, and its principal, Richard Browne, on claims of trademark infringement, copyright infringement, and violation of the Colorado Consumer Protection Act. The case was tried to a jury July 27-29, 2020. The jury found that plaintiff proved its trademark infringement claim, but not its claim that the infringement was willful. It awarded $3,190 in disgorgement of profits but no “actual damages.” The jury found in favor of the defendants on the claims of copyright infringement and violation of the Colorado Consumer Protection Act. . . . In an Amended Final Judgment the Court stated,

The Court finds that, although the plaintiff prevailed on a portion of its trademark claim, the jury's award on that portion was only a tiny fraction of the damages plaintiff was seeking on the trademark claim. The defendant prevailed on the remainder of the trademark claim and on the plaintiff's copyright and Colorado Consumer Protection Act claims. The Court finds

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that, overall, the prevailing party was the defendant. Therefore, the Court awards costs to the defendant to be determined by the Clerk pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCIVR 54.1.

Defendants paid the $3,190 portion of the judgment. Costs were taxed by the Clerk in favor of the defendants in the amount of $3,854.24. . . I am not aware whether plaintiff has paid the taxed costs. Defendants now move for an award of attorney's fees in the amount of $89,248.50 and non-taxable costs in the amount of $1,652.93, pursuant to 17 U.S.C. § 505 (concerning fees and costs in copyright actions). . . . Defendants’ motion for an award of attorney's fees and non-taxable costs . . . is GRANTED IN PART and DENIED IN PART. Attorney's fees are awarded to the defendants and against the plaintiff in the amount of $75,413.50. Costs not already taxed by the Court are awarded in the amount of $1,652.93. A Second Amended Final Judgment will issue reflecting those awards and reflecting the award of costs taxed by the Clerk in the amount of $3,854.24 in favor of the defendants and against the plaintiff.

District of Kansas

BOWERS V. REECE & NICHOLS REALTORS, INC. No. 19-2094-JAR, 2020 WL 2992086 (D. Kas. Jun. 4, 2020) Outcome: Motion for summary judgment - granted-in-part Works of Authorship: Visual work - photograph Topics: Infringement - evidence of copying, Contributory infringement - knowledge, Vicarious infringement - financial benefit Plaintiff Eric Bowers brings this copyright infringement action against Defendants Reece & Nichols Realtors, Inc. d/b/a ReeceNichols (“RNR”) and Sandra Beck, an RNR real estate agent, alleging they posted his copyright-registered photograph depicting the Kansas City, Missouri skyline on their marketing website without permission. Before the Court is Plaintiff’s Motion for Partial Summary Judgment . . . on liability, and Defendants’ Joint Motion for Summary Judgment . . . . The motions are fully briefed, and the Court is prepared to rule. For reasons discussed below, Plaintiff’s motion for summary judgment is denied. Defendants’ motion for summary judgment is granted in favor of RNR on all theories of copyright infringement liability and granted in favor of Beck on the direct and vicarious infringement liability theories. Defendants’ motion is denied on the contributory infringement theory against Beck only. . . . A. Direct Infringement . . . Viewing Raskin’s testimony in the light most favorable to Plaintiff would not lead a reasonable jury to conclude that RNR copied the Work. It is uncontroverted that Dynamic and RNR never communicated. All three of Raskin’s theories about how Dynamic obtained the Work involved Beck and not RNR. And the statement in Plaintiff’s own declaration that Defendants put his work on the website is conclusory; the declaration does not establish this statement is based on personal knowledge and therefore it must be disregarded on summary judgment. In sum, there is no evidence that RNR copied the Work or was even aware of the website Dynamic created until after this lawsuit was filed. Thus, summary judgment is granted in favor of RNR on Plaintiff’s direct infringement claim.

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As for Beck, Raskin testified that he does not know where Dynamic obtained the Work, although he assumes it came from Beck. While it is controverted whether the Work ever appeared on Beck’s RNR website, it is uncontroverted that Dynamic, and not Beck, copied the Work and put it on the sandibeckluxeryproperties.com website, the only website for which Plaintiff claims copyright infringement. Because it is uncontroverted that Beck did not herself copy the Work and place it on that website, summary judgment is granted in favor of Beck on Plaintiff’s direct infringement claim. . . . B. Secondary Liability for Copyright Infringement . . . 1. Contributory Infringement . . . As to RNR, Defendants point to the absence of evidence demonstrating it had actual knowledge of or was willfully blind to Dynamic’s infringement. It is uncontroverted that there was no contact between Dynamic and RNR prior to this litigation and that RNR had no knowledge about Beck’s arrangement with Dynamic, or the existence of her new website. Beck was not required to obtain RNR approval for her marketing materials, and RNR denies ever approving the website. Plaintiff provides no evidence to controvert this evidence. Therefore, a reasonable jury could not find that RNR met the knowledge or material contribution elements of a contributory infringement claim. 2. Vicarious Infringement . . . Here, the analysis is even more straightforward. The website advertised the specific market of Lake Quivira where Beck lists and sells RNR residential properties. There is no evidence suggesting customers visited Beck’s Dynamic website for the purpose of viewing the Work—a photo of the Kansas City skyline. In fact, it is uncontroverted that Beck did not generate any leads or sales from the sandibeckluxuryproperties.com website and none of her customers ever mentioned that website to her. And, although RNR generates revenue through broker’s fees from real estate sales, there is no evidence that RNR generated any revenue through the website. Given this uncontroverted evidence, a reasonable jury could not find that the Work did anything more than add to the overall attractiveness of Beck’s website.

District of New Mexico

STROBEL V. RUSCH No. CIV 18-0656 RB/JFR, 2020 WL 42857 (D.N.M. Jan. 3, 2020) Outcome: Motion to dismiss - granted-in-part, Motion to strike - granted-in-part Works of Authorship: Visual work - logo Topics: Ownership - assignment, Copyright registration - registration requirement, Contributory infringement - pleading requirements, Contributory infringement - direct infringement, Integrity of Copyright Management Information - pleading requirements Mr. Uwe Rusch began developing a brand of cordials in 1998 under the name CORDIALS V.I.P. Drinks. Mr. Rusch asserts ownership in the copyright to the brand and also registered the trademark to the brand's logo (the “Royal Logo”), which has been used to sell CORDIAL V.I.P. Drinks since 2005, primarily in Europe. In 2012, he formed UNC Holding LLC (“UNC-FL”) in Florida to establish his business in the United States. In 2013 Mr. Volker Strobel, Mrs. Heike Strobel, Mr. Hans Baur, and Mr. Gregor Fischer agreed to invest money with Defendants in the CORDIALS V.I.P. Drinks business. The parties later agreed to dissolve UNC-FL and re-establish the business in New Mexico under the name UNC-NM. At some point, their business

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relationship soured. Plaintiffs contend that Defendants violated the parties' agreement and brought this lawsuit for a variety of tort and contract claims. Defendants have filed 22 affirmative defenses and 14 counterclaims and argue that Plaintiffs' actions have infringed on their rights and have made any purported contract unenforceable. Plaintiffs move to dismiss the counterclaims and strike certain affirmative defenses. The Court will grant both motions in part. . . . III. The Court will grant in part Plaintiffs' motion to dismiss. A. Defendants have sufficiently pleaded that Dr. Rusch owns the trademark and Mr. Rusch owns the copyright at issue. . . . The Partnership Agreement does not specify when or how Defendants were to transfer the copyright and/or the license to the business, and Plaintiffs do not specifically discuss ownership of the copyright in their Amended Complaint. . . . E. Counterclaim IV: Direct Copyright Infringement under 17 U.S.C. § 501 . . . Plaintiffs also argue that the claim should fail because “Mr. Rusch has not complied with the requirements of Section 411 of the Copyright Act . . . which provides that an infringement action may not be instituted until the subject work has been registered.” . . . When Defendants first filed their Answer and Counterclaims on February 15, 2019, Mr. Rusch had not yet registered the copyright with the United States Copyright Office. . . . . Plaintiffs contend that Defendants' late registration on March 1, 2019, and subsequent filing of an Amended Answer and Counterclaims on April 4, 2019, did not cure the deficiency. . . . Plaintiffs do not, however, cite any authority to support their argument. Thus, the Court will deny their motion on this issue. F. Counterclaim V: Contributory Copyright Infringement . . . Plaintiffs argue that Defendants fail to allege “who the third parties are who allegedly published the Royal Logo, what they published, when or where these third parties published the Royal Logo[,] or how [Plaintiffs] caused the third parties to infringe.” . . . The Court agrees. Defendants assert that “[e]ven where Plaintiffs did not directly copy the work, Plaintiffs had the opportunity to stop or limit the publication of the work. Plaintiffs knew, or should have known, that the work was being published to numerous third parties in furtherance of Plaintiffs' attempts to attract customers.” . . . Defendants make no attempt to identify who the third parties are or where they published. Instead, Defendants have simply made a threadbare recital of the elements of a contributory copyright infringement claim. Consequently, the Court will grant Plaintiffs' motion with respect to this issue. G. Counterclaim VI: Removal or Alteration of Copyright Management Information under 17 U.S.C. § 1202 . . . Plaintiffs argue that Defendants “have not alleged any facts regarding what the content of the copyright management information was or whether there was any copyright management information conveyed in connection with the works in the first place ....” . . . Mr. Rusch alleged, however, that Plaintiffs “copied and distributed ... Defendant's copyrighted work ... without including Defendant's name or other identifying information, the title or other identifying information of [the] copyrighted work, or even the fact that [the] work is copyrighted, therefore seemingly attempting to pass off the work as Plaintiff's [sic] own.” . . . The Court finds that this allegation is sufficient to assert this claim and will deny Plaintiffs' motion on this issue.

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Western District of Oklahoma

ADVANTA-STAR AUTOMOTIVE RESEARCH CORP. OF AM. V. REYNOLDS FORD, INC. No. CIV-19-912-G, 2020 WL 5823537 (W.D. Okla. Sep. 30, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Literary work - review Topics: Ownership - pleading requirements, Contributory infringement - direct infringement, Integrity of Copyright Management Information - conveyed, Integrity of Copyright Management Information - pleading requirements Now before the Court is the Motion to Dismiss (Doc. No. 10) filed through counsel by Defendant Reynolds Ford, Inc. . . . Identification of the Copyrights at Issue . . . The Court finds that Plaintiff's description of the copyrighted works, supplied in conjunction with the relevant copyright registration numbers, is sufficient to satisfy Plaintiff's pleading burden and withstand Defendant's Rule 12(b)(6) challenge. . . . Secondary Liability . . . In this case, direct infringement by a third party has not been plausibly pled. Plaintiff's sole relevant allegation—that Defendant may have “had made” infringing copies of the Content—is devoid of factual context. . . . Plaintiff does not identify the third party or parties or substantiate its allegation of third-party involvement with factual allegations relating specifically to the third-party's conduct. The Court cannot “draw [a] reasonable inference” of Defendant's liability for the derivative contributory copyright infringement when the predicate third-party direct infringement has not been adequately alleged. . . . Distribution of False CMI . . . Defendant argues that its copyright designation (“Copyright © 2019 FordDirect. All Rights Reserved.”), which is located at the bottom of the webpages submitted in Exhibit 1 of the Complaint, does not qualify as CMI under the statutory definition of that term. . . . Neither case presents the circumstances here, where the alleged copyrighted work is the text comprising the body of the webpages. The distinction is appreciable when considering the relative degrees of removal between footer and copyrighted work. . . . Defendant, therefore, has not shown that Plaintiff's claim for unlawful distribution of false CMI was inadequately pled. . . . Removal of CMI . . . Referencing its earlier argument, Defendant submits that “it cannot possibly be said that [Plaintiff] has plausibly alleged the existence of [CMI] on the infringed work, let alone knowing removal of the same” because Plaintiff failed to adequately identify those works. . . . The Court has rejected Defendant's underlying argument that Plaintiff failed to adequately identify the copyrights at issue. . . . Moreover, the Complaint contains multiple allegations of CMI removal.

District of Utah

MARTIN V. SGT, INC.

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No. 2:19-CV-00289, 2020 WL 1930109 (D. Utah Apr. 21, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Visual work - graphic work Topics: Preemption - breach of contract, Copyright registration - registration requirement, Contributory infringement - pleading requirements, Vicarious infringement - pleading requirements This action concerns a business relationship and license agreement between Plaintiff Christine Martin and Defendant SGT, Inc., formerly known as TGT, Inc. (TGT). In her Second Amended Complaint (SAC), Martin asserts causes of action against TGT for breach of contract, declaratory relief, and copyright infringement. In response, TGT filed a Motion to Dismiss arguing: (1) it is not subject to personal jurisdiction in this court; (2) this is an improper venue; and (3) the SAC fails to state a claim upon which relief can be granted. For the reasons explained below, TGT’s Motion is GRANTED IN PART and DENIED IN PART. . . . The court need not decide, however, whether Martin’s breach of contract claim implicates exclusive rights under the Copyright Act because the parties agree that at least one basis for the breach of contract claim does not involve any exclusive rights. As TGT acknowledges, Martin’s breach of contract claim is not preempted to the extent it claims TGT breached the License by violating the License’s prohibition against assignment. Thus, the parties agree that at least part of Martin’s breach of contract claim survives TGT’s preemption argument. And as this court has explained, “piecemeal dismissal of parts of claims is inappropriate at the [Rule 12(b)(6)] stage.” Therefore, because part of Martin’s breach of contract claim survives, the claim survives in its entirety. . . . Here, Martin’s original Complaint included no copyright claims. Thus, Martin’s original Complaint did not institute an action for copyright infringement. Rather, it instituted an action for breach of contract and a handful of common law torts. It was not until Martin filed the FAC that this became an action for copyright infringement. In this sense, Martin did not “institute” an action for copyright infringement until she filed the FAC. Indeed, the filing of the FAC marks the point at which this case evolved into a copyright infringement action. And by that point, Martin had obtained a registration for the ‘006 Copyright. Therefore, Section 411(a) does not bar Martin’s copyright claims. . . . The court concludes Martin has plausibly alleged facts sufficient to support her claim for contributory infringement. . . . Here, TGT’s actions closely mirror those of the dean of graduate studies in Diversey. That is, TGT provided the work embodied in Martin’s ‘006 Copyright to Lakeshirts with knowledge that Lakeshirts would reproduce that work. In doing so, TGT provided the work to Lakeshirts with knowledge that Lakeshirts would later infringe on the ‘006 Registration. As the Tenth Circuit held in Diversey, this is sufficient to establish a plausible claim for contributory infringement at this stage. . . . Martin includes in the SAC no allegations suggesting that TGT has any right to stop or limit Lakeshirts’s alleged infringing activity. For example, Martin does not allege that TGT owns or otherwise exercises control over Lakeshirts. At most, Martin alleges TGT could have prevented

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the infringement in the first instance by not conveying Martin’s artwork to Lakeshirts. But that is irrelevant to the question of vicarious infringement. Vicarious infringement requires that the vicarious infringer have the ability to supervise and control the infringing activity. Here, Martin fails to allege TGT has the ability to supervise and control Lakeshirts’s activity. Therefore, Martin’s vicarious infringement claim must be dismissed.

Eleventh Circuit

Court of Appeals for the Eleventh Circuit

WEBSTER V. DEAN GUITARS No. 19-10013, 2020 WL 1887783 (11th Cir. Apr. 16, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - graphic work Topics: Defenses - statute of limitations This case concerns the alleged copyright infringement of a lightning storm graphic that originally appeared on the guitar of Darrell Abbott, late guitarist of the heavy-metal band Pantera. The Appellant Buddy Webster, a successful guitar maker and technician, designed Abbott’s guitar in the mid-1980s and commissioned someone to paint the lightning storm graphic on it. Since 2004, guitar producer Dean Guitars (Dean) has produced and sold guitar models based on Abbott’s guitar and featuring the lightning storm graphic, without Webster’s consent and without paying him royalties for the use of the design. In 2017, after a decade of being displeased with Dean’s reproduction of Abbott’s guitar and the lightning storm graphic, Webster sued Dean and several others (collectively, Appellees) in federal district court, alleging, as relevant to this appeal, copyright infringement, unfair competition, and false endorsement. The district court granted summary judgment in favor of the Appellees on all claims. On appeal, Webster argues that the district court erred when it concluded that (1) his copyright infringement claim was actually a claim of copyright ownership and was time-barred; (2) his unfair competition claims failed because the statements underlying those claims were not false or misleading; and (3) his false endorsement claim failed because he did not present evidence of a likelihood of consumer confusion. After reviewing the record and the parties’ briefs, and with the benefit of oral argument, we affirm the district court. COMPULIFE SOFTWARE INC. V. NEWMAN No. 18-12004, 18-12007, 2020 WL 2549505 (11th Cir. May. 20, 2020) Outcome: Appeal - affirmed-in-part Works of Authorship: Literary work - Internet work Topics: Infringement - substantial similarity There’s nothing easy about this case. The facts are complicated, and the governing law is tangled. At its essence, it’s a case about high-tech corporate espionage. The very short story: Compulife Software, Inc., which has developed and markets a computerized mechanism for calculating, organizing, and comparing life-insurance quotes, alleges that one of its competitors

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lied and hacked its way into Compulife’s system and stole its proprietary data. The question for us is whether the defendants crossed any legal lines—and, in particular, whether they infringed Compulife’s copyright or misappropriated its trade secrets, engaged in false advertising, or violated an anti-hacking statute. With the parties’ consent, a magistrate judge was tasked with tackling these thorny issues in a bench trial. He determined that Compulife had failed to prove any legal violation. We conclude, however, that in finding that Compulife hadn’t demonstrated either copyright infringement or trade-secret misappropriation, the magistrate judge made several discrete legal errors and, more generally, failed to adequately explain his conclusions. Accordingly, we vacate the judgment in part and remand with instructions to make new findings of fact and conclusions of law. . . . We conclude that the magistrate judge (sitting as the district court) made several errors in the course of concluding that Compulife had failed to prove actionable—or legal—copying. Unpacking those errors will take some doing, but in short they are as follows. First, the magistrate judge improperly placed the burden on Compulife to prove, as part of the filtration analysis, that the elements the defendants copied were protectable; we hold that he should have required the defendants to prove that those elements were not protectable. Second, the judge seems to have evaluated the substantiality of the defendants’ copying vis-à-vis their allegedly infringing work; we hold that he should have judged the substantiality of the copied material vis-à-vis Compulife’s copyrighted work. Finally, even if the magistrate judge hadn’t based his decision on these legal errors, he failed to state on the record sufficient findings of fact and conclusions of law to permit meaningful appellate review. All of these missteps call for the same corrective: vacatur of the judgment with respect to copyright infringement. OFF LEASE ONLY, INC. V. LAKELAND MOTORS, LLC No. 20-10825, 2020 WL 5553301 (11th Cir. Sep. 17, 2020) Outcome: Appeal - affirmed Works of Authorship: Visual work - artwork Topics: Copyrightability - compilation, Infringement - substantial similarity Off Lease Only, Inc., appeals the summary judgment in favor of Lakeland Motors, LLC. Off Lease argues that the district court erred in determining that there was no genuine dispute of material fact with respect to its copyright infringement and trademark infringement claims against Lakeland. Upon consideration, we conclude that Off Lease's arguments lack merit. Accordingly, we affirm the district court's order. . . . First, Off Lease argues that the scope of its copyright extends beyond just the artwork described above and covers the phrases printed on them. But the only similarity between Off Lease's and Lakeland's billboards is that they both contain the phrase “Need a Used Car?” positioned somewhere above the business name and the phrase “Don't Pay More.” Therefore, to successfully prove copyright infringement, Off Lease would have to show that its copyright covers the compilation consisting of this arrangement. Yet Off Lease provides no support for this

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assertion. It provides no citations to the record showing that its copyright covers more than mere artwork—let alone a compilation of business-related phrases. Moreover, as Lakeland correctly notes and Off Lease apparently agrees, even if Off Lease's copyright did cover a compilation, that compilation would consist of the arrangement of all of the elements on its billboards. Those elements include not only business-related phrases, but also elements in the artwork. Thus, to prevail on its copyright infringement claim, Off Lease would have to show that Lakeland's billboards are substantially similar to its own billboards with respect to the arrangement of these phrases and artistic elements. But no reasonable jury could find that this substantial similarity exists. Lakeland's billboards lack all the artistic elements found on Off Lease's billboards, such as the outline, the car shape, and the elaborate color scheme. Second, Off Lease erroneously argues that the district court should have applied the two-part test for determining substantial similarity in the Ninth Circuit's decision in L.A. Printex Industries, Inc. v. Aeropostale, Inc. . . . . As we have explained elsewhere, the two-part test used in L.A. Printex is an anomaly in this Court that we have not referenced in a published opinion since 1999. But in any event, applying the two-part test to the instant case would not undermine the entry of summary judgment. . . . [A]s explained earlier, Off Lease has failed to show that Lakeland's billboards are substantially similar to the protectible elements of Off Lease's billboards. This failure remains regardless whether those protectible elements consist of only the billboards’ artwork or also their arrangement of artistic elements and business-related phrases. VALLEJO V. NARCOS PRODS. LLC No. 19-14894, 2020 WL 6281501 (11th Cir. Oct. 27, 2020) Outcome: Appeal - affirmed Works of Authorship: Literary work - book, Audiovisual work - series Topics: Infringement - substantial similarity, Scope of protection - fact In this copyright infringement case, Virginia Vallejo appeals the district court's grant of summary judgment in favor of Narcos Production LLC, Netflix, Inc., and Gaumont Television USA LLC. She contends that the district court erred when it concluded that two scenes from the television series Narcos, in episodes 103 and 104, were not substantially similar to two chapters in her memoir, Amando a Pablo, Odiando a Escobar (2013). Following review of the record and parties’ briefs, we affirm. . . . Ms. Vallejo has repeatedly admitted that the facts reported in her memoir are true. At her deposition, Ms. Vallejo testified that her foreplay with Mr. Escobar, while he was holding a gun, had taken place. She similarly acknowledged that the meeting between Mr. Ospina and Mr. Escobar, where they planned the attack on the Palace of Justice and where Mr. Escobar agreed to pay two million dollars, was also true. We therefore conclude that those facts, standing alone, do not enjoy copyright protection and could have been freely copied by the defendants in writing the Narcos series. . . .

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We conclude, therefore, that the plot, theme, dialogue, and tone of “That Palace in Flames” and the Narcos meeting scene in episode 104 are not substantially similar. We therefore agree with the district court that no reasonable jury could find that the two works are substantially similar.

Northern District of Alabama

TOLBERT V. DISCOVERY, INC. No. 4:18-CV-00680-KOB, 2020 WL 3269148 (N.D. Ala. Jun. 17, 2020) Outcome: Motion to dismiss - denied Works of Authorship: Audiovisual work - teaser Topics: Scope of protection - idea, Scope of protection - scenes a faire, Infringement - substantial similarity This case centers on allegations of copying copyrighted material. But as the case progressed, the issue of copying—or at least reiteration with slight alteration—started to become more than just a key substantive issue; it became a procedural theme as well. The case now comes before the court on Defendant Discovery, Inc.’s motion to dismiss Plaintiff Melanie Tolbert’s third amended complaint. . . . Discovery’s instant motion presents the court with the third motion to dismiss Ms. Tolbert’s complaint alleging copyright infringement as deficient, and the second motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court finds the second verse to be much the same as the first: as in its previous opinion denying dismissal for failure to state a claim, the court finds that Ms. Tolbert has made sufficient allegations to withstand dismissal at this stage of the proceedings. . . . Ms. Tolbert’s complaint alleges that she has a valid copyright for the teaser trailer for her mother-daughter renovation show and that Discovery copied both the idea for the show and specific elements of the teaser. As this court stated in its previous memorandum opinion denying dismissal, Ms. Tolbert’s complaint would not survive dismissal if it only tried to assert infringement of the subgenre of mother-daughter renovation shows. . . . But, as the court also previously noted, Ms. Tolbert has alleged that Discovery copied specific elements of the teaser and then used them in Good Bones. . . . Accordingly, Ms. Tolbert has not alleged copyright infringement only of an uncopyrightable general idea or concept, but, rather, the specific expression of that idea. . . . Thus, this court again rejects Discovery’s argument that Ms. Tolbert’s complaint attempts to claim copyright protection for only an unprotectable idea. . . . Further, Ms. Tolbert’s allegations at the pleading stage cover more than just scenes a faire for mother-daughter home renovation shows. Ms. Tolbert provided a list of 13 allegedly infringing similarities between her teaser and Good Bones. . . . While some of these similarities are, as Discovery argues, integral to the subgenre—for example, “the show is a mother-daughter team”—some of the alleged similarities do not “necessarily follow from” the common theme of mother-daughter renovation and do not present “[i]ncidents, characters, or settings that are indispensable or standard in the treatment of” mother-daughter renovation shows. . . . For example, Ms. Tolbert alleges specific visual similarities between her teaser and Good Bones, including the visual representation of the titles of the shows in paintbrush font and the visual image of the women sitting back-to-back in black t-shirts. . . . She includes screenshots from her teaser and Good Bones that allege similarities in wardrobe and blocking. . . . The specificity of

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these allegations, and the fact that they are not standard or indispensable for the genre, go beyond mere scenes a faire and show that Ms. Tolbert’s allegations do not contain only uncopyrightable material. Neither Discovery’s motion nor this court’s research show a published Eleventh Circuit opinion indicating that the Eleventh Circuit favors dismissal under Rule 12(b)(6) because of a lack of substantial similarity. Rather, the Eleventh Circuit has recognized that “non-infringement may be determined as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.” . . . But even if the Eleventh Circuit clearly favored dismissal at this stage, Discovery cannot show that Ms. Tolbert’s complaint should be dismissed as a matter of law for failing to allege substantial similarity.

Middle District of Florida

YELLOWPAGES PHOTOS, INC. V. YP, LLC No. 8:17-CV-764-T-36JSS, 2020 WL 3402359 (M.D. Fla. Jun. 19, 2020) Outcome: Motion for summary judgment - granted Works of Authorship: Visual work - photograph Topics: Defenses - license This matter comes before the Court upon Defendant Print Media LLC’s Supplemental Motion for Summary Judgment . . . . In the motion, Defendant argues that only ten of Plaintiff’s copyrighted images remain in dispute following the Court’s Order on Defendants YP LLC and Print Media LLC’s Motion for Summary Judgment . . . . Defendant contends that these images were encompassed by the License Agreement between L.M. Berry and Company and Plaintiff (“Berry License”), which authorizes use of an image in renewal, republication, and reprint of an advertisement. . . . Defendant further argues that all disputed advertisements containing Plaintiff’s copyrighted images were renewals, republications, or reprints of authorized advertisements and that, because of this, it is entitled to summary judgment on Plaintiff’s copyright infringement claim. . . . Plaintiff responds that a disputed issue of material fact exists as to whether the images were originally used in advertisements under the Berry License, and whether alterations to the advertisements prevent Defendant’s use from qualifying as renewals, republications, or reprints. . . . The Court, having considered the motion and being fully advised in the premises, will grant Defendant’s Supplemental Motion for Summary Judgment. UMG RECORDINGS, INC. V. BRIGHT HOUSE NETWORKS, LLC No. 8:19-CV-710-MSS-TGW, 2020 WL 3957675 (M.D. Fla. Jul. 8, 2020) Outcome: Motion to dismiss - granted Works of Authorship: Music - sound recording Topics: Vicarious infringement - pleading requirements, Vicarious infringement - financial benefit

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THIS CAUSE comes before the Court for consideration of Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint as to the Claim for Vicarious Liability . . . . Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS the Motion to Dismiss Plaintiffs’ First Amended Complaint as to the Claim for Vicarious Liability. . . . Plaintiffs claim that Bright House, an ISP, is vicariously liable for copyright infringement committed by its users, who are alleged to have unlawfully downloaded and shared thousands of Plaintiffs’ songs. . . . Bright House contends that this claim fails as a matter of law because Plaintiffs have not adequately pled the two elements of vicarious liability: Bright House’s right and ability to supervise the direct infringement, and its receipt of a direct financial benefit from the infringement. . . . The Court concludes that Plaintiffs have failed to adequately allege that Bright House receives a direct financial benefit from its users’ infringing activity. For this reason, the vicarious liability claim fails, and the Court need not consider whether Plaintiffs have sufficiently alleged that Bright House has the right and ability to control the infringing conduct. . . . Here, Plaintiffs have failed to allege that Bright House receives a direct financial benefit from its users’ infringement because there are no well-pled allegations that (i) the availability of infringing content (ii) “provide[s] the main customer ‘draw’ to the [service].”

Southern District of Florida

KOBI KARP ARCHITECTURE & INTERIOR DESIGN, INC. V. O'DONNELL DANNWOLF & PARTNERS ARCHITECTS, INC. No. 19-24588-CIV, 2020 WL 4287005 (S.D. Fla. Jul. 27, 2020) Outcome: Motion to dismiss - granted-in-part Works of Authorship: Architectural work - drawing Topics: Infringement - pleading requirements, Defenses - fair use, Defenses - license, Integrity of Copyright Management Information - definition of Copyright Management Information Now before the Court are the Defendants’ motions to dismiss. For the reasons set forth below, the Court grants in part and denies in part the Defendants’ motions . . . . i. Failure to state a claim . . . Here, Kobi Karp alleges that it owns the copyrights, and it attaches the copyright registration certificate for the two copyrights at issue. . . . It further alleges that “ODP submitted an application to the Miami-Dade County Historic Preservation Board seeking, on behalf of TSAI, a Special Certificate of Appropriateness for documentation, demolition, and reconstruction” for their development. . . . And, finally Kobi Karp alleges that the Defendants had access to Kobi Karp’s copyrights . . . and that the plans that the Defendants submitted were substantially similar to Kobi Karp’s plans . . . . Therefore, the Plaintiff successfully stated a claim. ii. Fair use . . . At this stage, the factors do not clearly weigh in favor of a finding of fair use. . . . From the face of the complaint, the Court cannot determine whether Kobi Karp’s drawings are derivative of another work or are unique and creative. . . . Here, the Court cannot determine from the face of the complaint, what changes the Defendants made to Kobi Karp’s drawings before their submission and what portions were copied verbatim. In sum, the Court cannot determine

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that the Defendants’ submission of the drawings to the HPB constitutes fair use at this stage of the litigation. iii. Nonexclusive license . . . [I]t is not apparent from the face of the complaint that The Surf Club paid Kobi Karp the compensation for work completed to date under the Agreement as required before obtaining the license. Indeed, the Second Amended Complaint states “[t]o date, [Kobi Karp’s] invoice remains unpaid, as a result of which [The Surf Club] and ODP are not licensed to use [Kobi Karp’s] works.” . . . Because the affirmative defense is not clear from the face of the complaint, this matter cannot be properly resolved at this stage of the litigation. B. Removal of Copyright Management Information . . . Because the Court must consider a statute’s plain meaning before it considers its legislative history . . . the Court declines to adopt the Ninth Circuit’s limitation of the DMCA to electronic commerce. Kobi Karp’s allegations are sufficient to state a claim. MAKEUP BLOWOUT SALE GRP., INC. V. ALL THAT GLOWZ, INC. No. 20-20906-CIV, 2020 WL 5535533 (S.D. Fla. Sep. 15, 2020) Outcome: Motion to dismiss - denied Topics: Limitations on liability relating to material online - misrepresentations Now before the Court is Counterclaim Defendants the Makeup Blowout Sale Group, Inc. and Eli Frenkel's motion to dismiss (ECF No. 38) the Counterclaim Plaintiffs’ claims for tortious interference and violation of the Digital Millennium Copyright Act (DMCA) . . . . For reasons stated herein, the Court denies the Counterclaim Defendants’ motion to dismiss in its entirety. . . . It is possible that the record may show, consistent with Johnson, that Mr. Frenkel, in reliance on the investigative efforts and opinions of law firm Cabilly & Co. appropriately issued take down notices on Beauty Creations’ behalf, but Counterclaim Defendants advance no arguments to that effect in their briefing. Rather, Counterclaim Plaintiffs’ allegations suggest that Mr. Frenkel issued takedown notices in bad faith in order to harm Counterclaim Plaintiffs’ business.

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II. COPYRIGHT-RELATED LEGISLATION

House

H. Res. 369: Expressing the sense of the House of Representatives supporting the federal workforce.

H. RES. 369: EXPRESSING THE SENSE OF THE HOUSE OF REPRESENTATIVES SUPPORTING THE FEDERAL WORKFORCE. 116th Congress (2019-2020) Topics: Legislation - federal workforce URL: https://www.congress.gov/bill/116th-congress/house-resolution/369 The Congressional Research Service authored the following summary of H. Res. 369:

This resolution expresses the sense of the House of Representatives that federal employees should be applauded for their work and that their salaries and benefits should not be uniquely targeted for deficit reduction.

H.R. 11: Commitment to American Growth Act

H.R. 11: COMMITMENT TO AMERICAN GROWTH ACT 116th Congress (2019-2020) Topics: Legislation - taxes URL: https://www.congress.gov/bill/116th-congress/house-bill/11 On October 9, 2020, H.R. 11 was introduced in the House by Rep. Kevin Brady [R-TX]. It was referred to the House Committee on ways and Means. It is intended to "amend the Internal Revenue Code of 1986 to encourage investment to renew, restore, and rebuild the American economy for our workers, families, and small businesses, maximize innovation through research and development, and secure America’s medical supplies." It provides, "For purposes of this section, the term 'intangible property' means any . . . copyright." It also provides, "If a controlled foreign corporation holds intangible property on the date of the enactment of this section and thereafter distributes such property to a domestic corporation which is a United States shareholder with respect to such controlled foreign corporation—“(1) for purposes of part I of subchapter C and any other provision of this title specified by the Secretary, the fair market value of such property on the date of such distribution shall be treated as not exceeding the adjusted basis of such property immediately before such distribution, and (2) if any portion of such distribution is not a dividend—(A) no gain shall be recognized by such United States shareholder with respect to such distribution, and (B) the adjusted basis of such property in the hands of such United States shareholder immediately after such distribution shall be the adjusted basis of such property in the hands of such controlled foreign corporation immediately before such distribution reduced by the amount (if any) of gain not recognized by reason of subparagraph (A) (determined after the application of paragraph (1))."

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H.R. 133: Consolidated Appropriations Act, 2021

H.R. 133: CONSOLIDATED APPROPRIATIONS ACT, 2021 116th Congress (2019-2020) Topics: Copyright Office - appropriation, Legislation - criminal, Legislation - small claims URL: https://www.congress.gov/bill/116th-congress/house-bill/133 On December 21, 2020, the House passed H.R. 133, and the Senate agreed. On December 27, 2020, H.R. 133 was signed by the President. H.R. 133 provides:

For all necessary expenses of the Copyright Office, $93,416,000, of which not more than $38,004,000, to remain available until expended, shall be derived from collections credited to this appropriation during fiscal year 2021 under sections 708(d) and 1316 of title 17, United States Code: Provided, That the Copyright Office may not obligate or expend any funds derived from collections under such section in excess of the amount authorized for obligation or expenditure in appropriations Acts: Provided further, That not more than $6,778,000 shall be derived from collections during fiscal year 2021 under sections 111(d)(2), 119(b)(3), 803(e), and 1005 of such title: Provided further, That the total amount available for obligation shall be reduced by the amount by which collections are less than $44,782,000: Provided further, That of the funds provided under this heading, not less than $17,100,000 is for modernization initiatives, of which $10,000,000 shall remain available until September 30, 2022: Provided further, That not more than $100,000 of the amount appropriated is available for the maintenance of an ``International Copyright Institute'' in the Copyright Office of the Library of Congress for the purpose of training nationals of developing countries in intellectual property laws and policies: Provided further, That not more than $6,500 may be expended, on the certification of the Librarian of Congress, in connection with official representation and reception expenses for activities of the International Copyright Institute and for copyright delegations, visitors, and seminars: Provided further, That, notwithstanding any provision of chapter 8 of title 17, United States Code, any amounts made available under this heading which are attributable to royalty fees and payments received by the Copyright Office pursuant to sections 111, 119, and chapter 10 of such title may be used for the costs incurred in the administration of the Copyright Royalty Judges program, with the exception of the costs of salaries and benefits for the Copyright Royalty Judges and staff under section 802(e).

It also amends 18 U.S.C. § 113 to add a provision concerning “Illicit digital transmission services.” And it adds a Chapter 15 to Title 17, creating a copyright small claims board.

H.R. 748: CARES Act

H.R. 748: CARES ACT 116th Congress (2019-2020)

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Topics: Copyright Office - COVID-19 pandemic URL: https://www.congress.gov/bill/116th-congress/house-bill/748 On March 27, 2020, H.R. 748 was signed by the President. It creates a new Section 710 to the Copyright Act, which provides:

(a) Emergency action.—If, on or before December 31, 2021, the Register of Copyrights determines that a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) generally disrupts or suspends the ordinary functioning of the copyright system under this title, or any component thereof, including on a regional basis, the Register may, on a temporary basis, toll, waive, adjust, or modify any timing provision (including any deadline or effective period, except as provided in subsection (c)) or procedural provision contained in this title or chapters II or III of title 37, Code of Federal Regulations, for no longer than the Register reasonably determines to be appropriate to mitigate the impact of the disruption caused by the national emergency. In taking such action, the Register shall consider the scope and severity of the particular national emergency, and its specific effect with respect to the particular provision, and shall tailor any remedy accordingly. (b) Notice and effect.—Any action taken by the Register in response to a national emergency pursuant to subsection (a) shall not be subject to section 701(e) or subchapter II of chapter 5 of title 5, United States Code, and chapter 7 of title 5, United States Code. The provision of general public notice detailing the action being taken by the Register in response to the national emergency under subsection (a) is sufficient to effectuate such action. The Register may make such action effective both prospectively and retroactively in relation to a particular provision as the Register determines to be appropriate based on the timing, scope, and nature of the public emergency, but any action by the Register may only be retroactive with respect to a deadline that has not already passed before the declaration described in subsection (a). (c) Statement required.—Except as provided in subsection (d), not later than 20 days after taking any action that results in a provision being modified for a cumulative total of longer than 120 days, the Register shall submit to Congress a statement detailing the action taken, the relevant background, and rationale for the action. (d) Exceptions.—The authority of the Register to act under subsection (a) does not extend provisions under this title requiring the commencement of an action or proceeding in Federal court within a specified period of time, except that if the Register adjusts the license availability date defined in section 115(e)(15), such adjustment shall not affect the ability to commence actions for any claim of infringement of exclusive rights provided by paragraphs (1) and (3) of section 106 against a digital music provider arising from the unauthorized reproduction or distribution of a musical work by such digital music provider in the course of engaging in covered activities that accrued after January 1, 2018, provided that such action is commenced within the time periods prescribed under section 115(d)(10)(C)(i) or 115(d)(10)(C)(ii) as calculated from the adjusted license availability date. If the Register adjusts the license availability date, the Register must provide the statement to Congress

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under subsection (c) at the same time as the public notice of such adjustment with a detailed explanation of why such adjustment is needed. (e) Copyright term exception.—The authority of the Register to act under subsection (a) does not extend to provisions under chapter 3, except section 304(c), or section 1401(a)(2). (f) Other laws.—Notwithstanding section 301 of the National Emergencies Act (50 U.S.C. 1631), the authority of the Register under subsection (a) is not contingent on a specification made by the President under such section or any other requirement under that Act (other than the emergency declaration under section 201(a) of such Act (50 U.S.C. 1621(a))). The authority described in this section supersedes the authority of title II of the National Emergencies Act (50 U.S.C. 1621 et seq.).

H.R. 1006: Open Internet Act of 2019

H.R. 1006: OPEN INTERNET ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - telecommunications URL: https://www.congress.gov/bill/116th-congress/house-bill/1006/ The Congressional Research Service authored the following summary of H.R. 1006:

This bill prohibits a provider of broadband internet access service from taking certain actions to restrict content and requires the Federal Communications Commission to enforce such obligations. Specifically, the bill bars a broadband internet provider from (1) blocking lawful content, applications, or services; (2) prohibiting the use of non-harmful devices; and (3) discriminating in transmitting lawful internet traffic. Additionally, a provider is required to disclose accurate and relevant information regarding price, performance, and network management practices sufficient for consumers to make informed choices and for providers of content, applications, services, and devices to develop and market new internet offerings.

H.R. 1096: Promoting Internet Freedom and Innovation Act of 2019

H.R. 1096: PROMOTING INTERNET FREEDOM AND INNOVATION ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - telecommunications URL: https://www.congress.gov/bill/116th-congress/house-bill/1096/ The Congressional Research Service authored the following summary of H.R. 1096:

This bill establishes transparency requirements for a provider of broadband internet service and prohibits a provider from taking certain actions to restrict content.

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Specifically, the bill requires a broadband internet provider to disclose accurate management practices, performance information, and commercial terms sufficient for consumers to make informed choices and for entrepreneurs and small businesses to develop, market, and maintain new internet offerings. Additionally a provider is barred from (1) blocking lawful content, applications, or services; (2) prohibiting the use of non-harmful devices; (3) throttling lawful internet traffic; or (4) engaging in paid prioritization.

H.R. 1101: To amend the Communications Act of 1934 to . . .

H.R. 1101: TO AMEND THE COMMUNICATIONS ACT OF 1934 TO . . . 116th Congress (2019-2020) Topics: Legislation: telecommunications URL: https://www.congress.gov/bill/116th-congress/house-bill/1101/ The Congressional Research Service authored the following summary of H.R. 1101:

This bill prohibits a provider of broadband internet access service from taking certain actions to restrict content and requires the Federal Communications Commission (FCC) to enforce such obligations. Specifically, the bill bars a broadband internet provider from (1) blocking lawful content, applications, or services; (2) prohibiting the use of non-harmful devices; (3) throttling lawful internet traffic; and (4) engaging in paid prioritization. Additionally, a provider is required to disclose accurate and relevant management practices, performance information, and commercial terms sufficient for consumers to make informed choices and for providers of content, applications, services, and devices to develop and market new internet offerings. Additionally, the bill prohibits the FCC or a state commission from relying on their duty to encourage the deployment of advanced telecommunications capability as a grant of authority.

H.R. 1709: Scientific Integrity Act

H.R. 1709: SCIENTIFIC INTEGRITY ACT 116th Congress (2019-2020) Topics: Legislation - scientific integrity URL: https://www.congress.gov/bill/116th-congress/house-bill/1709/ On May 6, 2020, the Congressional Research Service released the following summary of H.R. 1709:

This bill revises provisions regarding the release of scientific research results by federal agencies. The bill prohibits specified federal employees and contractors of an agency that funds, conducts, or oversees scientific research from engaging in scientific or research misconduct or manipulating communication of scientific or technical findings.

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A covered individual may disseminate scientific or technical findings by (1) participating in scientific conferences; and (2) seeking publication through peer-reviewed, professional, or scholarly journals. The bill specifies the kinds of scientific community activities covered individuals may participate and engage in, including the reviewing of public statements and responding to media interview requests. Each covered agency must

• develop, adopt, and enforce a scientific integrity policy and also must submit it to the Office of Science and Technology Policy (OSTP) and Congress;

• appoint a Scientific Integrity Officer; and

• adopt and implement an administrative process and administrative appeal for dispute resolution and a training program that, among other things, provides regular scientific integrity and ethics training to employees and contractors.

OSTP must collate, organize, and publicly share all information it receives under each scientific integrity policy on its website.

H.R. 2136: Open Internet Preservation Act

H.R. 2136: OPEN INTERNET PRESERVATION ACT 116th Congress (2019-2020) Topics: Legislation - telecommunications URL: https://www.congress.gov/bill/116th-congress/house-bill/2136 The Congressional Research Service authored the following summary of H.R. 2136:

This bill prohibits broadband internet access service providers from (1) blocking lawful content, applications, services, or non-harmful devices; or (2) throttling lawful internet traffic on the basis of internet content, application, or service, or use of a non-harmful device. Providers may offer specialized services, which operate over the same network and share network capacity with the broadband internet access service, so long as such service offerings do not threaten the availability of broadband internet access service or evade the purposes of the bill.

H.R. 2500: National Defense Authorization Act for Fiascal Year 2020

H.R. 2500: NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2020 116th Congress (2019-2020) Topics: Copyrightability - United States Government work

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URL: https://www.congress.gov/bill/116th-congress/house-bill/2500/ On May 2, 2019, H.R. 2500 was introduced in the House by Rep. Adam Smith [D-WA], and cosponsored by Rep. Mac Thornberry [R-TX]. It was referred to the House Committee on Armed Services. H.R. 2500 is intended to "authorize appropriations for fiscal year 2020 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes." It provides, " Subject to subsection (b), for purposes of sections 101 and 105 of title 17, a work produced by a civilian member of the faculty of a covered institution is only a work of the United States Government if the work is created in direct support of a lecture, instruction, curriculum development, or special duty assigned to such civilian member at the covered institution." On August 11, 2020, H.R. 2500 was placed on the Senate Legislative Calendar under General Orders (Calendar No. 512).

H.R. 3002: A bill to provide for the carriage of certain television broadcast stations, and for other purposes.

H.R. 3002: A BILL TO PROVIDE FOR THE CARRIAGE OF CERTAIN TELEVISION BROADCAST STATIONS, AND FOR OTHER PURPOSES. 116th Congress (2019-2020) Topics: Legislation - telecommunications URL: https://www.congress.gov/bill/116th-congress/house-bill/3002 On April 20, 2020, the Congressional Research Service released the following summary of H.R. 3002:

This bill authorizes a cable operator to transmit any television broadcast station that (1) is not currently retransmitted to all subscribers in Berkshire County, Massachusetts (located within the designated market area of Albany, New York), and (2) was retransmitted to such subscribers on December 1, 2016.

H.R. 4083: FINISH Act

H.R. 4083: FINISH ACT 116th Congress (2019-2020) Topics: Legislation - education URL: https://www.congress.gov/bill/116th-congress/house-bill/4083 On March 25, 2020, the Congressional Research Service authored the following summary of H.R. 4083:

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This bill establishes and revises programs to increase access to higher education for high-need students, increase their graduation rates, improve the efficiency of postsecondary education, and evaluate higher education programs. Specifically, the bill authorizes the Department of Education to

• award grants to institutions of higher education (IHEs) and other entities to develop and implement evidence-based innovations, including pay-for-success initiatives, in order to improve postsecondary access and increase graduation rates of high-need students;

• approve up to five pay-for-success pilot initiatives each fiscal year to allow IHEs and private entities to use grants for improvement of student outcomes; and

• independently evaluate the effectiveness and efficiency of all higher education grant programs.

The bill also encourages IHEs to make all forms of postsecondary instructional content, including open educational resources (e.g., textbooks), widely available. Open educational resources either reside in the public domain or have been released under a copyright license that permits their free use, reuse, modification, and sharing with others.

H.R. 4414: Electronic Books Opening Opportunity for Knowledge Act of 2019

H.R. 4414: ELECTRONIC BOOKS OPENING OPPORTUNITY FOR KNOWLEDGE ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - education URL: https://www.congress.gov/bill/116th-congress/house-bill/4414/ On June 3, 2020, the Congressional Research Service released the following summary of H.R. 4414:

This bill authorizes the Department of Education to award grants to up to 10 institutions of higher education for pilot programs that reduce the cost of attendance for undergraduate students by expanding student access to digital course materials. A preference is given to applications that demonstrate a commitment to serving disadvantaged students. Grant recipients must make digital course materials available to undergraduate students in at least two different academic departments.

H.R. 4447: Clean Economy Jobs and Innovation Act

H.R. 4447: EXPANDING ACCESS TO SUSTAINABLE ENERGY ACT OF 2019

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116th Congress (2019-2020) Topics: URL: https://www.congress.gov/bill/116th-congress/house-bill/4447 On September 20, 2019, H.R. 4447 was introduced in the House by Rep. Tom O'Halleran [D-AZ], and cosponsored by Reps. Markwayne Mullin [R-OK], Conor Lamb [D-PA], and Ralph Norman [R-SC]. it was referred to the House Committee on Energy and Commerce; and Committee on Science, Space, and Technology. H.R. 4447 is intended to "establish an energy storage and microgrid grant and technical assistance program." It provides, "Nothing in this subtitle shall affect the application of United States copyright law." The Congressional Research Service released the following summary of H.R. 4447:

This bill requires the Department of Energy to award grants to assist rural electric cooperatives with identifying, evaluating, designing, and demonstrating energy storage and microgrid projects that utilize energy from renewable energy sources. A microgrid is a group of interconnected loads and distributed energy resources that acts as a single controllable entity and that can connect and disconnect from the electric grid to operate in grid-connected or island mode.

On September 9, 2020, the House Committee on Energy and Commerce considered H.R. 4447 and held a mark-up session. The bill was ordered to be reported (amended) by a voice vote. On September 15, 2020, H.R. 4447 was reported (amended) by the House Committee on Energy and Commerce. The House Report is available at https://www.congress.gov/congressional-report/116th-congress/house-report/504. It was placed on the Union Calendar (Calendar No. 404). On September 24, 2020, H.R. 4447 was passed by the yeas and nays (220-185). On October 19, 2020, H.R. 4447 was received in the Senate and referred to the Senate Committee on Energy and Natural Resources.

H.R. 4476: Financial Transparency Act of 2019

H.R. 4476: FINANCIAL TRANSPARENCY ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - securities URL: https://www.congress.gov/bill/116th-congress/house-bill/4476/ On March 26, 2020, the Congressional Research Service authored the following summary of H.R. 4476:

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This bill requires federal financial regulatory agencies to adopt specified data standards with respect to format, searchability, and transparency.

H.R. 4674: College Affordability Act

H.R. 4674: COLLEGE AFFORDABILITY ACT 116th Congress (2019-2020) Topics: Legislation - education URL: https://www.congress.gov/bill/116th-congress/house-bill/4674 On June 2, 2020, the Congressional Research Service released the following summary of H.R. 4674:

This bill reauthorizes and revises the Higher Education Act of 1965, including to

• revise federal student financial aid programs,

• consolidate federal student loans and expand loan forgiveness,

• increase college access and success for certain students, and

• revise accountability measures.

Specifically, the bill revises financial aid programs, including to (1) increase the maximum federal Pell Grant award, (2) provide incentives for states to fund public institutions of higher education (IHEs), and (3) increase and make permanent funding for minority-serving IHEs. The bill also revises federal student loan programs, including to (1) replace existing student loan repayment plans with one income-based repayment plan and one fixed repayment plan, (2) allow existing borrowers to lower their payments by switching to the new plans, and (3) expand public service loan forgiveness programs (e.g., TEACH grants) and create appeal processes for denied applications. In addition, the bill increases college access and success for certain students (e.g., students with low-income, children, or the disabled) through investments and practices, such as student support services and accelerated learning opportunities. Finally, the bill revises accountability measures for IHEs (including for-profit IHEs), job training programs, college accrediting agencies, and lenders. In particular, the bill updates the performance goals of the Office of Federal Student Aid and requires the Department of Education to be responsible for the oversight of the office.

On December 28, 2020, H.R. 4674 was reported by the Committee on Education and Labor. It was placed on the Union Calendar (Calendar No. 583).

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H.R. 4997: Artistic Recognition for Talented Students Act

H.R. 4997: ARTISTIC RECOGNITION FOR TALENTED STUDENTS ACT 116th Congress (2019-2020) Topics: Copyright Office - fees, Legislation - education URL: https://www.congress.gov/bill/116th-congress/house-bill/4997 On October 19, 2020, the Congressional Research Service authored the following summary of H.R. 4997:

This bill directs the Copyright Office to waive various copyright registration-related fees for works that win certain competitions sponsored by the Congressional Institute or established by Congress. To qualify for the fee waiver, the copyright registration application must be filed within a specified time frame, but the Copyright Office may waive fees for a qualifying work even if the application is filed outside the time frame.

H.R. 5140: Satellite Television Community Protection and Promotion Act of 2019

H.R. 5140: SATELLITE TELEVISION COMMUNITY PROTECTION AND PROMOTION ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - telecommunications URL: https://www.congress.gov/bill/116th-congress/house-bill/5140 On October 28, 2020, the Congressional Research Service released the following summary of H.R. 5140:

This bill permanently reauthorizes a provision that allows satellite television providers to retransmit distant television signals to unserved households under a statutory license. (A statutory license allows a satellite provider to rebroadcast the signals by paying set fees and without negotiating with the relevant copyright holders.) The bill also limits what constitutes an unserved household under this provision. Under the bill, an unserved household is (1) a household in a local market where any of the four most widely viewed television networks nationwide is not transmitted by any network television station in that market, or (2) a recreational vehicle or commercial truck. The bill removes several categories of households that currently qualify as unserved, such as households that can receive a local broadcast signal but received satellite retransmissions on certain dates. To take advantage of the statutory license, a satellite provider generally must provide retransmissions of local television stations in all designated market areas (DMAs). However, a provider that does not provide such retransmissions of local stations to all DMAs may obtain a temporary statutory license by (1) demonstrating that the provider has made reasonable and good faith efforts to do so, and (2) filing a notice with the Copyright Office.

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H.R. 5219: Ask Musicians for Music Act of 2019

H.R. 5219: ASK MUSICIANS FOR MUSIC ACT OF 2019 116th Congress (2019-2020) Topics: Music - sound recording URL: https://www.congress.gov/bill/116th-congress/house-bill/5219 On October 19, 2020, the Congressional Research Service authored the following summary of H.R. 5219:

This bill establishes that the copyright owner of a sound recording has the exclusive right to perform the recording through an audio transmission. Currently, the copyright owner's performance right generally only covers digital audio transmission, which excludes certain terrestrial radio stations. A radio station must obtain express permission from the copyright owner of the sound recording before making such a transmission, unless the transmission consists of a religious assembly or incidental use of the recording. A radio station with revenues of less than $1 million per year shall be deemed to have obtained permission by paying $500 per year to the copyright owner. A public broadcast entity or individual terrestrial broadcast station shall pay no more than $100 per year to obtain permission from the copyright owner.

H.R. 5430: United States-Mexico-Canada Agreement Implementation Act

H.R. 5430: UNITED STATES-MEXICO-CANADA AGREEMENT IMPLEMENTATION ACT 116th Congress (2019-2020) Topics: Legislation - trade URL: https://www.congress.gov/bill/116th-congress/house-bill/5430/ On January 3, 2020, H.R. 5430 was received in the Senate, and referred to the Senate Committees on Finance; Health, Education, Labor, and Pensions; Environment and Public Works; Appropriations; Foreign Relations; Commerce, Science, and Transportation; and Budget. On January 7, 2020, the Senate Committee on Finance ordered H.R. 5430 to be reported without amendment favorably. On January 14, 2020, the House Committee on Environment and Public Works and Committee on the Budget ordered H.R. 5430 to be reported without amendment favorably. On January 15, 2020, the House Committee on Foreign Relations; Committee on Commerce, Science, and Transportation; Committee on Health, Education, Labor, and Pensions; Committee on Appropriations ordered H.R. 5430 to be reported without amendment favorably. H.R. 5430 also was jointly reported to the Senate by Sen. Grassley without amendment and without a

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written report, and placed on the Senate Legislative Calendar under General Orders (Calendar No. 406). On January 16, 2020 H.R. 5430 was considered by the Senate. See https://www.congress.gov/congressional-record/2020/01/16/senate-section/article/S256-4. A motion to waive all applicable budgetary discipline with respect to the measure was agreed to in the Senate by Yea-Nay Vote (78-21). See https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=116&session=2&vote=00013. H.R. 5430 passed the Senate without amendment by Yea-Nay vote (89-10). A message on Senate action was sent to the House. On January 22, 2020, H.R. 5430 was presented to the President. On January 29, 2020, H.R. 5430 was signed by the President. It became Public Law No. 116-113. On October 7, 2020, the Congressional Research Service released the following summary of H.R. 5430:

This bill provides statutory authority for the trade agreement between the United States, Mexico, and Canada (USMCA), which replaces the North American Free Trade Agreement. Specifically, the bill implements provisions that include labor and environment monitoring and enforcement, de minimis levels for U.S. exports, and cooperation among treaty members to prevent duty evasion.

H.R. 5685: Securing American Leadership in Science and Technology Act of 2020

H.R. 5685: SECURING AMERICAN LEADERSHIP IN SCIENCE AND TECHNOLOGY ACT OF 2020 116th Congress (2019-2020) Topics: Legislation - technology transfer URL: https://www.congress.gov/bill/116th-congress/house-bill/5685 On January 28, 2020, H.R. 5685 was introduced in the House by Rep. Frank D. Lucas [R-OK], and cosponsored by 11 representatives. It was referred to the House Committee on Science Space, and Technology; Committee on the Judiciary; Committee on Small Business; Committee on Natural Resources; and Committee on Foreign Affairs. H.R. 5685 is intended to "invest in basic scientific research and support technology innovation for the economic and national security of the United States, and for other purposes." It would amend 17 U.S.C. 105:

(1) by striking “Copyright protection” and inserting “(a) Copyright protection”; and (2) by adding at the end the following:

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“(b) Notwithstanding subsection (a), copyright protection under this title is available for—

“(1) a computer program that is a work of the United States Government and is created at a Federal laboratory, as defined in section 4 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3703), and which is a result of research, development, or engineering at the Federal laboratory, provided that the United States Government makes application for copyright registration under section 409 pursuant to the authority granted under section 11(k) of such Act within 6 months from employee disclosure of the work to the Federal laboratory, and provided further that a certificate of registration is issued pursuant to section 410 of this title or following judicial review pursuant to chapter 7 of title 5; and “(2) standard reference data prepared or made available by the Department of Commerce, provided the copyright is secured by the Secretary of Commerce in the manner set forth in section 6 of the Standard Reference Data Act (15 U.S.C. 290e).”.

H.R. 6017: Twenty-First Century Courts Act

H.R. 6017: TWENTY-FIRST CENTURY COURTS ACT 116th Congress (2019-2020) Topics: Copyrightability - United States Government work URL: https://www.congress.gov/bill/116th-congress/house-bill/6017 On February 28, 2020, H.R. 6017 was introduced in the House by Rep. Henry C. Johnson [D-GA], and cosponsored by Reps. Mike Quigley [D-IL] and Jerrold Nadler [D-NY]. It was referred to the House Committee on the Judiciary. It is intended to "amend title 28, United States Code, to provide for the establishment of a code of conduct for the justices of the Supreme Court, and for other purposes." It provides that audio recordings of "each hearing of a court of appeals" and "[e]ach oral argument and opinion reading before the Supreme Court . . . shall be considered a work of the United States Government."

H.R. 7181: Holding China Accountable Act

H.R. 7181: HOLDING CHINA ACCOUNTABLE ACT 116th Congress (2019-2020) Topics: Legislation - trade URL: https://www.congress.gov/bill/116th-congress/house-bill/7181 On June 11, 2020, H.R. 7181 was introduced in the House by Rep. Devin Nunes [R-CA], and cosponsored by 22 representatives. It was referred to the House Committee on Financial Services, Committee of the Judiciary, Committee on Education, and Committee on Labor.

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H.R. 7181 is intended to "amend the Sarbanes-Oxley Act of 2002 to require the Public Company Accounting Oversight Board to maintain a list of certain foreign issuers, to prohibit certain nationals of the People’s Republic of China from receiving nonimmigrant visas, and for other purposes." It provides, the term "cyber espionage" means "unauthorized access to a communications network, a communications system, or a device connected to such a network or system that . . . is carried out by a foreign government or any individual or entity working on behalf of a foreign government; and . . . is for the purpose of . . . collecting information related to a copyrighted or copyrightable work." It also provides that the term "espionage" means "unauthorized access to or collection of information related to a copyrighted or copyrightable work."

H.R. 7611: Legislative Branch Appropriations Act, 2021

H.R. 7611: LEGISLATIVE BRANCH APPROPRIATIONS ACT, 2021 116th Congress (2019-2020) Topics: Copyright Office - appropriation URL: https://www.congress.gov/bill/116th-congress/house-bill/7611 On July 14, 2020, H.R. 7611 was introduced in the House by Rep. Tim Ryan [D-OH]. It was reported by the House Committee on Appropriations as an original measure. The House Report is available at https://www.congress.gov/congressional-report/116th-congress/house-report/447. H.R. 7611 was then placed on the Union Calendar (Calendar No. 359). H.R. 7611 is intended for "Making appropriations for the Legislative Branch for the fiscal year ending September 30, 2021, and for other purposes." It provides:

For all necessary expenses of the Copyright Office, $91,409,000, of which not more than $38,004,000, to remain available until expended, shall be derived from collections credited to this appropriation during fiscal year 2021 under sections 708(d) and 1316 of title 17, United States Code: Provided, That the Copyright Office may not obligate or expend any funds derived from collections under such section in excess of the amount authorized for obligation or expenditure in appropriations Acts: Provided further, That not more than $6,778,000 shall be derived from collections during fiscal year 2021 under sections 111(d)(2), 119(b)(3), 803(e), and 1005 of such title: Provided further, That the total amount available for obligation shall be reduced by the amount by which collections are less than $44,782,000: Provided further, That of the funds provided under this heading, not less than $17,100,000 is for modernization initiatives, of which $10,000,000 shall remain available until September 30, 2022: Provided further, That not more than $100,000 of the amount appropriated is available for the maintenance of an “International Copyright Institute” in the Copyright Office of the Library of Congress for the purpose of training nationals of developing countries in intellectual property laws and policies: Provided further, That not more than $6,500 may be expended, on the certification of the Librarian of Congress, in connection with official representation and reception expenses for activities of the International Copyright Institute and for copyright delegations, visitors, and seminars: Provided further, That, notwithstanding any provision of chapter 8 of title 17, United States Code, any amounts made available under this heading which are attributable to royalty fees and payments

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received by the Copyright Office pursuant to sections 111, 119, and chapter 10 of such title may be used for the costs incurred in the administration of the Copyright Royalty Judges program, with the exception of the costs of salaries and benefits for the Copyright Royalty Judges and staff under section 802(e).

H.R. 7956: Critical Medical Infrastructure Right-to-Repair Act of 2020

H.R. 7956: CRITICAL MEDICAL INFRASTRUCTURE RIGHT-TO-REPAIR ACT OF 2020 116th Congress (2019-2020) Topics: Defenses - repair and maintenance, Circumvention of copyright protection systems - exception URL: https://www.congress.gov/bill/116th-congress/house-bill/7956 On August 7, 2020, H.R. 7956 was introduced in the House by Rep. Yvette Clarke [D-NY], and cosponsored by Rep. Jerry McNerney [D-CA]. It was referred to the House Committee on the Judiciary, and House Committee on Energy and Commerce. H.R. 7956 is intended to "amend title 17, United States Code, to address circumvention of copyright protection systems with respect to the maintenance or repair of critical medical infrastructure, and for other purposes." It provides:

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a covered service provider to make, or to authorize the making of, a separate copy of service materials with respect to the covered service provider, if—(1) making that separate copy is incidental to the repair or maintenance of critical medical infrastructure; and (2) the repair or maintenance described in paragraph (1) is part of a response to the covered emergency.

It also provides:

Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a covered healthcare provider to circumvent a technological measure that effectively controls access to a work protected under this title, if—(A) the purpose of the act of circumvention is to repair or maintain critical medical infrastructure with respect to that covered health-care provider; and (B) the repair or maintenance described in subparagraph (A) is part of preparation for, or a response to, the covered emergency.

And it provides:

Notwithstanding the provisions of subsections (a)(2) and (b), it is not a violation of either such provision for a covered healthcare provider to manufacture, import, offer to the public, provide, or otherwise traffic in technological means to circumvent a technological measure that effectively controls access to a work protected under this title, or to circumvent protection afforded by a technological measure that effectively controls access to a work protected under this title, if that action by that covered healthcare provider enables a repair or maintenance permitted under paragraph (2).

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On October 28, 2020, the Congressional Research Service released the following summary of H.R. 7956:

This bill removes certain intellectual property-related restrictions on repairing or maintaining critical medical infrastructure (i.e., a device or product used to provide medical services). During the declared COVID-19 (i.e., coronavirus disease 2019) emergency, it shall not be copyright infringement for an owner or licensee of service materials (such as manuals or computer diagnostic software) to copy such materials if (1) the copying is incidental to the repair or maintenance of critical medical infrastructure, and (2) such repair or maintenance is in response to the emergency. Similarly, during the emergency, the prohibition against circumventing technology to control access to a work (or trafficking in circumvention tools) shall not apply to an owner or licensee of critical medical infrastructure if the circumvention is done to repair or maintain critical medical infrastructure in response to the emergency. During the emergency, it shall also not be design patent infringement if the owner or licensee of critical medical infrastructure fabricates a patented part on a noncommercial basis in order to repair or maintain the infrastructure in response to the emergency. The bill also nullifies any contract provision that restricts the ability of the owner or licensee of critical medical infrastructure to repair or maintain such infrastructure in response to the emergency. The manufacturer of critical medical infrastructure shall (1) offer for sale on reasonable terms any tool or information for servicing or repairing such infrastructure, and (2) provide information for making such tools to aftermarket tool manufacturers. The Federal Trade Commission shall have the authority to enforce these requirements.

H.R. 8037: Advancing America’s Interests Act

H.R. 8037: ADVANCING AMERICA'S INTERESTS ACT 116th Congress (2019-2020) Topics: Legislation - trade URL: https://www.congress.gov/bill/116th-congress/house-bill/8037/ On August 14, 2020, H.R. 8037 was introduced in the House by Rep. Suzan K. DelBene [D-WA], and cosponsored by Rep. David Schweikert [R-AZ]. It was referred to the House Committee on Ways and Means. H.R. 8037 is intended to "amend section 337 of the Tariff Act of 1930 with respect to requirements for domestic industries, and for other purposes."

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Senate

S. 775: Scientific Integrity Act

S. 775: SCIENTIFIC INTEGRITY ACT 116th Congress (2019-2020) Topics: Legislation - scientific integrity URL: https://www.congress.gov/bill/116th-congress/senate-bill/775/ On May 7, 2020, the Congressional Research Service released the following summary of S. 775:

This bill revises provisions regarding the release of scientific research results by federal agencies. The bill prohibits specified federal employees and contractors of an agency that funds, conducts, or oversees scientific research from engaging in scientific or research misconduct or manipulating communication of scientific or technical findings. A covered individual may disseminate scientific or technical findings by (1) participating in scientific conferences; and (2) seeking publication through peer-reviewed, professional, or scholarly journals. The bill specifies the kinds of scientific community activities covered individuals may participate and engage in, including the reviewing of public statements and responding to media interview requests. Each covered agency must

• develop, adopt, and enforce a scientific integrity policy and also must submit it to the Office of Science and Technology Policy (OSTP) and Congress;

• appoint a Scientific Integrity Officer; and

• adopt and implement an administrative process and administrative appeal for dispute resolution and a training program that, among other things, provides regular scientific integrity and ethics training to employees and contractors.

OSTP must collate, organize, and publicly share all information it receives under each scientific integrity policy on its website.

S. 847: Commercial Facial Recognition Privacy Act of 2019

S. 847: COMMERCIAL FACIAL RECOGNITION PRIVACY ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - privacy URL: https://www.congress.gov/bill/116th-congress/senate-bill/847/

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On August 11, 2020, the Congressional Research Service released the following summary of S. 847:

This bill prohibits entities from collecting, processing, storing, or controlling facial recognition data unless such entities (1) provide documentation that explains the capabilities and limitations of facial-recognition technology, and (2) obtain explicit affirmative consent from end users to use such technology after providing notice about the reasonably foreseeable uses of the collected facial-recognition data. Facial-recognition data includes attributes or features of the face that permit facial-recognition technology to uniquely and consistently identify a specific individual. Controllers of facial recognition data also are prohibited from (1) using such data to discriminate against end users, (2) using such data for a purpose that is not reasonably foreseeable to the end user, (3) sharing such data with a third party without the additional affirmative consent of the end user, or (4) conditioning the use of a product on an end user providing affirmative consent.

S. 1059: Fund for Innovation and Success in Higher Education Act

S. 1059: FUND FOR INNOVATION AND SUCCESS IN HIGHER EDUCATION ACT 116th Congress (2019-2020) Topics: Legislation - education URL: https://www.congress.gov/bill/116th-congress/senate-bill/1059/ On March 24, 2020, the Congressional Research Service authored the following summary of S. 1059:

This bill establishes and revises programs to increase access to higher education for high-need students, increase their graduation rates, improve the efficiency of postsecondary education, and evaluate higher education programs. Specifically, the bill authorizes the Department of Education to

• award grants to institutions of higher education (IHEs) and other entities to develop and implement evidence-based innovations, including pay-for-success initiatives, in order to improve postsecondary access and increase graduation rates of high-need students;

• approve up to five pay-for-success pilot initiatives each fiscal year to allow IHEs and private entities to use grants for improvement of student outcomes; and

• independently evaluate the effectiveness and efficiency of all higher education grant programs.

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The bill also encourages IHEs to make all forms of postsecondary instructional content, including open educational resources (e.g., textbooks), widely available. Open educational resources either reside in the public domain or have been released under a copyright license that permits their free use, reuse, modification, and sharing with others.

S. 2557: Student Aid Improvement Act of 2019

S. 2557: STUDENT AID IMPROVEMENT ACT OF 2019 116th Congress (2019-2020) Topics: Legislation - education URL: https://www.congress.gov/bill/116th-congress/senate-bill/2557 On December 14, 2020, the Congressional Research Service released the following summary of S. 2557:

This bill revises provisions related to federal financial student aid. Specifically, the bill replaces the expected family contribution metric with a student aid index used to assess a family's financial need and approximate their financial resources to contribute to a student's higher education expenses. The bill also revises the process for filing a Free Application for Federal Student Aid (FAFSA), and it removes certain eligibility requirements related to drug-related offenses and registration with the Selective Service System. The bill reauthorizes the Pell Grant program through FY2021, establishes a new eligibility formula for Pell Grants, and increases the maximum Pell Grant award. The Department of Education (ED) must conduct certain activities to educate students and their families about Pell Grant eligibility at a younger age. In addition, the bill expands Pell Grant eligibility to (1) certain incarcerated individuals; and (2) students enrolled in short-term programs that provide training in high-skill, high-wage, or in-demand industry sectors or occupations. ED must develop a standard terminology and format for financial aid offers, which shall provide certain information such as costs, grant and scholarship aid, annual net price, work-study, loans, and accepting or declining aid. In addition, the bill provides that a borrower on a 10-year standard loan repayment plan shall not be subject to a maximum monthly payment or any other maximum monthly payment. Further, the bill makes funding for historically black colleges and universities and other minority-serving institutions permanent.

S. 2824: Artistic Recognition for Talented Students Act

S. 2824: ARTISTIC RECOGNITION FOR TALENTED STUDENTS ACT 116th Congress (2019-2020)

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Topics: Copyright Office - fees, Legislation - education URL: https://www.congress.gov/bill/116th-congress/senate-bill/2824/ On October 19, 2020, the Congressional Research Service authored the following summary of S. 2824:

This bill directs the Copyright Office to waive various copyright registration-related fees for works that win certain competitions sponsored by the Congressional Institute or established by Congress. To qualify for the fee waiver, the copyright registration application must be filed within a specified time frame, but the Copyright Office may waive fees for a qualifying work even if the application is filed outside the time frame.

S. 2932: Ask Musicians for Music Act of 2019

S. 2932: ASK MUSICIANS FOR MUSIC ACT OF 2019 116th Congress (2019-2020) Topics: Music - sound recording URL: https://www.congress.gov/bill/116th-congress/senate-bill/2932 On October 20, 2020, the Congressional Research Service authored the following summary of H.R. 2932:

This bill establishes that the copyright owner of a sound recording has the exclusive right to perform the recording through an audio transmission. Currently, the copyright owner's performance right generally only covers digital audio transmission, which excludes certain terrestrial radio stations. A radio station must obtain express permission from the copyright owner of the sound recording before making such a transmission, unless the transmission consists of a religious assembly or incidental use of the recording. A radio station with revenues of less than $1 million per year shall pay $500 per year to the copyright owner to obtain such permission to use a sound recording. A public broadcast entity or individual terrestrial broadcast station shall pay no more than $100 per year to obtain permission from the copyright owner.

S. 3208: Regulatory Accountability Act

S. 3208: REGULATORY ACCOUNTABILITY ACT 116th Congress (2019-2020) Topics: Legislation - rulemaking URL: https://www.congress.gov/bill/116th-congress/senate-bill/3208 On January 16, 2020, S. 3208 was introduced in the Senate by Sen. Rob Portman [R-OH]. It was referred to the Senate Committee on Homeland Security and Governmental Affairs.

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S. 3208 is intended to "improve agency rulemaking, and for other purposes." It provides: "Nothing in this Act, or in the amendments made by this Act, may be construed as altering, modifying, or abridging an exclusive right granted under title 17, United States Code." On May 28, 2020, the Congressional Research Service authored the following summary of S. 3208:

This bill expands and provides statutory authority for notice-and-comment rulemaking procedures to require federal agencies to consider (1) whether a rulemaking is required by statute or is within the discretion of the agency, (2) whether existing laws or rules could be amended or rescinded to address the problem, and (3) reasonable alternatives to a new rule. For proposed major or high-impact rules that have a specified significant economic impact or adverse effect on the public health or safety, an agency must

• publish notice of such rulemaking to invite interested parties to propose alternatives and ideas to accomplish the agency's objectives;

• allow persons interested in high-impact or certain major rules to petition for a public hearing with oral presentation, cross-examination, and the burden of proof on the proponent of the rule;

• adopt the rule that maximizes net benefits within the scope of the statutory provision authorizing the rule, unless the agency explains the costs and benefits that justify adopting an alternative rule and such rule is approved by the Office of Information and Regulatory Affairs (OIRA); and

• publish a framework and metrics for measuring the ongoing effectiveness of the rule.

Agencies must notify OIRA with certain information about a proposed rulemaking, including specified discussion and preliminary explanations concerning a major or high-impact rule. Further, OIRA must establish certain rulemaking guidelines. Additionally, the bill (1) revises the scope of judicial review of agency actions, and (2) establishes requirements for agencies issuing guidance.

S. 3232: PLACE Act

S. 3232: PLACE Act 116th Congress (2019-2020) Topics: Legislation - taxes URL: https://www.congress.gov/bill/116th-congress/senate-bill/3232 On January 29, 2020, S. 3232 was introduced in the Senate by Sen. Brian Schatz [D-HI]. It was referred to the Senate Committee on Finance.

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S. 3232 is intended to "promote and support the local arts and creative economy in the United States." It provides, "In the case of a qualified artistic charitable contribution, the tangible literary, musical, artistic, or scholarly composition, or similar property and the copyright on such work shall be treated as separate properties for purposes of this paragraph and subsection (f)(3)." It also provides, "For purposes of this paragraph, the term ‘qualified artistic charitable contribution’ means a charitable contribution of any literary, musical, artistic, or scholarly composition, or similar property, or the copyright thereon (or both), but only if—(i) such property was created by the personal efforts of the taxpayer making such contribution no less than 18 months prior to such contribution, (ii) the taxpayer—(I) has received a qualified appraisal of the fair market value of such property in accordance with the regulations under this section, and (II) attaches to the taxpayer’s income tax return for the taxable year in which such contribution was made a copy of such appraisal, (iii) the donee is an organization described in subsection (b)(1)(A), (iv) the use of such property by the donee is related to the purpose or function constituting the basis for the donee’s exemption under section 501 (or, in the case of a governmental unit, to any purpose or function described under subsection (c)), (v) the taxpayer receives from the donee a written statement representing that the donee’s use of the property will be in accordance with the provisions of clause (iv), and (vi) the written appraisal referred to in clause (ii) includes evidence of the extent (if any) to which property created by the personal efforts of the taxpayer and of the same type as the donated property is or has been—(I) owned, maintained, and displayed by organizations described in subsection (b)(1)(A), and (II) sold to or exchanged by persons other than the taxpayer, donee, or any related person (as defined in section 465(b)(3)(C))."

S. 3410: AIM-HIGH Act

S. 3410: AIM-HIGH ACT 116th Congress (2019-2020) Topics: Legislation - education, Legislation - disabled URL: https://www.congress.gov/bill/116th-congress/senate-bill/3410/ On March 5, 2020, S. 3410 was introduced in the Senate by Sen. Bill Cassidy [R-LA]. It was referred to the Committee on Health, Education, Labor, and Pensions. It is intended to "amend the Higher Education Act of 1965 to improve access to postsecondary instructional materials for students with print disabilities." It provides that eligible institutions means a partnership with "the technical development expertise necessary for the efficient dissemination of such materials, including procedures to protect against copyright infringement with respect to the creation, use, and distribution of instructional materials in accessible formats."

S. 3426: Anticompetitive Exclusionary Conduct Prevention Act of 2020

S. 3426: ANTICOMPETITIVE EXCLUSIONARY CONDUCT PREVENTION ACT OF 2020 116th Congress (2019-2020) Topics: Legislation - antitrust URL: https://www.congress.gov/bill/116th-congress/senate-bill/3426

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On March 10, 2020, S. 3426 was introduced by Sen. Amy Klobuchar [D-MN], and cosponsored by Sens. Richard Blumenthal [D-CT] and Cory A. Booker [D-NJ]. It was referred to the Senate Committee on the Judiciary. It is intended to "deter anticompetitive exclusionary conduct that harms competition and consumers, to enhance the ability of the Department of Justice and the Federal Trade Commission to enforce the antitrust laws, and for other purposes." It provides, "Applying for or enforcing a . . . copyright, unless such applications or enforcement actions are baseless or made in bad faith, shall not alone constitute exclusionary conduct, but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct."

S. 3770: H-1B and L-1 Visa Reform Act of 2020

S. 3770: H-1B AND L-1 VISA REFORM ACT OF 2020 116th Congress (2019-2020) Topics: Legislation - immigration URL: https://www.congress.gov/bill/116th-congress/senate-bill/3770/ On May 19, 2020, S. 3770 was introduced in the Senate by Sen. Chuck Grassley [R-IA], and cosponsored by four senators. It was referred to the Senate Committee on the Judiciary. It is intended to "amend the Immigration and Nationality Act to reform and reduce fraud and abuse in certain visa programs for aliens working temporarily in the United States, and for other purposes." It provides, "The ownership of patented products or copyrighted works by a petitioner under section 101(a)(15)(L) does not establish that a particular employee has specialized knowledge. In order to meet the definition under clause (i), the beneficiary shall be a key person with knowledge that is critical for performance of the job duties and is protected from disclosure through patent, copyright, or company policy."

S. 4473: Critical Medical Infrastructure Right-to-Repair Act of 2020

S. 4473: CRITICAL MEDICAL INFRASTRUCTURE RIGHT-TO-REPAIR ACT OF 2020 116th Congress (2019-2020) Topics: Defenses - repair and maintenance, Circumvention of copyright protection systems - exception URL: https://www.congress.gov/bill/116th-congress/senate-bill/4473/ On August 6, 2020, S. 4473 was introduced in the Senate by Sen. Ron Wyden [D-OR]. It was referred to the Senate Committee on the Judiciary. S. 4473 is intended to "amend title 17, United States Code, to address circumvention of copyright protection systems with respect to the maintenance or repair of critical medical infrastructure, and for other purposes." It provides:

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Notwithstanding the provisions of section 106, it is not an infringement of copyright for a covered service provider to make, or to authorize the making of, a separate copy of service materials with respect to the covered service provider, if—(1) making that separate copy is incidental to the repair or maintenance of critical medical infrastructure; and (2) the repair or maintenance described in paragraph (1) is part of a response to the covered emergency.

It also provides:

Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a covered healthcare provider to circumvent a technological measure that effectively controls access to a work protected under this title, if—(A) the purpose of the act of circumvention is to repair or maintain critical medical infrastructure with respect to that covered health-care provider; and (B) the repair or maintenance described in subparagraph (A) is part of preparation for, or a response to, the covered emergency.

And it provides:

Notwithstanding the provisions of subsections (a)(2) and (b), it is not a violation of either such provision for a covered healthcare provider to manufacture, import, offer to the public, provide, or otherwise traffic in technological means to circumvent a technological measure that effectively controls access to a work protected under this title, or to circumvent protection afforded by a technological measure that effectively controls access to a work protected under this title, if that action by that covered healthcare provider enables a repair or maintenance permitted under paragraph (2).

On October 28, 2020, the Congressional Research Service released the following summary of S. 4473:

This bill removes certain intellectual property-related restrictions on repairing or maintaining critical medical infrastructure (i.e., a device or product used to provide medical services). During the declared COVID-19 (i.e., coronavirus disease 2019) emergency, it shall not be copyright infringement for an owner or licensee of service materials (such as manuals or computer diagnostic software) to copy such materials if (1) the copying is incidental to the repair or maintenance of critical medical infrastructure, and (2) such repair or maintenance is in response to the emergency. Similarly, during the emergency, the prohibition against circumventing technology to control access to a work (or trafficking in circumvention tools) shall not apply to an owner or licensee of critical medical infrastructure if the circumvention is done to repair or maintain critical medical infrastructure in response to the emergency. During the emergency, it shall also not be design patent infringement if the owner or licensee of critical medical infrastructure fabricates a patented part on a noncommercial basis in order to repair or maintain the infrastructure in response to the emergency.

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The bill also nullifies any contract provision that restricts the ability of the owner or licensee of critical medical infrastructure to repair or maintain such infrastructure in response to the emergency. The manufacturer of critical medical infrastructure shall (1) offer for sale on reasonable terms any tool or information for servicing or repairing such infrastructure, and (2) provide information for making such tools to aftermarket tool manufacturers. The Federal Trade Commission shall have the authority to enforce these requirements.

S. 4632: Online Content Policy Modernization Act

S. 4632: ONLINE CONTENT POLICY MODERNIZATION ACT 116th Congress (2019-2020) Topics: Legislation - small claims URL: https://www.congress.gov/bill/116th-congress/senate-bill/4632 On September 21, 2020, S. 4632 was introduced in the Senate by Sen. Lindsey Graham [R-SC]. On September 21, 2020, S. 4632 was introduced in the Senate by Sen. Lindsey Graham [R-SC]. It was referred to the Senate Committee on the Judiciary. It is intended to "amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, to amend the Communications Act of 1934 to modify the scope of protection from civil liability for 'good Samaritan' blocking and screening of offensive material, and for other purposes."

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III. LIBRARY OF CONGRESS

Request for Public Input

The Next Register of Copyrights

PUBLIC INPUT REGARDING THE NEXT REGISTER OF COPYRIGHTS Request for Public Input on 3/3/2020 Topics: Copyright Office - leadership URL: https://www.federalregister.gov/documents/2020/03/03/2020-04247/public-input-regarding-the-next-register-of-copyrights The Library of Congress seeks public input on the expertise needed by the next Register of Copyrights and the top three priorities for the next Register. Public input will inform the Library's understanding of the knowledge, skills, and abilities that are most important in the selection of the next Register.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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IV. COPYRIGHT OFFICE

Policy Studies

Section 512

COPYRIGHT OFFICE RELEASES REPORT ON SECTION 512 Policy Study on 5/21/2020 Topics: Copyright Office - study, Limitation of liability relating to material online - study URL: https://www.copyright.gov/policy/section512/ The U.S. Copyright Office today released its Report, Section 512 of Title 17, a multi-year study of section 512 of the U.S. Copyright Act, which is part of the Digital Millennium Copyright Act (DMCA). When it enacted section 512 in 1998, Congress designed its safe harbors to provide “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the online networked environment.” The Report examines whether the balance that Congress sought has been achieved, particularly in light of the enormous changes that the internet has undergone in the last twenty-plus years. The Report, the last in a series of studies requested in a prior congressional session, represents the final output of the Office on topics related to the 2013-2015 copyright review hearings held by the House Judiciary Committee. The Copyright Office concludes that the operation of the section 512 safe harbor system today is unbalanced. In its examination of the balance established by Congress, the Office outlines five principles that guided its review, identifies its findings, and makes several recommendations for Congress to consider. The Report highlights areas where current implementation of section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbors; repeat infringer policies; knowledge requirement standards; specificity within takedown notices; non-standard notice requirements; subpoenas; and injunctions. While the Office is not recommending any wholesale changes to section 512, the Report points out these and other areas where Congress may wish to consider legislation to rebuild the original balance between rightsholders and online service providers. The Report also identifies non-statutory areas of untapped potential to increase the efficacy of section 512 and recommends additional stakeholder and government focus in the areas of education, voluntary cooperation, and the use of standard technical measures. Finally, it provides background information on several proposals submitted by Study participants on approaches that go beyond the original construct of the DMCA, but does not provide a recommendation with respect to those proposals. The Office believes additional study and consultation would be needed before moving forward with such proposals. The full report, along with the extensive public comments, empirical studies, and roundtable transcripts, is available on the Copyright Office’s website at copyright.gov/policy/section512/.

Joshua L. Simmons joshua.simmons@kirkland.com

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Sovereign Immunity

SOVEREIGN IMMUNITY STUDY: NOTICE AND REQUEST FOR PUBLIC COMMENT Notice of Inquiry on 6/3/2020 Topics: Copyright Office - study, Infringement - liability of states URL: https://www.federalregister.gov/documents/2020/06/03/2020-12019/sovereign-immunity-study-notice-and-request-for-public-comment The U.S. Copyright Office is initiating a study to evaluate the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law, as well as the extent to which such infringements appear to be based on intentional or reckless conduct. The Office seeks public input on this topic to assist it in preparing a report to Congress. SOVEREIGN IMMUNITY STUDY: NOTICE AND REQUEST FOR PUBLIC COMMENT Notice of Inquiry; Extension of Comment Period on 6/24/2020 Topics: Copyright Office - study, Infringement - liability of states URL: https://www.federalregister.gov/documents/2020/06/24/2020-13725/sovereign-immunity-study-notice-and-request-for-public-comment The U.S. Copyright Office is extending the deadline for the submission of written comments in response to its June 3, 2020, notice of inquiry regarding its state sovereign immunity policy study. In addition, the Office is providing for a second round of written comments. SOVEREIGN IMMUNITY STUDY WRITTEN COMMENTS Written Comments on 9/2/2020 Topics: Copyright Office - study, Infringement - liability of states, Copyright Office - written comments URL: https://www.copyright.gov/policy/state-sovereign-immunity/ The Copyright Office received 32 written comment submissions in response to its Sovereign Immunity study. They are available by clicking on the links below:

• AIPLA (https://www.regulations.gov/document?D=COLC-2020-0009-0025)

• Frederick (Rick) Allen (https://www.regulations.gov/document?D=COLC-2020-0009-0004)

• Anonymous (https://www.regulations.gov/document?D=COLC-2020-0009-0018)

• Anonymous Anonymous (https://www.regulations.gov/document?D=COLC-2020-0009-0010)

• Anonymous (https://www.regulations.gov/document?D=COLC-2020-0009-0007)

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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• Anonymous (https://www.regulations.gov/document?D=COLC-2020-0009-0016)

• Ass'n of Southeastern Research Libraries (https://www.regulations.gov/document?D=COLC-2020-0009-0027)

• Association of American Universities / Association of Public and Land-grant Universities (https://www.regulations.gov/document?D=COLC-2020-0009-0024)

• A-Train Productions (https://www.regulations.gov/document?D=COLC-2020-0009-0022)

• Mat B (https://www.regulations.gov/document?D=COLC-2020-0009-0011)

• Mike Boatman (https://www.regulations.gov/document?D=COLC-2020-0009-0006)

• Shelia Bolar (https://www.regulations.gov/document?D=COLC-2020-0009-0014)

• Copyright Alliance (https://www.regulations.gov/document?D=COLC-2020-0009-0028)

• Joshua Flynn (https://www.regulations.gov/document?D=COLC-2020-0009-0013)

• Eric Fons (https://www.regulations.gov/document?D=COLC-2020-0009-0003)

• Ryan French (https://www.regulations.gov/document?D=COLC-2020-0009-0020)

• Alexander Gigante (https://www.regulations.gov/document?D=COLC-2020-0009-0008)

• Kevin Hawkins (https://www.regulations.gov/document?D=COLC-2020-0009-0034)

• Hockley Photography (https://www.regulations.gov/document?D=COLC-2020-0009-0005)

• Patricia Kelly (https://www.regulations.gov/document?D=COLC-2020-0009-0019)

• Library Copyright Alliance (https://www.regulations.gov/document?D=COLC-2020-0009-0023)

• Kelley McMahan (https://www.regulations.gov/document?D=COLC-2020-0009-0012)

• Jnis Miglavs (https://www.regulations.gov/document?D=COLC-2020-0009-0033)

• National Press Photographers Association (https://www.regulations.gov/document?D=COLC-2020-0009-0029)

Joshua L. Simmons joshua.simmons@kirkland.com

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• National Writers Union (NWU) (https://www.regulations.gov/document?D=COLC-2020-0009-0021)

• News Media Alliance (https://www.regulations.gov/document?D=COLC-2020-0009-0030)

• Elsa Petersen (https://www.regulations.gov/document?D=COLC-2020-0009-0017)

• Laura Quilter (https://www.regulations.gov/document?D=COLC-2020-0009-0032)

• SoundExchange, Inc. (https://www.regulations.gov/document?D=COLC-2020-0009-0031)

• Sunset Publishing America. (https://www.regulations.gov/document?D=COLC-2020-0009-0015)

• University of Minnesota (https://www.regulations.gov/document?D=COLC-2020-0009-0026)

• Whidbey Writers Group (https://www.regulations.gov/document?D=COLC-2020-0009-0009)

SOVEREIGN IMMUNITY STUDY: NOTICE AND REQUEST FOR PUBLIC COMMENT Notice of Inquiry; Extension of Comment Period on 9/29/2020 Topics: Copyright Office - study, Infringement - liability of states URL: https://www.federalregister.gov/documents/2020/09/29/2020-21566/sovereign-immunity-study-notice-and-request-for-public-comment The U.S. Copyright Office is extending the deadline for the submission of reply comments and empirical research studies in response to the June 3 and June 24, 2020, notices regarding its state sovereign immunity policy study. STATE SOVEREIGN IMMUNITY STUDY REPLY WRITTEN COMMENTS Written Comments on 10/22/2020 Topics: Copyright Office - study, Infringement - liability of states, Copyright Office - written comments URL: https://www.copyright.gov/policy/state-sovereign-immunity/ The Copyright Office received 17 reply written comment submissions in response to its State Sovereign Immunity study. They are available by clicking on the links below:

• American Continental Group (https://www.regulations.gov/document?D=COLC-2020-0009-0043)

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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• APLU and AAU (https://www.regulations.gov/document?D=COLC-2020-0009-0050)

• Association of Southeastern Research Libraries and Greater Western Library Alliance (https://www.regulations.gov/document?D=COLC-2020-0009-0045)

• Association of University Presses (https://www.regulations.gov/document?D=COLC-2020-0009-0042)

• Michael Bynum (https://www.regulations.gov/document?D=COLC-2020-0009-0037)

• Michael Bynum (https://www.regulations.gov/document?D=COLC-2020-0009-0036)

• Michael Bynum (https://www.regulations.gov/document?D=COLC-2020-0009-0038)

• Kenneth Caldwell (https://www.regulations.gov/document?D=COLC-2020-0009-0049)

• Copyright Alliance (https://www.regulations.gov/document?D=COLC-2020-0009-0047)

• Dassault Systemes S.A. (https://www.regulations.gov/document?D=COLC-2020-0009-0046)

• Ana Enriquez (https://www.regulations.gov/document?D=COLC-2020-0009-0040)

• Maryam Fakouri (https://www.regulations.gov/document?D=COLC-2020-0009-0039)

• Kevin Hawkins (https://www.regulations.gov/document?D=COLC-2020-0009-0052)

• Pixsy Inc. (https://www.regulations.gov/document?D=COLC-2020-0009-0051)

• SIIA (https://www.regulations.gov/document?D=COLC-2020-0009-0048)

• University of Illinois Library and University of Illinois Press (https://www.regulations.gov/document?D=COLC-2020-0009-0044)

• University of Michigan Library (https://www.regulations.gov/document?D=COLC-2020-0009-0041)

SOVEREIGN IMMUNITY STUDY: ANNOUNCEMENT OF PUBLIC ROUNDTABLES Notice of Public Roundtables on 11/5/2020 Topics: Copyright Office - study, Infringement - liability of states

Joshua L. Simmons joshua.simmons@kirkland.com

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URL: https://www.federalregister.gov/documents/2020/11/05/2020-24577/sovereign-immunity-study-announcement-of-public-roundtables The U.S. Copyright Office is conducting a study to evaluate the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law, as well as the extent to which such infringements appear to be based on intentional or reckless conduct. To aid its analysis, the Office is announcing public roundtables to provide the opportunity for members of the public to address the following topics: Evidence of actual or threatened copyright infringement by states; state policies and practices for minimizing copyright infringement and addressing infringement claims; and alternative remedies under state law for copyright infringement.

Unclaimed Royalties

UNCLAIMED ROYALTIES STUDY: NOTICE OF INQUIRY Notice of Inquiry on 6/2/2020 Topics: Copyright Office - study, Music - sound recording, Music - musical work URL: https://www.federalregister.gov/documents/2020/06/02/2020-11893/unclaimed-royalties-study-notice-of-inquiry The U.S. Copyright Office is undertaking a study as directed by the Music Modernization Act to evaluate best practices that the newly-established mechanical licensing collective (“MLC”) may implement to: Identify and locate musical work copyright owners and unclaimed accrued royalties held by the collective; encourage musical work copyright owners to claim their royalties; and reduce the incidence of unclaimed royalties. The MLC is expected to carefully consider, and give substantial weight to, the Office's recommendations when establishing procedures for the identification and location of musical work copyright owners and the distribution of unclaimed royalties. The Office is soliciting input from music industry participants and other interested members of the public on these issues to aid its study. UNCLAIMED ROYALTIES STUDY WRITTEN COMMENTS Written Comments on 8/3/2020 Topics: Copyright Office - study, Music - sound recording, Music - musical work, Copyright Office - written comments URL: https://www.copyright.gov/policy/unclaimed-royalties/ The Copyright Office received 15 written comment submissions in response to its Unclaimed Royalties study. They are available by clicking on the links below:

• Christian Castle (https://www.regulations.gov/document?D=COLC-2020-0007-0014)

• CISAC/BIEM (https://www.regulations.gov/document?D=COLC-2020-0007-0008)

• Marti Cuevas (https://www.regulations.gov/document?D=COLC-2020-0007-0003)

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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• Digital Licensee Coordinator (https://www.regulations.gov/document?D=COLC-2020-0007-0012)

• Zoe Keating (https://www.regulations.gov/document?D=COLC-2020-0007-0002)

• Mechanical Licensing Collective (https://www.regulations.gov/document?D=COLC-2020-0007-0011)

• Music Artists Coalition (MAC) (https://www.regulations.gov/document?D=COLC-2020-0007-0016)

• Music Library Association's Legislative Committee (https://www.regulations.gov/document?D=COLC-2020-0007-0007)

• Recording Academy (https://www.regulations.gov/document?D=COLC-2020-0007-0015)

• Charles Sanders (https://www.regulations.gov/document?D=COLC-2020-0007-0010)

• Jan Seedman (https://www.regulations.gov/document?D=COLC-2020-0007-0004)

• Donald Small (https://www.regulations.gov/document?D=COLC-2020-0007-0005)

• Sam Sokol (https://www.regulations.gov/document?D=COLC-2020-0007-0006)

• SoundExchange, Inc. (https://www.regulations.gov/document?D=COLC-2020-0007-0009)

• Unclaimed Royalties Oversight Committee, advisory committee to The MLC (https://www.regulations.gov/document?D=COLC-2020-0007-0013)

UNCLAIMED ROYALTIES STUDY REPLY WRITTEN COMMENTS Written Comments on 8/31/2020 Topics: Copyright Office - study, Music - sound recording, Music - musical work, Copyright Office - written comments URL: https://www.copyright.gov/policy/unclaimed-royalties/ The Copyright Office received ten reply written comment submissions in response to its Unclaimed Royalties study. They are available by clicking on the links below:

• Alliance for Recorded Music ("ARM") (https://www.regulations.gov/document?D=COLC-2020-0007-0022)

• Artist Rights Alliance (https://www.regulations.gov/document?D=COLC-2020-0007-0017)

Joshua L. Simmons joshua.simmons@kirkland.com

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• Christian Castle (https://www.regulations.gov/document?D=COLC-2020-0007-0018)

• CISAC and BIEM (https://www.regulations.gov/document?D=COLC-2020-0007-0026)

• Digital Licensee Coordinator, Inc. (https://www.regulations.gov/document?D=COLC-2020-0007-0024)

• Mechanical Licensing Collective (https://www.regulations.gov/document?D=COLC-2020-0007-0023)

• MLC (https://www.regulations.gov/document?D=COLC-2020-0007-0025)

• Charles Sanders (https://www.regulations.gov/document?D=COLC-2020-0007-0020)

• Songwriters of North America ("SONA") (https://www.regulations.gov/document?D=COLC-2020-0007-0021)

• SoundExchange, Inc. (https://www.regulations.gov/document?D=COLC-2020-0007-0019)

Rulemakings

Copyright Office Fees

COPYRIGHT OFFICE FEES Final Rule on 2/19/2020 Topics: Copyright Office - rulemaking, Copyright Office - fees URL: https://www.federalregister.gov/documents/2020/02/19/2020-03268/copyright-office-fees The Copyright Office is publishing a final rule establishing adjusted fees for its services. The adjusted fees will recover a significant portion of the costs to the Office of registering copyright claims and provide greater cost recovery for certain other services provided by the Office. The new fee schedule reflects some increased and decreased fees, as well as some fees that the Office determined did not require adjustment. For example, under the new fee structure, the online Standard Application registration fee will increase from $55 to $65; the fee to register a group of published or unpublished photographs, however, will remain at $55. In addition to fees for registration and recordation, this final rule establishes adjusted fees for special services and Licensing Division services. COPYRIGHT OFFICE ANNOUNCES WEBINAR ON FEE ADJUSTMENTS Topics: Copyright Office - fees URL: https://www.copyright.gov/newsnet/2020/803.html

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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The Copyright Office will host a webinar on its new fee schedule on Wednesday, March 18, 2020, at 1:00 p.m. eastern time. The Office is adopting a new fee schedule for registration, recordation, record retrieval, search and certification, the Licensing Division, and other services. This new fee schedule is the product of a process encompassing a comprehensive cost study, evaluation of the Office’s budget requirements, and consideration of more than 160 public comments. It also reflects modifications to the Office’s earlier proposals based on public comments, including a reduction in certain proposed increases. The new fee schedule will take effect on March 20, 2020. Details of the changes are available on the Copyright Office’s fees rulemaking page. Participants must register for this Copyright Office webinar. COPYRIGHT OFFICE UPDATED FEE SCHEDULE TAKES EFFECT TODAY on 3/20/2020 Topics: Copyright Office - fees URL: https://www.copyright.gov/newsnet/2020/808.html The new Copyright Office fee schedule takes effect today. The Office initiated the most recent cost study in June 2017 and proposed an initial fee schedule in a May 2018 notice of proposed rulemaking. The Office received a number of public comments, considered them carefully, and used these comments to refine the new fee schedule. In October 2019, the Office presented a final proposed schedule and analysis of fees for Copyright Office services to Congress in accordance with 17 USC 708(b). The Office has updated its fee website and the following resources with the new fee information:

• General Copyright Office Fee Information: Circular 4: Copyright Office Fees

• Recordation Fee Changes: Circular 12A, Notice of Termination Cover Sheet Form TCS, Document Cover Sheet Form DCS

• Licensing Fee Changes: Circular 76, Notice of Use of Sound Recordings under Statutory License

• Renewal Fee Changes: Form RE For Renewal Registration

If you have any questions about Copyright Office fees, contact the Public Information Office online or at (202) 707-3000 or 1-877-476-0778 (toll free).

Electronic Delivery of Litigation Notices Under Sections 411 and 508

EMAIL RULE FOR STATUTORY LITIGATION NOTICES

Joshua L. Simmons joshua.simmons@kirkland.com

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Final Rule on 2/25/2020 Topics: Copyright Office - rulemaking, Copyright registration - refusal, Copyright Office - litigation notice URL: https://www.federalregister.gov/documents/2020/02/25/2020-02374/email-rule-for-statutory-litigation-notices The U.S. Copyright Office is issuing a final rule amending its procedures for submitting notices to the Office pursuant to sections 411 and 508 of the Copyright Act. Previously, these notices were submitted by mail to two different addresses, which risked delays and caused unnecessary burdens for both submitters and the Office. The new rule will alleviate these issues by requiring these notices to be submitted by email.

Emailed Waiver Requests Under DMCA Designated Agent Rule

DMCA DESIGNATED AGENT POST OFFICE BOX WAIVER REQUEST PROCESS Final Rule on 2/27/2020 Topics: Limitations on liability relating to material online - designated agent URL: https://www.federalregister.gov/documents/2020/02/27/2020-03260/dmca-designated-agent-post-office-box-waiver-request-process This final rule makes non-substantive technical amendments to the U.S. Copyright Office's regulations governing the submission of designated agent and service provider information to the Office pursuant to the Digital Millennium Copyright Act (“DMCA”).

Exemptions to Permit Circumvention of Access Controls on Copyrighted Works

EXEMPTIONS TO PERMIT CIRCUMVENTION OF ACCESS CONTROLS ON COPYRIGHTED WORKS Notification of Inquiry and Request for Petitions on 6/22/2020 Topics: Copyright Office - rulemaking, Circumvention of copyright protection systems - rulemaking URL: https://www.federalregister.gov/documents/2020/06/22/2020-12911/exemptions-to-permit-circumvention-of-access-controls-on-copyrighted-works The United States Copyright Office is initiating the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (“DMCA”), to consider possible temporary exemptions to the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. In this proceeding, the Copyright Office is again providing a streamlined procedure for the renewal of exemptions that were granted during the seventh triennial rulemaking. If renewed, those current exemptions would remain in force for an additional three-year period (October 2021-October 2024). Members of the public seeking the renewal of current exemptions should submit petitions as described below; parties opposing such renewal will then have the opportunity to file comments in response. The Office is also accepting petitions for new exemptions to engage in activities not currently permitted by existing exemptions, which may include proposals that expand upon a current exemption. Those petitions, and any renewal petitions that are meaningfully opposed, will be considered pursuant to a more comprehensive

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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rulemaking process similar to that of the seventh rulemaking, including three rounds of written comment, followed by public hearings, which may be conducted virtually. EIGHTH TRIENNIAL SECTION 1201 PROCEEDING (2021) PETITIONS FOR RENEWED EXEMPTIONS Petitions on 6/22/2020 Topics: Copyright Office - rulemaking, Circumvention of copyright protection systems - rulemaking URL: https://www.copyright.gov/1201/2021/petitions/ The Copyright Office received 32 petitions for renewed exemptions in response to its Eigth Triennial Section 1201 Proceeding (2021) rulemaking. They are available at https://www.copyright.gov/1201/2021/petitions/. In summary, the petitions involve: Motion Pictures (including television programs and videos):

• Excerpts for educational purposes by college and university or K-12 faculty and students filed by Brigham Young University and Joint Educators & AAUP.

• Excerpts for educational purposes by faculty in massive open online courses (“MOOCs”) filed by Brigham Young University and Joint Educators.

• Excerpts for educational purposes in digital and literacy programs offered by libraries, museums, and other nonprofits filed by Band & Hobbs.

• Excerpts for use in nonfiction multimedia e-books filed by Bobbette Buster et al.

• Excerpts for use in documentary filmmaking or other films where use is in parody or for a biographical or historically significant nature filed by Joint Filmmakers and New Media Rights.

• Excerpts for use in noncommercial videos filed by New Media Rights and Org. for Transformative Works.

• For the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students with disabilities filed by ATSP et al and Brigham Young University.

Literary Works:

• Literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired, or have print disabilities filed by ACB et al.

Joshua L. Simmons joshua.simmons@kirkland.com

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• Literary works consisting of compilations of data generated by implanted medical devices and corresponding personal monitoring systems, to access personal data filed by Medical Device Research Coalition.

Computer Programs and Video Games:

• Computer programs that operate cellphones, tablets, mobile hotspots, or wearable devices (e.g., smartwatches), to allow connection of a new or used device to an alternative wireless network (“unlocking”) filed by CCA and Inst. Scrap Recycling Industries.

• Computer programs that operate smartphones, tablets and other all-purpose mobile computing devices, smart TVs, or voice assistant devices to allow the device to interoperate with or to remove software applications (“jailbreaking”) filed by EFF, New Media Rights, and Software Freedom Conservancy.

• Computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, or modification of the vehicle, including to access diagnostic data filed by ACA, Am. Farm Bureau Fed., CTA, MEMA, and SEMA.

• Computer programs that control smartphones, home appliances, or home systems, for diagnosis, maintenance, or repair of the device or system filed by EFF and Repair.org et al.

• Computer programs for purposes of good-faith security research filed by Halderman, CDT, ACM; Blaze & Bellovin; and MEMA.

• Computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums filed by SPN & LCA.

• Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and discontinued video games that never required server support, for preservation by libraries, archives, and museums filed by SPN & LCA.

• Computer programs that operate 3D printers, to allow use of alternative feedstock filed by Michael Weinberg.

EIGHTH TRIENNIAL SECTION 1201 PROCEEDING (2021) COMMENTS SUPPORTING AND OPPOSING RENEWED EXEMPTIONS Written Comments on 9/8/2020 Topics: Copyright Office - rulemaking, Circumvention of copyright protection systems - rulemaking, Copyright Office - written comments

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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URL: https://www.copyright.gov/1201/2021/ The Copyright Office received seven comments supporting renewed exemptions in response to its Eighth Triennial Section 1201 Proceeding (2021) rulemaking:

• Consumer Reports - Abandoned Video Games (https://www.regulations.gov/document?D=COLC-2020-0010-0063)

• Consumer Reports - Device Repair (https://www.regulations.gov/document?D=COLC-2020-0010-0057)

• Consumer Reports - Jailbreaking (https://www.regulations.gov/document?D=COLC-2020-0010-0065)

• Consumer Reports - Medical Devices (https://www.regulations.gov/document?D=COLC-2020-0010-0066)

• Consumer Reports - Security Research (https://www.regulations.gov/document?D=COLC-2020-0010-0068)

• Consumer Reports - Unlocking (https://www.regulations.gov/document?D=COLC-2020-0010-0064)

• Consumer Reports - Vehicle Repair (https://www.regulations.gov/document?D=COLC-2020-0010-0067)

The Copyright Office received eight comments opposing renewed exemptions in response to its Eighth Triennial Section 1201 Proceeding (2021) rulemaking:

• Alliance for Automotive Innovation - Vehicle Repair (https://www.regulations.gov/document?D=COLC-2020-0010-0039)

• DVD CCA and AACS LA - AD Education (https://www.regulations.gov/document?D=COLC-2020-0010-0069)

• DVD CCA and AACS LA - AV Education MOOCs (https://www.regulations.gov/document?D=COLC-2020-0010-0070)

• DVD CCA and AACS LA - Device Repair (https://www.regulations.gov/document?D=COLC-2020-0010-0073)

• DVD CCA and AACS LA - Documentary Films (https://www.regulations.gov/document?D=COLC-2020-0010-0071)

Joshua L. Simmons joshua.simmons@kirkland.com

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• DVD CCA and AACS LA - Noncommercial Videos (https://www.regulations.gov/document?D=COLC-2020-0010-0072)

• DVD CCA and AACS LA - Nonfiction Multimedia eBooks (https://www.regulations.gov/document?D=COLC-2020-0010-0074)

• ESA, MPA, RIAA - Noncommercial Videos (https://www.regulations.gov/document?D=COLC-2020-0010-0055)

EIGHTH TRIENNIAL SECTION 1201 PROCEEDING (2021) PETITIONS FOR NEW EXEMPTIONS Petitions on 9/8/2020 Topics: Copyright Office - rulemaking, Circumvention of copyright protection systems - rulemaking URL: https://www.copyright.gov/1201/2021/petitions/ The Copyright Office received 26 petitions for new exemptions in response to its Eighth Triennial Section 1201 Proceeding (2021) rulemaking:

• Accessibility Petitioners (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Accessibility Petitioners.pdf)

• American Council of the Blind et al (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - American Council of the Blind et al.pdf)

• Association of Transcribers and Speech-to-Text Providers et al (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Association of Transcribers and Speech-to-Text Providers et al.pdf)

• Authors Alliance et al (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Authors Alliance et al.pdf)

• Brigham Young University (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Brigham Young University.pdf)

• Electronic Frontier Foundation - 1 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Electronic Frontier Foundation - 1.pdf)

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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• Electronic Frontier Foundation - 2 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Electronic Frontier Foundation - 2.pdf)

• FloSports (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - FloSports.pdf)

• iFixit & Public Knowledge (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - iFixit & Public Knowledge.pdf)

• Inst. Scrap Recycling Industries - 1 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Inst. Scrap Recycling Industries - 1.pdf)

• Inst. Scrap Recycling Industries - 2 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Inst. Scrap Recycling Industries - 2.pdf)

• J. Alex Halderman et al (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - J. Alex Halderman et al.pdf)

• Joint Educators et al (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Joint Educators et al.pdf)

• Library Copyright Alliance (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Library Copyright Alliance.pdf)

• Medical Device Research Coalition (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Medical Device Research Coalition.pdf)

• Michael Weinberg (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Michael Weinberg.pdf)

• Repair.org et al (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Repair.org & iFixit.pdf)

• Software Freedom Conservancy - 1 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Software Freedom Conservancy - 1.pdf)

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• Software Freedom Conservancy - 2 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Software Freedom Conservancy - 2.pdf)

• Software Freedom Conservancy - 3 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Software Freedom Conservancy - 3.pdf)

• SolaByte - 1 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - SolaByte - 1.pdf)

• SolaByte - 2 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - SolaByte - 2.pdf)

• Software Preservation Network & Library Copyright Alliance - 1 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Software Preservation Network & Library Copyright Alliance - 1.pdf)

• Software Preservation Network & Library Copyright Alliance - 2 (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Software Preservation Network & Library Copyright Alliance - 2.pdf)

• Summit Imaging (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Summit Imaging.pdf)

• Transtate Equipment Co. (https://www.copyright.gov/1201/2021/petitions/proposed/New Pet. - Transtate Equipment Co..pdf)

EXEMPTIONS TO PERMIT CIRCUMVENTION OF ACCESS CONTROLS ON COPYRIGHTED WORKS Notice of Proposed Rulemaking on 10/15/2020 Topics: Copyright Office - rulemaking, Circumvention of copyright protection systems - rulemaking URL: https://www.federalregister.gov/documents/2020/10/15/2020-22893/exemptions-to-permit-circumvention-of-access-controls-on-copyrighted-works The United States Copyright Office is conducting the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (“DMCA”), concerning possible temporary exemptions to the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. In this proceeding, the Copyright Office is considering petitions for the renewal of exemptions that were granted during the seventh triennial rulemaking along with petitions for new exemptions to engage in activities not currently permitted by existing exemptions. On June 22, 2020, the Office published a notification of inquiry requesting petitions to renew existing exemptions and comments in response to those petitions, as well as petitions for new exemptions. Having carefully considered the comments received in response to

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that notification, in this notice of proposed rulemaking (“NPRM”), the Office announces its intention to recommend each of the existing exemptions for readoption. This NPRM also initiates three rounds of public comment on the newly-proposed exemptions. Interested parties are invited to make full legal and evidentiary submissions in support of or in opposition to the proposed exemptions, in accordance with the requirements set forth below.

Group Registration of Newsletters

GROUP REGISTRATION OF NEWSLETTERS Notice of Proposed Rulemaking on 2/24/2020 Topics: Copyright Office - rulemaking, Copyright registration - group registration, Literary work - newsletter URL: https://www.federalregister.gov/documents/2020/02/24/2020-03376/group-registration-of-newsletters The U.S. Copyright Office is proposing to amend its regulation governing the group registration option for newsletter issues. The proposed rule eliminates the requirement that newsletters must be published at least two days each week to qualify for a group registration. This will let a broader range of newsletter publishers register a month of issues, without imposing an administrative burden on the Office. In addition, the proposed rule updates the address where complimentary subscriptions should be sent for purposes of satisfying the mandatory deposit requirement for newsletters and other serials. GROUP REGISTRATION OF NEWSLETTERS Final Rule on 5/28/2020 Topics: Copyright Office - rulemaking, Copyright registration - group registration, Literary work - newsletter URL: https://www.federalregister.gov/documents/2020/05/28/2020-09490/group-registration-of-newsletters The U.S. Copyright Office is amending its regulation governing the group registration option for newsletter issues. The final rule eliminates the requirement that newsletters must be published at least two days each week to qualify for a group registration. In addition, the final rule updates the address where complimentary subscriptions should be sent for purposes of satisfying the mandatory deposit requirement for newsletters and other serials.

Group Registration of Short Online Literary Works

GROUP REGISTRATION OF SHORT ONLINE LITERARY WORKS Final Rule on 6/22/2020 Topics: Copyright Office - rulemaking, Copyright registration - group registration, Literary work - Internet work URL: https://www.federalregister.gov/documents/2020/06/22/2020-12041/group-registration-of-short-online-literary-works

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The U.S. Copyright Office is amending its regulations to establish a new group registration option for short online literary works. This final rule largely adopts the eligibility requirements set forth in the Office's December 2018 notice of proposed rulemaking, with certain updates. To qualify for this option, each work must contain at least 50 but no more than 17,500 words. The works must be created by the same individual, or jointly by the same individuals, and each creator must be named as the copyright claimant or claimants for each work. The works must all be published online within a three-calendar-month period. If these requirements have been met, the applicant may submit up to 50 works with one application and one filing fee. The applicant must complete an online application designated for a group of “Short Online Literary Works” and upload a .ZIP file containing a separate digital file for each work. The Office will examine each work to determine if it contains a sufficient amount of creative authorship, and if the Office registers the claim, the registration will cover each work as a separate work of authorship. COPYRIGHT OFFICE ANNOUNCES WEBINAR ON NEW GROUP REGISTRATION OPTIONS FOR SHORT ONLINE LITERARY WORKS (GRTX) on 7/2/2020 Topics: Copyright registration - group registration, Literary work - Internet work URL: https://www.copyright.gov/newsnet/2020/839.html The Copyright Office will host a webinar on July 15, 2020, at 2 p.m. eastern time on the new group registration option for short online literary works—for example, blog entries, social media posts, and online articles. The webinar will offer an overview of the GRTX registration process and guidance on when and how it may be used. Following the presentation, Copyright Office staff will answer participants' questions about the new procedure. To participate in this webinar, please register. Closed captioning for the event will be available. For more information on the GRTX process, please visit the Copyright Office website. COPYRIGHT OFFICE’S NEW GROUP REGISTRATION OPTION FOR SHORT ONLINE LITERARY WORKS (GRTX) GOES INTO EFFECT on 10/29/2020 Topics: Copyright Office - rulemaking, Copyright registration - group registration, Literary work - Internet work URL: https://www.copyright.gov/newsnet/2020/859.html As of October 29, creators of short online literary works—such as blog posts, social media posts, and online articles—can use a new group registration application being offered by the Copyright Office.

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The Group Registration for Short Online Literary Works (GRTX) may be used to register up to fifty short online literary works, with one application and one filing fee. To qualify, each work must be made up of at least 50 but no more than 17,500 words. The works must be written by the same individual, or co-written by the same individuals, and each writer must be named as the copyright claimant or claimants for each work. The works must be first published online within a three-calendar-month period. If the Office registers the claim, the registration will cover the text in each work as a separate work of authorship. To register works under this option, applicants must submit the online application designated for short online literary works through the electronic registration system (eCO) and upload a ZIP file containing a separate digital copy of each work. The Office initiated a rulemaking to create the GRTX process in December 2018. The Office received eight comments in response to the proposed rule from several stakeholder groups and individual authors. The Office issued a final rule implementing this option on June 3 that largely adopted the eligibility requirements in the proposed rule, with certain modifications in response to the comments. The Office held a webinar on July 15, 2020, to explain the GRTX process. For more information on the GRTX process, please visit the Copyright Office website.

Mandatory Deposit of Electronic-Only Books

MANDATORY DEPOSIT OF ELECTRONIC-ONLY BOOKS Notice of Proposed Rulemaking on 6/29/2020 Topics: Copyright Office - rulemaking, Library of Congress - mandatory deposit, Literary work - book URL: https://www.federalregister.gov/documents/2020/06/29/2020-12969/mandatory-deposit-of-electronic-only-books The Copyright Office is issuing a revised proposed rule to make electronic-only books published in the United States subject to the Copyright Act's mandatory deposit provisions if they are affirmatively demanded by the Office. In response to comments received in response to the Office's April 16, 2018 Notice of Proposed Rulemaking, the revised proposed rule makes additional clarifying edits to the definition of an “electronic-only book” and adjusts the requirements related to employment of technological protection measures. This document also updates the public on developments subsequently announced by the Library of Congress related to certain questions raised in public comments with respect to its digital collection strategy and information technology security matters. MANDATORY DEPOSIT OF ELECTRONIC-ONLY BOOKS Final Rule on 11/12/2020 Topics: Copyright Office - rulemaking, Library of Congress - mandatory deposit, Literary work - book URL: https://www.federalregister.gov/documents/2020/11/12/2020-23101/mandatory-deposit-of-electronic-only-books

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The Copyright Office is amending its regulations to make electronic-only books published in the United States subject to the Copyright Act's mandatory deposit provisions if they are affirmatively demanded by the Office. The final rule largely adopts the language set forth in the Office's June 2020 notice of proposed rulemaking, with one additional clarification regarding the rule's applicability to print-on-demand books.

Modernizing Document Recordation

MODERNIZING COPYRIGHT RECORDATION Supplemental Interim Rule on 1/23/2020 Topics: Copyright Office - rulemaking, Copyright registration - recordation URL: https://www.federalregister.gov/documents/2020/01/23/2020-01091/modernizing-copyright-recordation The United States Copyright Office is issuing a supplemental interim rule amending its regulations governing recordation of transfers of copyright ownership, notices of termination, and other documents pertaining to a copyright. This rule supplements the Office's current interim recordation regulations in anticipation of the Office's forthcoming pilot program through which participating remitters will be able to record certain types of documents electronically online. The supplemental interim rule and pilot program are the next step in the recordation modernization process, which will lead to a full public release of the Office's electronic recordation system in the future. MODERNIZING RECORDATION OF NOTICES OF TERMINATION Notice of Proposed Rulemaking; Notification of Inquiry; Extension of Comment Period on 6/30/2020 Topics: Copyright Office - rulemaking, Termination of transfers and licenses granted by the author - notice URL: https://www.federalregister.gov/documents/2020/06/30/2020-14208/modernizing-recordation-of-notices-of-termination The U.S. Copyright Office is extending the deadline for the submission of written comments in response to its June 3, 2020, notice of proposed rulemaking and notification of inquiry regarding recordation of notices of termination.

Modernizing Recordation of Notices of Termination

MODERNIZING RECORDATION OF NOTICES OF TERMINATION Notice of Proposed Rulemaking; Notification of Inquiry on 6/3/2020 Topics: Copyright Office - rulemaking, Termination of transfers and licenses granted by the author - notice URL: https://www.federalregister.gov/documents/2020/06/03/2020-12038/modernizing-recordation-of-notices-of-termination

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The United States Copyright Office is proposing to amend certain regulations governing the recordation of notices of termination. Along with a parallel rulemaking focused on modernizing document recordation in conjunction with development of the Office's online recordation system, the proposed amendments are intended to improve efficiency in the processing of such notices and to provide additional guidance to the public in this area. In addition, the Office is providing notice of changes to its examination practices for certain notices of termination that pertain to multiple grants, and soliciting public comment on two additional subjects of inquiry relating to notices of termination. MODERNIZING RECORDATION OF NOTICES OF TERMINATION WRITTEN COMMENTS Written Comments on 8/5/2020 Topics: Copyright Office - rulemaking, Termination of transfers and licenses granted by the author - notice, Copyright Office - written comments URL: https://www.copyright.gov/rulemaking/termination-modernization/ The Copyright Office received 10 written comment submissions in response to its Modernizing Recordation of Notices of Termination rulemaking. They are available by clicking on the links below:

• Authors Alliance (https://www.regulations.gov/document?D=COLC-2020-0008-0005)

• Authors Guild (https://www.regulations.gov/document?D=COLC-2020-0008-0012)

• Copyright Alliance (https://www.regulations.gov/document?D=COLC-2020-0008-0007)

• Linda Edell Howard (https://www.regulations.gov/document?D=COLC-2020-0008-0004)

• Motion Picture Association, Inc. (https://www.regulations.gov/document?D=COLC-2020-0008-0009)

• Music Artists Coalition (MAC) (https://www.regulations.gov/document?D=COLC-2020-0008-0010)

• Nashville Songwriters Association International (https://www.regulations.gov/document?D=COLC-2020-0008-0003)

• National Music Publishers' Association (https://www.regulations.gov/document?D=COLC-2020-0008-0006)

• Recording Academy (https://www.regulations.gov/document?D=COLC-2020-0008-0011)

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• Recording Industry Association of America, Inc. (RIAA) (https://www.regulations.gov/document?D=COLC-2020-0008-0008)

Music Modernization Act Notices of License, Notices of Nonblanket Activity, Data Collection and Delivery Efforts, and Reports of Usage and Payment Rulemaking

MUSIC MODERNIZATION ACT NOTICES OF LICENSE, NOTICES OF NONBLANKET ACTIVITY, DATA COLLECTION AND DELIVERY EFFORTS, AND REPORTS OF USAGE AND PAYMENT Notice of Proposed Rulemaking on 4/22/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/04/22/2020-08379/music-modernization-act-notices-of-license-notices-of-nonblanket-activity-data-collection-and The U.S. Copyright Office is issuing a notice of proposed rulemaking regarding information to be provided by digital music providers pursuant to the new compulsory blanket license to make and deliver digital phonorecords of musical works established by title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. The law establishes a new blanket license, to be administered by a mechanical licensing collective, and to become available on January 1, 2021. Having solicited public comments through a previous notification of inquiry, through this notice, the Office is proposing regulations concerning notices of license, data collection and delivery efforts, and reports of usage and payment by digital music providers. The Office is also proposing regulations concerning notices of nonblanket activity and reports of usage by significant nonblanket licensees, as well as language addressing data collection efforts by musical work copyright owners. MUSIC MODERNIZATION ACT NOTICES OF LICENSE, NOTICES OF NONBLANKET ACTIVITY, DATA COLLECTION AND DELIVERY EFFORTS, AND REPORTS OF USAGE AND PAYMENT Interim Rule on 9/17/2020 Topics: Music - compulsory license, Copyright Office - rulemaking URL: https://www.federalregister.gov/documents/2020/09/17/2020-20077/music-modernization-act-notices-of-license-notices-of-nonblanket-activity-data-collection-and The U.S. Copyright Office is issuing an interim rule regarding information to be provided by digital music providers pursuant to the new compulsory blanket license to make and deliver digital phonorecords of musical works established by title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. The law establishes a new blanket license, to be administered by a mechanical licensing collective, and to become available on the January 1, 2021 license availability date. Having solicited multiple rounds of public comments through a notification of inquiry and notice of proposed rulemaking, the Office is adopting interim regulations concerning notices of license, data collection and delivery efforts, and reports of usage and payment by digital music providers. The Office is also adopting interim regulations concerning notices of

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nonblanket activity and reports of usage by significant nonblanket licensees and data collection efforts by musical work copyright owners. MUSIC MODERNIZATION ACT NOTICES OF LICENSE, NOTICES OF NONBLANKET ACTIVITY, DATA COLLECTION AND DELIVERY EFFORTS, AND REPORTS OF USAGE AND PAYMENT Supplemental Interim Rule with Request for Comments on 12/28/2020 Topics: Music - compulsory license, Copyright Office - rulemaking URL: https://www.federalregister.gov/documents/2020/12/28/2020-28505/music-modernization-act-notices-of-license-notices-of-nonblanket-activity-data-collection-and The U.S. Copyright Office is amending its regulations governing certain reporting requirements of digital music providers and significant nonblanket licensees pursuant to title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. This amendment will create a temporary exception to certain provisions concerning the reporting of information about permanent download pass-through licenses in light of recent requests that an accommodation to current reporting rules be made to avoid potential market disruption. Based on these requests received following the adoption of the current requirements, the Copyright Office has determined that there is a legitimate need to make this amendment effective immediately to govern these matters while it considers further potential adjustments. The Copyright Office solicits public comment on how, or whether, it should further adjust these particular reporting requirements.

Online Publication

ONLINE PUBLICATION Notification of Inquiry; Extension of Comment Period on 1/21/2020 Topics: Copyright Office - rulemaking, Copyrightability - publication URL: https://www.federalregister.gov/documents/2020/01/21/2020-00653/online-publication The U.S. Copyright Office is extending the deadline for the submission of written reply comments in response to its December 4, 2019 notification of inquiry regarding online publication. ONLINE PUBLICATION RULEMAKING WRITTEN COMMENTS Written Comments on 3/19/2020 Topics: Copyright Office - rulemaking, Copyrightability - publication Literary work - Internet work, Music - musical work, Music - sound recording URL: https://www.copyright.gov/rulemaking/online-publication/ The Copyright Office received 42 written comment submissions in response to its Online Publication rulemaking. They are available by clicking on the links below:

• ABA Section of IP Law (https://www.regulations.gov/document?D=COLC-2019-0003-0017)

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• Daniel Abraham (https://www.regulations.gov/document?D=COLC-2019-0003-0003)

• AIPLA (https://www.regulations.gov/document?D=COLC-2019-0003-0019)

• Alliance for Recorded Music (ARM) (https://www.regulations.gov/document?D=COLC-2019-0003-0012)

• Mike Anonymous (https://www.regulations.gov/document?D=COLC-2019-0003-0035)

• Authors Alliance (https://www.regulations.gov/document?D=COLC-2019-0003-0014)

• Sara Benson (https://www.regulations.gov/document?D=COLC-2019-0003-0024)

• Stacy Cheavens (https://www.regulations.gov/document?D=COLC-2019-0003-0034)

• Coalition of Visual Artists (https://www.regulations.gov/document?D=COLC-2019-0003-0009)

• Melanie Connolly (https://www.regulations.gov/document?D=COLC-2019-0003-0042)

• Copyright Alliance (https://www.regulations.gov/document?D=COLC-2019-0003-0016)

• DMLA (https://www.regulations.gov/document?D=COLC-2019-0003-0015)

• Entertainment Software Association (https://www.regulations.gov/document?D=COLC-2019-0003-0018)

• Falconieri Visuals LLC (https://www.regulations.gov/document?D=COLC-2019-0003-0037)

• Deborah Gerhardt (https://www.regulations.gov/document?D=COLC-2019-0003-0033)

• Margaret Peg Gerrity (https://www.regulations.gov/document?D=COLC-2019-0003-0043)

• Graphic Artists Guild (https://www.regulations.gov/document?D=COLC-2019-0003-0004)

• Kevin Hawkins (https://www.regulations.gov/document?D=COLC-2019-0003-0031)

• Joi Holcomb (https://www.regulations.gov/document?D=COLC-2019-0003-0039)

• International Trademark Association (https://www.regulations.gov/document?D=COLC-2019-0003-0028)

• Linda Joy Kattwinkel (https://www.regulations.gov/document?D=COLC-2019-0003-0005)

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• Paul Kelly (https://www.regulations.gov/document?D=COLC-2019-0003-0040)

• Kernochan Center for Law, Media and the Arts, Columbia Law School (https://www.regulations.gov/document?D=COLC-2019-0003-0026)

• Mariah Lichtenstern (https://www.regulations.gov/document?D=COLC-2019-0003-0030)

• Kathleen McCarthy (https://www.regulations.gov/document?D=COLC-2019-0003-0027)

• Ian Moss (https://www.regulations.gov/document?D=COLC-2019-0003-0021)

• Motion Picture Association (https://www.regulations.gov/document?D=COLC-2019-0003-0008)

• National Music Publishers' Association (https://www.regulations.gov/document?D=COLC-2019-0003-0025)

• National Writers Union and American Photographic Artists (https://www.regulations.gov/document?D=COLC-2019-0003-0020)

• Diane Peters (https://www.regulations.gov/document?D=COLC-2019-0003-0010)

• steve posner (https://www.regulations.gov/document?D=COLC-2019-0003-0032)

• Professional Photographers of America (https://www.regulations.gov/document?D=COLC-2019-0003-0023)

• Isabel Romero Calvo (https://www.regulations.gov/document?D=COLC-2019-0003-0041)

• Science Fiction and Fantasy Writers of America (SFWA) (https://www.regulations.gov/document?D=COLC-2019-0003-0006)

• Lisa Shaftel (https://www.regulations.gov/document?D=COLC-2019-0003-0022)

• Shawna Snyder (https://www.regulations.gov/document?D=COLC-2019-0003-0036)

• The Association of Medical Illustrators (https://www.regulations.gov/document?D=COLC-2019-0003-0013)

• The Authors Guild (https://www.regulations.gov/document?D=COLC-2019-0003-0011)

• Cherrel Turner-Callwood (https://www.regulations.gov/document?D=COLC-2019-0003-0044)

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• Jennifer Unruh (https://www.regulations.gov/document?D=COLC-2019-0003-0029)

• Alexandra Webber (https://www.regulations.gov/document?D=COLC-2019-0003-0038)

• Juliette Wolf-Robin (https://www.regulations.gov/document?D=COLC-2019-0003-0007)

ONLINE PUBLICATION; EXTENSION OF COMMENT PERIOD Notification of Inquiry; Extension of Reply Comment Period on 4/9/2020 Topics: Copyright Office - rulemaking, Copyrightability - publication URL: https://www.federalregister.gov/documents/2020/04/09/2020-06979/online-publication-extension-of-comment-period The U.S. Copyright Office is extending the deadline for the submission of written reply comments in response to its December 4, 2019 notification of inquiry regarding online publication. ONLINE PUBLICATION RULEMAKING REPLY WRITTEN COMMENTS Written Comments on 6/15/2020 Topics: Copyright Office - rulemaking, Copyrightability - publication, Literary work - Internet work, Music - musical work, Music - sound recording URL: https://www.copyright.gov/rulemaking/online-publication/ The Copyright Office received 13 reply written comment submissions in response to its Online Publication rulemaking. They are available by clicking on the links below:

• ACT | The App Association (https://www.regulations.gov/document?D=COLC-2019-0003-0054)

• Alliance for Recorded Music ("ARM") (https://www.regulations.gov/document?D=COLC-2019-0003-0051)

• Authors Alliance (https://www.regulations.gov/document?D=COLC-2019-0003-0057)

• The Authors Guild (https://www.regulations.gov/document?D=COLC-2019-0003-0053)

• Coalition of Visual Artists (https://www.regulations.gov/document?D=COLC-2019-0003-0052)

• Copyright Alliance (https://www.regulations.gov/document?D=COLC-2019-0003-0050)

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• Graphic Artists Guild (https://www.regulations.gov/document?D=COLC-2019-0003-0056)

• Linda Joy Kattwinkel (https://www.regulations.gov/document?D=COLC-2019-0003-0047)

• Motion Picture Association (https://www.regulations.gov/document?D=COLC-2019-0003-0049)

• National Writers Union (NWU) (https://www.regulations.gov/document?D=COLC-2019-0003-0048)

• New York City Bar Association Committee on Copyright & Literary Property (https://www.regulations.gov/document?D=COLC-2019-0003-0055)

• Naomi Scher (https://www.regulations.gov/document?D=COLC-2019-0003-0046)

• Professor Jeffrey Sedlik (https://www.regulations.gov/document?D=COLC-2019-0003-0058)

Protection of Confidential Information by the Mechanical Licensing Collective and Digital Licensee Coordinator Rulemaking

TREATMENT OF CONFIDENTIAL INFORMATION BY THE MECHANICAL LICENSING COLLECTIVE AND DIGITAL LICENSEE COORDINATOR Notice of Proposed Rulemaking on 4/22/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/04/22/2020-08374/treatment-of-confidential-information-by-the-mechanical-licensing-collective-and-digital-licensee The U.S. Copyright Office is issuing a notice of proposed rulemaking regarding the protection of confidential information by the mechanical licensing collective and digital licensee coordinator under title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. After soliciting public comments through a notification of inquiry, the Office is now proposing regulations identifying appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in the records of the mechanical licensing collective and digital licensee coordinator is not improperly disclosed or used. The Office solicits additional public comments on the proposed rule, including regarding the use of confidentiality designations and nondisclosure agreements. PROTECTION OF CONFIDENTIAL INFORMATION BY THE MECHANICAL LICENSING COLLECTIVE AND DIGITAL LICENSEE COORDINATOR WRITTEN COMMENTS Written Comments on 6/8/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording, Copyright Office - written comments

Joshua L. Simmons joshua.simmons@kirkland.com

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URL: https://www.copyright.gov/rulemaking/mma-confidentiality/ The Copyright Office received ten written comment submissions in response to its Protection of Confidential Information by the Mechanical Licensing Collective and Digital Licensee Coordinator rulemaking. They are available by clicking on the links below:

• Alliance of Recorded Music (https://www.regulations.gov/document?D=COLC-2020-0004-0008)

• Christian Castle (https://www.regulations.gov/document?D=COLC-2020-0004-0003)

• CISAC and BIEM (https://www.regulations.gov/document?D=COLC-2020-0004-0004)

• Digital Licensee Coordinator, Inc. (https://www.regulations.gov/document?D=COLC-2020-0004-0010)

• Future of Music Coalition (https://www.regulations.gov/document?D=COLC-2020-0004-0011)

• Ash Kernen, Esq. (https://www.regulations.gov/document?D=COLC-2020-0004-0002)

• Mechanical Licensing Collective (https://www.regulations.gov/document?D=COLC-2020-0004-0009)

• National Music Publishers' Association (https://www.regulations.gov/document?D=COLC-2020-0004-0007)

• Songwriters Guild of America (https://www.regulations.gov/document?D=COLC-2020-0004-0005)

• Songwriters of North America (https://www.regulations.gov/document?D=COLC-2020-0004-0006)

Registration Modernization

REGISTRATION MODERNIZATION Statement of Policy and Notification of Inquiry on 3/3/2020 Topics: Copyright Office - rulemaking, Copyright Office - modernization URL: https://www.federalregister.gov/documents/2020/03/03/2020-04435/registration-modernization In conjunction with the development of new technological infrastructure for the copyright registration system, on October 17, 2018, the U.S. Copyright Office solicited public input regarding potential regulatory and practice updates to improve the system's efficiency for both

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users and the Office. The Office sought and received public comment on three main areas of proposed reform: The administration and substance of the application for registration, the utility of the public record, and the deposit requirements for registration. After reviewing the comments, the Office is announcing intended practice updates, to be adopted in conjunction with the deployment of the new technological system that the Library of Congress is building for the Office. The Office also seeks further comment on two proposals to permit post-registration edits to rights and permissions information, and to permit voluntary submission of additional deposit information to be included in the public record. REGISTRATION MODERNIZATION Statement of Policy and Notification of Inquiry; Extension of Comment Period on 3/20/2020 Topics: Copyright Office - rulemaking, Copyright Office - modernization URL: https://www.federalregister.gov/documents/2020/03/20/2020-05696/registration-modernization The U.S. Copyright Office is extending the deadline for the submission of written comments in response to its March 3, 2020, statement of policy and notification of inquiry regarding registration modernization. REGISTRATION MODERNIZATION WRITTEN COMMENTS Written Comments on 6/1/2020 Topics: Copyright Office - rulemaking, Copyright Office - modernization, Copyright Office - written comments URL: https://www.copyright.gov/rulemaking/reg-modernization/ The Copyright Office received the written comment submissions below in response to its registration modernization rulemaking.

• ACT | The App Association (https://www.regulations.gov/document?D=COLC-2018-0009-0070)

• AIPLA (https://www.regulations.gov/document?D=COLC-2018-0009-0066)

• Alliance for Recorded Music ("ARM") (https://www.regulations.gov/document?D=COLC-2018-0009-0069)

• Anonymous Anonymous (https://www.regulations.gov/document?D=COLC-2018-0009-0058)

• Anonymous Anonymous (https://www.regulations.gov/document?D=COLC-2018-0009-0059)

• Anonymous (https://www.regulations.gov/document?D=COLC-2018-0009-0062)

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• Association of Medical Illustrators (https://www.regulations.gov/document?D=COLC-2018-0009-0065)

• Authors Guild (https://www.regulations.gov/document?D=COLC-2018-0009-0061)

• Coalition of Visual Artists (https://www.regulations.gov/document?D=COLC-2018-0009-0060)

• Copyright Alliance (https://www.regulations.gov/document?D=COLC-2018-0009-0067)

• INTA (https://www.regulations.gov/document?D=COLC-2018-0009-0063)

• Patrick Kilbride (https://www.regulations.gov/document?D=COLC-2018-0009-0064)

• Motion Picture Association, Inc. (https://www.regulations.gov/document?D=COLC-2018-0009-0068)

Reporting and Distribution of Royalties to Copyright Owners by the Mechanical Licensing Collective Rulemaking

REPORTING AND DISTRIBUTION OF ROYALTIES TO COPYRIGHT OWNERS BY THE MECHANICAL LICENSING COLLECTIVE Notice of Proposed Rulemaking on 4/22/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/04/22/2020-08375/reporting-and-distribution-of-royalties-to-copyright-owners-by-the-mechanical-licensing-collective The U.S. Copyright Office is issuing a notice of proposed rulemaking regarding the obligations of the mechanical licensing collective to report and distribute royalties paid by digital music providers under the blanket license to musical work copyright owners under title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. After soliciting public comments through a notification of inquiry, the Office is now proposing regulations establishing the timing, form, delivery, and certification of statements accompanying royalty distributions to musical work copyright owners. The Office solicits additional public comments on the proposed rule. This notice concerns only royalty statements and distributions regarding matched uses of musical works embodied in sound recordings and does not address issues related to the distribution of unclaimed, accrued royalties. REPORTING AND DISTRIBUTION OF ROYALTIES TO COPYRIGHT OWNERS BY THE MECHANICAL LICENSING COLLECTIVE Interim Rule on 9/17/2020 Topics: Music - Music Modernization Act, Copyright Office - rulemaking URL: https://www.federalregister.gov/documents/2020/09/17/2020-20079/reporting-and-distribution-of-royalties-to-copyright-owners-by-the-mechanical-licensing-collective

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The U.S. Copyright Office is issuing an interim rule regarding the obligations of the mechanical licensing collective to report and distribute royalties paid by digital music providers under the blanket license to musical work copyright owners under title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. After soliciting public comments through a notice of proposed rulemaking, the Office is now issuing regulations establishing the timing, form, and delivery of statements accompanying royalty distributions to musical work copyright owners. These regulations concern only royalty statements and distributions regarding matched uses of musical works embodied in sound recordings and do not address issues related to the distribution of unclaimed, accrued royalties.

Secure Tests Rulemaking

SECURE TESTS Interim Rule with Request for Comments on 5/8/2020 Topics: Copyright Office - rulemaking, Copyright Office - COVID-19 pandemic URL: https://www.federalregister.gov/documents/2020/05/08/2020-09916/secure-tests The U.S. Copyright Office is issuing an interim rule amending its regulations governing the registration of copyright claims in secure tests in order to address a disruption caused by the COVID-19 pandemic. The Office has become aware that certain examinations that normally would qualify for registration as secure tests may be ineligible for this option because they currently are being administered remotely rather than at specified testing centers. The interim rule allows otherwise-eligible tests that are administered online during the national emergency to qualify as secure tests, provided the test administrator employs sufficient security measures. In addition, the Office is requesting public comment on the technological requirements needed for examination of secure test claims via secure teleconference. Finally, the Office is announcing its intention to issue guidelines according to which parties may request ex parte meetings with the Office in this proceeding. SECURE TESTS RULEMAKING WRITTEN COMMENTS Written Comments on 6/8/2020 Topics: Copyright Office - rulemaking, Copyright Office - written comments URL: https://www.copyright.gov/rulemaking/securetests/ The Copyright Office received five written comment submissions in response to its Secure Tests rulemaking. They are available by clicking on the links below:

• Association of American Medical Colleges (https://www.regulations.gov/document?D=COLC-2017-0005-0046)

• Educational Testing Service (https://www.regulations.gov/document?D=COLC-2017-0005-0045)

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• National College Testing Association (https://www.regulations.gov/document?D=COLC-2017-0005-0048)

• Heisman Q (IV) (https://www.regulations.gov/document?D=COLC-2017-0005-0049)

• Lauren Scheib (https://www.regulations.gov/document?D=COLC-2017-0005-0047)

Transition Period Cumulative Reporting and Transfer of Royalties to the Mechanical Licensing Collective

MUSIC MODERNIZATION ACT TRANSITION PERIOD TRANSFER AND REPORTING OF ROYALTIES TO THE MECHANICAL LICENSING COLLECTIVE Notice of Proposed Rulemaking on 7/17/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/07/17/2020-15591/music-modernization-act-transition-period-transfer-and-reporting-of-royalties-to-the-mechanical The U.S. Copyright Office is issuing a notice of proposed rulemaking regarding digital music providers' obligations to transfer and report accrued royalties for unmatched musical works (or shares) to the mechanical licensing collective for purposes of being eligible for the limitation on liability for prior unlicensed uses under title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. Having solicited public comments through multiple prior notices, the Office is now proposing an update to regulations concerning the transfer and reporting of such royalties, namely the content, format, and delivery of cumulative statements of account to be submitted by digital music providers to the mechanical licensing collective at the conclusion of the statutory transition period. TRANSITION PERIOD CUMULATIVE REPORTING AND TRANSFER OF ROYALTIES TO THE MECHANICAL LICENSING COLLECTIVE WRITTEN COMMENTS Written Comments on 8/17/2020 Topics: Copyright Office - rulemaking, Copyright Office - written comments, Music - musical work, Music - sound recording The Copyright Office received eight written comment submissions in response to its Transition Period Cumulative Reporting and Transfer of Royalties to the Mechanical Licensing Collective rulemaking. They are available by clicking on the links below:

• Anonymous (https://www.regulations.gov/document?D=COLC-2020-0011-0005)

• Digital Licensee Coordinator, Inc. (https://www.regulations.gov/document?D=COLC-2020-0011-0008)

• Digital Media Association (DiMA) (https://www.regulations.gov/document?D=COLC-2020-0011-0007)

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• Rayn Jackson (https://www.regulations.gov/document?D=COLC-2020-0011-0002)

• Kumarsorg.wordpress.com (https://www.regulations.gov/document?D=COLC-2020-0011-0004)

• Mechanical Licensing Collective (https://www.regulations.gov/document?D=COLC-2020-0011-0009)

• Linda M Newton (https://www.regulations.gov/document?D=COLC-2020-0011-0003)

• Charles Sanders (https://www.regulations.gov/document?D=COLC-2020-0011-0006)

MUSIC MODERNIZATION ACT TRANSITION PERIOD TRANSFER AND REPORTING OF ROYALTIES TO THE MECHANICAL LICENSING COLLECTIVE: REQUEST FOR ADDITIONAL COMMENTS Supplemental Notice of proposed Rulemaking on 11/5/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/11/05/2020-24528/music-modernization-act-transition-period-transfer-and-reporting-of-royalties-to-the-mechanical This supplemental notice of proposed rulemaking (“SNPRM”) updates the Copyright Office's July 17, 2020 proposed rule concerning the Music Modernization Act transition period transfer and reporting of royalties to the mechanical licensing collective. Specifically, this SNPRM provides an alternate approach to requirements concerning the content of cumulative statements of account to be submitted by digital music providers to the mechanical licensing collective at the conclusion of the statutory transition period and proposes estimate and adjustment provisions with respect to payment of accrued royalties to the mechanical licensing collective in connection with this reporting.

Transparency of the Mechanical Licensing Collective and Its Database of Musical Works Information Rulemaking

TRANSPARENCY OF THE MECHANICAL LICENSING COLLECTIVE AND ITS DATABASE OF MUSICAL WORKS INFORMATION Notification of Inquiry on 4/22/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/04/22/2020-08376/transparency-of-the-mechanical-licensing-collective-and-its-database-of-musical-works-information The U.S. Copyright Office is issuing a notification of inquiry regarding the Musical Works Modernization Act, title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. Title I establishes a blanket compulsory license, which digital music providers may obtain to make and deliver digital phonorecords of musical works. By statute, the blanket license, which will be administered by a mechanical licensing collective, will become available on January 1, 2021.

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The MMA specifically directs the Copyright Office to adopt a number of regulations to govern the new blanket licensing regime, including prescribing categories of information to be included in the mechanical licensing collective's musical works database, as well as rules related to the usability, interoperability, and usage restrictions of the database. Congress has indicated that the Office should exercise its general regulatory authority to, among other things, help ensure that the collective's policies and practices are transparent and accountable. The Office seeks public comment regarding the subjects of inquiry discussed in this notification, namely, issues related to ensuring appropriate transparency of the mechanical licensing collective itself, as well as the contents of the collective's public musical work database, database access, and database use. This notification is being published concurrently with a related notice of proposed rulemaking related to confidentiality considerations with respect to the operation and records of the collective. TRANSPARENCY OF THE MECHANICAL LICENSING COLLECTIVE AND ITS DATABASE OF MUSICAL WORKS INFORMATION WRITTEN COMMENTS Written Comments on 6/8/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.copyright.gov/rulemaking/mma-transparency/ The Copyright Office received 17 written comment submissions in response to its Transparency of the Mechanical Licensing Collective and Its Database of Musical Works Information rulemaking. They are available by clicking on the links below:

• Alliance for Recorded Music ("ARM") (https://www.regulations.gov/document?D=COLC-2020-0006-0015)

• Christian Castle (https://www.regulations.gov/document?D=COLC-2020-0006-0004)

• CISAC and BIEM (https://www.regulations.gov/document?D=COLC-2020-0006-0005)

• Jonathan Coulton (https://www.regulations.gov/document?D=COLC-2020-0006-0002)

• Digital Licensee Coordinator, Inc. (https://www.regulations.gov/document?D=COLC-2020-0006-0018)

• Future of Music Coalition (https://www.regulations.gov/document?D=COLC-2020-0006-0017)

• H.A. Hendricks (https://www.regulations.gov/document?D=COLC-2020-0006-0008)

• Zoe Keating (https://www.regulations.gov/document?D=COLC-2020-0006-0014)

• Mechanical Licensing Collective (https://www.regulations.gov/document?D=COLC-2020-0006-0013)

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• MediaNet, Inc. (https://www.regulations.gov/document?D=COLC-2020-0006-0016)

• MIC Coalition (https://www.regulations.gov/document?D=COLC-2020-0006-0010)

• Music Reports, Inc. (https://www.regulations.gov/document?D=COLC-2020-0006-0012)

• Kerry Muzzey (https://www.regulations.gov/document?D=COLC-2020-0006-0003)

• Recording Academy (https://www.regulations.gov/document?D=COLC-2020-0006-0011)

• Songwriters Guild of America (https://www.regulations.gov/document?D=COLC-2020-0006-0007)

• Songwriters of North America (https://www.regulations.gov/document?D=COLC-2020-0006-0009)

• SoundExchange, Inc. (https://www.regulations.gov/document?D=COLC-2020-0006-0006)

THE PUBLIC MUSICAL WORKS DATABASE AND TRANSPARENCY OF THE MECHANICAL LICENSING COLLECTIVE Notice of Proposed Rulemaking on 9/17/2020 Topics: Music - compulsory license, Copyright Office - rulemaking URL: https://www.federalregister.gov/documents/2020/09/17/2020-20078/the-public-musical-works-database-and-transparency-of-the-mechanical-licensing-collective The U.S. Copyright Office is issuing a notice of proposed rulemaking regarding the Musical Works Modernization Act, title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. Title I establishes a blanket compulsory license, which digital music providers may obtain to make and deliver digital phonorecords of musical works. The law establishes a new blanket license to become available on the January 1, 2021 license availability date that will be administered by a mechanical licensing collective, which will make available a public musical works database as part of its statutory duties. Having solicited public comments through previous notifications of inquiry, through this notice the Office is proposing regulations concerning the new blanket licensing regime, including prescribing categories of information to be included in the public musical works database, as well as rules related to the usability, interoperability, and usage restrictions of the database. The Office is also proposing regulations in connection with its general regulatory authority related to ensuring appropriate transparency of the mechanical licensing collective itself. THE PUBLIC MUSICAL WORKS DATABASE AND TRANSPARENCY OF THE MECHANICAL LICENSING COLLECTIVE WRITTEN COMMENTS

Joshua L. Simmons joshua.simmons@kirkland.com

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Written Comments on 10/19/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.copyright.gov/rulemaking/mma-transparency/ The Copyright Office received 14 written comment submissions in response to its Public Musical Works Database and Transparency of the Mechanical Licensing Collective rulemaking. They are available by clicking on the links below:

• Alliance for Recorded Music ("ARM") (https://www.regulations.gov/document?D=COLC-2020-0006-0032)

• Anonymous Anonymous (https://www.regulations.gov/document?D=COLC-2020-0006-0022)

• Christsian Castle (https://www.regulations.gov/document?D=COLC-2020-0006-0024)

• CISAC/BIEM (https://www.regulations.gov/document?D=COLC-2020-0006-0023)

• Philip J. Coulson (https://www.regulations.gov/document?D=COLC-2020-0006-0021)

• Digital Licensee Coordinator, Inc. (https://www.regulations.gov/document?D=COLC-2020-0006-0027)

• Future of Music Coalition (https://www.regulations.gov/document?D=COLC-2020-0006-0033)

• Mechanical Licensing Collective (https://www.regulations.gov/document?D=COLC-2020-0006-0026)

• Music Artists Coalition (https://www.regulations.gov/document?D=COLC-2020-0006-0029)

• Kerry Muzzey (https://www.regulations.gov/document?D=COLC-2020-0006-0020)

• Recording Academy (https://www.regulations.gov/document?D=COLC-2020-0006-0031)

• Songwriters Guild of America (https://www.regulations.gov/document?D=COLC-2020-0006-0025)

• Songwriters of North America (“SONAâ € ) (https://www.regulations.gov/document?D=COLC-2020-0006-0028)

• SoundExchange (https://www.regulations.gov/document?D=COLC-2020-0006-0030)

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THE PUBLIC MUSICAL WORKS DATABASE AND TRANSPARENCY OF THE MECHANICAL LICENSING COLLECTIVE Interim Rule on 12/31/2020 Topics: Copyright Office - rulemaking, Music - musical work, Music - sound recording URL: https://www.federalregister.gov/documents/2020/12/31/2020-28958/the-public-musical-works-database-and-transparency-of-the-mechanical-licensing-collective The U.S. Copyright Office is issuing an interim rule regarding the Musical Works Modernization Act, title I of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act. The law establishes a new blanket compulsory license that will be administered by a mechanical licensing collective, which will make available a public musical works database as part of its statutory duties. Having solicited public comments through previous notifications of inquiry and a notice of proposed rulemaking, the Office is issuing interim regulations prescribing categories of information to be included in the public musical works database, as well as rules related to the usability, interoperability, and usage restrictions of the database. The Office is also issuing interim regulations related to ensuring appropriate transparency of the mechanical licensing collective itself.

Letters

Noncommercial Use Exception

RESPONSE TO DECEMBER 20, 2019 LETTER REGARDING NONCOMMERCIAL USE EXCEPTION Letter on 2/2/2020 Topics: Copyright Office - letter, Music - sound recording, Music - pre-1972 sound recording URL: https://www.copyright.gov/laws/hearings/letter-to-senator-udall-on-noncommercial-use-exception.pdf I write in response to your December 20, 2019 letter to then-Register Karyn Temple regarding the Orrin G. Hatch-Bob Goodlatte Music Modernization Act ("MMA") and the noncommercial use exception for pre-1972 sound recordings created through its enactment. The Copyright Office is sensitive to the need to ensure that its regulations governing the noncommercial use of pre-1972 sound recordings do not adversely impact American Indian and Alaskan Native tribes. We welcome the opportunity to discuss these issues more with the Senate Committee on Indian Affairs, and to offer any assistance as you consider potential legislative solutions to address concerns that regulations alone cannot.

Joshua L. Simmons joshua.simmons@kirkland.com

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Publications

Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code

COPYRIGHT OFFICE RELEASES UPDATED ONLINE EDITION OF COPYRIGHT LAW OF THE UNITED STATES AND RELATED LAWS CONTAINED IN TITLE 17 OF THE UNITED STATES CODE on 6/23/2020 Topics: Copyright Office - announcement URL: https://www.copyright.gov/title17/ Acting Register of Copyrights Maria Strong has released an updated version of Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. Also known as Circular 92, this publication contains the text of Title 17 of The United States Code, including all amendments enacted by Congress through March 27, 2020. Significant copyright legislation enacted since the last printed edition of this circular in December 2016 includes the Marrakesh Treaty Implementation Act and the Orrin G. Hatch–Bob Goodlatte Music Modernization Act, both signed into law in October 2018; the National Defense Authorization Act for Fiscal Year 2020, the Satellite Television Community Protection and Promotion Act of 2019, and the Library of Congress Technical Corrections Act of 2019, all signed into law in December 2019; and the Coronavirus Aid, Relief, and Economic Security Act, signed into law in March 2020. A digital version of the publication is now available on the Copyright Office website in pdf format, and a searchable html file will be available shortly. Due to the ongoing COVID-19 pandemic, the Office is unable to release a printed version at this time, but one is forthcoming.

Announcements

COVID-19 Pandemic

COPYRIGHT OFFICE CONTINUES SERVICES on 3/17/2020 Topics: Copyright Office - announcement URL: https://www.copyright.gov/newsnet/2020/806.html The U.S. Copyright Office continues to be open through our website copyright.gov for online registration, searching copyright-related records, and learning about copyright topics. We are also receiving registration applications and recorded documents sent by mail. Members of the public may submit emails with questions through our website and reach us by phone at (202) 707-3000, while our office facilities are closed to the public to reduce the risk of transmitting the COVID-19 coronavirus. Additionally, we are unable to accept deliveries by

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personal courier at this time, though we are currently accepting deliveries via U.S. Postal mail and commercial delivery services such as UPS, FedEx, and DHS. We have established a webpage with answers to specific questions about special handling and will soon include information about effective date of registration, search and certification services, and other matters. We will also be sending additional NewsNet bulletins with updated information as needed. REGISTRATION SPECIAL HANDLING ARRANGEMENTS on 3/18/2020 Topics: Copyright registration - special handling URL: https://www.copyright.gov/newsnet/2020/807.html As a result of the COVID-19 pandemic, Library of Congress buildings are currently closed to the public. The U.S. Copyright Office has implemented extended telework requirements that result in a reduced number of onsite staff. Consequently, with respect to applications for registration, the processing of paper applications and the examination of physical deposits will be delayed. The Office strongly encourages applicants to submit applications online, as the most efficient and cost-effective method of registering claims in copyright. To minimize the effects of these temporary measures on the initiation of copyright infringement actions, the Office is adopting an interim policy for the “special handling” of applications for registration on an expedited basis. For special handling claims that are submitted electronically and for which electronic deposits are permissible under the regulations, these claims will continue to be examined within five business days by examiners that are teleworking. For electronic applications that require the submission of physical deposits of the best edition, applicants must still send the physical deposits, but the Office will allow the applicant to additionally upload an electronic deposit of that same work. The electronic deposit must be accompanied by a declaration or similar statement certifying, under penalty of perjury, that the electronic deposit is identical in content to the physical deposit that has been sent to the U.S. Copyright Office. This will allow teleworking examiners to examine such claims within five business days. As noted above, these measures are exceptional in nature and temporary in duration, and are projected to terminate when the Library reopens its buildings to the public. As developments unfold, the Copyright Office will consider whether similar accommodations may be appropriate for other Office services, and will promptly provide updates through NewsNet and our website. ELECTRONIC REFUSAL LETTERS AND DECISIONS IN REQUESTS FOR RECONSIDERATION

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on 3/20/2020 Topics: Copyright registration - refusal URL: https://www.copyright.gov/newsnet/2020/809.html U.S. Copyright Office staff are currently working remotely in an effort to mitigate the spread of the COVID-19 respiratory virus. Ordinarily, when the Office refuses to register an application for copyright registration, the refusal letter will be sent to the applicant through U.S. Mail. Because many staff members are not in the Office, examiners cannot send hard-copy letters at this time. To ensure that applicants receive a timely registration decision, the Office has decided to send refusal letters via email, instead of sending a physical copy through the mail. When a claim is refused, the refusal letter will be sent to the email address provided in the registration application. The letter will be attached to the email as a PDF attachment. The attached PDF constitutes “written” notice of the Office’s registration decision per 37 C.F.R. § 202.5(b)(4) and 17 U.S.C. § 410(b). Decision letters for requests for reconsideration to be sent by email The Office will follow a similar approach when responding to a first or second request for reconsideration: the response will be sent to the email address provided in the reconsideration request. Responses to first requests for reconsideration will include instructions on how to submit a second request for reconsideration. Responses to second requests for consideration via email will constitute final agency action per 37 C.F.R. § 202.5(g). Questions about these processes should be directed to the Public Information Office at: 1 (877) 476–0778. COPYRIGHT OFFICE ANNOUNCES TEMPORARY CHANGES TO CERTAIN TIMING PROVISIONS FOR PERSONS AFFECTED BY THE COVID-19 EMERGENCY Topics: Copyright Office - announcement URL: https://www.copyright.gov/newsnet/2020/810.html On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which authorizes the Register of Copyrights to temporarily adjust timing provisions in the Copyright Act if she determines that a national emergency is generally disrupting the normal operation of the copyright system. The Acting Register is exercising this authority to adjust certain deadlines relating to copyright registration and notices of termination in specific cases for persons unable to comply due to the COVID-19 national emergency. For copyright registrations, the adjustment allows affected copyright owners to receive additional time to register a work in order to be eligible for certain remedies in infringement actions. Under the Copyright Act, statutory damages and attorney’s fees are generally available only if a work is

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registered before the infringement or within three months after first publication. The Acting Register will extend the three-month window for applicants who can show that they were unable to comply due to the emergency—for example, because they could not mail physical materials or lacked access to a computer. To qualify, an applicant must submit a statement certifying under penalty of perjury that they would have met the deadline but for the national emergency. The adjustment provides similar accommodations for persons who are prevented from serving or recording notices of termination within statutorily required time periods. These persons likewise must provide a certification that they would have met the deadline but for the national emergency. The Acting Register’s announcement is available at copyright.gov/coronavirus/, which also provides general information about Copyright Office operations during the COVID-19 pandemic. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or at (202) 707-3000 or 1-877-476-0778 (toll free). For more information on COVID-19, please visit: Coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus. REGISTRATION OF CLAIMS WITH PHYSICAL DEPOSIT COPIES DURING TEMPORARY BUILDING CLOSURE Topics: Copyright Office - announcement URL: https://www.copyright.gov/newsnet/2020/811.html Due to the COVID-19 pandemic, Library of Congress buildings are closed to the public, and the U.S. Copyright Office has implemented extended telework requirements to reduce the number of onsite staff. To mitigate the effect of this temporary closure on the examination of electronic applications accompanied by physical deposits, the Office will offer applicants the option of providing an additional electronic copy of the work so the claim can be examined remotely. *For Applications Before April 2, 2020* Effective April 2, 2020, the Office may contact applicants who have filed an electronic application for which a physical deposit copy has already been received to offer the option of uploading an electronic copy of the work so the claim can be examined remotely. The submission of an electronic copy will be allowed only when the registration specialist assigned to the claim contacts the applicant to offer the option. If the applicant agrees to use this option, the applicant must submit both an electronic deposit copy and a declaration form, under penalty of perjury, stating that the electronic copy is identical to the physical copy previously submitted. The applicant may upload the declaration form in the same manner as the electronic deposit copy. The registration specialist assigned to the claim will send the declaration form to the applicant and will provide the applicant with instructions for uploading the completed declaration and the deposit to the appropriate claim.

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Applicants must wait until the registration specialist contacts them and provides instructions for the upload. Applicants should not contact the Public Information Office regarding this option unless they have heard from a registration specialist and are having difficulty with the upload process. *For Applications Filed On or After April 2, 2020* Effective April 2, 2020, for newly submitted electronic applications for published works that require the submission of “best edition” physical copies of the deposit, the applicant will have the option of uploading an electronic copy of the work in addition to mailing the required physical copies. If the applicant submits the voluntary electronic copy, registration specialists will be able to examine the claim remotely. Applicants who use this option must submit both an electronic deposit copy and a declaration form, under penalty of perjury, stating that the electronic copy is identical to the required physical copies that the applicant will mail to the Office together with the shipping slip generated in eCO. Applicants may use the declaration form provided here. The applicant may upload the declaration form in the same manner as the electronic deposit copy. If an applicant decides to use this option, registration specialists will be able to examine the claim remotely once they receive the application, fee, electronic deposit copy, and declaration. If an applicant decides to use this option, teleworking Registration Specialists will be able to examine the claim when they receive the application, fee, electronic deposit copy, and declaration. For both of the options above, if the applicant cannot, or prefers not to, submit an electronic copy, examination of such claims will begin in the order received once registration specialists resume in-Office examination. Although examination of the claim will be delayed, the effective date of registration will generally be the date that the Office received the application, fee, and physical deposits. These interim processes apply during the temporary closure of the Library to electronic applications for published works for which physical deposits are required under the Office’s regulations. These options are not available to applicants submitting paper applications. These measures are exceptional in nature and temporary in duration and are projected to terminate when the Library resumes normal operations. For applicants filing electronic applications for which physical copies are not required to be submitted, the Office strongly encourages the submission of electronic deposits. Please refer to U.S. Copyright Office NewsNet Issue 807 for applications requiring special handling. The Acting Register’s announcement is available at copyright.gov/coronavirus/, which also provides general information about Copyright Office operations during the COVID-19

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pandemic. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or at (202) 707-3000 or 1-877-476-0778 (toll free). For more information on COVID-19, please visit: Coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus. TECHNICAL AMENDMENTS REGARDING ELECTRONIC SUBMISSIONS TO THE COPYRIGHT OFFICE Final Rule on 4/8/2020 Topics: Copyright Office - rulemaking URL: https://www.federalregister.gov/documents/2020/04/08/2020-07353/technical-amendments-regarding-electronic-submissions-to-the-copyright-office The U.S. Copyright Office is adopting technical amendments to allow electronic submission of materials in connection with certain Office services, and to allow the Office to respond to submitters electronically. These amendments are intended to facilitate the public's ability to access Office services during the COVID-19 pandemic. COPYRIGHT OFFICE EXTENDS TIMING ADJUSTMENTS FOR PERSONS AFFECTED BY THE COVID-19 EMERGENCY on 5/1/2020 Topics: Copyright Office - timing adjustment URL: https://www.copyright.gov/newsnet/2020/820.html The Acting Register of Copyrights is extending the temporary adjustments to certain timing provisions under the Copyright Act for persons affected by the COVID-19 national emergency. The Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes the Register to temporarily adjust statutory deadlines for copyright owners and other affected parties if she determines that a national emergency declared by the President is generally disrupting the normal operation of the copyright system. Under this authority, the Copyright Office has announced adjustments relating to certain registration claims, notices of termination, and section 115 notices of intention and statements of account. These emergency modifications originally were set to expire on May 12, 2020. Because, however, the disruptions caused by the national emergency remain in effect, the Acting Register is extending them for up to an additional sixty days, or through July 10, 2020. For further details, please visit the Office’s Coronavirus page. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or by phone at (202) 707-3000 or 1-877-476-0778 (toll-free). For more information on COVID-19 generally, please visit coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus.

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COPYRIGHT OFFICE ALLOWS ELECTRONIC SUBMISSION OF RECORDATION SPECIAL HANDLING REQUESTS on 5/27/2020 Topics: Copyright Office - recordation, Copyright Office - COVID-19 pandemic URL: https://www.copyright.gov/newsnet/2020/825.html Due to the COVID-19 pandemic, Library of Congress buildings are closed to the public, and the U.S. Copyright Office has implemented extended telework requirements to reduce the number of onsite staff. To mitigate the effect of this temporary closure on the examination of electronic applications accompanied by physical deposits, the Office will offer applicants the option of providing an additional electronic copy of the work so the claim can be examined remotely. The Acting Register’s declaration is available at copyright.gov/coronavirus/, a page that also provides general information about Copyright Office operations during the COVID-19 pandemic. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or at (202) 707-3000 or 1-877-476-0778 (toll free). For more information on COVID-19, please visit: Coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus. COPYRIGHT OFFICE FURTHER EXTENDS TIMING ADJUSTMENTS FOR PERSONS AFFECTED BY THE COVID-19 EMERGENCY on 7/10/2020 Topics: Copyright Office - COVID-19 pandemic URL: https://www.copyright.gov/newsnet/2020/843.html The Copyright Office is further extending the temporary adjustments to certain timing provisions under the Copyright Act for persons affected by the COVID-19 national emergency. The Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes the Register of Copyrights to temporarily adjust statutory deadlines for copyright owners and other affected parties if she determines that a national emergency declared by the President is generally disrupting the normal operation of the copyright system. Under this authority, the Copyright Office previously has announced adjustments relating to certain registration claims, notices of termination, and section 115 notices of intention and statements of account. These emergency modifications previously were set to continue through July 10, 2020. Because the disruptions remain in effect, however, the Acting Register is extending the modifications for up to an additional sixty days, or through September 8, 2020. The Office has notified Congress of these further extensions. For further details, please visit the Office’s Coronavirus page. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or by phone at (202) 707-3000 or 1-877-476-0778 (toll-free).

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For more information on COVID-19, please visit: Coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus. COPYRIGHT OFFICE FURTHER EXTENDS TIMING ADJUSTMENTS FOR PERSONS AFFECTED BY THE COVID-19 EMERGENCY on 9/2/2020 Topics: Copyright Office - COVID-19 pandemic URL: https://www.copyright.gov/newsnet/2020/848.html The Copyright Office is further extending the temporary adjustments to certain timing provisions under the Copyright Act for persons affected by the COVID-19 national emergency. The Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes the Register of Copyrights to temporarily adjust statutory deadlines for copyright owners and other affected parties if she determines that a national emergency declared by the President is generally disrupting the normal operation of the copyright system. Under this authority, the Copyright Office previously announced adjustments relating to certain registration claims, notices of termination, and section 115 notices of intention and statements of account. These emergency modifications were set to continue through September 8, 2020. Because the disruptions remain in effect, however, the Acting Register is extending the modifications for an additional sixty days, through November 9, 2020. For further details, please visit the Office’s Coronavirus page. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or by phone at (202) 707-3000 or 1-877-476-0778 (toll-free). For more information on COVID-19, please visit: Coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus. COPYRIGHT OFFICE FURTHER EXTENDS TIMING ADJUSTMENTS FOR PERSONS AFFECTED BY THE COVID-19 EMERGENCY on 11/9/2020 Topics: Copyright Office - COVID-19 pandemic URL: https://www.copyright.gov/newsnet/2020/862.html The Copyright Office is further extending the temporary adjustments to certain timing provisions under the Copyright Act for persons affected by the COVID-19 national emergency. The Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes the Register of Copyrights to temporarily adjust statutory deadlines for copyright owners and other affected parties if she determines that a national emergency declared by the President is generally disrupting the normal operation of the copyright system. Under this authority, the Copyright

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Office previously has announced adjustments relating to certain registration claims, notices of termination, and section 115 notices of intention and statements of account. These emergency modifications previously were set to continue through November 9, 2020. Because the disruptions remain in effect, however, the Register is extending the modifications for up to an additional sixty days, or through January 8, 2021. The Office has notified Congress of these further extensions. For further details, please visit the Office’s Coronavirus page. For more information on COVID-19 generally, please visit coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus.

Events

COPYRIGHT OFFICE AND WIPO CO-SPONSOR COPYRIGHT IN THE AGE OF ARTIFICIAL INTELLIGENCE Topics: Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/793.html On Wednesday, February 5, 2020, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) are co-sponsoring Copyright in the Age of Artificial Intelligence from 9:00 a.m. to 5:00 p.m. eastern time in the Montpelier Room of the Library of Congress, James Madison Memorial Building, in Washington, DC. This event will take an in-depth look at how the creative community currently is using artificial intelligence (AI) to create original works. Panelists’ discussions will include the relationship between AI and copyright; what level of human input is sufficient for the resulting work to be eligible for copyright protection; the challenges and considerations for using copyright-protected works to train a machine or to examine large data sets; and the future of AI and copyright policy. Maria Strong, Acting Register of Copyrights and Director of the U.S. Copyright Office, will provide opening remarks and Francis Gurry, Director General, WIPO, will provide the opening keynote. The agenda will be posted on the Office’s website at https://www.copyright.gov/events/artificial-intelligence/. The event is free and open to the public. Registration is recommended and space is limited. For questions about Copyright in the Age of Artificial Intelligence, contact Whitney Levandusky at wlev@copyright.gov. COPYRIGHT OFFICE ANNOUNCES AGENDA FOR SYMPOSIUM: COPYRIGHT IN THE AGE OF ARTIFICIAL INTELLIGENCE Topics: Copyright Office - event URL: https://www.copyright.gov/events/artificial-intelligence/ The U.S. Copyright Office announces its agenda for Copyright in the Age of Artificial Intelligence to be held February 5 in Washington, DC. In partnership with the World Intellectual

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Property Organization, this program provides a public forum for international experts, academics, creators, and business representatives to explore artificial intelligence (AI). Panels approach the intersection of AI and copyright through a variety of perspectives, assessing both the overarching and work-specific issues. This symposium is an in-person event in the Madison Building of the Library of Congress, located at 101 Independence Avenue SE, Washington, DC. Advance registration is strongly encouraged. For those who cannot attend, the event website will be updated to include a close-captioned video and a transcript, and a notification will be sent to subscribers when materials are posted. For questions about Copyright in the Age of Artificial Intelligence, contact Whitney Levandusky at wlev@copyright.gov. JOIN THE COPYRIGHT OFFICE'S CELEBRATION OF WORLD IP DAY Topics: Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/817.html Join the U.S. Copyright Office for our next discussion in the Copyright Matters lecture series “Awareness to Action: Innovate for a Green Future” held online, in celebration of World Intellectual Property Day on April 29 from 11:00 a.m.- noon eastern time. The 2020 World Intellectual Property Day theme puts innovation—and the IP rights that support it—at the heart of efforts to create a green future, because the choices we make today will shape our tomorrow. Through this event, we will observe how creators—who through the copyright system can earn a living from their work—can play a key role in creating a vision of a green future and its untold benefits. The event will be held online and is free and open to the public. However, registration is required. Sign up at copyright.gov/copyrightmatters/green-future2020/. ARTIFICIAL INTELLIGENCE SYMPOSIUM RECORDINGS AVAILABLE ONLINE on May 4, 2020 Topics: Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/821.html The United States Copyright Office has posted videos of its February 2020 symposium on artificial intelligence, co-sponsored by the World Intellectual Property Organization (WIPO). Copyright in the Age of Artificial Intelligence featured an international gathering of expert panelists taking an in-depth look at how copyright and artificial intelligence intersect. Speakers addressed a range of issues, including the administration of international copyright systems, the creation of visual arts, music, and other creative forms, and the development of consumer goods and services. Speakers also focused on bias in the selection of input data and digital avatars in audiovisual works.

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The recordings include captions for hearing-impaired audiences, and a transcript is available. The videos are also accessible on the Copyright Office’s YouTube channel. COPYRIGHT OFFICE CELEBRATES ITS 150TH ANNIVERSARY WITH VIRTUAL EVENT – AUGUST 5 AT NOON on 7/8/2020 Topics: Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/841.html On July 8, 1870, Congress centralized the administration of copyright law in the Library of Congress. Join the U.S. Copyright Office for a virtual celebration in recognition of our 150th anniversary, and register for “Copyright Office Presents: Celebrating 150 Years of Creativity” on August 5 from noon to 1:00 p.m. eastern time. This online event is free and open to the public; however, registration is required. Since its establishment 150 years ago today, the Office has driven the evolution of copyright law and been a key player in copyright law revisions, from the Copyright Act of 1909 to the Copyright Act of 1976 to the Orrin G. Hatch–Bob Goodlatte Music Modernization Act and beyond. The Office also provides critical services, helping copyright owners protect their works and preserving a public record of the country’s creativity. “Copyright Office Presents: Celebrating 150 Years of Creativity” will highlight the rich and sometimes surprising history of the Copyright Office and copyright itself, the importance of the Office’s connection with creators and users of copyright-protected works, and the role of the Office in engaging creativity through a conversation with Copyright Office experts, past and present. Presenters include:

• John Cole, Library of Congress historian and author

• Frank Evina, curator of prior Copyright Office exhibit and former senior information specialist, Copyright Office

• Heather Wiggins, supervisor in the Literary Division of the Registration Program, Copyright Office, and adjunct professor

“Copyright Office Presents: Celebrating 150 Years of Creativity” kicks off a yearlong celebration with special events and activities to mark this anniversary. To celebrate this milestone, the Copyright Office is building awareness of how copyright can "Engage Your Creativity.” For more resources and selected videos, visit our new Engage Your Creativity webpage. COPYRIGHT OFFICE HOSTS STANDARD TECHNICAL MEASURES DISCUSSION

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on 9/8/2020 Topics: Limitations on liability relating to material online - standard technical measures, Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/849.html As noted in the Copyright Office’s report, Section 512 of Title 17, the Office believes that the identification of standard technical measures (STMs) may improve the overall functioning of the notice-and-takedown system. The Office is building upon the report’s recommendations by holding a series of online discussions to lay the groundwork for sustained engagement on STMs. All of the meetings for the STM Discussion Event are open to the public; however, attendees must register for each session they wish to attend. ADVANCING INCLUSION IN COPYRIGHT AND REGISTER BARBARA RINGER’S LEGACY on 10/27/2020 Topics: Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/858.html Join the U.S. Copyright Office, Georgetown Intellectual Property and Information Policy Clinic, and Georgetown Institute for Law and Policy online, on November 19 at 5 p.m. eastern time, as we examine the importance of creating space and opportunities in copyright and developing more diverse and inclusive legal systems for the benefit of all. This event extends and builds on the legacy of Barbara Ringer, a lead architect of the Copyright Act of 1976 and the first woman to serve as U.S. Register of Copyrights.

Financials

LIBRARY OF CONGRESS PUBLISHES RESULTS OF AN INDEPENDENT AUDIT OF THE FISCAL YEAR 2019 FIDUCIARY FINANCIAL STATEMENTS on 7/22/2020 Topics: Copyright Office - financials URL: https://www.copyright.gov/licensing/financial-statements/fa/2019/statutory-licensing-fiduciary-assets.pdf Earlier this year, the Library of Congress contracted with an independent public accounting firm Cotton & Company LLP to conduct an audit of the financial statements prepared for the fiduciary assets administered by the Copyright Office’s Licensing Division. The purpose of this independent audit was to provide an opinion on the fairness of the statements in accordance with generally accepted accounting principles and to report on internal control over financial reporting and compliance with applicable laws and regulations. The audit reported

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• the financial statements were fairly presented, in all material respects, in accordance with U.S. generally accepted accounting principles;

• no material or significant weaknesses in internal control over financial reporting; and

• no reportable noncompliance with provisions of laws and regulations tested or other matters.

Ringer Fellowship

COPYRIGHT OFFICE ANNOUNCES OPEN APPLICATION PERIOD FOR RINGER FELLOWSHIPS on 7/9/2020 Topics: Copyright Office - announcement URL: https://www.copyright.gov/newsnet/2020/842.html The Copyright Office is now accepting applications for the Barbara A. Ringer Copyright Honors Program. This fellowship, which runs eighteen- to twenty-four months, was created for attorneys in the initial stages of their careers who demonstrate exceptional ability and interest in copyright law. Ringer Fellows work closely with senior attorneys and others in the Office of the General Counsel, the Office of Policy and International Affairs, the Office of the Register, and the Office of Registration Policy and Practice on a range of copyright-related law and policy matters. Ringer Fellows serve as full-time federal employees for the term of their fellowships and are eligible for salary and benefits as permitted under federal law. Additional details about the Ringer Fellowship, including the application process, can be found on the Barbara A. Ringer Copyright Honors program website. Applications will be accepted through January 31, 2021. COPYRIGHT OFFICE WELCOMES NEW RINGER FELLOW on 7/13/2020 Topics: Copyright Office - fellowship URL: https://www.copyright.gov/newsnet/2020/844.html The U.S. Copyright Office is pleased to announce that Melinda Kern has joined the Office as a fellow (2020–2022) in the Barbara A. Ringer Copyright Honors Program. She started her two-year appointment this month and will receive assignments from multiple departments within the Copyright Office, including the Office of the Register, Office of the General Counsel, Office of Policy and International Affairs, Office of Public Information and Education, and Office of Registration Policy and Practice. Acting Register of Copyrights Maria Strong appointed Kern after a competitive application and interview process. The program—named for Barbara A. Ringer, who served as Register from 1973 to 1980—offers promising early-career copyright lawyers an opportunity to work on a variety of advanced legal and policy issues.

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"Melinda brings a deep interest in copyright law and continues our tradition of onboarding highly talented lawyers to the Ringer Fellows Program," Strong said. "We are pleased to have her join us and look forward to her contributions to the many legal, regulatory, and policy issues that the Copyright Office is working on during these very busy and challenging times." Kern earned her law degree at the George Washington University Law School in 2017, where she was a member of the Latin American Law Students Association, the Student Intellectual Property Law Association, the Cyberlaw Students Association, and the Vintners and Brewers Legal Society. During law school, she interned at the Recording Industry Association of America and the Superior Court of the District of Columbia. After law school, she served as a law clerk at the U.S. Copyright Office. Kern received her bachelor of arts degree in government and world affairs from the University of Tampa. The Copyright Office launched the Ringer Honors Program in 2013. It offers 18- to 24-month paid fellowships to attorneys who are no more than five years out of law school and have a strong record of achievement and demonstrated interest in copyright law. For more information, please visit the Ringer Fellowship webpage.

Leadership

SARAH GARSKE NAMED DEPUTY DIRECTOR OF COPYRIGHT MODERNIZATION OFFICE Topics: Copyright Office - leadership URL: https://www.copyright.gov/newsnet/2020/812.html Sarah Garske has been selected to serve as deputy director of the Copyright Modernization Office (CMO). Sarah served as a program analyst in CMO since October 2018. Since joining CMO, she has supported multiple Copyright Office modernization projects and initiatives and liaised closely with the Office of the Chief Information Officer (OCIO) on information technology (IT) modernization activities. Sarah joined CMO after almost ten years of service to the Library working 14for OCIO and the predecessor organization ITS, where she facilitated IT investment planning, supervised technical engineering staff, and served as an IT security professional. Before joining the Library, Sarah worked as an IT auditor, IT security professional, and systems engineer in the private sector and for the Bureau of Labor Statistics. She earned her bachelor's degree from Tufts University. SHIRA PERLMUTTER IS NAMED REGISTER OF COPYRIGHTS on 9/21/2020 Topics: Copyright Office - leadership URL: https://www.copyright.gov/newsnet/2020/851.html Librarian of Congress Carla Hayden announced today that she has appointed Shira Perlmutter as Register of Copyrights and director of the U.S. Copyright Office.

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“I am pleased to announce that Shira Perlmutter will serve as the 14th United States Register of Copyrights,” said Hayden. “Shira brings to this role a deep knowledge of domestic and international copyright law and policy and a background in negotiating international intellectual property agreements. She has experience working with a wide range of stakeholders and finding common ground on complex issues.” Perlmutter will step into the role of Register of Copyrights in late October and will assume leadership of the organization during its 150th anniversary year. “I’m honored to have the opportunity to lead the U.S. Copyright Office during its 150th year,” said Perlmutter. “I look forward to working with Dr. Hayden and rejoining the dedicated staff of the Copyright Office on its mission of promoting the creation and dissemination of works of authorship to the benefit of the American public.” U.S. COPYRIGHT OFFICE WELCOMES NEW REGISTER on 10/26/2020 Topics: Copyright Office - leadership URL: https://www.copyright.gov/newsnet/2020/857.html The U.S. Copyright Office welcomes Shira Perlmutter today as 14th Register of Copyrights and Director of the U.S. Copyright Office. Librarian of Congress Carla Hayden presided over Perlmutter’s oath of office in which, among other obligations, she swore to uphold the Constitution of the United States, which is the foundation for federal copyright law. Perlmutter steps into the role during the Office’s 150th anniversary year at a time in which important forward-focused projects, such as copyright modernization, are at the forefront. In her first weeks, Perlmutter will be meeting staff, participating in public presentations, and taking on the management of ongoing programs and initiatives. She looks forward to engaging with a wide range of stakeholders and hearing about their priorities and concerns in the coming weeks and months. Perlmutter has served since 2012 as Chief Policy Officer and Director for International Affairs at the United States Patent and Trademark Office (USPTO), working in all areas of intellectual property, including copyright. From 1995 through 1999, Perlmutter served as the Associate Register for Policy and International Affairs at the U.S. Copyright Office. Read more about her career at https://www.copyright.gov/about/leadership/shira-perlmutter.html.

Modernization

COPYRIGHT OFFICE ANNOUNCES SEVENTH MODERNIZATION WEBINAR Topics: Copyright Office - modernization URL: https://www.copyright.gov/newsnet/2020/797.html The U.S. Copyright Office will host its seventh public modernization webinar on Wednesday, February 26, 2020, at noon p.m. eastern time.

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As part of its modernization efforts, the Copyright Office is developing Business Intelligence (BI) tools that will provide insight into the Office’s operations. These tools may include executive dashboards that report on the progress of performance objectives, diagnostic analytics visualizations, and operational reports that provide real-time awareness of situations that may warrant action. This webinar will discuss how the Office is implementing BI tools. The presenters will also display a current version of the tool. Participants must register for this Copyright Office webinar. The Copyright Office launched its modernization webinar series on January 31, 2019. View past webinars and presentation slides on copyright.gov. The Office will continue to hold webinars every other month during modernization to keep the public informed about and involved in the modernization process. Future webinar dates and topics will be announced through NewsNet. COPYRIGHT OFFICE ANNOUNCES EIGHTH MODERNIZATION WEBINAR Topics: Copyright Office - modernization URL: https://www.copyright.gov/newsnet/2020/816.html The U.S. Copyright Office will host its eighth public modernization webinar on Thursday, April 30, 2020, at noon eastern time. As part of its modernization efforts, the Copyright Office is using human-centered design to create new online applications for registration, recordation, and researching the public record. The user experience design team, based in the Library of Congress’ Office of the Chief Information Officer, conducts user research to design, test, and gather feedback on these applications. The team is currently designing these new online applications so they are easy-to-use, consistent, and accessible. In this webinar, the user experience design team will present how they apply iterative, human-centered design and user research methods and how these methods impact the copyright community. This is a follow-up to a webinar on user-centered design principals conducted on March 28, 2019. Participants must register for this Copyright Office webinar. The Copyright Office launched its modernization webinar series on January 31, 2019. View past webinars and presentation slides on copyright.gov. The Office will continue to hold webinars every other month during modernization to keep the public informed about and involved in the modernization process. Future webinar dates and topics will be announced through NewsNet. COPYRIGHT OFFICE ISSUES REQUEST FOR INFORMATION FOR ENTERPRISE COPYRIGHT SYSTEM DEVELOPMENT on 5/18/2020 Topics: Copyright Office - request for information, Copyright Office - modernization URL: https://www.copyright.gov/newsnet/2020/823.html

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The U.S. Copyright Office is engaged in a comprehensive modernization effort and is assessing its technology systems Office-wide. As part of this work, and working with the General Services Administration, on May 15, the Office issued a formal Request for Information (RFI) on possibilities for potential contractors to manage and develop Office capabilities into a new, web-based, cloud-hosted Enterprise Copyright System (ECS). This is a follow-on market research to an RFI submitted in 2018. The Office hopes to use responses for planning purposes, and also possibly as the basis for a future solicitation or request for more in-depth research. More information and how to respond to the RFI is available at https://beta.sam.gov/opp/bb4dcff8fffb407a9cb88b51c1e50d7e/view. COPYRIGHT OFFICE ANNOUNCES NINTH MODERNIZATION WEBINAR ON THE PUBLIC RECORD on 6/4/2020 Topics: Copyright Office - modernization URL: https://www.copyright.gov/newsnet/2020/830.html The U.S. Copyright Office will host its ninth public modernization webinar on Thursday, June 18, 2020, at 1 p.m. eastern time. As part of its modernization efforts, the Copyright Office is building a new online Copyright Public Record with robust searching capabilities for the public to access copyright public records. This presentation will showcase the development of the online Copyright Public Record with a prototype that demonstrates simple keyword search, advanced search, filters, and the new design language of the Enterprise Copyright System. Participants must register for this Copyright Office webinar. LIBRARY OF CONGRESS AND COPYRIGHT OFFICE TO HOST PUBLIC FORUM ON COPYRIGHT OFFICE IT MODERNIZATION on 6/17/2020 Topics: Copyright Office - modernization URL: https://www.copyright.gov/newsnet/2020/832.html On Thursday, July 16, 2020, at 10:00 a.m. eastern time, the Library of Congress Office of the Chief Information Officer and the U.S. Copyright Office will host a virtual public forum on Copyright Office IT modernization. The purpose of Copyright Office IT modernization is to ensure that the creative community and other copyright users have a nimble, state-of-the-art, and efficient IT system at their service. This forum will be an opportunity to share information and receive feedback from stakeholders and the public on current Copyright Office IT modernization progress and future milestones. Acting Register of Copyrights Maria Strong and the Library’s Chief Information Officer Bernard A. Barton, Jr. will lead the event, providing an overview of the new Enterprise Copyright System

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that is being developed and the technical, user experience design, and IT security approach guiding this joint effort. The forum will include demonstrations of the recordation and online public record applications that are in testing and pilot phases and an early look at planning for the registration and licensing applications, which will begin development soon. The forum will close with an opportunity for participants to ask questions of the Acting Register, CIO, and other presenters about the IT modernization effort. For more information about Copyright Office IT modernization, visit copyright.gov/copyright-modernization/. The virtual public forum is free and open to the public, and participants must register to participate. Request ADA accommodations five business days in advance at (202) 707-6362 or ADA@loc.gov. U.S. COPYRIGHT OFFICE LAUNCHES DIGITAL MILLENNIUM COPYRIGHT ACT WEBPAGE on 9/30/2020 Topics: Copyright Office - announcement URL: https://www.copyright.gov/newsnet/2020/853.html The U.S. Copyright Office today launched a new webpage dedicated to the Digital Millennium Copyright Act (DMCA). The new webpage consolidates information and resources about various aspects of the DMCA, including section 512’s safe harbors and notice-and-takedown system, section 1201’s anticircumvention provisions, and section 1202’s copyright management information protections. In its recent report, Section 512 of Title 17, the Office found that educational initiatives and resources about the notice-and-takedown system may help to alleviate certain imbalances in the section 512 framework by reducing the number of inappropriate notices and counter-claims that arise from a lack of awareness and understanding of the law. The new DMCA webpage initiates the Office’s efforts to provide creators, users, online services providers, and the public with resources to navigate the notice-and-takedown process and its developments. From the new DMCA webpage, users can easily navigate to a new page on section 512, including information about how section 512’s notice-and-takedown process works, sample takedown and counter-notices, and a link to the DMCA agents’ database. The DMCA webpage also links to the Office’s section 1201 page for more resources on the anticircumvention provisions, including a tutorial and the Register’s past recommendations on the triennial rulemaking process. COPYRIGHT OFFICE ANNOUNCES TENTH MODERNIZATION WEBINAR ON THE NEW COPYRIGHT OFFICE WAREHOUSE on 10/7/2020

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Topics: Copyright Office - event URL: https://www.copyright.gov/newsnet/2020/854.html The U.S. Copyright Office will host its tenth public modernization webinar on Wednesday, October 28, 2020, at 1:00 p.m. eastern time. As part of its modernization efforts, the Copyright Office is opening a new 40,000 square foot warehouse in October that is intended to improve deposit copy retrieval times and deliveries to authorized requestors. This presentation will discuss the planning that went into the warehouse’s development and the steps taken to move the 90,000 boxes from the current Landover, Maryland, facility during the COVID-19 pandemic. The presenters will also showcase the new facility, the benefits from the move, and the work still to come after opening. Participants must register for this Copyright Office webinar. The Copyright Office launched its modernization webinar series on January 31, 2019. View past webinars and presentation slides on copyright.gov. The Office will continue to hold webinars every other month during modernization to keep the public informed about and involved in the modernization process. Future webinar dates and topics will be announced through NewsNet. OUTDATED APPLICATIONS TO BE REMOVED FROM THE ELECTRONIC REGISTRATION SYSTEM on 10/16/2020 Topics: Copyright registration - draft application URL: https://www.copyright.gov/newsnet/2020/856.html Many users have saved draft applications in the eCO system that have never been submitted to the Copyright Office. To conserve system resources, any draft application created on or before November 30, 2019, will be permanently discarded by the system on November 30, 2020. Draft applications created and saved on or after December 1, 2019, will not be affected. For more information, contact CSDTech@copyright.gov. COPYRIGHT OFFICE ANNOUNCES WEBINAR ON ELECTRONIC RECORDATION SYSTEM PILOT UPDATE on 11/10/2020 Topics: Copyright Office - modernization URL: https://www.copyright.gov/newsnet/2020/863.html The Copyright Office will host its eleventh public modernization webinar on December 1, 2020, at 1:00 p.m. eastern time. As part of its modernization efforts, the Copyright Office is transitioning its recordation system from a paper process to a digital platform under the Recordation Modernization Initiative. On

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April 27, 2020, the Office launched a limited pilot program for this electronic recordation system, which is also the first offering in the Office’s Enterprise Copyright System. This presentation will discuss the pilot progress so far and new features expected in the system. After the presentations, the panelists will answer questions submitted by the attendees. This is a follow-up to a webinar on recordation modernization conducted on September 26, 2019. Participants must register for this Copyright Office webinar. The Copyright Office launched its modernization webinar series on January 31, 2019. View past webinars and presentation slides on copyright.gov. The Office will continue to hold additional webinars every other month during modernization to keep the public informed about and involved in the modernization process. Future webinar dates and topics will be announced through NewsNet. COPYRIGHT OFFICE LAUNCHES COPYRIGHT PUBLIC RECORDS SYSTEM PILOT on 12/15/2020 Topics: Copyright Office - modernization URL: https://publicrecords.copyright.gov/ Today, the U.S. Copyright Office launched a new Copyright Public Records System (CPRS) pilot to the public. The new portal will provide access to the same copyright records for both registration and recordation data that exist in the Copyright Public Catalog but with enhanced search capabilities and improved interfaces for internal and external users. With these enhancements, users should have an easier time finding the exact records they need. The CPRS pilot is also the second Enterprise Copyright System module to launch. While the first module, the electronic recordation system pilot, was released to a limited external audience, the CPRS pilot is available to the entire public. The public can access the new CPRS pilot at publicrecords.copyright.gov and provide feedback on their experience using the feedback link at the bottom of the page. For any questions or other comments, please email publicrecords@copyright.gov. The pilot is designed to run concurrently with the Copyright Public Catalog—available at cocatalog.loc.gov. During the pilot, the Copyright Public Catalog will remain the official source of authoritative records. The CPRS pilot will continue to evolve after the public release. Developers and Copyright Office staff are working on including the ability to download and print search results and the ability for users to see their recent searches and records. While the current CPRS pilot contains records from 1978 through the present, the Office is considering migrating other public records to the CPRS. To learn more about the CPRS, watch the June 2020 copyright modernization webinar on the Copyright Office website or YouTube channel. The CPRS is also accompanied by a tutorial to assist new users.

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CONGRESS PASSES CASE ACT OF 2020 AND LAW REGARDING UNAUTHORIZED STREAMING SERVICES on 12/22/2020 Topics: Legislation - small claims, Legislation - criminal URL: https://www.copyright.gov/newsnet/2020/866.html Late last night, Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act) and a law on penalties for certain digital transmission services that make unauthorized uses of copyright-protected works for profit, both as part of the Consolidated Appropriations Act, 2021. These provisions now await presidential signature before they are enacted. The CASE Act establishes a voluntary, streamlined adjudication process in the Copyright Office to consider copyright infringement matters for claims that do not exceed $30,000. It is the result of years of congressional attention and includes many of the recommendations set out in the Office’s Copyright Small Claims report, including coverage of all types of copyright-protected works and the ability for accused infringers to seek clarity regarding exceptions and limitations. The law requires the Office to establish the Copyright Claims Board within one year of enactment, unless the Register of Copyrights, for good cause, extends the time period for no more than 180 additional days. The Office will soon begin implementing the law and will provide updates via its NewsNet service as appropriate. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, said, “The Copyright Office has long supported a solution for the challenges posed for asserting small copyright claims, and is pleased that Congress has passed the CASE Act. We are looking forward to implementing the Act and providing access to dispute resolution for the parties involved in such claims.” Additionally, Congress passed a law that provides the Department of Justice with the authority to bring felony charges against digital transmission services offered to the public for financial gain that are designed, provided, or marketed for the purpose of streaming copyrighted works without authorization, and have no other commercially significant purpose or use. The legislation was the result of a negotiated process among a number of consumer and industry groups, and was drafted to exclude criminal prosecution of individual users.

Recordation

U.S. COPYRIGHT OFFICE LAUNCHES LIMITED PILOT FOR ELECTRONIC RECORDATION SYSTEM on 4/27/2020 Topics: Copyright Office - announcement, Copyright Office - recordation URL: https://www.copyright.gov/newsnet/2020/819.html Today, the U.S. Copyright Office launched a limited pilot program for an electronic recordation system that will eventually replace the current paper-based process. The pilot focuses on

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electronic processing of ownership and other documents relating to copyright that fall under section 205 of title 17. It does not include notices of termination under sections 203, 304(c), and 304(d). Pilot participants are a representative group of the system’s users based on frequency of submission, industry type, and organization size. The Office will add participants in new groups throughout the coming year, allowing the Office to gauge the system’s performance and support participants appropriately. This pilot is the first offering in the Office’s Enterprise Copyright System (ECS). ECS is the Office’s planned new enterprise IT system that will integrate and improve the Office’s technology systems and will provide users with a consistent and optimal interface. The Office worked closely with the Library’s Office of the Chief Information Officer (OCIO) by providing business information that OCIO, which undertakes the development work, uses to develop the system. Today’s release of this pilot represents the successful conclusion of the first part of recordation modernization by the Office and OCIO; the next phase turns to continuous development as we work to provide additional functionality in the coming years. For more information on the ECS, and other modernization initiatives, see our modernization website.

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V. COPYRIGHT ROYALTY BOARD

Adjudgments

Cable Statutory License Royalty Rates

ADJUSTMENT OF CABLE STATUTORY LICENSE ROYALTY RATES Notice Announcing Commencement of Proceeding with Request for Petitions to Participate on 6/4/2020 Topics: Copyright Royalty Board - proceeding URL: https://www.federalregister.gov/documents/2020/06/04/2020-12096/adjustment-of-cable-statutory-license-royalty-rates The Copyright Royalty Judges (Judges) announce the commencement of a proceeding to adjust the rates for the cable statutory license described in section 111 of the Copyright Act. The Judges also announce the date by which a party who wishes to participate in the proceeding must file its Petition to Participate and pay the $150 filing fee.

Cost of Living Adjustments

COST OF LIVING ADJUSTMENT TO SATELLITE CARRIER COMPULSORY LICENSE ROYALTY RATES Final Rule; Cost of Living Adjustment on 11/24/2020 Topics: Copyright Royalty Board - rate adjustment, Audiovisual work - series URL: https://www.federalregister.gov/documents/2020/11/24/2020-25742/cost-of-living-adjustment-to-satellite-carrier-compulsory-license-royalty-rates The Copyright Royalty Judges announce a cost of living adjustment (COLA) of 1.2% in the royalty rates satellite carriers pay for a compulsory license under the Copyright Act. The COLA is based on the change in the Consumer Price Index from October 2019 to October 2020. COST OF LIVING ADJUSTMENT TO PUBLIC BROADCASTERS COMPULSORY LICENSE ROYALTY RATE Final Rule; Cost of Living Adjustment on 11/24/2020 Topics: Copyright Royalty Board - adjustment, Music - musical work URL: https://www.federalregister.gov/documents/2020/11/24/2020-25741/cost-of-living-adjustment-to-public-broadcasters-compulsory-license-royalty-rate The Copyright Royalty Judges announce a cost of living adjustment (COLA) to the royalty rate that noncommercial radio stations at certain colleges, universities, and other educational institutions that are not affiliated with National Public Radio must pay for the use in 2021 of published nondramatic musical compositions in the SESAC repertory pursuant to the statutory license under the Copyright Act for noncommercial broadcasting.

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Determinations

Ephemeral Recording and Digital Performance of Sound Recordings

DETERMINATION OF ROYALTY RATES AND TERMS FOR EPHEMERAL RECORDING AND DIGITAL PERFORMANCE OF SOUND RECORDINGS (WEB V) Final Rule on 2/28/2020 Topics: Copyright Royalty Board - determination, Music - sound recording URL: https://www.federalregister.gov/documents/2020/02/28/2020-03305/determination-of-royalty-rates-and-terms-for-ephemeral-recording-and-digital-performance-of-sound The Copyright Royalty Judges publish a final rule governing the rates and terms for the digital performances of sound recordings by certain public radio stations and for the making of ephemeral recordings necessary to facilitate those transmissions for the period commencing January 1, 2021, and ending on December 31, 2025. DETERMINATION OF RATES AND TERMS FOR DIGITAL PERFORMANCE OF SOUND RECORDINGS AND MAKING OF EPHEMERAL COPIES TO FACILITATE THOSE PERFORMANCES (WEB V) Final Rule on 3/4/2020 Topics: Copyright Royalty Board - determination, Music - sound recording URL: https://www.federalregister.gov/documents/2020/03/04/2020-03304/determination-of-rates-and-terms-for-digital-performance-of-sound-recordings-and-making-of-ephemeral The Copyright Royalty Judges publish a final rule governing the rates and terms for the digital performance of sound recordings by noncommercial educational webcasters and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing January 1, 2021, and ending on December 31, 2025. COPYRIGHT OFFICE EXTENDS DEADLINE FOR INITIAL DETERMINATION IN WEB V RATE SETTING PROCEEDING on 7/6/2020 Topics: Copyright Royalty Board - determination, Copyright Office - COVID-19 pandemic URL: https://www.copyright.gov/newsnet/2020/840.html The U.S. Copyright Office has announced that, at the request of the Copyright Royalty Board, it is extending the deadline for the Board’s initial determination in the Web V webcaster rate setting proceeding by up to 120 days. The Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes the Register of Copyrights to temporarily adjust statutory deadlines for copyright owners and other affected parties if she determines that a national emergency declared by the President is generally disrupting the normal operation of the copyright system. On June 30, 2020, the Board requested that the initial determination deadline in the Web V proceeding be extended in light of a delay in the hearing date resulting from the closure of Library of Congress buildings to the public. The Acting Register therefore has extended the deadline for issuance of

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an initial determination from December 16, 2020, to April 15, 2021. For further details, please visit the Office’s Coronavirus page. The Copyright Office Public Information Office is available for questions through our website at copyright.gov/help/ or by phone at (202) 707-3000 or 1-877-476-0778 (toll-free). For more information on COVID-19 generally, please visit coronavirus.gov, CDC.gov/coronavirus, and USA.gov/coronavirus.

Mechanical Licensing Collective

DETERMINATION AND ALLOCATION OF INITIAL ADMINISTRATIVE ASSESSMENT TO FUND MECHANICAL LICENSING COLLECTIVE (INITIAL AA) Final Rule on 1/8/2020 Topics: Copyright Royalty Board - determination, Copyright Royalty Board - allocation, Music - sound recording URL: https://www.federalregister.gov/documents/2020/01/08/2019-28233/determination-and-allocation-of-initial-administrative-assessment-to-fund-mechanical-licensing The Copyright Royalty Judges publish final regulations that set the amount and allocation of the Initial Administrative Assessment to fund the Mechanical Licensing Collective.

Distributons

Cable Royalty

DISTRIBUTION OF 2018 CABLE ROYALTY FUNDS Notice Requesting Comments on 5/18/2020 Topics: Copyright Royalty Board - distribution, Audiovisual work - television URL: https://www.federalregister.gov/documents/2020/05/18/2020-10609/distribution-of-2018-cable-royalty-funds The Copyright Royalty Judges solicit comments on a motion of Allocation Phase claimants for partial distribution of 2018 cable royalty funds.

Digital Audio Recording Royalty

DISTRIBUTION OF DIGITAL AUDIO RECORDING ROYALTY FUNDS Final Distribution Determination on 3/19/2020 Topics: Copyright Royalty Board - distribution, Music - sound recording URL: https://www.federalregister.gov/documents/2020/03/19/2020-05686/distribution-of-digital-audio-recording-royalty-funds The Copyright Royalty Judges announce their final determination of the distribution of the digital audio recording technology (DART) royalty fees in the 2007, 2008, 2009, 2010, and 2011 Sound Recordings Funds.

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Satellite Royalty

DISTRIBUTION OF 2018 SATELLITE ROYALTY FUNDS Notice Requesting Comments on 6/17/2020 Topics: Copyright Royalty Board - distribution, Audiovisual work - television URL: https://www.federalregister.gov/documents/2020/05/18/2020-10608/distribution-of-2018-satellite-royalty-funds The Copyright Royalty Judges solicit comments on a motion of Allocation Phase claimants for partial distribution of 2018 satellite royalty funds.

Rulemakings

Categorization of Claims for Cable or Satellite Royalty Funds and Treatment of Ineligible Claims

NOTICE OF INQUIRY REGARDING CATEGORIZATION OF CLAIMS FOR CABLE OR SATELLITE ROYALTY FUNDS AND TREATMENT OF INELIGIBLE CLAIMS; EXTENSION OF COMMENT PERIOD Notice of Inquiry; Extension of Comment Period on 1/29/2020 Topics: Copyright Royalty Board - rulemaking URL: https://www.federalregister.gov/documents/2020/01/29/2020-01544/notice-of-inquiry-regarding-categorization-of-claims-for-cable-or-satellite-royalty-funds-and The Copyright Royalty Judges extend the comment period regarding the notice of inquiry regarding categorization of claims for cable or satellite royalty funds and treatment of royalties associated with invalid claims from January 29, 2020, to March 15, 2020. NOTICE OF INQUIRY REGARDING CATEGORIZATION OF CLAIMS FOR CABLE OR SATELLITE ROYALTY FUNDS AND TREATMENT OF INELIGIBLE CLAIMS; EXTENSION OF COMMENT PERIOD Notice of Inquiry; Extension of Comment Period; Correction on 2/4/2020 Topics: Copyright Royalty Board - rulemaking URL: https://www.federalregister.gov/documents/2020/02/04/2020-02071/notice-of-inquiry-regarding-categorization-of-claims-for-cable-or-satellite-royalty-funds-and The Copyright Royalty Judges published a document in the Federal Register of January 29, 2020, concerning extension of a comment period for comments regarding categorization of claims for cable or satellite royalty funds and treatment of royalties associated with invalid claims. The document contained an incorrect date in the summary.

Digitial Performance Right in Sound Recordings and Ephemeral Recordings

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS AND EPHEMERAL RECORDINGS

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Final Rule on 2/20/2020 Topics: Copyright Royalty Board - rulemaking, Music - sound recording URL: https://www.federalregister.gov/documents/2020/02/20/2020-02134/digital-performance-right-in-sound-recordings-and-ephemeral-recordings The Copyright Royalty Judges publish a final rule governing the rates and terms for the digital performances of sound recordings by new subscription services and for the making of ephemeral recordings necessary to facilitate those transmissions for the period commencing January 1, 2021, and ending on December 31, 2025.

Electronic Filing of Claims

PROCEDURAL REGULATIONS OF THE COPYRIGHT ROYALTY BOARD REQUIRING ELECTRONIC FILING OF CLAIMS Proposed Rule on 5/6/2020 Topics: Copyright Royalty Board - rulemaking URL: https://www.federalregister.gov/documents/2020/05/06/2020-08926/procedural-regulations-of-the-copyright-royalty-board-requiring-electronic-filing-of-claims The Copyright Royalty Judges propose to amend regulations governing the filing of claims to royalty fees collected under compulsory license to require that all claims be filed electronically through the Copyright Royalty Board's (CRB) electronic filing system (eCRB). The Judges solicit comments on the proposed rule. PROCEDURAL REGULATIONS OF THE COPYRIGHT ROYALTY BOARD REQUIRING ELECTRONIC FILING OF CLAIMS Final Rule on 6/24/2020 Topics: Copyright Royalty Board - rulemaking URL: https://www.federalregister.gov/documents/2020/06/24/2020-13554/procedural-regulations-of-the-copyright-royalty-board-requiring-electronic-filing-of-claims The Copyright Royalty Judges (Judges) adopt amendments to regulations governing the filing of claims to royalty fees collected under compulsory license to require that all claims be filed electronically through the Copyright Royalty Board's (CRB) electronic filing system (eCRB). PROCEDURAL REGULATIONS OF THE COPYRIGHT ROYALTY BOARD REGARDING ELECTRONIC FILING SYSTEM (ECRB) Proposed Rule on 12/28/2020 Topics: Copyright Royalty Board - rulemaking URL: https://www.federalregister.gov/documents/2020/12/28/2020-27941/procedural-regulations-of-the-copyright-royalty-board-regarding-electronic-filing-system-ecrb The Copyright Royalty Judges propose to amend regulations governing the electronic filing of documents through the Copyright Royalty Board's electronic filing system (eCRB) to permit

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attorney designees with approved eCRB user accounts to file on behalf of attorneys. The Judges solicit comments on the proposed amendments.

Proxy Distributions for Unmatched Royalties Deposited During 2010–2018

REGULATION CONCERNING PROXY DISTRIBUTIONS FOR UNMATCHED ROYALTIES DEPOSITED DURING 2010-2018 Proposed Rule on 5/29/2020 Topics: Copyright Royalty Board - rulemaking, Copyright Royalty Broad - distribution, Music - sound recording URL: https://www.federalregister.gov/documents/2020/05/29/2020-11131/regulation-concerning-proxy-distributions-for-unmatched-royalties-deposited-during-2010-2018 The Copyright Royalty Judges are proposing to amend their regulations concerning proxy distributions for unmatched royalties deposited pursuant to statutory license for the period 2010 through 2018.

Audits

NOTICE OF INTENT TO AUDIT Public Notice on 1/21/2020 Topics: Copyright Royalty Board - audit, Music - sound recording URL: https://www.federalregister.gov/documents/2020/01/21/2020-00857/notice-of-intent-to-audit The Copyright Royalty Judges announce receipt of a notice of intent to audit the 2016, 2017, and 2018 statements of account submitted by licensee Slacker, Inc. concerning the royalty payments it made pursuant to two statutory licenses. NOTICE OF INTENT TO AUDIT Public Notice on 1/21/2020 Topics: Copyright Royalty Board - audit, Music - sound recording URL: https://www.federalregister.gov/documents/2020/01/21/2020-00854/notice-of-intent-to-audit The Copyright Royalty Judges announce receipt of a notice of intent to audit the 2016, 2017, and 2018 statements of account submitted by the Spanish Broadcasting System, Inc. concerning the royalty payments it made pursuant to two statutory licenses. NOTICE OF INTENT TO AUDIT Public Notice on 1/21/2020 Topics: Copyright Royalty Board - audit, Music - sound recording URL: https://www.federalregister.gov/documents/2020/01/21/2020-00856/notice-of-intent-to-audit

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The Copyright Royalty Judges announce receipt of a notice of intent to audit the 2016, 2017, and 2018 statements of account submitted by licensee Deseret Management Corporation, Inc. concerning the royalty payments it made pursuant to two statutory licenses. NOTICE OF INTENT TO AUDIT Public Notice on 2/28/2020 Topics: Copyright Royalty Board - audit, Music - sound recording URL: https://www.federalregister.gov/documents/2020/02/28/2020-04102/notice-of-intent-to-audit The Copyright Royalty Judges announce receipt of a notice from SoundExchange of SoundExchange's intent to audit the various services, including Commercial Webcaster services, Preexisting Subscription Service(s), New Subscription Service(s), and Business Establishment Service, of Mood Media Corporation and its affiliates for 2017, 2018, and 2019 pursuant to four statutory licenses.

Announcements

COPYRIGHT ROYALTY BOARD ANNOUNCES UPCOMING CHANGE TO ECRB LOGIN PROCESS on 11/17/2020 Topics: Copyright Royalty Board - announcement In early December, the Copyright Royalty Board will add multifactor authentication to the login process for eCRB, its online litigation filing and case management system. With multifactor authentication, registered eCRB users will need to take an additional step to authenticate themselves after entering their username and password. eCRB Customer Support will email instructions to registered users once multifactor authentication is in place. Users should login and follow the prompts when they receive the instructions. The prompts will require users to choose from several authentication options, one of which will require users to download an app to their mobile device. Registered eCRB users who need assistance or have questions about this change should contact the eCRB Customer Service Team at eCRBSupport@egov.com or 703-841-6386.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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VI. DEPARTMENT OF COMMERCE

Patent & Trademark Office

Intellectual Protection for Artificial Intelligence Innovation

INTELLECTUAL PROPERTY PROTECTION FOR ARTIFICIAL INTELLIGENCE INNOVATION WRITTEN COMMENTS Written Comments on 1/10/2020 Topics: Patent & Trademark Office - request for comments, Literary work - computer program URL: https://www.uspto.gov/initiatives/artificial-intelligence/notices-artificial-intelligence-non-patent-related The Patent & Trademark Office received the written comment submissions below in response to its request for comments on intellectual property protection for artificial intelligence innovation.

• Ryan Abbott - (https://www.uspto.gov/sites/default/files/documents/Ryan-Abbott_RFC-84-FR-58141.pdf)

• ACT The App Association - (https://www.uspto.gov/sites/default/files/documents/ACT%20The%20App%20Association_RFC-84-FR-58141.pdf)

• Adobe - (https://www.uspto.gov/sites/default/files/documents/Adobe_RFC-84-FR-58141.pdf)

• Aaron Ahern - (https://www.uspto.gov/sites/default/files/documents/Aaron-Ahern_RFC-84-FR-58141.PDF)

• Matt Aimonetti - (https://www.uspto.gov/sites/default/files/documents/Matt-Aimonetti_RFC-84-FR-58141.pdf)

• Abed Albaky - https://www.uspto.gov/sites/default/files/documents/Abed-Balbaky_RFC-84-FR-58141.pdf)

• Mary Altmann - (https://www.uspto.gov/sites/default/files/documents/Mary-Altmann_RFC-84-FR-58141.pdf)

• American Association of Law Libraries - (https://www.uspto.gov/sites/default/files/documents/American%20Association%20of%20Law%20Libraries_RFC-84-FR-58141.PDF)

• American Bar Association - Intellectual Property Law (ABA-IPL) - (https://www.uspto.gov/sites/default/files/documents/ABA-IPL_RFC-84-FR-58141.pdf)

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• American Intellectual Property Law Association (AIPLA) - (https://www.uspto.gov/sites/default/files/documents/AIPLA_RFC-84-FR-58141.pdf)

• Anonymous - (https://www.uspto.gov/sites/default/files/documents/Anonymous_RFC-84-FR-58141.PDF)

• Association of American Publishers - (https://www.uspto.gov/sites/default/files/documents/Association%20of%20American%20Publishers_RFC-84-FR-58141.pdf)

• AUTM - (https://www.uspto.gov/sites/default/files/documents/AUTM_RFC-84-FR-58141.pdf)

• Lee Barry - (https://www.uspto.gov/sites/default/files/documents/Lee-Barry_RFC-84-FR-58141.pdf)

• John Bashinski - (https://www.uspto.gov/sites/default/files/documents/John-Bashinski_RFC-84-FR-58141.pdf)

• Andrew Bontrager - (https://www.uspto.gov/sites/default/files/documents/Andrew-Bontrager_RFC-84-FR-58141.pdf)

• Boomy Corp - (https://www.uspto.gov/sites/default/files/documents/Boomy-Corp_RFC-84-FR-58141.pdf)

• David Branca - (https://www.uspto.gov/sites/default/files/documents/David_Branca_RFC-84-FR-58141.pdf)

• Nina Iacono Brown - (https://www.uspto.gov/sites/default/files/documents/Nina-Iacono-Brown_RFC-84-FR-58141.pdf)

• BSA The Software Alliance - (https://www.uspto.gov/sites/default/files/documents/BSA%20The%20Software%20Alliance_RFC-84-FR-58141.pdf)

• Center for Democracy & Technology - (https://www.uspto.gov/sites/default/files/documents/Center%20for%20Democracy%20%26%20Technology_RFC-84-FR-58141.PDF)

• Andrew Chin - (https://www.uspto.gov/sites/default/files/documents/Andrew-Chin_RFC-84-FR-58141.pdf)

• Ana Cisneros - (https://www.uspto.gov/sites/default/files/documents/Ana-Cisneros_RFC-84-FR-58141.pdf)

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• CLAIMS-IP - (https://www.uspto.gov/sites/default/files/documents/CLAIMS-IP_RFC-84-FR-58141.pdf)

• Computer & Communications Industry Association - (https://www.uspto.gov/sites/default/files/documents/Computer%20%26%20Communications%20Industry%20Asso_RFC-84-FR-58141.pdf)

• Consumer Technology Association - (https://www.uspto.gov/sites/default/files/documents/Consumer%20Technology%20Association_RFC-84-FR-58141.pdf)

• Copyright Alliance - (https://www.uspto.gov/sites/default/files/documents/Copyright%20Alliance_RFC-84-FR-58141.pdf)

• Copyright Clearance Center - (https://www.uspto.gov/sites/default/files/documents/Copyright-Clearance-Center_RFC-84-FR-58141.pdf)

• Council Exchange Board of Trade - (https://www.uspto.gov/sites/default/files/documents/Council-Exchange-Board-of-Trade_RFC-84-FR-58141.PDF)

• Brian Coyle - (https://www.uspto.gov/sites/default/files/documents/Brian-Coyle_RFC-84-FR-58141.pdf)

• J. Curran - (https://www.uspto.gov/sites/default/files/documents/J.Curran_RFC-84-FR-58141.PDF)

• Andrew Ditri - (https://www.uspto.gov/sites/default/files/documents/Andrew-Ditri_RFC-84-FR-58141.PDF)

• Electronic Frontier Foundation - (https://www.uspto.gov/sites/default/files/documents/Electronic%20Frontier%20Foundation_RFC-84-FR-58141.PDF)

• Electronic Privacy Information Center - (https://www.uspto.gov/sites/default/files/documents/Electronic%20Privacy%20Information%20Center_RFC-84-FR-58141.pdf)

• Engine Advocacy - (https://www.uspto.gov/sites/default/files/documents/Engine%20Advocacy_RFC-84-FR-58141.pdf)

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• Entertainment Software Association - (https://www.uspto.gov/sites/default/files/documents/Entertainment%20Software%20Association_RFC-84-FR-58141.pdf)

• Nick Feamster and Jonathan Masur - (https://www.uspto.gov/sites/default/files/documents/Nick-Feamster_RFC-84-FR-58141.PDF)

• Jessica Fjeld - (https://www.uspto.gov/sites/default/files/documents/Jessica-Fjeld_RFC-84-FR-58141.pdf)

• Genentech - (https://www.uspto.gov/sites/default/files/documents/Genentech_RFC-84-FR-58141.pdf)

• Daniel Gervais - (https://www.uspto.gov/sites/default/files/documents/Daniel-Gervais_RFC-84-FR-58141_0.pdf)

• GettyImages - (https://www.uspto.gov/sites/default/files/documents/GettyImages_RFC-84-FR-58141.pdf)

• Global ReEnergy Holdings - (https://www.uspto.gov/sites/default/files/documents/Global-ReEnergy-Holdings_RFC-84-FR-58141.pdf)

• Samantha Hedrick - (https://www.uspto.gov/sites/default/files/documents/Samantha-Hedrick_RFC-84-FR-58141.PDF)

• Kalin Hristov - (https://www.uspto.gov/sites/default/files/documents/Kalin-Hristov_RFC-84-FR-58141.pdf)

• Jon Huss - (https://www.uspto.gov/sites/default/files/documents/Jon-Huss_RFC-84-FR-58141.pdf)

• IBM - (https://www.uspto.gov/sites/default/files/documents/IBM_RFC-84-FR-58141.pdf)

• Information Technology and Innovation Foundation (ITIF) - (https://www.uspto.gov/sites/default/files/documents/ITIF_RFC-84-FR-58141.pdf)

• Initiative fr Netzfreiheit - (https://www.uspto.gov/sites/default/files/documents/Initiative%20fr%20Netzfreiheit_RFC-84-FR-58141.PDF)

• Intel Corp - (https://www.uspto.gov/sites/default/files/documents/Intel-Corp_RFC-84-FR-58141.pdf)

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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• Intellectual Property Owners Association - (https://www.uspto.gov/sites/default/files/documents/Intellectual%20Property%20Owners%20Associatio_RFC-84-FR-58141.pdf)

• International Association of Scientific, Technical, and Medical Publishers (STM) - (https://www.uspto.gov/sites/default/files/documents/International%20Trademark%20Association%20%28IN_RFC-84-FR-58141.pdf)

• International Trademark Association (INTA) - (https://www.uspto.gov/sites/default/files/documents/International%20Trademark%20Association%20%28IN_RFC-84-FR-58141.pdf)

• Thomas Jackson - (https://www.uspto.gov/sites/default/files/documents/Thomas-Jackson_RFC-84-FR-58141.pdf)

• Shaleen Jain - (https://www.uspto.gov/sites/default/files/documents/Shaleen-Jain_RFC-84-FR-58141.pdf)

• Japan Intellectual Property Association (JIPA) - (https://www.uspto.gov/sites/default/files/documents/JIPA_RFC-84-FR-58141.pdf)

• Kernochan Center for Law, Media and the Arts - (https://www.uspto.gov/sites/default/files/documents/Kernochan%20Center%20for%20Law%2C%20Media%20and%20the%20Arts_RFC-84-FR-58141.pdf)

• Blydro Klonk - (https://www.uspto.gov/sites/default/files/documents/Blydro-Klonk_RFC-84-FR-58141.pdf)

• Knowledge Ecology International (KEI) - (https://www.uspto.gov/sites/default/files/documents/KEI_RFC-84-FR-58141.pdf)

• Israel Cedillo Lazcano - (https://www.uspto.gov/sites/default/files/documents/Israel-Cedillo-Lazcano_RFC-84-FR-58141%20.pdf)

• Library Copyright Alliance - (https://www.uspto.gov/sites/default/files/documents/Library%20Copyright%20Alliance_RFC-84-FR-58141.pdf)

• Alève Mine - (https://www.uspto.gov/sites/default/files/documents/Al%C3%A8ve-Mine_RFC-84-FR-58141.pdf)

• Stephen Mosher - (https://www.uspto.gov/sites/default/files/documents/Stephen-Mosher_RFC-84-FR-58141.pdf)

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• Motion Picture Association, Inc. - (https://www.uspto.gov/sites/default/files/documents/Motion%20Picture%20Association%2C%20Inc._RFC-84-FR-58141.pdf)

• Eric Nevala - (https://www.uspto.gov/sites/default/files/documents/Eric-Nevala_RFC-84-FR-58141.pdf)

• New York Intellectual Property Law Association (NYIPLA) - (https://www.uspto.gov/sites/default/files/documents/NYIPLA_RFC-84-FR-58141.pdf)

• News Media Alliance - (https://www.uspto.gov/sites/default/files/documents/News%20Media%20Alliance_RFC-84-FR-58141.pdf)

• Obeebo Inc - (https://www.uspto.gov/sites/default/files/documents/Obeebo-Inc_RFC-84-FR-58141.pdf)

• OpenAI - (https://www.uspto.gov/sites/default/files/documents/OpenAI_RFC-84-FR-58141.pdf)

• Parsound - (https://www.uspto.gov/sites/default/files/documents/Parsound_RFC-84-FR-58141.pdf)

• Ryan Phelan - (https://www.uspto.gov/sites/default/files/documents/Ryan-Phelan_RFC-84-FR-58141.pdf)

• Ravin Pierre - (https://www.uspto.gov/sites/default/files/documents/Ravin-Pierre_RFC-84-FR-58141.pdf)

• Lori Pressman - (https://www.uspto.gov/sites/default/files/documents/Lori-Pressman_RFC-84-FR-58141.pdf)

• Jonah Probell - (https://www.uspto.gov/sites/default/files/documents/Jonah-Probell_RFC-84-FR-58141.pdf)

• Public Knowledge - (https://www.uspto.gov/sites/default/files/documents/Public%20Knowledge_RFC-84-FR-58141.pdf)

• Jonathan Purow - (https://www.uspto.gov/sites/default/files/documents/Jonathan-Purow_RFC-84-FR-58141.PDF)

• R Street Institute - (https://www.uspto.gov/sites/default/files/documents/R%20Street%20Institute_RFC-84-FR-58141.pdf)

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• RIAA and NMPA - (https://www.uspto.gov/sites/default/files/documents/Recording%20Industry%20Association%20of%20Ameri_RFC-84-FR-58141.pdf)

• Joseph Robinson - (https://www.uspto.gov/sites/default/files/documents/Joseph-Robinson_RFC-84-FR-58141.pdf)

• Yale Robinson 01 - (https://www.uspto.gov/sites/default/files/documents/Yale-Robinson-01_RFC-84-FR-58141.pdf)

• Yale Robinson 02 - (https://www.uspto.gov/sites/default/files/documents/Yale-Robinson-02_RFC-84-FR-58141.pdf)

• Jeffrey Rojek - (https://www.uspto.gov/sites/default/files/documents/Jeffrey-Rojek_RFC-84-FR-58141.pdf)

• Timothy Rue - (https://www.uspto.gov/sites/default/files/documents/Timothy-Rue_RFC-84-FR58141.pdf)

• Syamantak Saha - (https://www.uspto.gov/sites/default/files/documents/Syamantak-Saha_RFC-84-FR-58141.PDF)

• Marc Salome - (https://www.uspto.gov/sites/default/files/documents/Marc-Salome_RFC-84-FR-58141.pdf)

• Sigram Schinlder 01 - (https://www.uspto.gov/sites/default/files/documents/Sigram-Schinlder%2001_RFC-84-FR-58141.pdf)

• Sigram Schinlder 02 - (https://www.uspto.gov/sites/default/files/documents/Sigram-Schinlder-02_RFC-84-FR-58141.pdf)

• Sigram Schinlder 03 - (https://www.uspto.gov/sites/default/files/documents/Sigram-Schinlder-03_RFC-84-FR-58141.pdf)

• Jonathan Shore - (https://www.uspto.gov/sites/default/files/documents/Jonathan-Shore_RFC-84-FR-58141.pdf)

• Ben Sobel - (https://www.uspto.gov/sites/default/files/documents/Ben-Sobel_RFC-84-FR-58141.pdf)

• Software and Information Industry Association - (https://www.uspto.gov/sites/default/files/documents/Software%20%26%20Information%20Industry%20Associa_RFC-84-FR-58141.pdf)

• Daniel Sokolov - (https://www.uspto.gov/sites/default/files/documents/Daniel-Sokolov_RFC-84-FR-58141_0.pdf)

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• SO-REAL Digital Twins AG - (https://www.uspto.gov/sites/default/files/documents/SO-REAL-Digital-Twins-AG_RFC-84-FR-58141.pdf)

• William Starrett Jr - (https://www.uspto.gov/sites/default/files/documents/William-Starrett-Jr_RFC-84-FR-58141.pdf)

• Mathew Tedder - (https://www.uspto.gov/sites/default/files/documents/Mathew-Tedder_RFC-84-FR-58141.pdf)

• The Authors Guild - (https://www.uspto.gov/sites/default/files/documents/The%20Authors%20Guild_RFC-84-FR-58141.pdf)

• Helen Turner - (https://www.uspto.gov/sites/default/files/documents/Helen-Turner_RFC-84-FR-58141.pdf)

• Eric Wadsworth - (https://www.uspto.gov/sites/default/files/documents/Eric-Wadsworth_RFC-84-FR-58141.pdf)

• Frans van Wamel - (https://www.uspto.gov/sites/default/files/documents/Frans-van-Wamel_RFC-84-FR-58141.pdf)

• Wikimedia Foundation - (https://www.uspto.gov/sites/default/files/documents/Wikimedia-Foundation_RFC-84-FR-58141.pdf)

• Scott Wilson - (https://www.uspto.gov/sites/default/files/documents/Scott-Wilson_RFC-84-FR-58141.pdf)

USPTO RELEASES REPORT ON ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY POLICY Report on 10/6/2020 Topics: Patent & Trademark Office - study, Literary work - computer program URL: https://www.uspto.gov/initiatives/artificial-intelligence The United States Patent and Trademark Office (USPTO) released a report titled “Public Views on Artificial Intelligence and Intellectual Property Policy.” It takes a comprehensive look at a wide variety of stakeholder views on the impact of artificial intelligence (AI) across the intellectual property (IP) landscape, including patent, trademark, copyright, and trade secret policy, as well as developing issues about database protection. The new report represents the agency’s firm commitment to keeping pace with this rapidly changing and critical technology in order to accelerate American innovation. "On February 11, 2019, President Trump signed Executive Order 13859 announcing the American Artificial Intelligence Initiative, our nation’s strategy on artificial intelligence," said

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U.S. Secretary of Commerce Wilbur Ross. "As artificial intelligence technologies continue to advance, the United States will not cede leadership in global innovation. The Department of Commerce recognizes the importance of harnessing American ingenuity to advance and protect our economic security." "The USPTO has long been committed to ensuring our nation maintains its leadership in all areas of innovation, especially in emerging technologies such as artificial intelligence," said Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the USPTO. "We appreciate the thoughtful comments our stakeholders have made to assist the USPTO in this endeavor. We will continue to work closely with the innovation community and experts in AI to encourage innovation and to strengthen the predictability and reliability of IP rights relating to AI technology. We want to ensure that significant innovation in and around this critical area continues." "New AI technologies demand careful consideration in light of current intellectual property laws," added Laura Peter, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO. To that end, the USPTO proactively solicited public input through two formal Requests for Comments published in the Federal Register. In response, the agency received approximately 200 unique comments from a broad range of experts in foreign patent offices, bar associations, trade associations, academia, law firms, and companies in the electronics, software, automobile, medical, and pharmaceutical industries. As the report indicates, the majority of commenters believe the U.S. legal system is well equipped to handle the emerging issues raised by AI. However, many commented that the USPTO and IP stakeholders must keep a close eye on legal and scientific developments in AI to ensure the United States keeps up with this critical technology.

Events

WEBINAR ON COPYRIGHT BASICS FOR ENTREPRENEURS AND SMALL BUSINESSES Topics: Patent & Trademark Office - event URL: https://www.uspto.gov/about-us/events/copyright-basics-and-considerations-entrepreneurs-and-small-businesses-virtual-only On June 16, from 1-2:30 p.m. ET, the Patent & Trademark Office will hold a free webinar about the basics of copyright and insights into copyright registration and enforcement. The 90-minute program is specifically designed for the needs of entrepreneurs and small businesses, and will feature presentations by copyright experts from the USPTO’s Office of Policy and International Affairs.

Leadership

MARY CRITHARIS APPOINTED USPTO’S ACTING CHIEF POLICY OFFICER AND DIRECTOR FOR INTERNATIONAL AFFAIRS Topics: Patent & Trademark Office - leadership

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On October 19, 2020, the United States Patent and Trademark Office (USPTO) announced that Mary Critharis has been appointed the USPTO’s Acting Chief Policy Officer and Director for International Affairs. Ms. Critharis first joined the USPTO as a patent examiner in 1992 before progressing to Assistant Solicitor in 2000. From 2001 to 2002, she served as Counsel to the United States Senate Judiciary Committee before returning to the USPTO as Attorney Advisor (2002-2004) and Senior Patent Counsel (2004-2011). Most recently, Ms. Critharis served as Deputy Chief Policy Officer and Senior Counsel. As the Acting Chief Policy Officer and Director for International Affairs, Ms. Critharis will serve as a policy advisor to the Under Secretary of Commerce for Intellectual Property, and oversee the USPTO’s domestic and international intellectual property policy activities; legislative engagement, through the Office of Governmental Affairs; education and training, through the Global Intellectual Property Academy (GIPA); global advocacy, through the IP Attaché Program; and economic analysis, through the Office of the Chief Economist. Ms. Critharis will serve in this role as the USPTO continues the process of identifying a permanent replacement for Shira Perlmutter, who was recently selected to lead the U.S. Copyright Office as the nation’s 14th U.S. Register of Copyrights.

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VII. COPYRIGHT IN THE NEWS

January 2020

4 COPYRIGHT CASES TO WATCH IN 2020 via Intellectual Property Law360 by Bill Donahue on 1/1/2020 URL: https://www.law360.com/ip/articles/1230006 With three cases pending at the U.S. Supreme Court — including a potential landmark ruling on the billion-dollar software battle between Google and Oracle — 2020 is shaping up as a banner year in copyright law. PEPPA PIG OWNERS SECURE CHINA COPYRIGHT WIN via World Intellectual Property Review on 1/2/2020 URL: https://www.worldipreview.com/news/peppa-pig-owners-secure-china-copyright-win-19069 The owners of children's animated series “Peppa Pig” have emerged victorious in a Chinese copyright infringement dispute. China's state news ... NINTENDO WINS INJUNCTION AGAINST SWITCH MOD & PIRATE GAME SELLER via TorrentFreak by Andy Maxwell on 1/2/2020 URL: https://torrentfreak.com/nintendo-wins-injunction-against-switch-mod-pirate-game-seller-200102/ In January 2018, hacking group Team-Xecuter announced a Nintendo Switch hack that presented the opportunity for people to run pirated games on the console. ABKCO FILES COPYRIGHT SUIT OVER ROCK DOCUMENTARIES via Intellectual Property Law360 by Craig Clough on 1/2/2020 URL: https://www.law360.com/ip/articles/1231049 ABKCO Music & Records Inc. filed suit against a British company in New York federal court Thursday, accusing it of infringing on copyrighted musical compositions in documentaries of the Rolling Stones, Elton John, U2, ABBA, Nirvana, Lynyrd Skynyrd and the Red Hot Chili Peppers.

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THE US PATENT AND TRADEMARK OFFICE TAKES ON ARTIFICIAL INTELLIGENCE via National Law Review by Daniel H. Shulman on 1/3/2020 URL: https://www.natlawreview.com/article/us-patent-and-trademark-office-takes-artificial-intelligence In fact, as far back as 1956, the U.S. Copyright Office refused registration for a musical composition created by a computer on the basis that copyright ... THOUSANDS OF CLASSICS FROM GERSHWIN TO WHARTON ENTER PUBLIC DOMAIN via Hill by Marina Pitofsky on 1/3/2020 URL: https://thehill.com/blogs/blog-briefing-room/news/476593-thousands-of-classics-from-gershwin-to-wharton-enter-public The beginning of 2020 marks the entrance of thousands of previously copyrighted works into the public domain, including classic musical ... JAVA API CLASSES AS FICTIONAL CHARACTERS?A PROPOSAL FOR GOOGLE V. ORACLE (GUEST BLOG POST) via Technology & Marketing Law Blog by Marketa Trimble on 1/3/2020 URL: https://blog.ericgoldman.org/archives/2020/01/java-api-classes-as-fictional-characters%e2%80%95a-proposal-for-google-v-oracle-guest-blog-post.htm In disputes over the copyrightability of computer programs and their elements, it is common to invoke analogies from literature. ORACLE COPIED AMAZON’S API—WAS THAT COPYRIGHT INFRINGEMENT? via Ars Technica on 1/3/2020 URL: https://arstechnica.com/?p=1635339 Charles Duan is the Director of Technology and Innovation Policy at the R Street Institute, a nonprofit think tank based in Washington, DC . GRAPES OF WRATH' MOVIE ADAPTATION DISPUTE HEADED TO SUPREME COURT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 1/3/2020 URL: https://www.hollywoodreporter.com/thr-esq/grapes-wrath-movie-adaptation-dispute-headed-supreme-court-1266130 A long legal war continues for the heirs of John Steinbeck.

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APPLE TARGETS JAILBREAKING IN LAWSUIT AGAINST IOS VIRTUALIZATION COMPANY via Ars Technica by Jon Brodkin on 1/3/2020 URL: https://arstechnica.com/?p=1638563 Apple has expanded a lawsuit against an iOS virtualization company, claiming that its actions facilitate jailbreaking and violate the Digital Millennium Copyright Act (DMCA) prohibition on circumvention of copyright-protection systems. IT'S GAME OVER FOR ALLEGED NINTENDO PIRATE via Law.com by Scott Graham on 1/3/2020 URL: https://www.law.com/2020/01/03/its-game-over-for-alleged-nintendo-pirate/ Haynes and Boone helped the gaming giant shut down unauthorized sales of Super Smash Brothers Ultimate and many other titles. SPORTS PSYCHOLOGIST HITS LIBERTY UNIV. WITH IP SUIT OVER BOOK via Intellectual Property Law360 by Zachary Zagger on 1/3/2020 URL: https://www.law360.com/ip/articles/1231012 Liberty University has become the latest target of a sports psychologist suing over the unauthorized posting of a key passage of his 1982 book "Winning Isn't Normal," with the author filing a lawsuit in Virginia federal court alleging the school and some of its athletics coaches posted the passage online. REGGAE ARTIST DROPS MILEY CYRUS 'CAN'T STOP' COPYRIGHT SUIT via Intellectual Property Law360 by Hannah Albarazi on 1/3/2020 URL: https://www.law360.com/ip/articles/1231383 A Jamaican reggae artist on Friday dropped his copyright infringement lawsuit alleging Miley Cyrus' 2013 hit "We Can't Stop" ripped off his earlier track, less than a year after a Manhattan federal judge refused to toss the case. ROLLING STONES RARITIES RELEASED ON YOUTUBE SUSPECTED TO BE EU COPYRIGHT-EXTENSION PLOY via Billboard by Chris Eggertsen on 1/3/2020 URL: https://www.billboard.com/articles/business/legal-and-management/8547304/rolling-stones-rarities-youtube-suspected-eu-copyright-ploy Just hours before the start of the new decade, a collection of rare Rolling Stones recordings from 1969 were posted to a suspicious YouTube account ...

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INTERNET PLATFORM IMMUNITY LANGUAGE “LITE” STAYS IN NEW NAFTA AGREEMENT, BUT IT’S NOT “BAKED IN” TO US OR CANADIAN LAW via Hugh Stephens Blog on 1/4/2020 URL: http://hughstephensblog.net/2020/01/04/internet-platform-immunity-language-lite-stays-in-new-nafta-agreement-but-its-not-baked-in-to-us-or-canadian-law/ As we move into 2020, one of the first things on the agenda of the US Senate and Canadian Parliament will be ratification of the new NAFTA (aka USMCA, or CUSMA in Canada). NEW DETAILS EMERGE ABOUT ROLLING STONES 'COPYRIGHT DUMP' OF UNRELEASED 1969 SONGS via Variety by Jem Aswad on 1/6/2020 URL: https://variety.com/2020/biz/news/rolling-stones-copyright-dump-abkco-unreleased-1969-songs-1203457385/ In the days since the brief New Year's Eve “copyright dump” of at least 75 rare Rolling Stones songs onto YouTube just hours before their European ... MILEY CYRUS SETTLES $300 MILLION COPYRIGHT LAWSUIT OVER 'WE CAN'T STOP' via Variety on 1/6/2020 URL: https://variety.com/2020/biz/news/miley-cyrus-settles-300-million-lawsuit-we-cant-stop-1203458135/ Miley Cyrus has settled a $300 million copyright-infringement lawsuit from a Jamaican songwriter Michael May, who claimed the singer took elements ... COPYRIGHT IN 2020 (AND BEYOND) via Plagiarism Today by Jonathan Bailey on 1/6/2020 URL: https://www.plagiarismtoday.com/2020/01/06/copyright-in-2020-and-beyond/ 2019 ended the year, and the decade, with a headline-grabbing copyright story as a jury found Cox Communications liable to the tune of $1 billion for its failure to comply with the Digital Millennium Copyright Act (DMCA) safe harbor rules.

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NFL SENDS GOOGLE URL TAKEDOWN NOTICE FOR STREAMING CONTENT via MediaPost by Laurie Sullivan on 1/6/2020 URL: https://www.mediapost.com/publications/article/345284/nfl-sends-google-url-takedown-notice-for-streaming.html The Digital Millennium Copyright Act complaint to Google, dated November 2019, does not list any pirated companies, but asks for the removal of ... GOOGLE TELLS HIGH COURT ORACLE CASE WILL 'UPEND' SOFTWARE BIZ via Intellectual Property Law360 by Bill Donahue on 1/6/2020 URL: https://www.law360.com/ip/articles/1231722 Google fired the opening shot Monday at the U.S. Supreme Court in a closely watched copyright case filed against the company by Oracle over smartphone copyrights, warning that the case could “inhibit the development of new and better software.” AMAZON AND NETFLIX SUED OVER COPYRIGHT FOR A PROP USED IN MOVIE BACKGROUND via Reclaim the Net by Didi Rankovic on 1/6/2020 URL: https://reclaimthenet.org/amazon-and-netflix-sued-over-copyright-for-a-prop-used-in-movie-background/ The often-murky world of copyright – what constitutes a true violation, and what falls under the fair use rule – doesn't seem like a problem that's getting ... PRINCE'S ESTATE PREVAILS IN COPYRIGHT DISPUTE WITH YOUTUBER via Intellectual Property Law360 by Hailey Konnath on 1/6/2020 URL: https://www.law360.com/ip/articles/1231845 A Massachusetts federal judge on Monday rejected a YouTuber's arguments that videos he recorded and posted of Prince concerts constituted fair use, instead siding with the late singer's estate and ruling that the videos infringed copyrighted musical compositions. WEDDING DRESS MAKERS SAY CLOUDFLARE ENABLES INFRINGEMENT via Bloomberg Law by Blake Brittain on 1/6/2020 URL: https://news.bloomberglaw.com/ip-law/wedding-dress-makers-say-cloudflare-enables-infringement Web hosting and security company Cloudflare Inc. allegedly enables foreign counterfeiters to infringe over 5,000 copyrights owned by wedding ...

Joshua L. Simmons joshua.simmons@kirkland.com

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KATY PERRY'S LAWYERS REQUEST RETRIAL IN 'DARK HORSE' COPYRIGHT CASE: 'A TRAVESTY OF JUSTICE' via Billboard by Chris Eggertsen on 1/6/2020 URL: https://www.billboard.com/articles/business/legal-and-management/8547433/katy-perry-lawyers-request-retrial-dark-horse Attorneys for Katy Perry and her “Dark Horse” collaborators are demanding a retrial in the copyright infringement case that resulted in a $2.78 million ... NO COPYRIGHT ON TRUE EVENTS, 'CHHAPAAK' DIRECTOR MEGHNA GULZAR ON WRITER'S SUIT via New Indian Express on 1/7/2020 URL: https://www.newindianexpress.com/entertainment/hindi/2020/jan/07/no-copyright-on-true-events-chhapaak-director-meghna-gulzar-on-writers-suit-2086351.html Gulzar filed an affidavit in response to the suit filed by writer Rakesh Bharti, who sought credit as one of the writers of the film. COPYRIGHT LAW IS UNDER ATTACK – BY A LITTLE-KNOWN LEGAL GROUP WITH BIG CLOUT via CreativeFuture by Cesar Fishman on 1/7/2020 URL: https://creativefuture.org/ali/ They say “the Devil is in the details” – and, in this instance, that could not be more true. The machinations of the opponents of copyright are often hidden in plain sight – fogged over with “complexity” that lets them carry out their efforts against creativity without being noticed. MISUSE OF INVERSE RATIO COPYRIGHT RULE CONTINUES IN 9TH CIRC. via Intellectual Property Law360 by Ethan Wong & Andrew Thomas on 1/7/2020 URL: https://www.law360.com/ip/articles/1230576 This fall, in a much-anticipated en banc hearing, the U.S. Court of Appeals for the Ninth Circuit considered the fate of one of classic rock’s iconic anthems, "Stairway to Heaven." Michael Skidmore — suing as the trustee of the estate of the deceased lead singer of a band called Spirit — appealed a jury verdict finding that Led Zeppelin did not infringe Spirit’s song "Taurus" in creating "Stairway to Heaven."

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DON’T START COPYRIGHT BATTLES YOU DON’T UNDERSTAND via The Illusion of More by David Newhoff on 1/8/2020 URL: http://illusionofmore.com/dont-start-copyright-battles-you-dont-understand/ Every once in a while, a copyright litigation story makes a fine cautionary tale for users of social platforms, and this is true partly because the conflict tends to spawn misleading headlines or comments that add fuel to an outrage already borne of ignorance. In this case, I am referring to Prince’s estate easily prevailing on summary judgment in a copyright dispute with a YouTuber named Kian Habib. FACING MORE SANCTIONS, COPYRIGHT ATTY VOWS TO 'FIX MISTAKES' via Intellectual Property Law360 by Bill Donahue on 1/8/2020 URL: https://www.law360.com/ip/articles/1232588 Richard Liebowitz, an attorney who has filed 2,000 copyright lawsuits in four years, promised in New York federal court Wednesday to “fix the mistakes we’ve made in the past” and said he knows that “things need to change” at his oft-sanctioned law firm HOW MUSIC COPYRIGHT LAWSUITS ARE SCARING AWAY NEW HITS via Rolling Stone by Amy X. Wang on 1/9/2020 URL: https://www.google.com/url?rct=j&sa=t&url=https://www.rollingstone.com/music/music-features/music-copyright-lawsuits-chilling-effect-935310/&ct=ga&cd=CAIyGmRiMzg0NjE4MWQxMGU1MGI6Y29tOmVuOlVT&usg=AFQjCNFNperFZ3T55OQZm23vjBtCM4NOhQ Most of the world knows Robin Thicke, Pharrell Williams, and T.I.'s “Blurred Lines” as a half-forgotten hit song from 2013. The music industry ... LITIGIOUS PORN STUDIO SUED BY FORMER LAW FIRM via Intellectual Property Law360 by Bill Donahue on 1/9/2020 URL: https://www.law360.com/ip/articles/1232870 A pornography studio that has filed thousands of copyright lawsuits against internet downloaders is being sued by one of its former law firms, which accuses the studio of "circumventing" an agreement on how the firm would be paid.

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USMCA TRADE DEAL COULD GET SENATE VOTE NEXT WEEK via Intellectual Property Law360 by Andrew Kragie on 1/9/2020 URL: https://www.law360.com/ip/articles/1232872 The Senate could give final approval as early as next week to the revised North American trade pact despite a procedural quirk that requires six more committees to vote on the legislation, a trade expert said Thursday, though an impeachment trial could complicate the schedule FIFTH CIRCUIT TOSSES DAMAGES AWARD IN HOSPITAL COPYRIGHT FIGHT via Bloomberg Law by Matthew Bultman on 1/9/2020 URL: https://news.bloomberglaw.com/ip-law/fifth-circuit-tosses-damages-award-in-hospital-copyright-fight A Louisiana hospital doesn't have to pay statutory damages or legal fees for infringing a company's copyright, the Fifth Circuit ruled, clarifying a federal ... MTA GOES AFTER AMATEUR MAPMAKER FOR COPYRIGHT INFRINGEMENT via New York Post by David Meyer on 1/9/2020 URL: https://nypost.com/2020/01/09/mta-goes-after-amateur-mapmaker-for-copyright-infringement/ A train buff who creates and sells his own versions of transit maps says the MTA is trying to shut him down. Manhattan attorney Jake Berman, 33, ... SUPREME CLAIMS ITS ALLEGED INFRINGEMENT OF ANOTHER COMPANY'S COPYRIGHT-PROTECTED CAMO PRINT IS ... via Fashion Law on 1/10/2020 URL: https://www.thefashionlaw.com/home/supreme-claims-its-alleged-infringement-of-another-companys-camo-print-is-fair-use After being sued for copyright infringement in November for allegedly hijacking another company's camouflage print for its own hot-selling wares, ... AI-WRITTEN ARTICLES ARE COPYRIGHT-PROTECTED, RULES CHINESE COURT via World Intellectual Property review by Rory O'Neil on 1/10/2020 URL: https://www.worldipreview.com/news/ai-written-articles-are-copyright-protected-rules-chinese-court-19102 A Chinese court has ruled that AI-generated works are entitled to copyright protection, in a win for tech giant Tencent. According to state media outlet ...

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5TH CIRC. RESTRICTS DAMAGES IN COPYRIGHT CASES via Intellectual Property Law360 by Bill Donahue on 1/10/2020 URL: https://www.law360.com/ip/articles/1233023 The Fifth Circuit on Thursday issued a novel ruling on so-called statutory damages under copyright law, expanding a rule that such automatic awards aren’t available if a work isn’t registered when infringement begins. BRITISH ARTIST SAYS FLA. GARDEN RIPPED OFF HIS LIGHT SCULPTURES via Intellectual Property Law360 by Carolina Bolado on 1/10/2020 URL: https://www.law360.com/ip/articles/1232998 A British artist sued a botanical garden near Miami on Wednesday for allegedly using unauthorized knockoff light fixtures to create an illuminated nighttime display that the artist says is an imitation of his original works. SENATOR WYDEN NEEDS TO SEE THE BIGGER PICTURE IN THE SMALL-CLAIM COPYRIGHT BILL via The Illusion of More by David Newhoff on 1/13/2020 URL: http://illusionofmore.com/senator-wyden-needs-to-see-the-bigger-picture-in-the-small-claim-copyright-bill/ In 1990, the Port of Portland received a new container crane—the largest available at the time—built by Hyundai Heavy in Seoul. TO IMPROVE INSTAGRAM COPYRIGHT ISSUES, LOOK TO MUSIC WORLD via Intellectual Property Law360 by Qian Julie Wang on 1/13/2020 URL: https://www.law360.com/ip/articles/1233407 Social media, much like the internet, is a double-edged sword. Nowhere is this more evident than through the lens of Instagram Inc. and copyright protections for images. Our copyright system was not designed with the internet in mind; much less could it have anticipated Instagram, a platform that monetizes images and creative works freely shared by its users.

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BLOCKCHAIN AND COPYRIGHT: HOW CAN THIS NEW TECHNOLOGY SERVE CREATORS? via Hugh Stephens Blog on 1/13/2020 URL: http://hughstephensblog.net/2020/01/13/blockchain-and-copyright-how-can-this-new-technology-serve-creators/ As we roll into 2020, I thought it would be topical to look at a new technology that is very much in the news these days, and see how it could be harnessed to benefit copyright and creators. HIGH COURT WON'T HEAR ORACLE V. RIMINI COPYRIGHT CASE AGAIN via Intellectual Property Law360 by Bill Donahue on 1/13/2020 URL: https://www.law360.com/ip/articles/1233640 Less than a year after the U.S. Supreme Court weighed in on a long-running copyright case pitting Oracle against an unauthorized tech support service called Rimini Street Inc., the justices have refused to hear the case for a second time. GOOGLE V. ORACLE PART II: COPYRIGHTABILITY AND CONTORTIONISM via The Illusion of More by David Newhoff on 1/14/2020 URL: http://illusionofmore.com/google-v-oracle-part-ii-copyrightability-and-contortionism/ As noted in Part I, there are a lot of moving parts to this story that cannot be addressed in a single post; but the one thread readers should not lose is the fact that this whole dust up started because Google was the first commercial user since the launch of Java in 1995 to refuse a license agreement. AUDIBLE SETTLES WITH PUBLISHERS TO END COPYRIGHT FIGHT via Intellectual Property Law360 by Bill Donahue on 1/14/2020 URL: https://www.law360.com/ip/articles/1234234 Amazon-owned audiobook giant Audible has reached a preliminary settlement with book publishers to end a copyright lawsuit over a planned feature that would allow listeners to read text captions. PRODUCER SUES MAJOR LABELS FOR IP INFRINGEMENT, ELDER ABUSE via Intellectual Property Law360 by Hannah Albarazi on 1/14/2020 URL: https://www.law360.com/ip/articles/1234352 A longtime music producer who composed songs for pop icons sued Universal, Sony and Warner on Tuesday in California federal court, claiming the labels infringed his copyrights and carried out financial elder abuse after he suffered an incapacitating stroke.

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MUSIC PRODUCER SAYS HIS RIGHTS WERE "STOLEN" AFTER A STROKE IN LAWSUIT AGAINST PUBLISHERS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 1/15/2020 URL: https://www.hollywoodreporter.com/thr-esq/music-producer-says-rights-stolen-stroke-lawsuit-publishers-1269882 Michael Stokes says a "Good Samaritan" in the music industry told him others were profiting from his work. APPLE FACING COPYRIGHT FIGHT OVER SHYAMALAN TV SERIES via Intellectual Property Law360 by Bill Donahue on 1/15/2020 URL: https://www.law360.com/ip/articles/1234721 Apple Inc. was accused of copyright infringement Wednesday over director M. Night Shyamalan’s streaming series “Servant” on Apple TV+, which a rival filmmaker said is a “brazen copy” of her 2013 thriller. USA TODAY IMPLICITLY ENDORSES PIRACY, CREATIVEFUTURE RESPONDS via CreativeFuture by Justin Sanders on 1/15/2020 URL: https://creativefuture.org/us-today-endorses-piracy/ Advice for mainstream publications writing articles about streaming piracy . . . . 'OIL DAILY' PUBLISHER OWED MORE DAMAGES IN COPYRIGHT CASE via Bloomberg Law by Blake Brittain on 1/15/2020 URL: https://news.bloomberglaw.com/ip-law/oil-daily-publisher-owed-more-damages-in-copyright-case An investment firm is likely liable to the publisher of “Oil Daily” for more than the $585,000 it originally paid in damages for violating the publisher's ... AUSTIN LAW FIRM HELPS FILE LAWSUIT FOR ARTIST IN ALLEGED COPYRIGHT VIOLATION BY BOTANIC GARDEN via Law.com by Catherine Wilson on 1/15/2020 URL: https://www.law.com/texaslawyer/2020/01/15/british-lighting-artist-claims-knockoffs-by-fairchild-tropical-garden-401-29050/ The famed Fairchild Tropical Botanic Garden is accused of displaying unauthorized knockoffs of lighting artist Bruce Munro's copyrighted works in a ...

Joshua L. Simmons joshua.simmons@kirkland.com

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WHO COPIED WHOM? COPYRIGHT, BREACH OF CONTRACT LAWSUITS SHROUD SURFSIDE PROJECT via Law.com by Lidia Dinkova on 1/15/2020 URL: https://www.law.com/dailybusinessreview/2020/01/15/who-copied-whom-copyright-breach-of-contract-lawsuits-shroud-surfside-project/ In a case of who copied whom, a big-name Miami architectural firm claims copyright infringement for illegal use of its work by another architect, and a ... 5TH CIRC. SAYS MITIGATION NOT 'COMPLETE DEFENSE' IN IP ROW via Intellectual Property Law360 by Michelle Casady on 1/15/2020 URL: https://www.law360.com/ip/articles/1234769 The publisher of an energy industry newsletter will get another chance to collect damages in a copyright infringement dispute with Kayne Anderson Capital Advisors LP, after the Fifth Circuit on Wednesday determined a jury had been wrongly instructed about how efforts to mitigate the damage should have been taken into account. TWITCH HAS BECOME A HAVEN FOR LIVE SPORTS PIRACY via Wired by Cecilia D'Anastasio on 1/15/2020 URL: https://www.wired.com/story/twitch-sports-piracy-streaming/ The parade of copyright violations wasn't a Club World Cup anomaly. ... special filtering software that matched live streams with copyrighted content ... WHY A GRAMMY-NOMINATED MUSIC PRODUCER IS SUING THE MAJOR MUSIC COMPANIES via RollingStone by Samantha Hissong on 1/16/2020 URL: https://www.rollingstone.com/music/music-news/music-producer-sues-umg-wmg-sme-more-over-allegedly-stolen-royalties-938336/ Grammy-nominated producer Michael Stokes has filed a lawsuit against numerous major music industry entities for copyright infringement, conversion ... SENATE SENDS NORTH AMERICA TRADE DEAL TO TRUMP via Intellectual Property Law360 by Andrew Kragie on 1/16/2020 URL: https://www.law360.com/ip/articles/1235008 The Senate approved President Donald Trump's updated North American trade pact in a bipartisan 89-10 vote Thursday, more than a year after negotiations with Mexico and Canada concluded.

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JENNER SISTERS ACCUSED OF STEALING LACE DESIGN FOR THONG LINE via Bloomberg Law by Kyle Jahner on 1/16/2020 URL: https://news.bloomberglaw.com/ip-law/jenner-sisters-accused-of-stealing-lace-design-for-thong-line Businesses run by Kylie and Kendall Jenner incorporated ripped-off lace designs into lingerie, a lace manufacturer alleged in a copyright infringement ... JUSTICES URGED TO SOLVE COPYRIGHT 'PUZZLE' IN OIL DATA FIGHT via Intellectual Property Law360 by Tiffany Hu on 1/16/2020 URL: https://www.law360.com/ip/articles/1234718 A Canadian oil exploration company has urged the U.S. Supreme Court to resolve the "puzzle" of whether its infringement suit against a U.S. competitor for obtaining its copyrighted seismic data from Canadian regulators is trumped by the regulators' implied license to distribute the data. KYLIE AND KENDALL JENNER ACCUSED OF STEALING LACE DESIGN via Intellectual Property Law360 by Lauren Berg on 1/16/2020 URL: https://www.law360.com/ip/articles/1235127 Kylie and Kendall Jenner’s apparel companies weaved stolen lace designs into thongs, slips and other garments that Nordstrom Inc. and Jet.com Inc. then sold, fabric manufacturer Klauber Brothers Inc. said in a copyright infringement suit filed Wednesday in California federal court. JUDGE TOLD COPYRIGHT ATTY SHOULD BE DISBARRED, NOT FINED via Intellectual Property Law360 by Bill Donahue on 1/16/2020 URL: https://www.law360.com/ip/articles/1234837 With a Manhattan federal judge weighing more sanctions against Richard Liebowitz, an opposing attorney is asking for stiff penalties against the litigious copyright lawyer that “go well beyond monetary sanctions,” including disbarment or sending him to the U.S. Attorney’s office. ARIANA GRANDE HIT WITH COPYRIGHT SUIT OVER '7 RINGS' via Variety by Gene Maddaus on 1/16/2020 URL: https://variety.com/2020/music/news/ariana-grande-7-rings-copyright-suit-1203469915/ Ariana Grande was sued on Thursday by a hip-hop artist who claims she ripped off the chorus of his song for her hit “7 Rings.” Josh Stone, who ...

Joshua L. Simmons joshua.simmons@kirkland.com

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NM COURT ASKED TO STOP PHOTOG ACTING AS 'COPYRIGHT TROLL' via Intellectual Property Law360 by Dani Kass on 1/16/2020 URL: https://www.law360.com/ip/articles/1234448 A manufacturer representative agency based in New Mexico has accused a Colorado photographer of posting his pictures online without notice of copyright ownership and then sending a lawyer after anyone who uses them. ARIANA GRANDE SINGS 'I WANT IT, I GOT IT,' BUT DID SHE STEAL IT? via Intellectual Property Law360 by Lauren Berg on 1/16/2020 URL: https://www.law360.com/ip/articles/1235300 Ariana Grande might write her own checks, but she doesn’t write what she sings, a New York hip hop artist alleges in a lawsuit filed Thursday in Manhattan federal court accusing the pop singer of stealing the hook and chorus of her 2019 song “7 Rings.” SPOTIFY AND WARNER CHAPPELL END INDIAN LICENSING BATTLE via World Intellectual Property Review by Rory O'Neill on 1/17/2020 URL: https://www.worldipreview.com/news/spotify-and-warner-chappell-end-indian-licensing-battle-19129 Spotify and Warner Chappell Music (WCM) have come to an agreement in their nearly year-long copyright licensing dispute in India. The two parties ... HERE'S HOW THE SUPREME COURT CAN STOP GOOGLE FROM STEALING PEOPLE'S IDEAS via Federalist by David Hogberg on 1/17/2020 URL: https://thefederalist.com/2020/01/17/heres-how-the-supreme-court-can-stop-google-from-stealing-peoples-ideas/ Copyright attorney Stephen Carlisle has dubbed this “one of Google's most ... In a Harvard Law Review article, Leval claimed the use of copyrighted ... GOOGLE GETS 26 AMICUS BRIEFS IN ORACLE COPYRIGHT WAR via Intellectual Property Law360 by Bill Donahue on 1/17/2020 URL: https://www.law360.com/ip/articles/1235541 A whopping 26 amicus briefs supporting Google have been filed at the U.S. Supreme Court in the company’s copyright battle with Oracle, including from tech rivals like Microsoft, copyright and antitrust experts, and prominent software engineers.

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ED SHEERAN ORDERED TO DISCLOSE CONCERT INCOME FOR COPYRIGHT LAWSUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 1/17/2020 URL: https://www.hollywoodreporter.com/thr-esq/ed-sheeran-ordered-disclose-concert-income-copyright-lawsuit-1270095 A judge rejects the argument that an ASCAP license legitimized performance of "Thinking Out Loud." A MIXED BAG ON NEW RULES – JUGGLING COPYRIGHT PRECLUSION AND PATENT INFRINGEMENT via National Law Review by Gilbert Smolenskion 1/17/2020 URL: https://www.natlawreview.com/article/mixed-bag-new-rules-juggling-copyright-preclusion-and-patent-infringement Addressing issues of copyright and patent infringement, the US Court of Appeals for the Federal Circuit found that the Federal Insecticide, Fungicide, ... KANYE GETS 'LIFE OF PABLO' PRAYER SAMPLE SUIT TRIMMED via Intellectual Property Law360 by Dani Kass on 1/17/2020 URL: https://www.law360.com/ip/articles/1235621 A South Carolina federal court on Friday trimmed a suit accusing Kanye West of including an audio sample of a young girl praying on his 2016 album “The Life of Pablo" without paying for the clip. GOOGLE V. ORACLE: AN EXPANSIVE FAIR USE DEFENSE DETERS INVESTMENT IN ORIGINAL CONTENT via IPWatchdog.com | Patents & Patent Law by Sue Ghosh Stricklett on 1/19/2020 URL: https://www.ipwatchdog.com/2020/01/19/google-v-oracle-expansive-fair-use-defense-deters-investment-original-content/id=117951/ Google v. Oracle America, a case pending before the United States Supreme Court, is a seemingly never-ending battle, since 2010, between two Silicon Valley behemoths. But now that battle may finally be nearing its conclusion. On January 7, the first of the amicus briefs were filed, signaling that both sides are marshaling their arguments for […]

Joshua L. Simmons joshua.simmons@kirkland.com

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A BLOG’S RSS FEED MAY NOT GRANT AN IMPLIED COPYRIGHT LICENSE–MIDLEVELU V. NEWSTEX via Technology & Marketing Law Blog by Eric Goldman on 1/20/2020 URL: https://blog.ericgoldman.org/archives/2020/01/a-blogs-rss-feed-may-not-grant-an-implied-copyright-license-midlevelu-v-newstex.htm MidlevelU publishes a blog on nursing topics. Like most blogs, it contains an RSS feed. THE NEW NAFTA (USCMA/CUSMA) AND COPYRIGHT TERM EXTENSION IN CANADA: HOW AND WHEN WILL CANADA IMPLEMENT ITS COMMITMENT? via Hugh Stephens Blog on 1/20/2020 URL: http://hughstephensblog.net/2020/01/20/the-new-nafta-uscma-cusma-and-copyright-term-extension-in-canada-how-and-when-will-canada-implement-its-commitment/ Now that the new NAFTA (or USMCA, aka CUSMA in Canada) has received final approval in the US Senate, that just leaves approval by the Canadian Parliament to be completed so that the new agreement can enter into force in all three countries later this year. WITH FRIENDS LIKE WYDEN … CREATORS HAVE A PROBLEM via The Illusion of More by David Newhoff on 1/21/2020 URL: http://illusionofmore.com/with-friends-like-wyden-creators-have-a-problem/ Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights. SEINFELD WANTS 2ND CIRC. TO KILL 'COMEDIANS IN CARS' FIGHT via Intellectual Property Law360 by Tiffany Hu on 1/21/2020 URL: https://www.law360.com/ip/articles/1235865 Jerry Seinfeld is urging the Second Circuit to reject a copyright lawsuit that claims he stole the concept for his "Comedians in Cars Getting Coffee" series, saying that a lower court correctly found that the accuser waited too long to sue.

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PRESIDENT KADAGA LEADS KAMUNTU ON COPYRIGHT LAW ENFORCEMENT – PML DAILY via PML Daily by Javira Ssebwami on 1/22/2020 URL: https://www.pmldaily.com/news/2020/01/speaker-kadaga-directs-kamuntu-on-enforcement-of-copyright-law.html Kadaga said the law should protect performers. (PHOTO / Courtesy). KAMPALA – The President, Rebecca Kadaga, instructed the Minister of Justice ... HEY, THAT’S MY IDEA! via Copyright: Creativity at Work by Holland Gormley on 1/23/2020 URL: https://blogs.loc.gov/copyright/2020/01/hey-thats-my-idea/ It’s safe to assume that at some point most, if not all, of us have read or seen something so similar to an idea we’ve thought up that we exclaim, “Hey! That’s my idea!” PROTECTING CREATIVE WORKS AFTER FOURTH ESTATE V. WALL-STREET.COM via IPWatchdog.com | Patents & Patent Law by Candace Lynn Bell on 1/23/2020 URL: https://www.ipwatchdog.com/2020/01/23/protecting-creative-works-fourth-estate-v-wall-street/id=118175/ In a landmark ruling, the Supreme Court finally unequivocally answered the question about whether copyright owners need to receive a Registration Certificate from the Copyright Office before filing suit for infringement and thus resolved a difference of opinion among various regional circuit courts. (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. Since this decision was issued, federal district courts have cited it in at least 63 decisions. What should artists, writers, and... A NEW VIDEO RESOURCE TO HELP STUDENTS UNDERSTAND COPYRIGHT via CreativeFuture by Brett Williams on 1/23/2020 URL: https://creativefuture.org/copyright-for-students/ So says Matthew Cuban in the following video from a group of Los Angeles street poets about copyright and its importance to creativity and innovation in America. GOOGLE AND AMAZON ACCUSED OF SELLING PIRATED RECORDINGS via Intellectual Property Law360 by Lauren Berg on 1/23/2020 URL: https://www.law360.com/ip/articles/1236870 Google and Amazon are selling bootlegged copies of recordings by “virtually every well-known recording artist from the 1930s through the 1960s,” including Billie Holiday, Frank Sinatra and

Joshua L. Simmons joshua.simmons@kirkland.com

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Ella Fitzgerald, side-by-side with legal recordings from legitimate record labels, according to six lawsuit filed this week in California and Washington federal courts. MAKING THE CASE FOR THE CASE ACT AT THE 2020 GRAMMYS via Global Innovation Policy Center by Diya Li on 1/24/2020 URL: https://www.theglobalipcenter.com/making-the-case-for-the-case-act-at-the-2020-grammys/ It’s music’s biggest night, and everyone has an opinion on who should claim the top Grammys. CITING 'BEHAVIOR,' JUDGE WON'T GIVE ATTY FEES TO LIEBOWITZ via Intellectual Property Law360 by Bill Donahue on 1/24/2020 URL: https://www.law360.com/ip/articles/1236989 A Manhattan federal judge is refusing to award attorney fees to Richard Liebowitz despite a successful lawsuit against Hearst over a photo of President Donald Trump, citing the prolific copyright lawyer's "behavior" in the case, including “unsubstantiated and outsized demands.”. HOW TO USE THE FACEBOOK DMCA FORM via Plagiarism Today by Jonathan Bailey on 1/27/2020 URL: https://www.plagiarismtoday.com/2020/01/27/how-to-use-the-facebook-dmca-form/ As someone who has submitted a LOT of Digital Millennium Copyright Act (DMCA) notices as part of his day job, most large-scale submitters prefer to either email their notices in or, if offered, a specialized backend such as the ones offered by Google and YouTube. COX MEDIA HITS DISH WITH SUIT OVER 'BRAZEN' IP INFRINGEMENT via Intellectual Property Law360 by Tiffany Hu on 1/27/2020 URL: https://www.law360.com/ip/articles/1237766 Cox Media Group is suing Dish Network over accusations that it retransmits broadcast content from several local channels in “brazen” violation of CMG’s copyrights after a deal between the companies fell through earlier this month.

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COPYRIGHT TERM EXTENSION IN CANADA: FACTS VERSUS “FAKE NEWS” via Hugh Stephens Blog on 1/27/2020 URL: http://hughstephensblog.net/2020/01/27/copyright-term-extension-in-canada-facts-versus-fake-news/ Last week I discussed Article 20.62 of the new NAFTA (aka USMCA, or CUSMA if you are Canadian) that commits Canada to extend its term of copyright protection from life of the author plus 50 years to “life + 70” (for those works where protection is measured by the life of the author, which applies to the vast majority of creative works), bringing it into alignment with the US, EU and many other countries. Copyright minimalists in Canada oppose this change, although they are probably reconciled to it happening as part of the broader USMCA agreed to by Canada, the US and Mexico. GM, FORD BEAT MUSIC LAWSUIT OVER DIGITAL CAR STEREOS via Intellectual Property Law360 by Bill Donahue on 1/28/2020 URL: https://www.law360.com/ip/articles/1238342 General Motors and Ford won a ruling from the D.C. Circuit on Tuesday shutting down a lawsuit that claimed they violated an obscure copyright amendment requiring royalty payments for home recording devices. CONTEXTUALIZING GOOGLE V. ORACLE via Inside Sources on 1/28/2020 URL: https://www.google.com/url?rct=j&sa=t&url=https://www.insidesources.com/contextualizing-google-v-oracle/&ct=ga&cd=CAIyGmRiMzg0NjE4MWQxMGU1MGI6Y29tOmVuOlVT&usg=AFQjCNGl6y9oADL4dkViUXt_iYK22lgHJw So while Google and Oracle may, given the constraints of litigation, argue on a technical level about the scope of copyright in a very technical setting, ... SUPREME COURT CAN'T GET ENOUGH COPYRIGHT AND TRADEMARK via Intellectual Property Law360 by Bill Donahue on 1/28/2020 URL: https://www.law360.com/ip/articles/1228210 No, your eyes aren’t deceiving you: The U.S. Supreme Court is actually going to rule on six different copyright and trademark cases in a single term.

Joshua L. Simmons joshua.simmons@kirkland.com

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ARTIST SAYS PIXAR COPIED HER 'TREMENDOUSLY COOL' UNICORN VAN via Intellectual Property Law360 by Mike LaSusa on 1/28/2020 URL: https://www.law360.com/ip/articles/1238221 A San Francisco-based artist with “a real thing for unicorns” sued Pixar on Monday in California federal court, claiming the Disney-owned animation company wrongfully copied the unicorn-themed design of a van she owns for use in an upcoming fantasy film. USMCA SET TO EXPORT U.S. COPYRIGHT LAW TO NORTH AMERICAN NEIGHBORS via IPWatchdog.com | Patents & Patent Law by Ross Bagley on 1/29/2020 URL: https://www.ipwatchdog.com/2020/01/29/usmca-set-export-u-s-copyright-law-north-american-neighbors/id=118269/ The United States-Mexico-Canada Agreement (USMCA) was passed by the U.S. Senate on January 16, 2020 and will be signed by President Trump today. The treaty, which renegotiates and cancels the 1994 North American Free Trade Agreement (NAFTA), is expected to dramatically affect many areas of law of its three member states. With respect to copyright law, the USMCA largely exports copyright standards from the United States. Once it is implemented, content creators and owners, Internet Service... WIPO’S BEIJING TREATY GAINS KEY 30TH MEMBER WITH INDONESIA’S RATIFICATION via YouTube by WIPO on 1/29/2020 URL: https://www.youtube.com/watch?v=AquRtJ9qWxs The Beijing Treaty on Audiovisual Performances gained a key 30th member that permits entry into force of the international agreement designed to improve earning conditions for actors and other audiovisual performers vital to the films and television shows beloved by viewing publics worldwide. WIPO Director General Francis Gurry received on January 28, 2020, Indonesia’s instrument of ratification for the Treaty from the Permanent Representative of the Republic of Indonesia to the United Nations, World Trade Organization and other International Organizations in Geneva, Ambassador Hasan Kleib, With Indonesia’s ratification on January 28, 2020, the Beijing Treaty will enter into force for its 30 contracting parties on April 28, 2020. WIPO member states in 2012 approved the Treaty at a Diplomatic Conference hosted by the Chinese Government in Beijing, from where the Treaty takes its name. More: https://www.wipo.int/pressroom/en/articles/2020/article_0002.html

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INDONESIA JOINS MARRAKESH TREATY via YouTube by WIPO on 1/29/2020 URL: https://www.youtube.com/watch?v=weeRYJpyVhw WIPO Director General Francis Gurry welcomed on January 28, 2020 the ratification by Indonesia of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Receiving Indonesia’s instrument of ratification of the Marrakesh Treaty from Permanent Representative of the Republic of Indonesia to the United Nations, World Trade Organization and other International Organizations in Geneva, Ambassador Hasan Kleib, Mr. Gurry said this was an important step on the way to achieving universal coverage for the Marrakesh Treaty which now has 63 contracting parties and covers 90 countries. Ambassador Kleib said the ratification is a reflection of his country’s commitment to have a balanced and effective international IP system. UNDERSTANDING THE BABYLON 5 VS. DEEP SPACE NINE PLAGIARISM ALLEGATIONS via Plagiarism Today by Jonathan Bailey on 1/29/2020 URL: https://www.plagiarismtoday.com/2020/01/29/exploring-the-babylon-5-vs-deep-space-nine-plagiarism-allegations/ 1993 was a banner year for fans of space station-based science fiction. Not one but two prominent series got their start that year. THE CASE ACT GIVES ME A REALISTIC ALTERNATIVE TO FIGHT THE PIRACY OF MY WORK via CreativeFuture by Brett Williams on 1/29/2020 URL: https://creativefuture.org/case-act-gives-me-a-realistic-alternative-to-fight/ As a commercial photographer and director, I’ve had the opportunity to shoot all over the world for the world’s largest companies. SF TATTOO ARTIST: PIXAR TRICKED ME INTO PROVIDING MODEL FOR MOVIE CHARACTER via Law.com by Scott Graham on 1/29/2020 URL: https://www.law.com/2020/01/29/sf-tattoo-artist-pixar-tricked-me-into-providing-model-for-movie-character/ From the complaint: Sweet Cicely Daniher and her Vanicorn, above, and Pixar's Guinevere from the upcoming animated feature 'Onward.'From the complaint: Sweet Cicely Daniher and her Vanicorn, above, and Pixar’s Guinevere from the upcoming animated feature ‘Onward.’

Joshua L. Simmons joshua.simmons@kirkland.com

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BLIZZARD NOW CLAIMS FULL COPYRIGHT FOR PLAYER-MADE “CUSTOM GAME” MODS via Ars Technica by Kyle Orland on 1/29/2020 URL: https://arstechnica.com/?p=1649786 As influential as Warcraft III was in the real-time strategy genre, the game's most enduring legacy might be as the basis for genre-defining, fan-made custom game spin-offs like Defense of the Ancients (aka Dota) and Auto Chess in its wake. MUSIC PUBLISHERS BEAT PELOTON'S ANTITRUST ACCUSATIONS via Intellectual Property Law360 by Bill Donahue on 1/29/2020 URL: https://www.law360.com/ip/articles/1238880 A Manhattan federal judge on Wednesday rejected accusations from Peloton that a group of music publishers violated antitrust laws by collectively refusing to license their music to the trendy exercise bike company. MUSIC PUBLISHERS KNOCK OUT PELOTON'S ANTITRUST COUNTERSUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 1/29/2020 URL: https://www.hollywoodreporter.com/thr-esq/pelotons-antitrust-countersuit-music-publishers-dismissed-1274685 Peloton's claim that more than a dozen music publishers and their trade organization violated federal antitrust laws by shutting down licensing negotiations has been dismissed. GOOGLE MAKES WEAK CLAIMS THAT IP PROTECTS COMPETITION via Forbes by Adam Candeub on 1/30/2020 URL: https://www.forbes.com/sites/washingtonbytes/2020/01/29/googles-claims-weak-ip-protects-competition-fall-flat/ All copyrights confer a monopoly over the actual intellectual property. But that by no means deters competition. As the Supreme Court held in Illinois ...

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ARTIST'S ESTATE HIT WITH SANCTIONS BID OVER DELETED EMAILS via Intellectual Property Law360 by Tiffany Hu on 1/30/2020 URL: https://www.law360.com/ip/articles/1238742 The Morgan Art Foundation is asking a New York federal judge to punish the estate of artist Robert Indiana for its alleged role in deleting up to "thousands" of the late artist’s emails and obstructing a legal battle over the rights to his iconic "LOVE" sculpture and other works. COX AIMS TO KILL 'UNPRECEDENTED' $1B MUSIC PIRACY VERDICT via Intellectual Property Law360 by Bill Donahue on 1/31/2020 URL: https://www.law360.com/ip/articles/1235080 Internet service provider Cox Communications is pushing to overturn an "unprecedented" $1 billion copyright infringement verdict won by the major record labels over widespread piracy on the company's network. WHAT BREXIT WILL MEAN FOR INTELLECTUAL PROPERTY LAW via Intellectual Property Law360 by Ryan Davis on 1/31/2020 URL: https://www.law360.com/ip/articles/1239374 The United Kingdom's official withdrawal from the European Union on Friday won't immediately disrupt intellectual property law, but it may lead to a divergence on internet copyright policy, complicate plans for Europewide patents and alter trademark strategies in the years to come. Here's a primer for IP attorneys now that Brexit has become a reality.

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February 2020

COPYRIGHT TERM EXTENSION IN CANADA AND THE INTERESTING CASE OF BROADVIEW PRESS: IS IT “PLAYING THE VICTIM” OR JUST “PLAYING THE GAME”? via Hugh Stephens Blog on 2/3/2020 URL: http://hughstephensblog.net/2020/02/03/copyright-term-extension-in-canada-and-the-interesting-case-of-broadview-press-is-it-playing-the-victim-or-just-playing-the-game/ Last week I examined some of the tendentious arguments put forward to oppose bringing Canada’s term of copyright protection into alignment with that of most developed countries. PHARRELL WILLIAMS DEFENDS GQ INTERVIEW IN COURT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 2/3/2020 URL: https://www.hollywoodreporter.com/thr-esq/pharrell-williams-defends-gq-interview-court-1275724 The hit producer denies committing perjury during the "Blurred Lines" case. SWEDISH MUSIC INDUSTRY VIEWS AS EUROPEAN UNION COUNTRIES WORK ON DRAFTING HOME LAWS FOR ENACTING EU COPYRIGHT DIRECTIVE via Law.com by Stan Soocher on 2/3/2020 URL: https://www.law.com/2020/02/03/swedish-music-industry-views-as-european-union-countries-work-on-drafting-home-laws-for-enacting-eu-copyright-directive/ This article examines the Copyright Directive and music-industry structure issues through the lens of Sweden, which has both a robust music business and a strong technology sector, two divergent perspectives in the development of the directive. MUSIC COPYRIGHT LICENSE LESSONS FROM THE JAZZ AGE via Intellectual Property Law360 by Gary Rosen on 2/3/2020 URL: https://www.law360.com/ip/articles/1239912 In the final days of the 2010s, internet service provider Cox Communications Inc. was hit with a $1 billion jury verdict in a copyright infringement case brought by more than 50 music publishers arising out of Cox’s failure to police downloading of music by its subscribers.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COX URGES JUDGE TO NIX $1 BILLION PIRACY VERDICT via MediaPost by Wendy Davis on 2/3/2020 URL: https://www.mediapost.com/publications/article/346570/cox-urges-judge-to-nix-1-billion-piracy-verdict.html In papers filed Friday with U.S. District Court Judge Liam O'Grady in Alexandria, Virginia, Cox argues it took steps to stem copyright infringement by ... APPEALS COURT GIVES DRAKE A "FAIR USE" WIN IN SAMPLING CASE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 2/4/2020 URL: https://www.hollywoodreporter.com/thr-esq/appeals-court-gives-drake-a-fair-use-win-sampling-case-1275735 The Second Circuit holds that Drake turned a message about the supremacy of jazz into one about all "real music." SF TATTOO ARTIST: PIXAR TRICKED ME INTO PROVIDING MODEL FOR MOVIE CHARACTER via Law.com by Scott Graham on 2/4/2020 URL: https://www.law.com/nationallawjournal/2020/01/29/sf-tattoo-artist-pixar-tricked-me-into-providing-model-for-movie-character/ San Francisco tattooist Sweet Cicely Daniher likes unicorns. DRAKE'S 'RAP' SAMPLING WAS FAIR USE, SAYS 2ND. CIRC. via Intellectual Property Law360 by Bill Donahue on 2/4/2020 URL: https://www.law360.com/ip/articles/1240067 The Second Circuit is refusing to revive a copyright lawsuit filed against Drake over his 2013 song "Pound Cake," ruling that the rapper made legal fair use of a sample of a spoken-word jazz track. CUBS CAN'T FULLY ESCAPE CLAIMS OVER BOOK PASSAGE RETWEET via Intellectual Property Law360 by Lauraann Wood on 2/4/2020 URL: https://www.law360.com/ip/articles/1240649 The Chicago Cubs don't have to face direct and contributory copyright claims over an employee's retweeted passage from a sports psychologist's book, but neither the ball club nor the worker can fully end the suit yet, an Illinois federal judge said Tuesday.

Joshua L. Simmons joshua.simmons@kirkland.com

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PAYING LIP SERVICE? IN-HOUSE UNPICK UK'S COPYRIGHT DIRECTIVE REJECTION via Managing Intellectual Property by Max Walters on 2/5/2020 URL: https://www.managingip.com/Article/3917122/Managing-Copyright-Archive/Paying-lip-service-In-house-unpick-UKs-Copyright-Directive-rejection.html Lawyers say they would look elsewhere to agree revenue-generating deals, while others predict the UK could provide a haven for content-driven start- ... VIDEO EXCERPTS QUALIFY AS FAIR USE (AND ANOTHER 512(F) CLAIM FAILS)–HUGHES V. BENJAMIN via Technology & Marketing Law Blog by Eric Goldman on 2/5/2020 URL: https://blog.ericgoldman.org/archives/2020/02/video-excerpts-qualify-as-fair-use-and-another-512f-claim-fails-hughes-v-benjamin.htm Hughes is a YouTuber. THE PRECARIOUS POLITICS OF REIGNING IN SILICON VALLEY via The Illusion of More by David Newhoff on 2/5/2020 URL: http://illusionofmore.com/the-precarious-politics-of-reigning-in-silicon-valley/ As our attention turned to concerns about disinformation, hate speech, and data security after the 2016 election, it became clear that the big cyber policy on deck was going to be a fight about Section 230 of the Communications Decency Act (1996). CHICAGO CUBS CAN'T YET EVADE COPYRIGHT SUIT OVER RETWEET via Bloomberg Law by Kyle Jahner on 2/5/2020 URL: https://news.bloomberglaw.com/ip-law/chicago-cubs-cant-yet-evade-copyright-suit-over-retweet The Chicago Cubs must face, for now, a sports psychology author's lawsuit alleging a Cubs employee retweeted copyright-protected material from his ... DRAKE WIN IS DEATH KNELL FOR IP SUIT, STREAMING GIANTS SAY via Intellectual Property Law360 by Tiffany Hu on 2/5/2020 URL: https://www.law360.com/ip/articles/1241075 Amazon, Netflix and Apple on Wednesday asked a New York federal judge to throw out a copyright lawsuit over the use of a children's song in a 2017 burlesque film, citing a recent ruling that let Drake off the hook for sampling a jazz track in one of his songs.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WILD WILD COUNTRY' GROUP DISMISSES NETFLIX COPYRIGHT CLAIMS via Bloomberg Law by Blake Brittain on 2/6/2020 URL: https://news.bloomberglaw.com/ip-law/wild-wild-country-group-dismisses-netflix-copyright-claims Wild Wild Country' Group Dismisses Netflix Copyright Claims ... “Wild Wild Country” dismissed its copyright claims against Netflix, the filmmakers, and ... PHOTO OF $120K BANANA ART LEADS TO COPYRIGHT FIGHT via Intellectual Property Law360 by Bill Donahue on 2/6/2020 URL: https://www.law360.com/ip/articles/1241390 A Brooklyn photographer has filed a copyright lawsuit over an image he snapped of last year's most-discussed art installation: a banana duct-taped to a wall at Art Basel Miami that sold for $120,000. CAN A RETWEET CONSTITUTE COPYRIGHT INFRINGEMENT? UH….–BELL V. CHICAGO CUBS via Technology & Marketing Law Blog by Eric Goldman on 2/6/2020 URL: https://blog.ericgoldman.org/archives/2020/02/can-a-retweet-constitute-copyright-infringement-uh-bell-v-chicago-cubs.htm Bell authored a book called “Winning Isn’t Normal.” RIMINI V. ORACLE'S RIPPLE EFFECT ON TEXTUALISM, EXPENSES via Intellectual Property Law360 by Blaine Evanson & Jeremy Christiansen on 2/6/2020 URL: https://www.law360.com/ip/articles/1241183 On March 4, 2019, the U.S. Supreme Court issued a unanimous decision in Rimini Street Inc. v. Oracle USA Inc. CONTRACTOR MUST FACE EX-NFLER'S DREAM HOUSE IP CLAIMS via Intellectual Property Law360 by Craig Clough on 2/6/2020 URL: https://www.law360.com/ip/articles/1241729 A Massachusetts federal judge on Thursday affirmed a magistrate's recommendation that a contractor cannot escape a former NFL player's suit alleging it infringed his copyright after building his dream home, ruling the contractor did not specifically identify his objections to the recommendation.

Joshua L. Simmons joshua.simmons@kirkland.com

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IN CAPTIONS SETTLEMENT, AUDIBLE WILL NOT USE AAP MEMBER CONTENT WITHOUT PERMISSION via Publishers Weekly by Andrew Albanese & Jim Milliot on 2/7/2020 URL: https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/82370-in-final-settlement-audible-agrees-to-limit-its-captions-program.html In a filing this week in federal court, Audible has agreed not to include the copyrighted works of seven plaintiff publishers in its “Captions” program ... TEKASHI 6IX9INE SLAPPED WITH COPYRIGHT SUIT OVER 'STOOPID' via Intellectual Property Law360 by Tiffany Hu on 2/7/2020 URL: https://www.law360.com/ip/articles/1242049 Incarcerated rap star Tekashi 6ix9ine was hit with a copyright lawsuit in New York federal court Friday over allegations that his 2018 hit single "Stoopid" rips off a Miami rapper's "radio drop" that was originally meant for a promoter. ATTY SAYS ALA. FIRM 'SLAVISHLY' COPIED FALSE CLAIMS ACT BOOK via Intellectual Property Law360 by Mike LaSusa on 2/7/2020 URL: https://www.law360.com/ip/articles/1242158 An Ohio attorney sued Alabama-based Beasley Allen Crow Methvin Portis & Miles PC on Friday in Cincinnati federal court, claiming the firm and one of its principals put out a book about the False Claims Act that "slavishly" lifted material from the Ohio lawyer's own treatise. WITH SUPER BOWL COMPLAINT, GRAHAM MISUNDERSTANDS EXPLOITATION via The Illusion of More by David Newhoff on 2/9/2020 URL: http://illusionofmore.com/with-super-bowl-complaint-graham-misunderstands-exploitation/ Because I defend the principles of copyright, I write a lot about the value of creative expression and the author’s right to choose how that expression is used.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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ACTING U.S. COPYRIGHT REGISTER MARIA STRONG: ALL EYES ON MODERNIZATION via IPWatchdog.com | Patents & Patent Law by Michelle Sara King on 2/10/2020 URL: https://www.ipwatchdog.com/2020/02/10/acting-us-copyright-register-maria-strong-eyes-modernization/id=118689/ With IP champions in Congress turning their attention away from patent reform and toward copyright this year, IPWatchdog took the opportunity to interview Acting U.S. Register of Copyrights Maria Strong shortly after she assumed her new role. SWITZERLAND JOINS MARRAKESH AND BEIJING TREATIES via YouTube by WIPO on 2/11/2020 URL: https://www.youtube.com/watch?v=ROcTNXAQYPQ WIPO Director General Francis Gurry welcomed Switzerland’s ratification of the Beijing Treaty on Audiovisual Performances and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The instruments of ratification were presented to Mr. Gurry by Ambassador Valentin Zellweger, Permanent Representative of Switzerland to the United Nations and the other International Organizations in Geneva on February 11, 2020. The treaties enter into force for Switzerland on May 11, 2020. Switzerland is the 31st contracting party to the Beijing Treaty and the 64th contracting party to the Marrakesh Treaty, which covers a total of 91 countries. GOP SEN. EYES UPDATE TO DECADES-OLD CYBER COPYRIGHT LAW via Intellectual Property Law360 by Christopher Cole on 2/11/2020 URL: https://www.law360.com/ip/articles/1241093 Sen. Thom Tillis, R-N.C., said Tuesday that landmark legislation passed in 1998 to protect innovation and free speech on the internet while still fighting copyright infringement needs to be updated and that he wants to craft a reform bill by the end of the year. ORACLE TELLS THE SUPREME COURT: "GOOGLE HAS A PROBLEM" via ZDNet by Stephanie Condon on 2/12/2020 URL: https://www.zdnet.com/article/oracle-tells-the-supreme-court-google-has-a-problem/ Oracle first took Google to court in 2010, claiming that Google owed it upwards of $9 billion for using Java API packages without paying copyright ...

Joshua L. Simmons joshua.simmons@kirkland.com

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ORACLE TELLS JUSTICES GOOGLE WAS 'TOO DESPERATE TO INNOVATE' via Intellectual Property Law360 by Bill Donahue on 2/12/2020 URL: https://www.law360.com/ip/articles/1243669 Oracle fired its opening shot Wednesday at the U.S. Supreme Court in the company’s decadelong copyright war against Google, painting the rival as a serial infringer that stole software code because it was “too desperate to innovate itself.” MOTOROLA WANTS $764M IN RADIO TRADE SECRETS TRIAL via Intellectual Property Law360 by Lauraann Wood on 2/12/2020 URL: https://www.law360.com/ip/articles/1243469 Motorola Solutions asked Illinois federal jurors to award it $764 million to make a Chinese rival pay for "one of the greatest thefts in the history of technology" in closing arguments Wednesday that wrapped a three-month trade secrets trial. SENATE IP SUBCOMMITTEE KICKS OFF YEAR-LONG REVIEW OF DIGITAL MILLENNIUM COPYRIGHT ACT via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 2/13/2020 URL: https://www.ipwatchdog.com/2020/02/13/senate-ip-subcommittee-kicks-off-year-long-review-digital-millennium-copyright-act/id=118866/ Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. COURT BARS POP ARTIST FROM USING HOLLYWOOD PHOTOG'S WORK via Intellectual Property Law360 by Carolina Bolado on 2/13/2020 URL: https://www.law360.com/ip/articles/1243853 A Florida federal judge on Thursday ordered pop artist Kfir Moyal to stop using works by famous Hollywood photographer Douglas Kirkland, who says Moyal has continued to use a copyrighted photo he took in 1965 even after a judgment against him. COPYRIGHT COULD BE THE NEXT WAY FOR CONGRESS TO TAKE ON BIG TECH via Verge by Adi Robertson on 2/13/2020 URL: https://www.theverge.com/2020/2/13/21133754/congress-dmca-copyright-reform-hearing-tillis-coons-big-tech The hearing helped set the stage to re-fight some long-running battles over the balance between protecting copyrighted content and keeping the ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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'FRIDAY THE 13TH' SCRIBE FIGHTS FOR COPYRIGHT OF 1980 SLASHER HIT via Courthouse News Service by Amanda Ottaway on 2/13/2020 URL: https://www.courthousenews.com/friday-the-13th-scribe-fights-for-copyright-of-1980-slasher-hit/ A federal appeals court in New York heard oral arguments Thursday over who should keep the copyright to the blockbuster ... ORACLE STRIKES BACK AT GOOGLE IN SUPREME COURT COPYRIGHT CASE via Verge by Adi Robertson on 2/13/2020 URL: https://www.theverge.com/2020/2/13/21136492/oracle-google-supreme-court-copyright-java-response-trial Oracle has filed its response in an upcoming Supreme Court copyright battle. The company accuses Google of stealing code from its Java language, ... YELLOWCARD'S COPYRIGHT-INFRINGEMENT LAWSUIT AGAINST JUICE WRLD DELAYED BY JUDGE via Variety by Jem Aswad on 2/13/2020 URL: https://variety.com/2020/biz/news/juice-wrld-yellowcard-copyright-lawsuit-against-juice-wrld-delayed-1203503600/ Yellowcard's lawsuit against Juice Wrld, which alleges that the rapper's song “Lucid Dreams” infringed on its 2006 song “Holly Wood Died,” has been ... MOTOROLA OVERSHOT WITH $764M TRADE SECRET SUIT, RIVAL SAYS via Intellectual Property Law360 by Lauraann Wood on 2/13/2020 URL: https://www.law360.com/ip/articles/1243824 Motorola Solutions LLC cast too wide a net in its $764 million digital radio trade secret theft suit and is trying to pin a few employees' bad acts on an entire company, Chinese rival Hytera Corp. told Illinois federal jurors Thursday. IP CASES HAVE SPIKED IN LAST 20 YEARS via Intellectual Property Law360 by Mike LaSusa on 2/13/2020 URL: https://www.law360.com/ip/articles/1243772 U.S. courts have seen a sharp uptick in intellectual property cases — especially patent and copyright filings — over the past two decades, according to data released Thursday by the administrative arm of the judiciary branch.

Joshua L. Simmons joshua.simmons@kirkland.com

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ORACLE FILES OPENING BRIEF AT U.S. SUPREME COURT IN COPYRIGHT FIGHT WITH GOOGLE via IPWatchdog.com | Patents & Patent Law by Nancy Braman on 2/14/2020 URL: https://www.ipwatchdog.com/2020/02/14/oracle-files-opening-brief-u-s-supreme-court-copyright-fight-google/id=118895/ In the latest stage of the Supreme Court battle between Oracle America, Inc. (Oracle) and Google, Oracle filed its opening brief with the Court on February 12. Google’s petition for a writ of certiorari was granted in November 2019 and asks the Court to consider: "1. Whether copyright protection extends to a software interface" and "2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use." MOTOROLA WINS $764M IN RADIO TRADE SECRET TRIAL via Intellectual Property Law360 by Lauraann Wood & Celeste Bott on 2/14/2020 URL: https://www.law360.com/ip/articles/1243889 Illinois federal jurors awarded Motorola Solutions LLC roughly $764 million Friday, finding Chinese rival Hytera Corp. infringed copyrights and misappropriated trade secrets to create and market a competing digital two-way radio. MOTOROLA SOLUTIONS WINS $764.6 MILLION VERDICT IN TRADE SECRETS CASE via New York Times on 2/14/2020 URL: https://www.nytimes.com/reuters/2020/02/14/technology/14reuters-motorola-verdict.html Motorola Solutions said it was planning to seek an injunction preventing Hytera from further misappropriating trade secrets and infringing copyrights. ORACLE’S BRIEF: MORE COMPETING QUESTIONS via Patent Law Blog (Patently-O) by Jason Rantanen on 2/14/2020 URL: https://patentlyo.com/patent/2020/02/oracles-competing-questions.html Yesterday, Dennis wrote about competing questions in a Supreme Court cert petition. KIRKLAND PILOTS MOTOROLA SOLUTIONS TO $764M IP VERDICT via Law.com by Scott Graham on 2/14/2020 URL: https://www.law.com/2020/02/14/kirkland-pilots-motorola-solutions-to-764m-ip-verdict/ The company had brought trade secret and copyright claims against a Chinese-based competitor, accusing former Motorola employees of taking proprietary source code for the operation of digital mobile radios.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WIPO AND U.S. COPYRIGHT OFFICE TEAM UP TO TALK COPYRIGHT IN THE AGE OF AI via IPWatchdog.com | Patents & Patent Law by Michelle Sara King on 2/17/2020 URL: https://www.ipwatchdog.com/2020/02/17/wipo-us-copyright-office-team-talk-copyright-age-ai/id=118958/ Earlier this month, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) held a joint event titled, “Copyright in the Age of Artificial Intelligence” (AI) at the Library of Congress in Washington, DC. The event explored how global copyright law and intellectual property law, as well as broader policy, may currently address AI technology, and included dialogue about changes that may be needed. Panelists also shared how AI is being utilized now and what future... EU “THIRD COUNTRY” IP REPORT TARGETS CHINA (AGAIN), ADDS SAUDI ARABIA TO PRIORITY LIST, AND DROPS USA via Hugh Stephens Blog on 2/17/2020 URL: http://hughstephensblog.net/2020/02/17/eu-third-country-ip-report-targets-china-again-adds-saudi-arabia-to-priority-list-and-drops-usa/ The European Commission recently issued its biannual report on the protection and enforcement of intellectual property rights in “third countries”. DMCA REVIEW BEGINS. WATCH THE RED FLAG. via The Illusion of More by David Newhoff on 2/17/2020 URL: http://illusionofmore.com/dmca-review-begins-watch-the-red-flag/ Early last week, the Senate Judiciary Committee held the first in what will be a year-long series of hearings (roughly one per month) to review the Digital Millennium Copyright Act. APPENDIX I TO DMCA 2020: SECTION 512 “SAFE HARBOR” CONDITIONS via The Illusion of More by David Newhoff on 2/17/2020 URL: http://illusionofmore.com/appendix-i-to-dmca-2020-section-512-safe-harbor-conditions/ May people know that online service providers are shielded from liability for copyright infringement by their users, meaning that a court will, on summary judgment, often excuse a web platform as a named defendant when an infringement has been committed by its customers.

Joshua L. Simmons joshua.simmons@kirkland.com

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GOOGLE V. ORACLE III – POPULARITY DOES NOT OVERTURN COPYRIGHT via The Illusion of More by David Newhoff on 2/18/2020 URL: http://illusionofmore.com/google-v-oracle-iii-popularity-does-not-overturn-copyright/ Looking at Google v. Oracle as a consumer and citizen, common sense insists upon a measure of skepticism in response to the premise that the “future of all software development” depends on Google prevailing in this case. EARTH TO GOOGLE: HERE’S WHY APIS NEED TO BE COPYRIGHTABLE via IPWatchdog.com | Patents & Patent Law by Michael Shore on 2/18/2020 URL: https://www.ipwatchdog.com/2020/02/18/earth-google-heres-apis-need-copyrightable/id=118999/ On January 6, 2020, Google submitted its brief in Google v. Oracle, kicking off the Supreme Court case that many are calling the “copyright case of the decade.” The suit pits the search engine platform controlling 93% of the worldwide search market against Oracle, the owner of the ubiquitous Java program, which submitted its response brief last week. After attempting and failing to secure the rights to Java, Google decided to cease negotiating and instead replicated 37 API packages from the... HOW TO LEGALLY PLAY MUSIC IN YOUR BUSINESS via Plagiarism Today by Jonathan Bailey on 2/18/2020 URL: https://www.plagiarismtoday.com/2020/02/18/so-you-want-to-play-music-in-your-business/ It’s a story that we hear fairly often, ASCAP, BMI or another performing rights agency (PRO) files a lawsuit against bars, restaurants or other businesses that play music without a license. APPLE, SHYAMALAN AIM TO KILL COPYRIGHT SUIT OVER 'SERVANT' via Intellectual Property Law360 by Bill Donahue on 2/18/2020 URL: https://www.law360.com/ip/articles/1245057 Apple Inc. is asking a California federal judge to toss a copyright lawsuit filed over director M. Night Shyamalan's Apple TV+ series "Servant," saying the accuser is trying to claim a monopoly over common story elements that are "ubiquitous in film and television."

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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JUDGE WON’T AIR PORNOS FOR MARTHA'S VINEYARD COPYRIGHT CASE via Intellectual Property Law360 by Brian Dowling on 2/18/2020 URL: https://www.law360.com/ip/articles/1244712 The judge’s chambers and jury box will not be transformed into a theater for adult films to sort out a mess of copyright claims regarding pornographic movies shot at an artist’s Martha’s Vineyard home, a Massachusetts federal judge said Tuesday. 9TH CIRC. REVIVES ZILLOW, AIG'S COPYRIGHT SUIT COVERAGE FIGHT via Intellectual Property Law360 by Sarah Jarvis on 2/18/2020 URL: https://www.law360.com/ip/articles/1245064 A Ninth Circuit panel found Tuesday that a lower court erred when it ruled that an AIG unit doesn't have to defend or indemnify Zillow Inc. in a lawsuit alleging it misused digital images on its online real estate database. ORACLE SAYS MICROSOFT, IBM ARE FAKING AMICUS SUPPORT FOR GOOGLE via Law.com by Scott Graham on 2/19/2020 URL: https://www.law.com/2020/02/19/oracle-says-microsoft-ibm-are-faking-amicus-support-for-google/ A blog post from Oracle Executive Vice President Ken Glueck insinuates that Google has bought some of its tech industry amici curiae and accuses others of switching sides out of naked self-interest. PELOTON SUIT SHOWS SYNC LICENSING IS NEXT COPYRIGHT HORIZON via Intellectual Property Law360 by Sekou Campbell on 2/19/2020 URL: https://www.law360.com/ip/articles/1244986 Who doesn’t enjoy music while working out? Often, people stay fit by relying on a good pair of headphones and their own purchased music to get through a grueling workout. Most gyms in America pump the latest tunes into their facilities and workout classes to keep their patrons happy using performance rights organizations’ blanket licenses.

Joshua L. Simmons joshua.simmons@kirkland.com

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MOVIE STUDIOS BACK ORACLE IN SUPREME COURT FIGHT OVER COMPUTER CODE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 2/19/2020 URL: https://www.hollywoodreporter.com/thr-esq/movie-studios-back-oracle-supreme-court-fight-computer-code-1279929 The Motion Picture Association, minus Netflix, argues that software is "inherently different" than works like movies and television shows — and so Google can't defend theft of code as a "transformative" fair use. COPYRIGHT OFFICE FEE INCREASES MOVE FORWARD TO MARCH ROLLOUT via Bloomberg Law by Kyle Jahner on 2/19/2020 URL: https://news.bloomberglaw.com/ip-law/copyright-office-fee-increases-move-forward-to-march-rollout U.S. Copyright Office fee changes for registering photos will take effect March 20, under a final rule the agency has published in the Federal Register. ORACLE BACKED BY 32 AMICUS BRIEFS IN GOOGLE COPYRIGHT WAR via Intellectual Property Law360 by Bill Donahue on 2/19/2020 URL: https://www.law360.com/ip/articles/1245296 An eye-popping 32 amicus briefs supporting Oracle have been filed at the U.S. Supreme Court in the company’s copyright battle against Google, including from the federal government, Hollywood studios, major record labels, former lawmakers and conservative think tanks. 2ND CIRC. RULES DESTRUCTION OF FAMED NYC GRAFFITI BROKE LAW via Intellectual Property Law360 by Bill Donahue on 2/20/2020 URL: https://www.law360.com/ip/articles/1245798 The Second Circuit ruled Thursday that the sudden destruction of a famous New York City graffiti space known as 5Pointz was an intentional violation of federal law, upholding a $6.75 million fine against a real estate developer for an "act of pure pique and revenge." WHY WEB SCRAPING/SPINNING IS BACK via Plagiarism Today by Jonathan Bailey on 2/20/2020 URL: https://www.plagiarismtoday.com/2020/02/20/why-web-scraping-spinning-is-back/ February 23, 2011, was a banner day for plagiarism and copyright infringement of blog/news content.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE LIFECYCLE OF COPYRIGHT: 1924 WORKS ENTER THE PUBLIC DOMAIN via Copyright: Creativity at Work by Nicole Lamberson on 2/20/2020 URL: https://blogs.loc.gov/copyright/2020/02/the-lifecycle-of-copyright-1924-works-enter-the-public-domain/ Last year, for the first time in twenty years, published creative works entered into the public domain in the United States. HIGH COURT SHOULD NOT ABET GOOGLE'S EFFICIENT IP INFRINGEMENT via Intellectual Property Law360 by James Skyles on 2/20/2020 URL: https://www.law360.com/ip/articles/1245477 Is the systematic, deliberate violation of intellectual property law a profitable enterprise? The notion may seem patently absurd to some. After all, IP laws are explicitly written to prevent this type of abusive behavior in the first place. HERE’S WHY THE PRO-IP CROWD IS RIGHT ABOUT INTELLECTUAL PROPERTY via IPWatchdog.com | Patents & Patent Law by Paul Morinville on 2/21/2020 URL: https://www.ipwatchdog.com/2020/02/21/heres-pro-ip-crowd-right-intellectual-property/id=119116/ On February 13, 2020, The Niskanen Center, a center-left think tank, published a piece condemning pro-intellectual property voices for what they consider flawed views on intellectual property. In the article, author Daniel Takash explicitly attacks the “unearned moral high ground,” which supporters of IP supposedly occupy. “Supporters of free markets and property rights,” he proclaims, “must stop thinking of the unauthorized use of ideas … as ‘theft.’” Instead, they must “wholesale reject the... MOTOROLA RIVAL COULD SEE GLOBAL BAN AFTER $764M RADIO TRIAL via Intellectual Property Law360 by Lauraann Wood on 2/21/2020 URL: https://www.law360.com/ip/articles/1246323 An Illinois federal judge intends to rule next week on whether to temporarily block Hytera Corp. from selling certain digital mobile radios globally after a $764 million verdict from a jury that found it stole Motorola Solutions LLC's trade secrets and infringed its copyrights.

Joshua L. Simmons joshua.simmons@kirkland.com

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RECORD LABELS OBJECT TO CHARTER'S CONSULTANT IN PIRACY CASE via Intellectual Property Law360 by Xiumei Dong on 2/21/2020 URL: https://www.law360.com/ip/articles/1246188 Record labels have asked a Colorado federal judge to restrict a lawyer’s involvement in a copyright lawsuit against Charter Communications, saying one of the cable company’s consultants used to be a senior legal executive for EMI Music, one of the labels suing Charter. 3 THINGS TO KNOW ABOUT 2ND CIRC.'S BIG GRAFFITI RULING via Intellectual Property Law360 by Bill Donahue on 2/21/2020 URL: https://www.law360.com/ip/articles/1246365 A ruling against a New York City real estate developer who destroyed the iconic graffiti space known as 5Pointz isn't just a win for the artists who sued, but a landmark ruling on a little-used statute aimed at protecting works of art. EXPORTING THE US “FAIR USE” DOCTRINE TO SOUTH AFRICA: THE BATTLE LINES ARE DRAWN via Hugh Stephens Blog on 2/23/2020 URL: http://hughstephensblog.net/2020/02/24/exporting-the-us-fair-use-doctrine-to-south-africa-the-battle-lines-are-drawn/ An interesting battle between pro and anti-copyright industries in the US is being played out in submissions to the US Trade Representative’s Office (USTR) regarding whether South Africa should be stripped of its GSP (Generalized System of Preferences) status. WIPO PUBLISHES SUBMISSIONS ON AI AND IP POLICY via IPWatchdog.com | Patents & Patent Law by James Nurton on 2/24/2020 URL: https://www.ipwatchdog.com/2020/02/24/wipo-publishes-submissions-ai-ip-policy/id=119152/ Twenty-two member states of the World Intellectual Property Organization (WIPO), more than 100 organizations, and over 100 individuals have submitted comments and suggestions in response to WIPO’s Draft Issues Paper on IP Policy and AI. The submissions have been posted in the form and in the languages in which they were received on WIPO’s website. The comments will feed into a revised issues paper for discussion at the second session of the WIPO Conversation on IP and AI, which takes place in...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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FOX NEWS SETTLES OCASIO-CORTEZ PHOTO COPYRIGHT SPAT via Bloomberg Law by Ian Lopez on 2/24/2020 URL: https://news.bloomberglaw.com/ip-law/fox-news-settles-ocasio-cortez-photo-copyright-spat Fox News Network LLC has settled a copyright infringement lawsuit over its alleged use of a photograph of Rep. Alexandria Ocasio-Cortez. The U.S. ... COPYRIGHT: “INNOCENT” LLC OWNER STILL LIABLE FOR WILLFUL INFRINGEMENT via Patent Law Blog (Patently-O) by Dennis Crouch on 2/24/2020 URL: https://patentlyo.com/patent/2020/02/copyright-innocent-infringement.html This short copyright decision has some interesting holdings regarding copyright infringement and LLCs. WHAT WE TALK ABOUT WHEN WE TALK ABOUT BOOK PIRACY via CreativeFuture by Justin Sanders on 2/26/2020 URL: https://creativefuture.org/book-piracy/ Let’s be clear – it’s difficult to make a living in any creative pursuit. However, it’s especially difficult to make a living as an author. PELOTON ENDS COPYRIGHT WAR WITH MUSIC PUBLISHERS via Intellectual Property Law360 by Bill Donahue on 2/27/2020 URL: https://www.law360.com/ip/articles/1248063 Peloton reached a settlement with music publishers Thursday to end a copyright lawsuit accusing the trendy exercise bike company of willfully using more than 1,000 songs from Ariana Grande, Rihanna and others without paying for them. SEND US YOUR LITIGATION NOTICES BY EMAIL via Copyright: Creativity at Work by Jordana Rubel on 2/27/2020 URL: https://blogs.loc.gov/copyright/2020/02/send-us-your-litigation-notices-by-email/ You can now send us litigation notices by email.

Joshua L. Simmons joshua.simmons@kirkland.com

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PELOTON AND NMPA SETTLE, DISMISS COPYRIGHT INFRINGEMENT LAWSUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Claudia Rosenbaum on 2/27/2020 URL: https://www.hollywoodreporter.com/thr-esq/peloton-nmpa-announce-settlement-agreement-dismiss-copyright-infringement-lawsuit-1281549 The interactive fitness company and the music publishing trade association have entered into a joint collaboration agreement to “work together to further optimize Peloton's music licensing systems and processes,” it was announced Thursday. THE (LEGAL) CHALLENGES OF NEW YORK FASHION WEEK via JLA Beat | The Columbia Journal of Law & the Arts by David Leys on 2/27/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/273 There are several (legal) challenges during NYFW. First, many designers skip NYFW due to the evolution of the fashion industry and the targeted customers. Second, the use of the name “NYFW” is subject to litigation when third parties use it without the permission of the owners of the name. Third, the theft of ideas and the sale of counterfeit goods at Canal Street and Midtown during NYFW threaten economic opportunities and financial stability of the fashion industry. Indeed, the live nature of NYFW can pose an increased risk to brands to be quickly copied by cheapest brands and sold at a lower price. This explains why designers tend to display and sell “a ready-to-wear” version of their lines directly to customers during NYFW. It becomes too costly for fashion companies to track infringers between the creation of the item for the runway at NYFW and the sale of the item six months later in a retail store. As a consequence, creativity and sophistication of the fashion items during NYFW decrease significantly. INDIA GETS ITS FIRST POLITICAL SLOGAN COPYRIGHT CASE AS PRASHANT KISHOR BOOKED FOR PLAGIARISM via Economic Times by Dinesh Narayanan & Venkat Ananth on 2/27/2020 URL: https://economictimes.indiatimes.com/news/politics-and-nation/india-gets-its-first-political-slogan-copyright-case-as-prashant-kishor-booked-for-plagiarism/articleshow/74333314.cms In what could perhaps be a first in India, a political worker has dragged a rival strategist to court for allegedly stealing his campaign slogan and logo.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WITH CONGRESS FOCUSED ON COPYRIGHT, INDUSTRY MUST DELIVER SOLUTIONS TO THE PIRACY PROBLEM via IPWatchdog.com | Patents & Patent Law by Gene Quinn on 2/28/2020 URL: https://www.ipwatchdog.com/2020/02/28/congress-focused-copyright-industry-must-deliver-solutions-piracy-problem/id=119385/ A recently released report from the Information Technology and Innovation Foundation (ITIF) argues that while there is no easy solution to the ongoing scourge of digital content piracy on the Internet, voluntary agreements between copyright holders and payment processors, advertising networks, domain name registrars, search engines, and other stakeholders can serve as an important complement to legislative and other efforts by governments. Industry should come together and engage in a... COPYRIGHT OFFICE STAFF FINDS INSPIRATION IN AFRICAN AMERICAN WORKS via Copyright: Creativity at Work by Alison Hall on 2/28/2020 URL: https://blogs.loc.gov/copyright/2020/02/african-american-history-inspiration/ This month, as we celebrated the rich cultural contributions of African Americans throughout history, I started exploring creative works inspired by African Americans. GOOGLE V. ORACLE IV: FAIR USE & THE DIFFERENCE BETWEEN NEW AND TRANSFORMATIVE. via The Illusion of More by David Newhoff on 2/28/2020 URL: http://illusionofmore.com/google-v-oracle-iv-fair-use-the-difference-between-new-and-transformative/ Although it has been my intention to write about Google v. Oracle serially, addressing the legal questions in more or less in the order they are presented and weighed in a court opinion, it turns out today marks the end of Fair Use Week. 'THIS LAND IS YOUR LAND' COPYRIGHT FIGHT DISMISSED via Intellectual Property Law360 by Bill Donahue on 2/28/2020 URL: https://www.law360.com/ip/articles/1248685 A Manhattan federal judge on Friday tossed out a long-running class action that sought to free "This Land Is Your Land" from copyright control, ending one of several such cases aimed at pushing iconic songs into the public domain.

Joshua L. Simmons joshua.simmons@kirkland.com

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SONGWRITERS FIRE BACK AT LIZZO OVER 'TRUTH HURTS' COPYRIGHT via Intellectual Property Law360 by Bill Donahue on 2/28/2020 URL: https://www.law360.com/ip/articles/1248640 Three songwriters who say they deserve credit for Lizzo's chart-topping "Truth Hurts" are firing back at a preemptive copyright lawsuit she filed last year, offering up screenshots of text messages and other evidence to support their accusations. SOUTH AFRICA'S COPYRIGHT FIGHT: IT'S BIG TECH VS. ARTISTS AS FAIR USE REFORM AWAITS A PRESIDENT'S PEN via Billboard by Daniel Friedman & Alexei Barrionuevo on 2/28/2020 URL: https://www.billboard.com/articles/news/international/9325378/south-africa-copyright-fight-fair-use-music-creators-tech Led by famed Kwaito producer Gabi Le Roux and performer Eugene Mthethwa, the artists were concerned that weak copyright protection and rampant ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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March 2020

OPEN SOURCE COMPANIES ARE THRIVING IN THE CLOUD via ITworld News by Matt Asay on 3/2/2020 URL: https://www.itworld.com/article/3530071/open-source-companies-are-thriving-in-the-cloud.html Quick, can you spot the common link between MongoDB, DataStax, Redis Labs, Percona, Couchbase, and EnterpriseDB? ARE THE TIMES A-CHANGIN’?: DOJ CONSIDERS TERMINATING DECADES-OLD MUSIC LICENSING CONSENT DECREES via JLA Beat | The Columbia Journal of Law & the Arts by William Reed on 3/2/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/277 For nearly 80 years, songwriters and composers have monetized their exclusive right to the public performance of their works through licenses administered by Performance Rights Organizations (“PROs”). DEFENDING $1B VERDICT, LABELS SAY COX 'MOCKED' COPYRIGHT via Intellectual Property Law360 by Bill Donahue on 3/2/2020 URL: https://www.law360.com/ip/articles/1248805 The major record labels are urging a federal judge to uphold a $1 billion verdict against Cox Communications over internet piracy, calling the huge fine an appropriate penalty for a company that “systematically helped infringers” and mocked copyright law. CHARTER CHALLENGES COPYRIGHT REGISTRATIONS OF MUSIC RECORDINGS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 3/2/2020 URL: https://www.hollywoodreporter.com/thr-esq/charter-challenges-copyright-registration-music-recordings-1282216 Facing a billion-dollar lawsuit, the internet service provider questions whether a big percentage of sound recordings have been improperly registered as works for hire.

Joshua L. Simmons joshua.simmons@kirkland.com

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UT CAN'T USE IMMUNITY TO ESCAPE SOFTWARE COPYRIGHT FIGHT via Intellectual Property Law360 by Katie Pohlman on 3/2/2020 URL: https://www.law360.com/ip/articles/1249317 A Texas federal judge ruled Monday that the University of Texas Medical Branch must face a copyright infringement suit for its unauthorized use of a medical records software program in a federal prison and several Lone Star State county jails. THE BATTLE OVER THE PHILLIE PHANATIC via Plagiarism Today by Jonathan Bailey on 3/3/2020 URL: https://www.plagiarismtoday.com/2020/03/03/the-battle-over-the-phillie-phanatic/ Last week, at their first spring training game in 2020, the Philadelphia Phillies introduced a new version of their iconic mascot, the Phillie Phanatic. MARVIN GAYE FAMILY SAYS PHARRELL LIED IN COPYRIGHT TRIAL via Intellectual Property Law360 by Bill Donahue on 3/3/2020 URL: https://www.law360.com/ip/articles/1249677 Marvin Gaye's heirs are continuing to push for a new payout in their long-resolved copyright lawsuit against Pharrell Williams over the song "Blurred Lines," accusing the pop star of lying under oath about the creation of the song. LIEBOWITZ STILL DENIED ATTY FEES FOR COPYRIGHT WIN via Intellectual Property Law360 by Bill Donahue on 3/3/2020 URL: https://www.law360.com/ip/articles/1249653 A Manhattan federal judge on Tuesday once again refused to order Hearst to pay an attorney fees award to prolific copyright litigator Richard Liebowitz, even though he ultimately won the lawsuit against the publisher. COPYRIGHT: A SOLUTION TO REVENGE PORN? via JLA Beat | The Columbia Journal of Law & the Arts by Chinyere Obi on 3/4/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/278 What about copyright protection for people’s nudes photos?

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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DEBATE CONTINUES BETWEEN ALI AND CONGRESS ON COPYRIGHT RESTATEMENT PROJECT via IPWatchdog.com | Patents & Patent Law on 3/4/2020 URL: https://www.ipwatchdog.com/2020/03/04/debate-continues-ali-congress-copyright-restatement-project/id=119575/ The American Law Institute (ALI) has submitted a second response stemming from a letter sent by members of Congress last year expressing serious concerns over ALI’s Restatement of Copyright project. FAIR USE BY STEALTH: THE “SUCH AS” PROPOSAL IN CANADA via Hugh Stephens Blog on 3/4/2020 URL: http://hughstephensblog.net/2020/03/04/fair-use-by-stealth-the-such-as-proposal-in-canada/ Last week (February 24-28) was “Fair Use/Fair Dealing” week in the US, Canada and some other countries. COPYRIGHT AND TRADEMARK IN PROFESSIONAL WRESTLING via Plagiarism Today by Jonathan Bailey on 3/4/2020 URL: https://www.plagiarismtoday.com/2020/03/04/copyright-and-trademark-in-professional-wrestling/ In the summer of 1996, things were looking pretty bad for the World Wrestling Federation (WWF) (Note: The name change to WWE would not take place until 2002). JUDGE TAKES 3RD WHACK AT GSU TEXTBOOK COPYRIGHT CASE via Intellectual Property Law360 by Tiffany Hu on 3/4/2020 URL: https://www.law360.com/ip/articles/1249680 A Georgia federal judge has once again found that most digital excerpts of academic books are protected by fair use when they're downloaded for free by Georgia State University students, the latest in a decadelong copyright battle brought by three academic publishers.

Joshua L. Simmons joshua.simmons@kirkland.com

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GOOGLE V. ORACLE: COPYRIGHT THOUGHT LEADERS DISMANTLE PRO-GOOGLE ARGUMENTS (GUEST POST) via The Illusion of More by Steven Tepp on 3/5/2020 URL: http://illusionofmore.com/google-v-oracle-copyright-thought-leaders-dismantle-pro-google-arguments-guest-post/ I had the honor and privilege of authoring an amicus brief to the Supreme Court in support of Oracle in the pending copyright infringement suit against Google. SETTLEMENT TERMS REVEALED (MOSTLY) IN AUDIBLE CAPTIONS LITIGATION via Publishers Weekly by Andrew Albanese on 3/5/2020 URL: https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/82598-settlement-terms-revealed-mostly-in-audible-captions-litigation.html ... were to expand, Audible would clear permission for all works under copyright, not just AAP members' works, before including them in the program. 5POINTZ OWNER HEADING TO SUPREME COURT OVER $6.75M FINE via Intellectual Property Law360 by Bill Donahue on 3/6/2020 URL: https://www.law360.com/ip/articles/1250801 A New York City real estate developer who destroyed a famous graffiti space known as 5Pointz is heading to the U.S. Supreme Court, where he will argue that a $6.75 million fine against him was unconstitutional. MOTOROLA LANDS $764M JUDGMENT BUT INJUNCTION STILL IN THE AIR via Intellectual Property Law360 by Lauraann Wood on 3/6/2020 URL: https://www.law360.com/ip/articles/1250974 An Illinois federal judge entered judgment Thursday on a jury's $764 million verdict for Motorola Solutions Inc. over claims that a Chinese rival stole its mobile radio trade secrets, but whether he'll globally block the rival's radio sales remains to be seen. VIDANGEL FLOATS CH. 11 PLAN TO PAY $62.4M VERDICT IN FULL via Intellectual Property Law360 by Rick Archer on 3/6/2020 URL: https://www.law360.com/ip/articles/1251098 Movie-filtering service VidAngel Inc. has filed a Chapter 11 plan in Utah bankruptcy court that its trustee says will allow the company to stay in business while paying down a $62.4 million copyright verdict to Walt Disney and other Hollywood studios over the next 14 years.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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KIRKLAND TURNS 'LOGISTICS NIGHTMARE' INTO $764M MOTOROLA WIN via Law360: Technology by Daniel Siegal on 3/6/2020 URL: https://www.law360.com/technology/articles/1249598 To prove that Chinese two-way radio maker Hytera's products were based on technology stolen from Motorola, a Kirkland & Ellis LLP team took millions of lines of source code and a deluge of documents written in Mandarin and made them crystal clear for an Illinois federal jury. FILENAMES AS COPYRIGHT MANAGEMENT INFORMATION via New York Law Journal by Scott D. Locke on 3/6/2020 URL: https://www.law.com/newyorklawjournal/2020/03/06/filenames-as-copyright-management-information/ Filenames as Copyright Management Information. 'Energy Intelligence Group v. Kayne Anderson Capital Advisors' has significant ramifications for both ... IMPLEMENTING THE USMCA/CUSMA: WHAT COPYRIGHT-RELATED CONSTRAINTS (AND COSTS) DOES IT IMPOSE ON CANADA—AND THE US? via Hugh Stephens Blog on 3/9/2020 URL: http://hughstephensblog.net/2020/03/09/implementing-the-usmca-cusma-what-copyright-related-constraints-and-costs-does-it-impose-on-canada-and-the-us/ The USMCA (called the CUSMA in Canada—just because we like to be different—I will use the two terms interchangeably) has passed in the US Congress and been signed by President Trump. GOOGLE V. ORACLE PART V: THE WHERE WOULD YOU BE WITHOUT US DEFENSE via The Illusion of More by David Newhoff on 3/9/2020 URL: http://illusionofmore.com/google-v-oracle-part-v-the-where-would-you-be-without-us-defense/ Not everyone agrees that copyright law has a natural-rights soul, but neither critics nor proponents dispute that copyright’s heart is to provide incentive for authors. LED ZEPPELIN BEATS 'STAIRWAY' COPYRIGHT CASE AT 9TH CIRC. via Intellectual Property Law360 by Bill Donahue on 3/9/2020 URL: https://www.law360.com/ip/articles/1221886 The full Ninth Circuit sided with Led Zeppelin on Monday and rejected a high-profile copyright lawsuit accusing the band of stealing the intro to "Stairway to Heaven" from a little-known song.

Joshua L. Simmons joshua.simmons@kirkland.com

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LED ZEPPELIN WINS "STAIRWAY TO HEAVEN" COPYRIGHT FIGHT UPON APPELLATE REPLAY via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 3/9/2020 URL: https://www.hollywoodreporter.com/thr-esq/led-zeppelin-wins-stairway-heaven-copyright-fight-appellate-replay-1283184 The Ninth Circuit reverses a prior opinion that a new trial is required to determine whether the group's most popular hit infringed Spirit's "Taurus." NINTH CIRCUIT ALTERS ITS APPROACH TO ASSESSING COPYRIGHT INFRINGEMENT IN RULING FOR LED ZEPPELIN via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 3/9/2020 URL: https://www.ipwatchdog.com/2020/03/09/ninth-circuit-alters-its-approach-to-assessing-copyright-infringement-in-ruling-for-led-zeppelin/id=119710/ The en banc U.S. Court of Appeals for the Ninth Circuit has ultimately sided with Led Zeppelin in a long-running case examining whether the opening notes of the band’s legendary song “Stairway to Heaven” infringed the song “Taurus,” written by Robert Wolfe of the band Spirit, a contemporary of Led Zeppelin. Michael Skidmore, Trustee for Wolfe’s estate, brought the original suit in 2014. The Court notably struck down its own “inverse ratio rule,” which dictates that there is “a lower standard of... GUEST OPINION: WILL ORRIN HATCH ENTERING THE RING HELP ORACLE KNOCK OUT GOOGLE? via DeseretNews by Jared Whitley on 3/9/2020 URL: https://www.deseret.com/opinion/2020/3/9/21163762/guest-opinion-will-orrin-hatch-entering-the-ring-help-oracle-knock-out-google Oracle sued, alleging copyright infringement — since the entire Java program was protected under internet protocol law. And after years in the federal ... LED ZEPPELIN PREVAILS IN ‘STAIRWAY TO HEAVEN’ APPEAL via NYT > Media & Advertising by Ben Sisario on 3/9/2020 URL: https://www.nytimes.com/2020/03/09/arts/music/led-zeppelin-lawsuit-stairway-to-heaven.html The court upheld a jury’s verdict that the band did not copy the opening to its classic 1971 hit from another band, Spirit.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SUPREME COURT REJECTS DESIGN PATENT AND COPYRIGHT CASES via Intellectual Property Law360 by Dani Kass on 3/9/2020 URL: https://www.law360.com/ip/articles/1251349 The U.S. Supreme Court on Monday refused to take up a pair of intellectual property cases that raised questions about design patents and providing inaccurate information to the U.S. Copyright Office. LED ZEPPELIN RULING TOPPLES KOZINSKI PRECEDENT, AND MAYBE HIS COPYRIGHT CASE, TOO via Law.com by Scott Graham on 3/9/2020 URL: https://www.law.com/2020/03/09/led-zeppelin-ruling-topples-kozinski-precedent-and-maybe-his-copyright-case-too/ Led Zeppelin and its music labels were the winner of Monday’s copyright decision over the song “Stairway to Heaven.” The estate of a songwriter that claims the super group copied his work got the short end. But the estate wasn’t the only one. THE MISFITS SAY BOOK PUBLISHER INFRINGED 'FIEND SKULL' ARTWORK via Intellectual Property Law360 by Hailey Konnath on 3/9/2020 URL: https://www.law360.com/ip/articles/1251738 The Misfits hit Abrams Books with copyright and trademark infringement claims Monday, accusing the publisher of illegally using the punk rock band's famous "fiend skull" art in promoting a photobook on the band's legacy, according to a suit filed in New York federal court. SUPREME COURT AND NINTH CIRCUIT SET TO WEIGH IN ON FAIR USE IN TWO COPYRIGHT INFRINGEMENT CASES via New York Law Journal by Lewis R. Clayton & Eric Alan Stone on 3/10/2020 URL: https://www.law.com/newyorklawjournal/2020/03/10/supreme-court-and-ninth-circuit-set-to-weigh-in-on-fair-use-in-two-copyright-infringement-cases/ The Copyright Act provides that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including ... THE HISTORY OF THE COPYRIGHT SYMBOL via Plagiarism Today by Jonathan Bailey on 3/10/2020 URL: https://www.plagiarismtoday.com/2020/03/10/history-of-the-copyright-symbol/ The copyright symbol (©) is one of the most ubiquitous and most easily-recognized symbols in the world.

Joshua L. Simmons joshua.simmons@kirkland.com

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3 THINGS TO KNOW ABOUT ZEPPELIN'S 'STAIRWAY' COPYRIGHT WIN via Intellectual Property Law360 by Bill Donahue on 3/10/2020 URL: https://www.law360.com/ip/articles/1252159 The Ninth Circuit’s big copyright ruling on Led Zeppelin’s “Stairway to Heaven” has plenty to unpack — including comparisons to “Blurred Lines,” a key holding on old records and a major reversal of decades of precedent. DC CIRC. MULLS RECORD LABELS' IMPACT ON ROYALTY FIGHT via Intellectual Property Law360 by Nadia Dreid on 3/10/2020 URL: https://www.law360.com/ip/articles/1252143 If pushed too hard to accept a smaller slice of the royalty pie, record labels might pull their content from major streaming platforms in favor of building their own, the D.C. Circuit suggested Tuesday during a hearing over the Copyright Royalty Board’s decision to hike rates. OPEN-SOURCE OPTIONS OFFER INCREASED SOC TOOL INTEROPERABILITY via ITworld News by J.M. Porup on 3/11/2020 URL: https://www.itworld.com/article/3530358/open-source-options-offer-increased-soc-tool-interoperability.html#tk.rss_news Anecdotal evidence of security operations center (SOC) tool overload is overwhelming — at CSO we hear complaints from industry sources about this problem all the time — but the 2019 SANS SOC Survey attempted to quantify the problem. For most survey respondents, there were roughly equal numbers of SOC analysts as there were full-time employees tasked with maintaining the SOC security tools. INDIGNATION via JLA Beat | The Columbia Journal of Law & the Arts by Kate Garber on 3/11/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/283 Intellectual property is entertaining. EFF’S ‘REEVALUATION’ OF THE DMCA DEVALUES CREATIVITY via CreativeFuture on 3/11/2020 URL: https://creativefuture.org/eff-rebuttal-dmca/ Consider the word “use.”

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SENATE IP SUBCOMMITTEE EXAMINES FOREIGN APPROACHES TO DIGITAL PIRACY IN SECOND HEARING ON U.S. COPYRIGHT REFORM via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott & Eileen McDermott on 3/11/2020 URL: https://www.ipwatchdog.com/2020/03/11/senate-ip-subcommittee-examines-foreign-approaches-to-digital-piracy-in-second-hearing-on-u-s-copyright-reform/id=119779/ Senate IP Subcommittee Chair, Senator Thom Tillis (R-NC), yesterday led the second in a series of Subcommittee hearings addressing the possibility of updating the U.S. Digital Millennium Copyright Act (DMCA). The hearing, titled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”, was aimed at examining foreign copyright laws in order to consider what may or may not be beneficial if adopted by the United States. The first of two panels included four... HOW WILL 'STAIRWAY' RULING HIT OTHER BIG MUSIC CASES? via Intellectual Property Law360 by Bill Donahue on 3/11/2020 URL: https://www.law360.com/ip/articles/1252546 The full impact of the Ninth Circuit’s big copyright ruling on Led Zeppelin’s “Stairway to Heaven” will likely take years to assess, but it could have an immediate effect on two high-profile music lawsuits. EFF HITS NEW LOW IN RESPONSE TO CHILD SEXUAL ABUSE ONLINE via The Illusion of More by David Newhoff on 3/12/2020 URL: http://illusionofmore.com/eff-hits-new-low-in-response-to-child-sexual-abuse-online/ According to a September 2019 story in the New York Times, the volume of online content described as “child sexual abuse material” grew from 3,000 reports in 1998 to 45 million in 2019. CITING COVID, 9TH CIRC. MOVES DR. SEUSS COPYRIGHT HEARING via Intellectual Property Law360 by Bill Donahue on 3/12/2020 URL: https://www.law360.com/ip/articles/1252861 Citing the COVID-19 pandemic, the Ninth Circuit said Thursday it would relocate oral arguments set for a Seattle courthouse in a closely watched copyright case over a mashup of Dr. Seuss and "Star Trek."

Joshua L. Simmons joshua.simmons@kirkland.com

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US COPYRIGHT OFFICE CLOSED TO PUBLIC UNTIL APRIL OVER VIRUS via Bloomberg Law by Kyle Jahner on 3/12/2020 URL: https://news.bloomberglaw.com/ip-law/u-s-copyright-office-closed-to-public-until-april-over-virus The U.S. Copyright Office and its parent agency, the Library of Congress, will be closed to the public until April 1 to reduce new coronavirus ... ZEPPELIN 'STAIRWAY' COPYRIGHT DECISION MODERNIZES DOCTRINE via Intellectual Property Law360 by Thomas Sprankling & Joseph Levy on 3/12/2020 URL: https://www.law360.com/ip/articles/1252535 On March 9, the en banc U.S. Court of Appeals for the Ninth Circuit unanimously held in Skidmore v. Led Zeppelin that a copyright defendant’s high degree of access to a copyrighted work does not lower the plaintiff’s burden to show substantial similarity between the copyrighted and infringing material. GOOGLE'S SUPREME COURT BID TO LEGALIZE INTELLECTUAL PROPERTY THEFT via New York Post by Josh Hammer on 3/12/2020 URL: https://nypost.com/2020/03/12/googles-supreme-court-bid-to-legalize-intellectual-property-theft/ “The goal of copyright,” as the Supremes have previously said, is “to ... lenient proposed standards for using copyrighted software, Hudson argues, ... COX INFRINGED PHOTO OF NYC TERRORIST ATTACK, JUDGE SAYS via Intellectual Property Law360 by Bill Donahue on 3/13/2020 URL: https://www.law360.com/ip/articles/1253280 A New York federal judge ruled Friday that a television station owned by Cox Media Group violated copyright law by using a bystander’s photo of a 2017 terrorist attack near Manhattan’s Battery Park without permission. BELGIAN ARTIST SAYS SOTHEBY'S IS SELLING PLAGIARIZED WORKS via Intellectual Property Law360 by Tiffany Hu on 3/13/2020 URL: https://www.law360.com/ip/articles/1253073 A Belgian modernist artist has hit Sotheby's Inc. with a copyright lawsuit in California federal court over claims that the auctioneer is selling paintings by a prominent Chinese artist that rip off his artistic style.

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VIDANGEL UNLIKELY TO ESCAPE $62.4M DISNEY VERDICT via Intellectual Property Law360 by Lauren Berg on 3/13/2020 URL: https://www.law360.com/ip/articles/1253363 A California federal judge indicated on Friday that VidAngel is unlikely to overturn a jury's $62.4 million verdict in a copyright lawsuit brought by Disney and other major studios, hinting that if a jury wanted to use a "sledgehammer" to make a point, it could. COPYRIGHT LICENSES INCLUDE IMPLIED SUBLICENSING RIGHTS: 1ST CIR. via Bloomberg Law by Blake Brittain on 3/14/2020 URL: https://news.bloomberglaw.com/ip-law/copyright-licenses-include-implied-sublicensing-rights-1st-cir An Osram Sylvania Inc. distributor didn't infringe copyrights by using photos in marketing without adhering to a clause in the license allowing their use ... THE FREEWHEELING, COPYRIGHT-INFRINGING WORLD OF CUSTOM-PRINTED TEES via Wired by Roger Sollenberger on 3/16/2020 URL: https://www.wired.com/story/freewheeling-copyright-infringing-world-custom-printed-tees/ Exurbia's other job proved far more difficult: administering Chainsaw trademarks and copyrights, including the film's title, images, and the rights to its ... JUSTICES POSTPONE UPCOMING ARGUMENTS via Intellectual Property Law360 by Christopher Cole on 3/16/2020 URL: https://www.law360.com/ip/articles/1253631 The U.S. Supreme Court on Monday put off oral arguments scheduled for the next two weeks in the federal courts' latest precaution against the spread of coronavirus. AI, ETHICS AND COPYRIGHT via Hugh Stephens Blog on 3/16/2020 URL: http://hughstephensblog.net/2020/03/16/ai-ethics-and-copyright/ The intrusion of Artificial Intelligence (AI) into our daily lives has raised major questions of ethics among researchers, companies that are developing and using AI, and of course consumers.

Joshua L. Simmons joshua.simmons@kirkland.com

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YOUTUBER LOSES LAWSUIT OVER CHANNEL TERMINATION–MISHIYEV V. ALPHABET via Technology & Marketing Law Blog by Eric Goldman on 3/16/2020 URL: https://blog.ericgoldman.org/archives/2020/03/youtuber-loses-lawsuit-over-channel-termination-mishiyev-v-alphabet.htm Mishiyev, a/k/a “DJ Short-e,” is a YouTuber who claims he had 100M+ views and 250k subscribers. His videos started getting copyright complaints in 2016. COPYRIGHT, FAIR USE AND HAND-WASHING MEMES via Plagiarism Today by Jonathan Bailey on 3/16/2020 URL: https://www.plagiarismtoday.com/2020/03/16/copyright-fair-use-hand-washing-memes/ The threat of the novel coronavirus (COVID-19) currently has the world in its grips. THE WORKOUT PLAYLISTS ARE BACK: PELOTON SETTLES WITH THE NATIONAL MUSIC PUBLISHERS ASSOCIATION OVER COPYRIGHT INFRINGEMENT CLAIM via JOLT Digest RSS Feed by Chinyere Amanze on 3/16/2020 URL: http://jolt.law.harvard.edu/digest/the-workout-playlists-are-back-peloton-settles-with-the-national-music-publishers-association-over-copyright-infringement-claim On February 27, 2019, Peloton Interactive, Inc., the exercise equipment company that developed the popular Peloton Bike... 9TH CIRC. SAYS DISNEY COPYRIGHT ACCUSER IS NO GODZILLA via Intellectual Property Law360 by Bill Donahue on 3/16/2020 URL: https://www.law360.com/ip/articles/1253786 The Ninth Circuit on Monday rejected a copyright lawsuit against Walt Disney Co. over Pixar's animated hit "Inside Out," ruling that the characters in a little-known TV pilot did not qualify for the same protection as the likes of James Bond or Godzilla. COMPOSERS' HEIRS SAY GOOGLE PIRATED CLASSIC SONGS via Intellectual Property Law360 by Hailey Konnath on 3/16/2020 URL: https://www.law360.com/ip/articles/1253739 The beneficiaries of three prominent American composers, including Harold Arlen, who wrote “Stormy Weather” and “Over the Rainbow,” accused Google and two music companies on Monday of selling illegal digital copies of the composers’ music on the Google Play Store.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE BIGGEST UK IP CASES TO WATCH IN 2020 via Intellectual Property Law360 by Bonnie Eslinger on 3/16/2020 URL: https://www.law360.com/ip/articles/1247735 Intellectual property litigators in the United Kingdom have no shortage of high-profile cases to watch for in 2020, ranging from a pending Supreme Court decision on whether English courts can set global licensing rates for multinational patent portfolios to a dispute about whether links to online radio stations can breach music copyrights. 1ST CIRC. SAYS COPYRIGHT SUBLICENSES CAN BE IMPLIED via Intellectual Property Law360 by Tiffany Hu on 3/16/2020 URL: https://www.law360.com/ip/articles/1253379 The First Circuit waded into "uncharted waters" to reject a copyright lawsuit against a distributor of Sylvania light bulbs, issuing a first-of-its-kind ruling about photo licensing. KATY PERRY SAYS 'STAIRWAY' RULING CRUSHES 'DARK HORSE' VERDICT via Intellectual Property Law360 by Lauren Berg on 3/16/2020 URL: https://www.law360.com/ip/articles/1253762 Katy Perry urged a California federal judge in a hearing on Monday to upend a jury's $2.8 million infringement verdict, saying the Ninth Circuit's recent copyright ruling on Led Zeppelin's "Stairway to Heaven" means the short musical phrase at the heart of the suit over the pop singer's hit "Dark Horse" isn't protected. HOW TIKTOK USED BLOCKCHAIN TO DEFEAT COPYRIGHT INFRINGEMENT via IPWatchdog.com | Patents & Patent Law by Matej Michalko on 3/17/2020 URL: https://www.ipwatchdog.com/2020/03/17/tiktok-used-blockchain-defeat-copyright-infringement/id=119878/ Having attained the title of the world’s second-largest economy, along with a constant influx of innovative companies and massive breakthroughs in digital development, China - often referred to by natives as “Zhongguo” - indubitably ranks among the strongest global tech leaders. While China has lately found itself in arduous times dealing with the dangerous COVID-19 virus, the country’s determination for progress surely hasn’t faltered. Such determination can deliver various results in various...

Joshua L. Simmons joshua.simmons@kirkland.com

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TEACHING FROM A DISTANCE AND COPYRIGHT CONSIDERATIONS via Copyright: Creativity at Work by David Welkowitz on 3/17/2020 URL: https://blogs.loc.gov/copyright/2020/03/teaching-from-a-distance-and-copyright-considerations/ As the spread of COVID-19 causes schools—particularly colleges and universities—to switch to distance education, it is a good time to review an important part of the educational landscape: copyright. STAN LEE'S DAUGHTER SAYS SHE CAN PRESS IP CLAIMS IN SUIT via Intellectual Property Law360 by Vince Sullivan on 3/17/2020 URL: https://www.law360.com/ip/articles/1253945 The only daughter of late comic book legend Stan Lee told a California federal court Monday that she has standing to pursue the rights to her father's intellectual property because those rights are co-owned by the Lee Family Trust. 9TH CIRC. POSTPONES DR. SEUSS COPYRIGHT HEARING OVER VIRUS via Intellectual Property Law360 by Bill Donahue on 3/17/2020 URL: https://www.law360.com/ip/articles/1254313 A week after relocating oral arguments in a closely watched copyright case over a mashup of Dr. Seuss and "Star Trek,” the Ninth Circuit has decided to postpone the April hearing indefinitely amid the ongoing COVID-19 outbreak. DMCA REVIEW II – LOOKING TO FOREIGN JURISDICTIONS, WHEN SOME ANSWERS ARE ALREADY HERE. via The Illusion of More by David Newhoff on 3/17/2020 URL: http://illusionofmore.com/dmca-review-ii-looking-to-foreign-jurisdictions-when-some-answers-are-already-here/ As we batten down the hatches to weather the present storm, streaming entertainment enters the foreground of our new and temporary reality in which we voluntarily circumscribe daily life to the confines of home.

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JUDGE WIPES OUT $2.8M COPYRIGHT VERDICT AGAINST KATY PERRY, CAPITOL RECORDS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 3/17/2020 URL: https://www.hollywoodreporter.com/thr-esq/judge-wipes-28m-copyright-verdict-katy-perry-capitol-records-1285141 More than a half a year after a California jury stunned the music world by punishing Perry for ripping off a Christian rapper's song, a judge finds there was nothing protectable to infringe. WARNER BROS. SUES HARRY POTTER-THEMED RUNNING GROUP via Intellectual Property Law360 by Bill Donahue on 3/17/2020 URL: https://www.law360.com/ip/articles/1253527 Warner Bros. is suing a Connecticut fitness-oriented charity group for ripping off the "Harry Potter" and "Gilmore Girls" franchises by offering "running clubs" tied to the famous media properties. MIRAMAX CUTS DEAL TO EXIT 'AMITYVILLE HORROR' IP ROW via Intellectual Property Law360 by Dave Simpson on 3/17/2020 URL: https://www.law360.com/ip/articles/1254356 Miramax has exited a California federal court suit alleging that it stole intellectual property to help produce the 2017 sequel to “The Amityville Horror" film Tuesday, after settling with the woman whose late husband wrote the 1977 novel “Amityville Horror." KATY PERRY ESCAPES 'DARK HORSE' COPYRIGHT VERDICT via Intellectual Property Law360 by Bill Donahue on 3/17/2020 URL: https://www.law360.com/ip/articles/1254416 A California federal judge on Tuesday tossed out a jury verdict that Katy Perry's 2013 song "Dark Horse" infringed an earlier Christian rap song, ruling that the tracks share only common musical elements that cannot be protected by copyright law. ARTIST SUES MEOW WOLF CLAIMING COPYRIGHT INFRINGEMENT via Sana Fe New Mexican by Phaedra Haywood on 3/18/2020 URL: https://www.santafenewmexican.com/news/local_news/artist-sues-meow-wolf-claiming-copyright-infringement/article_dc06abe2-685d-11ea-b804-673c4d6e84cc.html ... Wolf's wildly successful interactive art exhibit is suing the company and its founder for Visual Artist Rights Act violations and copyright infringement.

Joshua L. Simmons joshua.simmons@kirkland.com

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LEBRON POSTED UNLICENSED DUNK PIC ON FACEBOOK, SUIT SAYS via Intellectual Property Law360 by Pete Brush on 3/18/2020 URL: https://www.law360.com/ip/articles/1254496 A Florida photographer hit LeBron James with a copyright suit on Wednesday in Manhattan federal court, claiming the NBA superstar posted a photograph of himself dunking during a game on Facebook without permission. STEINBECK FAMILY TAKES COPYRIGHT FIGHT TO HIGH COURT via Intellectual Property Law360 by Tiffany Hu on 3/18/2020 URL: https://www.law360.com/ip/articles/1254305 John Steinbeck's heirs are taking their decades-long battle over the rights to the writer's award-winning literary works to the U.S. Supreme Court, where they will argue that a key ruling against them is based on a "fundamental misconception" about the dispute over their rights. COPYRIGHT OFFICE ISSUES SPECIAL RULES FOR COVID-19 SHUTDOWN via Intellectual Property Law360 by Tiffany Hu on 3/18/2020 URL: https://www.law360.com/ip/articles/1254590 Citing the COVID-19 pandemic, the U.S. Copyright Office announced on Wednesday that it is implementing temporary rules with regard to electronic applications for copyright registration that need to be quickly processed. STAN LEE'S DAUGHTER DODGES SANCTIONS IN IP SUIT via Intellectual Property Law360 by Lauren Berg on 3/18/2020 URL: https://www.law360.com/ip/articles/1254809 A California federal judge on Wednesday refused to sanction the daughter of late comic book legend Stan Lee for allegedly filing a frivolous suit claiming her father's business partners orchestrated a scheme to "loot" his intellectual property. FREE THE FLAG': COPYRIGHT DISPUTE OVER ABORIGINAL FLAG LOOMS via Lawyerly by Cat Fredenburgh on 3/19/2020 URL: https://www.lawyerly.com.au/free-the-flag-copyright-dispute-looms-over-aboriginal-flag A company that holds the copyright for the Aboriginal flag may file a lawsuit against a website that sells flags featuring the design with the words 'Free ...

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EN BANC RULING IN LED ZEPPELIN LITIGATION via New York Law Journal by Robert W. Clarida & Robert J. Bernstein on 3/19/2020 URL: https://www.law.com/newyorklawjournal/2020/03/19/en-banc-ruling-in-led-zeppelin-litigation/ On March 9, 2020, a unanimous en banc panel of the Ninth Circuit resolved some thorny issues involving substantial similarity and copyright scope ... KATY PERRY CAN'T ESCAPE SUIT OVER CLINTON COSTUME PIC via Intellectual Property Law360 by Dani Kass on 3/19/2020 URL: https://www.law360.com/ip/articles/1254812 A California federal judge said Katy Perry must face a celebrity news agency's suit claiming she violated federal copyright law by posting an unlicensed paparazzi photo of herself dressed up as Hillary Clinton on Instagram, but he strongly pushed the parties to get the case off his docket. MANDY MOORE HIT WITH COPYRIGHT SUIT OVER INSTAGRAM PHOTO via Intellectual Property Law360 by Nathan Hale on 3/19/2020 URL: https://www.law360.com/ip/articles/1255123 A New York-based photographer sued Mandy Moore and her touring company Wednesday in Florida federal court, accusing them of copyright infringement for using a photo of the actress-singer that he said he took and officially copyrighted. VIDEO POST: THE 1984 CONGRESSIONAL COPYRIGHT AND TECHNOLOGY SYMPOSIUM via Mostly IP History by Zvi Rosen on 3/19/2020 URL: http://www.zvirosen.com/2020/03/19/video-post-the-1984-congressional-copyright-and-technology-symposium/ We tend to assume that past policymakers, especially in the copyright arena, were ignorant of the possibilities of a technological future. JURY HANDS WIN TO PUBLISHERS IN CLASSIC ROCK ARCHIVE IP SUIT via Intellectual Property Law360 by Tiffany Hu on 3/20/2020 URL: https://www.law360.com/ip/articles/1255317 Wolfgang’s Vault, an archive of thousands of classic rock concerts, was dealt a loss in a copyright lawsuit brought by several music publishers after a New York federal jury ruled that Wolfgang’s must pay up for streaming the performances without proper licenses.

Joshua L. Simmons joshua.simmons@kirkland.com

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DISTRICT COURT FINDS KATY PERRY’S ‘DARK HORSE’ NOT SUBSTANTIALLY SIMILAR TO ‘JOYFUL NOISE’ OSTINATO via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 3/21/2020 URL: https://www.ipwatchdog.com/2020/03/21/district-court-katy-perrys-dark-horse-not-substantially-similar-joyful-noise/id=120058/ The U.S. District Court for the Central District of California on Monday granted Katy Perry’s motion for judgment as a matter of law (JMOL) and vacated the jury’s verdicts regarding liability and damages. CAN APIS BE COPYRIGHTED? via ITworld News by Peter Wayner on 3/23/2020 URL: https://www.itworld.com/article/3532896/can-apis-be-copyrighted.html The great billion dollar sumo match between Oracle and Google has been winding its way through the courts and is just about to reach the final round where the US Supreme Court will decide, among other things, whether an API can be copyrighted. STATES SHIELDED FROM COPYRIGHT SUITS, SUPREME COURT RULES via Bloomberg Law by Greg Stohr on 3/23/2020 URL: https://news.bloomberglaw.com/us-law-week/states-shielded-from-copyright-suits-supreme-court-rules The U.S. Supreme Court said copyright owners can't sue for damages when a state government pilfers their work, ruling against businesses in a case ... SUPREME COURT SAYS STATES ARE IMMUNE FROM COPYRIGHT SUITS via Intellectual Property Law360 by Bill Donahue on 3/23/2020 URL: https://www.law360.com/ip/articles/1247172 The U.S. Supreme Court ruled Monday that state governments cannot be sued for copyright infringement, rejecting a case filed against North Carolina over footage of a famous pirate shipwreck.

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SUPREME COURT DECIDES NORTH CAROLINA IS IMMUNE FROM FILMMAKER'S COPYRIGHT SUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 3/23/2020 URL: https://www.hollywoodreporter.com/thr-esq/supreme-court-decides-north-carolina-is-immune-filmmakers-copyright-suit-1285910 Rick Allen's Nautilus Productions said his footage of an 18th century pirate ship was posted online without permission. But he can't beat sovereign immunity enjoyed by states from copyright lawsuits. THE ‘CARLTON’ AND COPYRIGHTING CHOREOGRAPHY via JLA Beat | The Columbia Journal of Law & the Arts by Claudia Kassner on 3/23/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/291 Even those who weren’t regular viewers of the 1990s sitcom The Fresh Prince of Bel Air would be likely to easily recognize the exuberant dance of one of its main characters, Carlton Banks – and probably few could see the familiar swinging of the arms and swaying of the hips without Tom Jones’s “It’s Not Unusual” invading the mind. Yet last year, the Copyright Office deemed “The Carlton” not worthy of copyright protection OPINION ANALYSIS: CONGRESS CANNOT SUBJECT STATES TO SUIT FOR PIRATING AND PLUNDERING COPYRIGHTED MATERIAL via SCOTUSblog by Howard M. Wasserman on 3/23/2020 URL: https://www.scotusblog.com/2020/03/opinion-analysis-congress-cannot-subject-states-to-suit-for-pirating-and-plundering-copyrighted-material/ A state cannot be sued for copyright infringement because Congress did not validly abrogate sovereign immunity when it enacted the Copyright Remedy Clarification Act of 1990, the Supreme Court held Monday in Allen v. Cooper. STATES CAN PIRATE AND PLUNDER COPYRIGHTED MATERIAL ALL THEY WANT via PrawfsBlawg by Howard Wasserman on 3/23/2020 URL: https://prawfsblawg.blogs.com/prawfsblawg/2020/03/states-can-pirate-and-plunder-copyrighted-material-all-they-want.html States can pirate and plunder copyrighted material all they want

Joshua L. Simmons joshua.simmons@kirkland.com

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SUPREME COURT SAYS STATE OF NORTH CAROLINA IS NO COPYRIGHT PIRATE IN BLACKBEARD RULING via IPWatchdog.com | Patents & Patent Law by Kristin Lamb on 3/23/2020 URL: https://www.ipwatchdog.com/2020/03/23/supreme-court-says-state-north-carolina-no-copyright-pirate-blackbeard-ruling/id=120111/ Blackbeard and his band of pirates pillaged and plundered up and down North Carolina’s Outer Banks more than 300 years ago, inspiring stories (both true and fictional) that capture imaginations to this day. On March 23, the battleground shifted from the watery landscape of Davy Jones’ Locker to the decidedly more law-abiding U.S. Supreme Court, where the justices unanimously ruled that North Carolina’s display of copyrighted footage showing recovery of the legendary pirate’s ship does not... SCT: STATES CAN KEEP INFRINGING COPYRIGHT WITH IMMUNITY/IMPUNITY via Patent Law Blog (Patently-O) by Dennis Crouch on 3/23/2020 URL: https://patentlyo.com/patent/2020/03/infringing-copyright-immunity.html This case is welcome news to state-employed teachers infringing copyrights like crazy as they post materials online. LIEBOWITZ CLIENT HIT WITH ATTY FEES AFTER DROPPING CASE via Intellectual Property Law360 by Bill Donahue on 3/23/2020 URL: https://www.law360.com/ip/articles/1256175 An Illinois federal judge on Monday ordered one of Richard Liebowitz's clients to repay more than $24,000 in legal bills to a website he unsuccessfully sued for infringement, saying the case was aimed more at winning a settlement rather than actually protecting copyrights. JUSTICES TOLD FED. CIRC. RULING 'TURNS PATENT LAW ON ITS HEAD' via Intellectual Property Law360 by Tiffany Hu on 3/23/2020 URL: https://www.law360.com/ip/articles/1255942 Pesticide maker Willowood is urging the U.S. Supreme Court to overturn a patent ruling by the Federal Circuit in favor of rival Syngenta, saying the decision "turns patent law on its head" by expanding liability to those who do not perform each step of a patented process.

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ALLEN V. COOPER (2020) via Patent Docs by Kevin E. Noonan on 3/24/2020 URL: https://www.patentdocs.org/2020/03/allen-v-cooper-2020.html In a decision containing not a small amount of whimsy (more regarding that aspect anon), Justice Kagan, joined almost unanimously by her brethren today upheld a State's (here, North Carolina) sovereign immunity against suit for copyright infringement, in Allen v. Cooper. THE ‘BLURRED LINES’ CASE SCARED SONGWRITERS. BUT ITS TIME MAY BE UP. via NYT > Media & Advertising by Ben Sisario on 3/24/2020 URL: https://www.nytimes.com/2020/03/24/arts/music/blurred-lines-led-zeppelin-copyright.html In the five years since a federal jury decided that Robin Thicke’s hit song “Blurred Lines” had copied Marvin Gaye’s disco-era standard “Got to Give It Up,” the music industry has been in an anxious state about copyright. SUPREME COURT RULES STATES ARE IMMUNE FROM COPYRIGHT LAW via Ars Technica by Timothy B. Lee on 3/24/2020 URL: https://arstechnica.com/?p=1662908 A state government that infringes someone's copyright doesn't have to worry about getting sued, the Supreme Court ruled on Monday. ‘OVER THE RAINBOW' WRITER’S ESTATE DROPS SUIT AGAINST APPLE via Intellectual Property Law360 by Lauren Berg on 3/24/2020 URL: https://www.law360.com/ip/articles/1256578 The son and estate of renowned Broadway and film composer Harold Arlen have dropped a suit claiming that Apple sold and streamed illegal versions of “Over the Rainbow,” “I’ve Got the World on a String” and dozens of his other songs. BOEHRINGER BEATS MARKETING SOFTWARE CO. IN CONSPIRACY TRIAL via Intellectual Property Law360 by Daniel Siegal on 3/24/2020 URL: https://www.law360.com/ip/articles/1256436 A Missouri federal jury has handed online marketing software company InfoDeli and its founder an across-the-board defeat in a family spat that led to claims that Boehringer Ingelheim’s veterinary arm and other companies engaged in a conspiracy to steal InfoDeli’s software.

Joshua L. Simmons joshua.simmons@kirkland.com

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CELEBRATING THE WOMEN LEADING THE COPYRIGHT OFFICE via Copyright: Creativity at Work by Alison Hall on 3/25/2020 URL: https://blogs.loc.gov/copyright/2020/03/celebrating-the-women-leading-the-copyright-office/ To celebrate Women’s History Month, I wanted to write about the five women who have served (and are serving) as leaders of the U.S. Copyright Office. AFTER 'STAIRWAY,' ED SHEERAN JUDGE LARGELY BANS GAYE TRACK via Intellectual Property Law360 by Bill Donahue on 3/25/2020 URL: https://www.law360.com/ip/articles/1256883 Citing a high-profile copyright ruling on “Stairway To Heaven,” a Manhattan federal judge says he will likely bar jurors from listening to Marvin Gaye's iconic recorded version of "Let's Get It On” as they decide whether Ed Sheeran infringed the song with his “Thinking Out Loud.” 5 BIZARRE TALES FROM COPYRIGHT’S HISTORY via Plagiarism Today by Jonathan Bailey on 3/25/2020 URL: https://www.plagiarismtoday.com/2020/03/25/5-bizarre-tales-from-copyrights-history/ Earlier this week, the Supreme Court ruled unanimously that states can not be held liable for copyright infringement. ARE WE RUNNING OUT OF BEATS? via JLA Beat | The Columbia Journal of Law & the Arts by Warren Chu on 3/25/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/294 Copyright law was designed to protect artists and their creations; one was able to utilize the law in order to ensure that their valuable intellectual property was not stolen or used without attribution. 9TH CIRC. CLEARS 'GLEE' SCHOOL IN 'AGGRESSIVE' COPYRIGHT SUIT via Intellectual Property Law360 by Bill Donahue on 3/25/2020 URL: https://www.law360.com/ip/articles/1256708 The Ninth Circuit has rejected a copyright case that claimed the California high school that inspired the television series "Glee" used songs without permission, and the panel punished the school's accuser for its "aggressive litigation strategy."

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SALVAGING COPYRIGHT REFORM FROM HIGH COURT PIRATE SHIP CASE via Intellectual Property Law360 by Pamela Chestek on 3/25/2020 URL: https://www.law360.com/ip/articles/1257193 On Monday, Justice Elena Kagan, writing for a unanimous U.S. Supreme Court, published the court’s opinion in Allen v. Cooper. TIEKS SHOES COPYCAT CAN'T SLIP $3M IP TRIAL LOSS via Intellectual Property Law360 by Daniel Siegal on 3/25/2020 URL: https://www.law360.com/ip/articles/1256704 A defunct shoemaking startup found to have ripped off the design of the Tieks shoe brand can't shake a jury's $2.95 million verdict, a Delaware federal judge held on Tuesday, who also awarded Tieks maker Gavrieli Brands attorney fees and nearly $200,000 in prejudgment interest. FRENCH MONTANA CAN'T DUCK COPYRIGHT INFRINGEMENT SUIT via Intellectual Property Law360 by Celeste Bott on 3/25/2020 URL: https://www.law360.com/ip/articles/1257006 Rapper French Montana lost a bid Wednesday to escape a copyright lawsuit over his song "Ain't Worried About Nothin" when an Illinois federal judge ruled that artist's in-state concerts may have subjected him to jurisdiction. ALLEN V. COOPER: JUSTLY DECIDED IF NOT EXACTLY JUST via The Illusion of More by David Newhoff on 3/26/2020 URL: http://illusionofmore.com/allen-v-cooper-justly-decided-if-not-exactly-just/ Professional creators following the case Allen v. Cooper were no doubt disappointed by the Supreme Court’s March 23 decision—a unanimous holding that the States (and/or their agents) are generally free to infringe copyrights with impunity. 'NBA 2K' PUBLISHER BEATS COPYRIGHT SUIT OVER LEBRON JAMES' TATTOOS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 3/26/2020 URL: https://www.hollywoodreporter.com/thr-esq/nba-2k-publisher-beats-copyright-suit-lebron-james-tattoos-1286847 In a landmark decision on the tattoo front, a federal judge rules that Take-Two's depiction was de minimus and that an implied license was granted.

Joshua L. Simmons joshua.simmons@kirkland.com

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NBA 2K BEATS COPYRIGHT CASE OVER LEBRON'S TATTOOS via Intellectual Property Law360 by Bill Donahue on 3/26/2020 URL: https://www.law360.com/ip/articles/1257547 A Manhattan federal judge ruled Thursday that Take-Two Interactive couldn't be sued for copyright infringement over tattoos on LeBron James and others in the NBA 2K video games, saying tattoo artists gave the players automatic licenses when they inked their bodies. COVID-19 BILL LETS COPYRIGHT OFFICE EXTEND DEADLINES via Intellectual Property Law360 by Britain Eakin on 3/27/2020 URL: https://www.law360.com/ip/articles/1257742 The $2 trillion coronavirus rescue bill signed by President Donald Trump on Friday will temporarily allow the U.S. Copyright Office to push back filing and procedural deadlines for copyrights to alleviate the effects of the pandemic on agency operations. DURING PANDEMIC, PROLIFIC COPYRIGHT LAWYER KEEPS SUING via Intellectual Property Law360 by Bill Donahue on 3/27/2020 URL: https://www.law360.com/ip/articles/1257593 Amid a health crisis that has strained courts and crippled the economy, a litigator who has been dubbed a "copyright troll" isn't slowing down, filing more than a third of the copyright lawsuits in the entire country during the coronavirus pandemic. INTERNET ARCHIVE OFFERS 1.4 MILLION COPYRIGHTED BOOKS FOR FREE ONLINE via Ars Technica by Timothy B. Lee on 3/28/2020 URL: https://arstechnica.com/?p=1663571 One of the casualties of coronavirus-related social distancing measures has been public libraries, which are shut down in many communities around the world. A COSMIC COPYRIGHT CONUNDRUM: ‘STAR TREK,’ SPACE FORCE, SCOTUS AND BLACKBEARD’S SHIPWRECK via IPWatchdog.com | Patents & Patent Law by Yitzchak Besser on 3/28/2020 URL: https://www.ipwatchdog.com/2020/03/28/cosmic-copyright-conundrum-star-trek-space-force-scotus-blackbeards-shipwreck/id=120220/ Earlier this week, the Supreme Court handed down its ruling in Allen v. Cooper, which relates to photos and videos of the sunken remains of the Queen Anne’s Revenge, the centuries-old ship once captained by the famed pirate Blackbeard. The plaintiff in that case claimed that North

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Carolina unlawfully used his copyrighted works. Only two months earlier, the Trump Administration also faced a copyright infringement imbroglio. Following the official Twitter unveiling of the seal for the newly... DON’T PUT THAT ON A T-SHIRT: ONLINE ARTISTS INCITE INFRINGEMENT TO STOP INFRINGEMENT via JLA Beat | The Columbia Journal of Law & the Arts by Alec Fisher on 3/28/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/296 Online visual artists tired of having their artwork reproduced and distributed on online T-shirt websites without their authorization have resorted to a new tactic to prevent infringement of their work: gaming the algorithm to induce these sites to commit copyright infringement. BREAKING DOWN HOW NBA 2K PRODUCER DEFENDED ITS RIM AGAINST TATTOO COPYRIGHT CLAIMS via Forbes by Thomas Baker on 3/28/2020 URL: https://www.forbes.com/sites/thomasbaker/2020/03/28/nba-2k-producer-successfully-defends-its-rim-against-tattoo-copyright-claims-but-whats-next/ On Thursday, the video game industry won a major battle in a longstanding controversy over the reproduction of tattoos in sports video games. INTERNET ARCHIVE USES PANDEMIC TO JUSTIFY LOOTING via The Illusion of More by David Newhoff on 3/29/2020 URL: http://illusionofmore.com/internet-archive-uses-pandemic-to-justify-looting/ When I borrow a sentiment from Ayn Rand, you can bet I gave the matter some serious thought. SOME ADVENTURES IN THE ORIGINS OF MOTION PICTURE COPYRIGHT via Mostly IP History by Zvi Rosen on 3/29/2020 URL: http://www.zvirosen.com/2020/03/29/some-adventures-in-the-origins-of-motion-picture-copyright/ I’ve always enjoyed movies, but I’ve never been particularly a movie buff, and I haven’t been particularly knowledgeable about the origins of motion pictures.

Joshua L. Simmons joshua.simmons@kirkland.com

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TEACHING ONLINE, COPYRIGHT, AND QUEEN ANNE’S REVENGE via Patent Law Blog (Patently-O) by Kevin L. Smith on 3/30/2020 URL: https://patentlyo.com/patent/2020/03/teaching-online-copyright-and-queen-annes-revenge.html On March 23, 2020, the Supreme Court announced a decision in one of the three copyright cases before it this term, Allen v. Cooper, a case that involves alleged copyright infringement by the state of North Carolina for using some video shot by a private videographer of the salvage operation for Blackbeard’s notorious pirate ship, the Queen Anne’s Revenge. ELLEN BARKIN SUED FOR COPYRIGHT INFRINGEMENT BY POST PHOTOG via Page Six by Rebecca Rosenberg on 3/30/2020 URL: https://pagesix.com/2020/03/30/ellen-barkin-sued-for-copyright-infringement-by-post-photog/ ... consent to publish the Photograph on the website,” wrote lawyer Richard Liebowitz in the copyright infringement suit filed in Manhattan federal court. COPYRIGHT AND TATTOOS via Plagiarism Today by Jonathan Bailey on 3/30/2020 URL: https://www.plagiarismtoday.com/2020/03/30/copyright-and-tattoos/ If there’s one thing that people who follow copyright law love, it’s a good “I didn’t think of that before” moment. BUSINESSES URGED TO MAKE COVID-19 IP FREE DURING CRISIS via Intellectual Property Law360 by Britain Eakin on 3/30/2020 URL: https://www.law360.com/ip/articles/1258436 In a bid to eliminate roadblocks in the fight against COVID-19, a group of scientists, lawyers and entrepreneurs launched a drive Monday for intellectual property holders to pledge not to sue those working to quell the pandemic. SUPREME COURT PAVES WAY FOR REVOKING STATE SOVEREIGN IMMUNITY FOR COPYRIGHT INFRINGEMENT via Center for the Protection of Intellectual Property by Devlin Hartline on 3/31/2020 URL: https://cpip.gmu.edu/2020/03/31/supreme-court-paves-way-for-revoking-state-sovereign-immunity-for-copyright-infringement/ Last week, the Supreme Court handed down its unanimous judgment in Allen v. Cooper, a copyright case involving both actual and metaphorical pirates.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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VIDEOGAME DOESN’T INFRINGE TATTOO COPYRIGHT BY DEPICTING BASKETBALL PLAYERS–SOLID OAK SKETCHES V. 2K GAMES via Technology & Marketing Law Blog by Eric Goldman on 3/31/2020 URL: https://blog.ericgoldman.org/archives/2020/03/videogame-doesnt-infringe-tattoo-copyright-by-depicting-basketball-players-solid-oak-sketches-v-2k-games.htm This case deals with a venerable and vexing copyright law problem: if a person doesn’t own the copyright to his/her tattoos, do other people infringe by accurately depicting the person? JUDGE ALLOWS MUSICIANS TO MOVE FORWARD IN SUIT AIMED AT RECLAIMING RIGHTS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 3/31/2020 URL: https://www.hollywoodreporter.com/thr-esq/judge-allows-musicians-move-forward-suit-aimed-at-reclaiming-rights-1287649 Universal Music can't end a putative class action, but the judge does make a big caveat that could influence future dealmaking in the entertainment industry. UMG CAN'T END COPYRIGHT CLASS ACTION OVER OLD SONGS via Intellectual Property Law360 by Bill Donahue on 3/31/2020 URL: https://www.law360.com/ip/articles/1258862 A Manhattan federal judge on Tuesday refused to toss out a closely watched class action filed against Universal Music Group by musicians who want to regain control of their songs, ruling that the label's argument would "eviscerate" copyright law's so-called termination right. APPLE ACCUSED BY SONGWRITER HEIRS OF 'MASSIVE' PIRACY PLAN via Intellectual Property Law360 by Tiffany Hu on 3/31/2020 URL: https://www.law360.com/ip/articles/1258589 The heirs of three popular American songwriters have lodged a copyright lawsuit against Apple over its "massive music piracy operation," claiming the tech giant is illegally selling pirated copies of "Over the Rainbow," "Bye Bye Blackbird," "That's Amore" and more. AUTHORS FUME AS ONLINE LIBRARY “LENDS” UNLIMITED FREE BOOKS via Ars Technica by Timothy B. Lee on 3/31/2020 URL: https://arstechnica.com/?p=1664596 For almost a decade, the Internet Archive, an online library best known for its Internet Wayback Machine, has let users "borrow" scanned digital copies of books held in its warehouse.

Joshua L. Simmons joshua.simmons@kirkland.com

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COPYRIGHT ALLIANCE BLASTS INTERNET ARCHIVE'S EMERGENCY LIBRARY LAUNCH AS “VILE” via ZDNet by Charlie Osborne on 3/31/2020 URL: https://www.zdnet.com/article/copyright-alliance-blasts-internet-archives-emergency-library-launch-as-vile/ Live. The Copyright Alliance has criticized the Internet Archive's National Emergency Library as a "vile" scheme aimed at denying authors their ... GOOGLE COPYRIGHT CLAIM MISTAKES THE MEDIUM FOR THE MESSAGE via Hill by Keith Kupferschmid on 3/31/2020 URL: https://thehill.com/blogs/congress-blog/judicial/490482-google-copyright-claim-mistakes-the-medium-for-the-message However, Oracle owns the copyright in the Java declaring code, which means Google should have gotten Oracle's permission before copying it. SONY CAN'T NIX ARTISTS' OLD SONGS COPYRIGHT CLASS ACTION via Intellectual Property Law360 by Dave Simpson on 3/31/2020 URL: https://www.law360.com/ip/articles/1259087 A New York federal judge Tuesday declined to dismiss a putative class action from a group of musicians claiming Sony violated a provision of copyright law giving creators a "second chance" to assert rights over their works after 35 years, rejecting Sony's arguments about the timeliness of the artists' termination notices. USPTO, COPYRIGHT OFFICE WAIVE DEADLINES AMID COVID-19 via Intellectual Property Law360 by Hailey Konnath on 3/31/2020 URL: https://www.law360.com/ip/articles/1259131 Both the U.S. Patent and Trademark Office and the U.S. Copyright Office on Tuesday announced that certain intellectual property filing deadlines and fees would be waived during the coronavirus pandemic, citing special provisions included in the $2 trillion relief bill passed last week.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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April 2020

ATTY SANCTIONED FOR LYING ABOUT ANTI-SEMITIC SLURS IN IP ROW via Intellectual Property Law360 by Britain Eakin on 4/1/2020 URL: https://www.law360.com/ip/articles/1258994 An Iowa federal judge sanctioned a California lawyer for ethical and professional breaches including falsely accusing opposing counsel of using anti-Semitic slurs, doling out profanity-laden threats of physical violence to attorneys and abusing court reporters. JUDGE ALLOWS JUST ONE CLAIM IN MUSICIAN'S SUIT OVER 'FORTNITE' DANCE ROUTINE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 4/1/2020 URL: https://www.hollywoodreporter.com/thr-esq/judge-allows-just-one-claim-musicians-suit-fortnite-dance-routine-1287849 Epic Games can't get out of a lawsuit, but it does beat Leo P's claim of violating his likeness, ripping off trademarks and more. VIDEOGAME CAN REPLICATE MUSICIAN’S “SIGNATURE MOVE” (UNLESS IT’S A FALSE ENDORSEMENT, WHICH IT ISN’T)–PELLEGRINO V. EPIC GAMES via Technology & Marketing Law Blog by Eric Goldman on 4/1/2020 URL: https://blog.ericgoldman.org/archives/2020/04/videogame-can-replicate-musicians-signature-move-unless-its-a-false-endorsement-which-it-isnt-pellegrino-v-epic-games.htm Pellegrino is a saxophone player with “externally rotatable feet,” which has helped him develop a nifty “signature” dance move while playing. A FAIRY TALE WITH AN UNHAPPY ENDING: COULD IT HAPPEN IN REAL LIFE? via Hugh Stephens Blog on 4/1/2020 URL: http://hughstephensblog.net/2020/04/01/a-fairy-tale-with-an-unhappy-ending-could-it-happen-in-real-life/ Friends, gather round and let me tell you a fairy tale about the imaginary Kingdom of Nonesuch, and recount something quite surprising and unfair that happened there.

Joshua L. Simmons joshua.simmons@kirkland.com

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INTERNET ARCHIVE JUSTIFIES ITS VAST 'COPYRIGHT INFRINGING' NATIONAL EMERGENCY LIBRARY OF 1.4 MILLION ... via Register by Kieren McCarthy on 4/1/2020 URL: https://www.theregister.co.uk/2020/04/01/zoom_spotlight/ “The Authors Guild is appalled by the Internet Archive's (IA) announcement that it is now making millions of in-copyright books freely available online ... COPYRIGHT OFFICE USES EMERGENCY POWERS TO EXTEND FILING WINDOW via Bloomberg Law by Kyle Jahner on 4/1/2020 URL: https://news.bloomberglaw.com/ip-law/copyright-office-uses-emergency-powers-to-extend-filing-window The U.S. Copyright Office is extending a deadline for copyright owners seeking to register a work that's been infringed, in response to delays caused ... MUSIC COPYRIGHT INFRINGEMENT BEGINS TO MAKE SENSE AGAIN via Forbes by Bobby Owsinski on 4/1/2020 URL: https://www.forbes.com/sites/bobbyowsinski/2020/03/31/music-copyright-infringement-makes-sense-again/#3f04ab182ecf Although lawyers and musicologists can argue over the finer points, for the longest time the judgements in copyright infringement cases made sense ... KENDALL JENNER SUED FOR INFRINGEMENT OVER INSTAGRAM VIDEO via Intellectual Property Law360 by Craig Clough on 4/1/2020 URL: https://www.law360.com/ip/articles/1259107 Model and reality television star Kendall Jenner was sued for copyright infringement suit in California federal court Tuesday by a woman who claims the celebrity posted her copyrighted video on Instagram without permission. ALLEN V. COOPER: SOVEREIGN IMMUNITY ALLOWS NORTH CAROLINA’S “PIRACY” OF PIRATE VIDEOS via JOLT Digest by Shridhar Jayanthi on 4/1/2020 URL: http://jolt.law.harvard.edu/digest/allen-v-cooper-sovereign-immunity-allows-north-carolinas-piracy-of-pirate-videos In a unanimous decision, the Supreme Court struck down the Copyright Remedy Clarification Act (“CRCA”), 17 U.S.C. § 511 (1990), which purported...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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'FORTNITE' MAKER CAN'T FULLY ESCAPE SAX PLAYER'S DANCE SUIT via Intellectual Property Law360 by Mathew Santoni on 4/1/2020 URL: https://www.law360.com/ip/articles/1258928 A Pennsylvania federal judge has tossed out most of a trademark lawsuit claiming the makers of "Fortnite" copied a dance move, but allowed a New York saxophone player to proceed only on the accusations that the developer created a false impression that he endorsed the video game. KENDALL JENNER IS BEING SUED FOR COPYRIGHT INFRINGEMENT OVER A VIDEO SHE POSTED ON HER INSTAGRAM via Fashion Law on 4/1/2020 URL: https://www.thefashionlaw.com/kendall-jenner-is-being-sued-for-copyright-infringement-over-a-video-she-posted-on-her-instagram/ Pointing to the federally registered copyright that she now maintains, for which she filed an application on September 15, 2019 (three days after ... THE INTERNET ARCHIVE STARTED AN “EMERGENCY” ONLINE LIBRARY. AUTHORS ARE FURIOUS. via Slate by Rachelle Hampton on 4/1/2020 URL: https://slate.com/culture/2020/04/internet-archive-national-emergency-library-controversy.html What the Internet Archive is doing right now--allowing unlimited downloads of books under copyright, for which they have not paid, and have no legal ... EMERGENCY DISTANCE LEARNING AND FAIR USE via IPWatchdog.com | Patents & Patent Law by Heidi Tandy on 4/2/2020 URL: https://www.ipwatchdog.com/2020/04/02/emergency-distance-learning-fair-use/id=120328/ [A] teacher creates a transformative work, which falls into the protective bubble of Fair Use, when they craft a message, enhance their students’ educational experience, or educate their students in creating expressive content; as Fair Use is a lawful use of copyright, such usage is non-infringing and should be permitted under educational policies at all times, but particularly while teaching in the shadow of COVID-19.

Joshua L. Simmons joshua.simmons@kirkland.com

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WHY AUTHORS ARE SO ANGRY ABOUT THE INTERNET ARCHIVE'S EMERGENCY LIBRARY via Vox by Constance Grady on 4/2/2020 URL: https://www.vox.com/culture/2020/4/2/21201193/emergency-library-internet-archive-controversy-coronavirus-pandemic “The Internet Archive's 'emergency' copyrights grab endangers many ... using the coronavirus pandemic “as an excuse to push copyright law further ... 68 BILLION MELODIES via JLA Beat | The Columbia Journal of Law & the Arts by Peter Cramer on 4/2/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/297 Last summer, a California jury found that Katy Perry’s 2013 hit “Dark Horse” infringed “Joyful Noise,” a 2008 song by rapper Flame, despite the defendant’s claim to never have heard “Joyful Noise” before and the relative simplicity of the disputed element of the song. The suit was part of a current wave of claims against pop stars by lesser-known artists, such as rapper DOT’s suit against Ariana Grande, claiming her song “Seven Rings” copies the chorus of his song “You Need It I Got It.” These suits have caused widespread fear in the music industry, even forcing some well-intended songwriters to purchase insurance or even not release songs they worry are too similar to others that they discover after the fact. THE CONTROVERSY OVER THE NATIONAL EMERGENCY LIBRARY via Plagiarism Today by Jonathan Bailey on 4/2/2020 URL: https://www.plagiarismtoday.com/2020/04/02/the-controversy-over-the-national-emergency-library/ On March 24, the Internet Archive announced the launch of the National Emergency Library, a project that aimed to make it easier for those stuck at home due to the COVID-19 pandemic to check out books from it. EFFORT TO PUBLICLY RELEASE EVERY MELODY COULD FACE LEGAL HURDLES via Managing Intellectual Property | Copyright by Rani Mehta on 4/2/2020 URL: https://www.managingip.com/article/b1l10j2l9m49lm/effort-to-publicly-release-every-melody-could-face-legal-hurdles Attempts to put every possible melody into the public domain algorithmically – to counteract frivolous lawsuits – could have a limited effect, according to some copyright lawyers

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SPOTIFY CAN'T SHAKE OR MOVE EMINEM COPYRIGHT SUIT via Intellectual Property Law360 by Mike LaSusa on 4/2/2020 URL: https://www.law360.com/ip/articles/1259898 A Tennessee federal judge said all litigation “has to be based somewhere” Thursday as she shot down arguments by the music streaming service Spotify that the court doesn’t have jurisdiction over a copyright infringement case brought by rapper Eminem’s publishing companies. COPYRIGHT ANTI-CIRCUMVENTION BILL FACES PLEAS FOR REFORM via Managing Intellectual Property | Copyright by Rani Mehta on 4/3/2020 URL: https://www.managingip.com/article/b1l1b64gvzmxmj/copyright-anti-circumvention-bill-faces-pleas-for-reform Sources from the Motion Picture Association, the North Dakota Farmers Union and the National Federation of the Blind reveal the effects of Section 1201 on their stakeholders LED ZEPPELIN RULING IS ALREADY AFFECTING COPYRIGHT LITIGATION via Intellectual Property Law360 by Alexander Kaplan et al. on 4/3/2020 URL: https://www.law360.com/ip/articles/1259190 Based on the first two decisions applying the U.S. Court of Appeals for the Ninth Circuit’s March 9 en banc decision in the Skidmore v. Led Zeppelin "Stairway to Heaven" case, the recent trajectory of the law governing music copyright infringement appears to have changed. MOTOROLA RIVAL URGES REDO IN $764M RADIO TRADE SECRET ROW via Intellectual Property Law360 by Lauraann Wood on 4/3/2020 URL: https://www.law360.com/ip/articles/1260184 China-based Hytera told an Illinois federal judge Thursday that if it doesn't totally wipe out a $764 million verdict for Motorola or order a new trial, it should cut Motorola's actual damages to $28 million because a host of errors gave Hytera an unfair shake at trial. COPYRIGHT OFFICE ALLOWS PROXY SUBMISSIONS FOR PHYSICAL COPIES via Bloomberg Law by Kyle Jahner on 4/3/2020 URL: https://news.bloomberglaw.com/ip-law/copyright-office-allows-proxy-submissions-for-physical-copies The Copyright Office said it will process applications requiring a physical copy of the work if the applicant swears an accompanying electronic copy is ...

Joshua L. Simmons joshua.simmons@kirkland.com

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AMAZON, DISNEY SUE STREAMING SITE FOR COPYRIGHT INFRINGEMENT via Bloomberg Law by Blake Brittain on 4/3/2020 URL: https://news.bloomberglaw.com/tech-and-telecom-law/amazon-disney-sue-streaming-site-for-copyright-infringement ... in a federal court in California for allegedly committing “massive” copyright infringement by hosting “thousands” of illegal streams of their content. STUDIOS TAKE ON 'BRAZEN' STREAMING SERVICE IN PIRACY SUIT via Intellectual Property Law360 by Mike LaSusa on 4/3/2020 URL: https://www.law360.com/ip/articles/1260513 A coalition of entertainment goliaths including Disney, Amazon, Columbia and Universal teamed up in an anti-piracy suit filed Friday in California federal court, alleging a "brazen" internet-based streaming service called Nitro TV is stealing their copyrighted content. INSIGHT: SUPREME COURT UPTURNS CONSTITUTIONAL FEDERALISM, YET AGAIN via Bloomberg Law by Steven D. Schwinn on 4/6/2020 URL: https://news.bloomberglaw.com/us-law-week/insight-supreme-court-upturns-constitutional-federalism-yet-again The Supreme Court's recent ruling in a copyright case is bad news for anyone who wants to hold states' feet to the fire of federal law, writes Steven D. COVID IS NOT AN EXCUSE TO THROW THE ACCEPTED RULES OUT THE WINDOW: COPYRIGHT AS THE CANARY IN THE COALMINE. via Hugh Stephens Blog on 4/6/2020 URL: http://hughstephensblog.net/2020/04/06/covid-is-not-an-excuse-to-throw-the-accepted-rules-out-the-window-copyright-as-the-canary-in-the-coalmine/ As I write we are in the depths of the COVID pandemic. THE DR. DREW COPYRIGHT DEBACLE via Plagiarism Today by Jonathan Bailey on 4/6/2020 URL: https://www.plagiarismtoday.com/2020/04/06/the-dr-drew-copyright-debacle/ As most of the United States, and indeed much of the world, settle into various stages of lockdown over the COVID-19 pandemic, many are looking back at those that originally downplayed the virus or called it a hoax.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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UNIVERSAL MUSIC DEFEATS LEGAL CLAIMS OVER DESTROYED RECORDINGS IN FIRE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 4/6/2020 URL: https://www.hollywoodreporter.com/thr-esq/universal-music-defeats-legal-claims-destroyed-recordings-fire-1288695 A judge throws out claims by Tom Petty's ex-wife. DR. DREW APOLOGIZES FOR BEING A COVID-19 DENIER AFTER COPYRIGHT SILLINESS via Ars Technica by Kate Cox on 4/6/2020 URL: https://arstechnica.com/?p=1666000 Everyone who is (or wants to be) anyone seems to have some opinion or advice about the current COVID-19 crisis. COPYRIGHT DEFENSES WHEN A COPYRIGHT INFRINGEMENT CLAIM GETS UNDER YOUR SKIN via National Law Review by Joseph Grasser on 4/6/2020 URL: https://www.natlawreview.com/article/copyright-defenses-when-copyright-infringement-claim-gets-under-your-skin Solid Oak alleged copyright infringement based on Take-Two's use of the tattoo designs, as depicted on three basketball players, in its NBA 2K ... JUDGE DISMISSES CASE AGAINST UNIVERSAL MUSIC OVER LOSSES IN 2008 FIRE via NYT > Media & Advertising by Ben Sisarioon 4/6/2020 URL: https://www.nytimes.com/2020/04/06/arts/music/universal-music-fire-lawsuit.html A group of high-profile musicians and estates had sued the Universal Music Group over a fire that destroyed thousands of archived recordings. COPYRIGHT OFFICE GIVES 'EMERGENCY' RELIEF DURING COVID-19 via Intellectual Property Law360 by Tiffany Hu on 4/6/2020 URL: https://www.law360.com/ip/articles/1260660 Citing the global COVID-19 pandemic, the U.S. Copyright Office on Monday announced that it is temporarily pausing the clock on certain requirements for serving notices and paying so-called mechanical royalties to songwriters and publishers.

Joshua L. Simmons joshua.simmons@kirkland.com

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JUDGE TOSSES COPYRIGHT SUIT INVOLVING JOSH GROBAN SONG 'YOU RAISE ME UP' via Variety by Gene Maddaus on 4/6/2020 URL: https://variety.com/2020/music/news/josh-groban-you-raise-me-up-lawsuit-copyright-1234572695/ ... the expert musicologist who helped the family of Marvin Gaye win the “Blurred Lines” copyright case against Pharrell Williams and Robin Thicke. UNIVERSITY LIBRARIES OFFER ONLINE “LENDING” OF SCANNED IN-COPYRIGHT BOOKS via Ars Technica by Timothy B. Lee on 4/7/2020 URL: https://arstechnica.com/?p=1666117 The coronavirus crisis has forced the closure of libraries around the world, depriving the public of access to millions of printed books. BURYING BLURRED LINES via Plagiarism Today by Jonathan Bailey on 4/7/2020 URL: https://www.plagiarismtoday.com/2020/04/07/burying-blurred-lines/ In March 2015, a jury handed down a $7.4 million judgment against Robin Thicke, Pharrell Williams and others involved with the song Blurred Lines. FILM DIRECTOR EYES FAIR USE AFTER ROLLING STONES LABEL SUES via Intellectual Property Law360 by Pete Brush on 4/7/2020 URL: https://www.law360.com/ip/articles/1261289 Counsel for a Great Britain-based filmmaker told a Manhattan federal judge Tuesday he may argue fair use after two big record labels accused him of making 11 documentaries that are "nothing more than a delivery system" to exploit the copyrights of famed acts like the Rolling Stones. 3 NEW VIDEO GAME IP RULINGS YOU'VE GOTTA READ via Intellectual Property Law360 by Bill Donahue on 4/7/2020 URL: https://www.law360.com/ip/articles/1260491 The federal courts are slowing down to deal with a pandemic, but they aren't exactly saying "game over," issuing three major rulings on intellectual property lawsuits involving video games in the past few weeks. Here’s what you need to know about each one.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE ROARING TWENTIES WELCOME ARTIFICIAL INTELLIGENCE: HOW WILL IT ALL PLAY OUT? via Copyright: Creativity at Work by Juris Klavins on 4/8/2020 URL: https://blogs.loc.gov/copyright/2020/04/the-roaring-twenties-welcome-artificial-intelligence-how-will-it-all-play-out/ The music industry in the 1920s was forever changed with the introduction of the radio. THE NO-NO OF "NO COPYRIGHT INFRINGEMENT INTENDED" DISCLAIMERS via The Entertainment, Arts and Sports Law Blog by Christine-Marie Lauture on 4/8/2020 URL: http://nysbar.com/blogs/EASL/2020/04/the_no-no_of_no_copyright_infr.html As the saying goes: Monkey see, monkey do...in the world of improperly uploading content. AMAZON’S CORONAVIRUS PLAGIARISM PROBLEM via Plagiarism Today by Jonathan Bailey on 4/8/2020 URL: https://www.plagiarismtoday.com/2020/04/08/amazons-coronavirus-plagiarism-problem/ Last month, as the COVID-19 pandemic was starting to reach U.S. shores and forcing the cancellation of big events, CNBC published a report about how Amazon was being overrun by a deluge of plagiarized books on the topic. FALL OUT BOY SETTLES IP SUIT OVER LLAMA PUPPETS via Intellectual Property Law360 by Dani Kass on 4/8/2020 URL: https://www.law360.com/ip/articles/1261675 A year after a puppet studio accused Fall Out Boy of exploiting the image of a pair of llama puppets, with one fittingly named Royal Tea, the pop-punk band has settled the allegations. TIGER BEAT IS ALIVE AND BEING SUED FOR COPYRIGHT INFRINGEMENT via Fashion Law on 4/8/2020 URL: https://www.thefashionlaw.com/tiger-beat-is-alive-and-being-sued-for-copyright-infringement/ And it is in that digital capacity that the publication is being sued for copyright infringement. According to the complaint that Paul Reiffer filed in a ...

Joshua L. Simmons joshua.simmons@kirkland.com

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FALL OUT BOY LLAMA COPYRIGHT CLAIMS DROPPED BY PUPPET STUDIO via Bloomberg Law by Blake Brittain on 4/8/2020 URL: https://news.bloomberglaw.com/ip-law/fall-out-boy-llama-copyright-claims-dropped-by-puppet-studio The rock band Fall Out Boy and a puppet maker who says it created the band's llama mascots jointly agreed to drop the studio's copyright claims over ... SOCIAL DISTANCE AND LIVESTREAMS: PROTECTING MUSIC COPYRIGHT via Intellectual Property Law360 by Tal Dickstein & Nathalie Russell on 4/9/2020 URL: https://www.law360.com/ip/articles/1260959 As social distancing and self-imposed quarantines have become the norm, the live concert business has come to a screeching halt. FRENCH REGULATOR SAYS GOOGLE MUST PAY NEWS SITES TO SEND THEM TRAFFIC via Ars Technica by Timothy B. Lee on 4/9/2020 URL: https://arstechnica.com/?p=1667256 France's competition authority says that Google must go back to the bargaining table to negotiate a rate that the search giant will pay to link to articles on French news sites. SEARCH FOR NEW COPYRIGHT OFFICE CHIEF SLOWED, BUT NOT STOPPED via Bloomberg Law by Kyle Jahner on 4/10/2020 URL: https://news.bloomberglaw.com/ip-law/search-for-new-copyright-office-chief-slowed-but-not-stopped The Library of Congress is continuing its search for a new Register of Copyrights amid the coronavirus pandemic, though it may take longer than ... GOOGLE HIT WITH HARSH COPYRIGHT RULING FROM COMPETITION WATCHDOG IN FRANCE via Law.com by Anne Bagamery on 4/10/2020 URL: https://www.law.com/2020/04/10/for-google-a-harsh-copyright-ruling-from-french-competition-watchdog-403-48838/ The French Competition Authority cited "serious and immediate harm to the press sector" in ordering Google to start negotiating in good faith with news publishers over the use of their content online.

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WRESTLING WITH THE GHOST OF QUEEN ANNE: A NERDY LOOK AT ALLEN V. COOPER via The Illusion of More by David Newhoff on 4/10/2020 URL: http://illusionofmore.com/wrestling-with-the-ghost-of-queen-anne-a-nerdy-look-at-allen-v-cooper/ Most readers know that the conflict in Allen v. Cooper began when the State of North Carolina made unlicensed use of Rick Allen’s copyrighted AV and photographic works documenting recovery and research of Blackbeard’s flagship Queen Anne’s Revenge. PERFORMERS, COMPOSERS GET CERT. IN ROCK ARCHIVE BOOTLEG SUIT via Intellectual Property Law360 by Mike LaSusa on 4/10/2020 URL: https://www.law360.com/ip/articles/1262680 A California federal judge ruled on Friday that musical performers and composers can go ahead with a class action claiming a pair of websites has been violating their intellectual property rights by streaming bootleg audio and video recordings of live rock shows. 20 YEARS LATER: METALLICA V. NAPSTER, INC. via Plagiarism Today by Jonathan Bailey on 4/13/2020 URL: https://www.plagiarismtoday.com/2020/04/13/20-years-later-metallica-v-napster-inc/ Twenty years ago today, on April 13, 2000, Metallica filed a lawsuit against Napster over its music-sharing service. U.S. SUPREME COURT CONFIRMS THAT STATES HAVE SOVEREIGN IMMUNITY FROM COPYRIGHT INFRINGEMENT SUITS–ALLEN V. COOPER via Technology & Marketing Law Blog by Tyler Ochoa on 4/13/2020 URL: https://blog.ericgoldman.org/archives/2020/04/u-s-supreme-court-confirms-that-states-have-sovereign-immunity-from-copyright-infringement-suits-allen-v-cooper.htm On March 23, the U.S. Supreme Court unanimously held in Allen v. Cooper, No. 18-877, that states have sovereign immunity from claims of copyright infringement, and that 17 U.S.C. § 511, which purports to waive that immunity, is unconstitutional.

Joshua L. Simmons joshua.simmons@kirkland.com

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THE BREAKDOWN: WHAT SONGWRITERS NEED TO KNOW ABOUT THE MUSIC MODERNIZATION ACT AND ROYALTY PAYMENTS via Copyright: Creativity at Work by Holland Gormley on 4/13/2020 URL: https://blogs.loc.gov/copyright/2020/04/the-breakdown-what-songwriters-need-to-know-about-the-music-modernization-act-and-royalty-payments/ Calling all songwriters and music publishers—you may have already heard about the Music Modernization Act, or the MMA for short. But do you know how the law will affect the way you get paid? RICKY MARTIN COPYRIGHT SUIT NOT DEFEATED BY LACK OF REGISTRATION via Bloomberg Law by Blake Brittain on 4/13/2020 URL: https://news.bloomberglaw.com/ip-law/ricky-martin-copyright-suit-not-defeated-by-lack-of-registration A Puerto Rico federal court was wrong to dismiss a copyright case concerning a Ricky Martin music video without giving the plaintiff a chance to refile the complaint, the First Circuit said Monday. MUSICIAN CLASSES CERTIFIED IN CONCERT ARCHIVE COPYRIGHT CASE via Bloomberg Law by Blake Brittain on 4/13/2020 URL: https://news.bloomberglaw.com/ip-law/musician-classes-certified-in-concert-archive-copyright-case A California federal court certified two classes of performers and composers who brought copyright claims based on the allegedly unauthorized distribution of thousands of concert recordings from the archive of late San Francisco concert promoter Bill Graham. INTERNET ARCHIVE TELLS SENATOR 'EMERGENCY LIBRARY' IS FAIR USE via Intellectual Property Law360 by Tiffany Hu on 4/13/2020 URL: https://www.law360.com/ip/articles/1263012 The Internet Archive has fired back at Sen. Thom Tillis, R-N.C., who recently expressed concerns over its "emergency library" of scanned books for people to read during the COVID-19 pandemic, saying that the effort is protected by copyright's fair use doctrine.

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COURT RULES PHOTOGRAPHER GAVE UP EXCLUSIVE LICENSING RIGHTS BY POSTING ON INSTAGRAM via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 4/14/2020 URL: https://www.hollywoodreporter.com/thr-esq/court-rules-photographer-gave-up-licensing-rights-by-posting-instagram-1290170 Mashable beats a lawsuit by convincing a New York judge that it legitimately used an image on social media. PHOTOG CAN'T SUE NEWS SITE OVER EMBEDDED INSTAGRAM POSTS via Intellectual Property Law360 by Bill Donahue on 4/14/2020 URL: https://www.law360.com/ip/articles/1263469 A Manhattan federal judge has tossed out a copyright lawsuit against the website Mashable over its use of “embedded” Instagram posts, ruling that a photographer gave Instagram broad power to relicense works she posted to the social media platform. JUDGE ASKS WHY COPYRIGHT ACCUSER DIDN'T MENTION HIGH COURT via Intellectual Property Law360 by Bill Donahue on 4/14/2020 URL: https://www.law360.com/ip/articles/1263552 A federal judge appears unhappy that a recent copyright lawsuit filed against the state of Nebraska made no mention of a U.S. Supreme Court ruling, issued just last month, that effectively prohibits the case. HOLDING GOOGLE TO ACCOUNT: FRANCE TAKES A STAND via Hugh Stephens Blog on 4/15/2020 URL: https://hughstephensblog.net/2020/04/15/holding-google-to-account-france-takes-a-stand/ The French Competition Bureau (l’Autorité de la Concurrence) struck a strong blow in the global effort to hold Google to account under national laws when it issued an order on April 9 requiring Google to negotiate with French press publishers and news providers regarding licensing fees for news content appearing in Google search listings in France.

Joshua L. Simmons joshua.simmons@kirkland.com

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INSTAGRAM’S TOS AUTHORIZES THIRD-PARTY EMBEDDING OF PHOTOS–SINCLAIR V. MASHABLE via Technology & Marketing Law Blog by Venkat Balasubramani on 4/15/2020 URL: https://blog.ericgoldman.org/archives/2020/04/instagrams-tos-authorizes-third-party-embedding-of-photos-sinclair-v-mashable.htm Sinclair is a professional photographer. JUDGE SMACKS DOWN COPYRIGHT SUIT OVER INSTAGRAM EMBEDDING via Ars Technica by Timothy B. Lee on 4/15/2020 URL: https://arstechnica.com/tech-policy/2020/04/judge-smacks-down-copyright-suit-over-instagram-embedding/ A New York federal judge has ruled that the tech news site Mashable did not violate copyright law when it embedded an Instagram photo from photojournalist Stephanie Sinclair in an article. CHARTER CAN'T BEAT 'VICARIOUS' MUSIC PIRACY CLAIMS via Intellectual Property Law360 by Bill Donahue on 4/15/2020 URL: https://www.law360.com/ip/articles/1263942 A federal judge ruled Wednesday that record labels could keep suing Charter Communications for so-called vicarious copyright infringement over illegal downloading by its subscribers, rejecting the argument that it would “open the floodgates for massive liability.” TV PROGRAMMING OWNERS FAIL TO ALTER ROYALTY BOARD DECISION via Bloomberg Law by Kyle Jahner on 4/16/2020 URL: https://news.bloomberglaw.com/ip-law/tv-programming-owners-fail-to-alter-royalty-board-decision The Copyright Royalty Board, part of the Library of Congress, didn’t use faulty analysis to determine what share of statutory royalties from cable and satellite providers should go to a group of copyright owners, the U.S. Court of Appeals for the D.C. Circuit said. NBA 2K AVOIDS TATTOO COPYRIGHT INFRINGEMENT IN THREE WAYS via Patent Arcade by Scott Kelly on 4/16/2020 URL: http://patentarcade.com/2020/04/nba-2k-avoids-tattoo-copyright-infringement-in-three-ways.html Since Solid Oak Sketches, LLC (“Solid Oak”) filed its first complaint against 2K Games, Inc. (“2K”) and Take-Two Interactive Software, Inc. (“Take-Two”) (collectively, the “Defendants”) on February 1, 2016, alleging copyright infringement based on tattoos depicted on a few players

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in a video game, many have wondered whether the suit might lead to a broader interpretation of the right of publicity, including an implied license from tattoo artists to display tattoos as part of an individual’s likeness. KATY PERRY COPYRIGHT ACCUSER TAKES CASE TO 9TH CIRC. via Intellectual Property Law360 by Bill Donahue on 4/16/2020 URL: https://www.law360.com/ip/articles/1264505 A rapper who claims Katy Perry copied his song to create her hit "Dark Horse" is headed to the Ninth Circuit, appealing a high-profile ruling last month that tossed out a copyright infringement verdict in his favor. GUITAR MAKER ESCAPES COPYRIGHT CLAIMS OVER PANTERA GUITAR DESIGN via Bloomberg Law by Blake Brittain on 4/16/2020 URL: https://news.bloomberglaw.com/ip-law/guitar-maker-escapes-copyright-claims-over-pantera-guitar-design The technician who designed late Pantera guitarist Dimebag Darrell Abbott’s “Dean from Hell” guitar lost his copyright infringement claim against Dean Guitars over the design at the Eleventh Circuit Thursday. A LEGAL ANALYSIS OF MAKING COPYRIGHTED WORKS AVAILABLE ONLINE DURING THE CORONAVIRUS CRISIS via Hudson Institute by Steven Tepp on 4/16/2020 URL: https://www.hudson.org/research/15943-a-legal-analysis-of-making-copyrighted-works-available-online-during-the-coronavirus-crisis The Internet Archive (“IA”) began operation in 1996, at first making archival copies of websites, but soon offering those to the public and then expanding to other copyrighted works including books, sound recordings, audiovisual works, graphic arts (still images), and software, without regard to their copyright status and generally without licenses. A COURT DID NOT RULE THAT UPLOADING WORKS TERMINATES COPYRIGHT. BUT… via The Illusion of More by David Newhoff on 4/17/2020 URL: http://illusionofmore.com/a-court-did-not-rule-that-uploading-works-terminates-copyright-but/ On April 14, Eric Garder, writing for the Hollywood Reporter, published a story under the headline: Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram.

Joshua L. Simmons joshua.simmons@kirkland.com

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ANOTHER TERRIBLE COPYRIGHT RULING ON IAPS’ LIABILITY FOR USERS’ FILE-SHARING–WARNER V. CHARTER via Technology & Marketing Law Blog by Eric Goldman on 4/17/2020 URL: https://blog.ericgoldman.org/archives/2020/04/another-terrible-copyright-ruling-on-iaps-liability-for-users-file-sharing-warner-v-charter.htm This is a copyright infringement lawsuit against Charter, an Internet access provider, for users’ copyright infringements by file-sharing. JAY-Z, TIMBALAND BEAT SOUL SINGER'S COPYRIGHT SUIT via Intellectual Property Law360 by Bill Donahue on 4/17/2020 URL: https://www.law360.com/ip/articles/1264576 A Manhattan federal judge has tossed out a copyright lawsuit claiming Jay-Z and Timbaland illegally sampled a 1960s soul song, saying the case "entirely fails to identify" what exactly was infringed. $8M SUIT CALLS FORD 'TOO CHEAP' TO LICENSE MUSIC via Intellectual Property Law360 by Dani Kass on 4/17/2020 URL: https://www.law360.com/ip/articles/1264726 Online music library Freeplay Music LLC has asked a Michigan federal judge to make Ford Motor Co. fork over at least $8.1 million for willfully infringing copyrights that it was "too cheap" to license before using in videos and advertisements. WORLD IP DAY: TIME TO FORGE A GLOBAL SOLUTION TO A GLOBAL PROBLEM (BLOCKING OF PIRATE STREAMING SITES) via Hugh Stephens Blog on 4/20/2020 URL: http://hughstephensblog.net/2020/04/20/world-ip-day-time-to-forge-a-global-solution-to-a-global-problem-blocking-of-pirate-streaming-sites/ I am writing today to mark World IP Day, April 26 and, as part of this salute to the work being done in protecting IP rights around the world, to highlight a growing global problem affecting IP stakeholders, streaming piracy.

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AUSTRALIA MOVES TO FORCE GOOGLE AND FACEBOOK TO COMPENSATE MEDIA OUTLETS via NYT > Media & Advertising by Livia Albeck-Ripka on 4/20/2020 URL: https://www.nytimes.com/2020/04/20/business/media/australia-facebook-google.html The Australian government said on Monday that Google and Facebook would have to pay media outlets for news content in the country, part of an emerging global effort to rescue local publishers by moving to compel tech giants to share their advertising revenue. MOVING FORWARD: THE COPYRIGHT OFFICE DURING COVID-19 via Copyright: Creativity at Work by Maria Strong on 4/20/2020 URL: https://blogs.loc.gov/copyright/2020/04/moving-forward-the-copyright-office-during-covid-19/ Like many Americans, the Copyright Office staff and the Office as an organization are experiencing unprecedented challenges since the beginning of the COVID-19 pandemic. HOW TO COMBAT IP-FACILITATED DIGITAL FRAUD DURING PANDEMIC via Intellectual Property Law360 by Joshua Reisberg & Angelina Whitfield on 4/20/2020 URL: https://www.law360.com/ip/articles/1265130 Digital fraud occurs every day. INSTAGRAM, LICENSING AND EMBEDDING via Plagiarism Today by Jonathan Bailey on 4/20/2020 URL: https://www.plagiarismtoday.com/2020/04/20/instagram-and-embedding/ Last week, the United States District Court for the Southern District of New York ruled in favor of the tech news site Mashable in their case against photographer Stephanie Sinclair. GOOGLE, FACEBOOK TO BE ORDERED TO PAY FOR AUSTRALIAN NEWS CONTENT via WSJ.com: Technology by Mike Cherney on 4/21/2020 URL: https://www.wsj.com/articles/google-facebook-to-be-ordered-to-pay-for-australian-news-content-11587369628 Australia plans to require Alphabet Inc.’s Google and Facebook Inc. to pay local media organizations for their content, the latest development in a global debate over whether the tech giants are unfairly benefiting from news articles that appear on their platforms.

Joshua L. Simmons joshua.simmons@kirkland.com

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OCCIDENTAL ACCUSED OF SEISMIC IP THEFT IN $55B ANADARKO BUY via Intellectual Property Law360 by Hannah Albarazi on 4/21/2020 URL: https://www.law360.com/ip/articles/1265625 Occidental Petroleum Corp. illegally received licensed seismic data in its $55 billion acquisition of Anadarko Petroleum Corp., a seismic data company alleged in a Texas federal lawsuit Monday, saying Occidental irreparably damaged the data business when it "knowingly conspired" to misappropriate the company's trade secrets. NATIONAL EMERGENCY LIBRARY: INFRINGEMENT OR FAIR USE? via JLA Beat | The Columbia Journal of Law & the Arts by Joshua Samuel on 4/21/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/308 COVID-19 has certainly done a lot to change the world that we live in. CAN IP RIGHTS BE RECONCEIVED VIA MUSIC MODERNIZATION ACT? via Intellectual Property Law360 by Matthew Pangle & Christopher Cotropia on 4/21/2020 URL: https://www.law360.com/ip/articles/1254622 The Music Modernization Act was passed into law in 2018. JENNIFER LOPEZ SUED OVER INSTAGRAM PHOTO FOR COPYRIGHT INFRINGEMENT EXODUS' GARY HOLT RECALLS ... via Billboard by Griselda Flores on 4/21/2020 URL: https://www.billboard.com/articles/news/9362700/jennifer-lopez-sued-instagram-photo-copyright-infringement Jennifer Lopez and her Nuyorican Productions company are being sued for copyright infringement, according to legal documents obtained by Billboard. ALASKA NATIVES SAY NEIMAN MARCUS RIPPED OFF COAT DESIGN via Intellectual Property Law360 by Andrew Westney on 4/21/2020 URL: https://www.law360.com/ip/articles/1265804 An Alaska Native organization urged a federal judge Monday to stop Neiman Marcus Group Inc. from selling a patterned coat, saying the garment infringes a copyright from an artist who was drawing on a centuries-old design tradition.

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SURVEYING CO. TELLS JUSTICES TO TOSS OIL SURVEY DATA ROW via Intellectual Property Law360 by Katie Pohlman on 4/21/2020 URL: https://www.law360.com/ip/articles/1265580 An oil exploration company has warned the U.S. Supreme Court that its Canadian competitor posed a hypothetical question that would waste the court's time and resources in a dispute over the alleged infringement of copyrighted seismic data. FOUR-ON-THE-FLOOR: KEEP THE BEAT WITH MUSIC MODERNIZATION ACT DEVELOPMENTS via Copyright: Creativity at Work by Holland Gormley on 4/22/2020 URL: https://blogs.loc.gov/copyright/2020/04/four-on-the-floor-keep-the-beat-with-music-modernization-act-developments/ The Music Modernization Act (MMA) is a historic overhaul to the nation’s music copyright laws. BILLY JOEL ACCUSED OF USING FIRED CONTRACTOR'S HOME DESIGNS via Intellectual Property Law360 by McCord Pagan on 4/22/2020 URL: https://www.law360.com/ip/articles/1266307 World-renowned musician Billy Joel and his spouse are accused of wrongly using copyrighted designs for their Long Island home in a case stemming from an abruptly canceled renovation contract to their property, according to a lawsuit in New York federal court. THANKS BIG TECH. BUT WE’LL STILL NEED TO TALK. via The Illusion of More by David Newhoff on 4/23/2020 URL: http://illusionofmore.com/thanks-big-tech-but-well-still-need-to-talk/ About ten minutes after the world went into self-quarantine, and we all instantaneously became more dependent on internet platforms, you could almost hear the keyboards clacking, as various pundits raced to announce that the techlash is officially over. HOW ONE ARTICLE CHANGED FAIR USE via Plagiarism Today by Jonathan Bailey on 4/23/2020 URL: https://www.plagiarismtoday.com/2020/04/23/how-one-article-changed-fair-use/ In March 1994, the Supreme Court of the United States handed down one of the most important decisions in modern copyright history: Campbell v. Acuff-Rose Music

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KAWHI LEONARD LOSES 'CLAW' LOGO COPYRIGHT SUIT AGAINST NIKE via Intellectual Property Law360 by Zachary Zagger on 4/23/2020 URL: https://www.law360.com/ip/articles/1266796 An Oregon federal judge said Nike owns NBA Finals MVP Kawhi Leonard's signature "Claw" logo based on his notably large hands, tossing Leonard's claims that he is the true author of the design and should be able to continue using it even after signing an endorsement deal with rival New Balance. JEFF DUNHAM GOES AFTER T-SHIRT CO. FOR PROFITING OFF COVID-19 via Intellectual Property Law360 by Hailey Konnath on 4/23/2020 URL: https://www.law360.com/ip/articles/1266992 Ventriloquist and comedian Jeff Dunham on Thursday accused a California merchandise company of illegally using his name, face and ventriloquism characters to sell T-shirts, coronavirus face masks and other merchandise, hitting Ooshirts Inc. with a multimillion suit and vowing to donate any award to COVID-19 charities. COPYRIGHT CLAIMS FOR DESIGNS COULD SPIKE IN EUROPE via Managing Intellectual Property | Copyright by Max Walters on 4/24/2020 URL: https://www.managingip.com/article/b1lbh3rqswlwlv/copyright-claims-for-designs-could-spike-in-europe In-house counsel are clearer on getting copyright protection for designs but are worried by inconsistencies in the law and a perception that copyright is a “weaker” IP right DISGORGEMENT OF INFRINGER PROFITS AS AN EQUITABLE REMEDY via Patent Law Blog (Patently-O) by Pamela Samuelson on 4/24/2020 URL: https://patentlyo.com/patent/2020/04/disgorgement-infringer-equitable.html Yesterday, Dennis Crouch provided an overview of the Supreme Court’s recent decision in Romag Fasteners, Inc. v. Fossil, Inc. and the various opinions of the Justices. ROSS STORES MUST FACE COPYRIGHT INFRINGEMENT CLAIMS IN NEW YORK via Bloomberglaw by Maeve Allsup on 4/24/2020 URL: https://news.bloomberglaw.com/us-law-week/ross-stores-must-face-copyright-infringement-claims-in-new-york A copyright infringement claim brought against Ross Stores Inc. in ... to one copyrighted by California textile designer Fiesta Fabric, the suit alleged.

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COPYRIGHT AND WRONG – FRANK MCNALLY ON IRELAND'S CHEQUERED HISTORY OF COPYRIGHT LAW via www.irishtimes by Frank McNally on 4/24/2020 URL: https://www.irishtimes.com/opinion/copyright-and-wrong-frank-mcnally-on-ireland-s-chequered-history-of-copyright-law-1.4237474 The Roscommon-born writer and lawyer Arthur Murphy (1727–1805) is little remembered today, but he was a leading London barrister of his time and a successful comic dramatist. THIS LIBRARY OF CONGRESS-POWERED HIP HOP SAMPLING TOOL IS COPYRIGHT-FRIENDLY, VERY COOL via AVClub by William Hughes on 4/26/2020 URL: https://news.avclub.com/this-library-of-congress-powered-hip-hop-sampling-tool-1843073492 Here’s a fun (and copyright observant) musical toy for anyone who’s ever wanted to get their inner De La Soul on, but who didn’t want to spend a lot of time digging through old stacks of vinyl—or getting sued out of existence for an unauthorized sample. COPYRIGHT NOTEBOOK: OBSERVATIONS ON COPYRIGHT IN THE TIME OF COVID-19 via Center for the Protection of Intellectual Property by Sandra Aistars on 4/27/2020 URL: https://cpip.gmu.edu/2020/04/27/copyright-notebook-observations-on-copyright-in-the-time-of-covid-19/ Heroes are everywhere. HIGH COURT SAYS GEORGIA CAN'T COPYRIGHT LAW TEXTS via Intellectual Property Law360 by Bill Donahue on 4/27/2020 URL: https://www.law360.com/ip/articles/1248290 The U.S. Supreme Court ruled Monday that an annotated version of Georgia’s official state law code could not be locked up under copyright law, declaring it a "government edict" that must be free for all to use. COPYRIGHT OFFICE LAUNCHES RECORDATION SYSTEM PILOT via Copyright: Creativity at Work by KanKan Yu on 4/27/2020 URL: https://blogs.loc.gov/copyright/2020/04/copyright-office-launches-recordation-system-pilot/ Today is an exciting day for the U.S. Copyright Office’s modernization efforts.

Joshua L. Simmons joshua.simmons@kirkland.com

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12(B-FLAT)(6): PRE-TRIAL ASSESSMENT OF SCENE A FAIRE IN MUSICAL COMPOSITION COPYRIGHT INFRINGEMENT CASES via JLA Beat | The Columbia Journal of Law & the Arts by Jeremy King on 4/27/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/313 Music copyright cases are strange beasts. SUPREME COURT TEARS DOWN PAYWALL FOR GEORGIA'S ANNOTATED CODES via Law.com by Scott Graham on 4/27/2020 URL: https://www.law.com/2020/04/27/supreme-court-tears-down-paywall-for-georgias-annotated-codes/ The annotations are "government edicts" that can't be copyrighted, even though they are not the law itself and published by a third party, Chief Justice John Roberts wrote for a 5-4 majority. MOTOROLA GETS $346M ASSET FREEZE AGAINST HYTERA IN UK via Intellectual Property Law360 by Bonnie Eslinger on 4/27/2020 URL: https://www.law360.com/ip/articles/1267529 Motorola won a $345.7 million freezing order in the U.K. against radio manufacturer Hytera to help it satisfy a U.S. trade secret theft and copyright infringement judgment, but the court refused to force the Chinese company to disclose its worldwide assets. IN SEUSS CASE, 9TH CIRC. IS WARY OF FAIR USE FOR MASHUPS via Intellectual Property Law360 by Bill Donahue on 4/27/2020 URL: https://www.law360.com/ip/articles/1248238 A Ninth Circuit panel was skeptical Monday of ruling that a mashup of Dr. Seuss and "Star Trek" is protected by copyright law’s fair use doctrine, at one point suggesting that it might “sink the whole notion of copyright protection.” OPINION ANALYSIS: SHARPLY DIVIDED BENCH REJECTS GEORGIA’S COPYRIGHT IN ANNOTATIONS OF GEORGIA STATUTES via SCOTUSblog by Ronald Mann on 4/27/2020 URL: https://www.scotusblog.com/2020/04/opinion-analysis-sharply-divided-bench-rejects-georgias-copyright-in-annotations-of-georgia-statutes/ The decision this morning in Georgia v Public.Resource.Org resolves a technical question of copyright law, the extent to which governmental authorities can copyright (and profit from) the materials that they create.

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SUPREME COURT RULES GEORGIA CAN’T PUT THE LAW BEHIND A PAYWALL via Ars Technica by Timothy B. Lee on 4/27/2020 URL: https://arstechnica.com/?p=1671437 A narrowly divided US Supreme Court on Monday upheld the right to freely share the official law code of Georgia. BUSINESS INFORMATION DATABASE COPYRIGHT ELIGIBLE, 8TH CIR. SAYS via Bloomberg Law by Blake Brittain on 4/27/2020 URL: https://news.bloomberglaw.com/ip-law/business-information-database-copyright-eligible-8th-cir-says A Nebraska federal jury’s award of over $11 million in a copyright dispute based on a database of business information was affirmed by the Eighth Circuit said Monday. SUPREME COURT EXPANDS PENUMBRA OF GOV’T EDICTS DOCTRINE: OFFICIAL ANNOTATIONS TO CODE NOT COPYRIGHTABLE via Patent Law Blog (Patently-O) by Dennis Crouch on 4/27/2020 URL: https://patentlyo.com/patent/2020/04/penumbra-annotations-copyrightable.html The State of Georgia claims copyright to its Annotated Official Code (Official Code of Georgia Annotated (OCGA)). WIPO DIRECTOR GENERAL WELCOMES ENTRY INTO FORCE OF BEIJING TREATY ON AUDIOVISUAL PERFORMANCES via YouTube by WIPO on 4/28/2020 URL: https://www.youtube.com/watch?v=_2iBpO2pccs On the occasion of the entry into force of the Beijing Treaty on Audiovisual Performances on April 28, 2020, WIPO Director General Francis Gurry highlights the importance of the Treaty for the livelihoods of TV and film actors, musicians, dancers, and others in audiovisual performers, and encourages all countries around the world to join the Treaty. SUPREME COURT SAYS STATE CODE REVISION COMMISSIONS ARE NOT AUTHORS FOR COPYRIGHT PURPOSES via IPWatchdog.com | Patents & Patent Law by Alexis Campbell on 4/28/2020 URL: https://www.ipwatchdog.com/2020/04/28/supreme-court-says-state-code-revision-commissions-not-authors-copyright-purposes/id=121116/ Yesterday, the U.S. Supreme Court affirmed the U.S. Court of Appeals for the Eleventh Circuit’s decision that a state code revision commission cannot claim copyright protection over annotated

Joshua L. Simmons joshua.simmons@kirkland.com

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state code in Georgia et al. v. Public.Resource.Org., Inc. The Court dove into the judicially created “edicts doctrine,” which has not really been explored since the 1800s. The “original works” in question were supplementary annotations accompanying the statutes in Georgia’s Official Code, known as the... GOOGLE SHOULD START PLAYING NICE WITH THE NEWS MEDIA via National Post by Richard C. Owens on 4/28/2020 URL: https://nationalpost.com/opinion/richard-c-owens-google-should-start-playing-nice-with-the-news-media Newspaper advertising revenues are in calamitous decline. To many, Google (and other tech companies, like Facebook), whose revenues have soared, have caused the decline. 5 WAYS COVID-19 IS CHANGING THE WORLD FOR CREATORS via Plagiarism Today by Jonathan Bailey on 4/28/2020 URL: https://www.plagiarismtoday.com/2020/04/28/5-ways-covid-19-is-changing-the-world-for-creators/ It is worse than a cliche to talk about “these uncertain times” or “these challenging times” right now. 8TH CIRC. AFFIRMS INFOGROUP’S $21M IP AWARD OVER EX-CEO via Intellectual Property Law360 by Lauren Berg on 4/28/2020 URL: https://www.law360.com/ip/articles/1267772 The Eighth Circuit on Monday affirmed a $21.2 million damages award to e-marketing firm Infogroup after a Nebraska jury found that the company’s former CEO and his new data company stole Infogroup’s intellectual property and falsely implied that the two data companies were affiliated. 3 BIG THINGS: SUPREME COURT'S 'PAY-PER-LAW' COPYRIGHT RULING via Intellectual Property Law360 by Bill Donahue on 4/28/2020 URL: https://www.law360.com/ip/articles/1268132 The U.S. Supreme Court's ruling on copyright protection for legal texts has plenty to unpack — including the court's simple "authorship" test, dire warnings about a "pay-per-law" system and an unusual ideological alignment of the justices.

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8 PLACES THAT MIGHT BE INFRINGING ON THE COPYRIGHT OF YOUR FAVORITE POP CULTURE via Fodors by Taylor Rains on 4/29/2020 URL: https://www.fodors.com/news/photos/8-places-that-might-be-infringing-on-the-copyright-of-your-favorite-pop-culture Whether it is slaying a dragon, joining the Resistance, or riding on the back of a Hippogriff, every self-proclaimed nerd craves to live in the world of their favorite pop culture icon—now they can. THINGS CREATORS CAN LEARN FROM SEUSS V. COMICMIX via The Illusion of More by David Newhoff on 4/29/2020 URL: http://illusionofmore.com/things-creators-can-learn-from-seuss-v-comicmix/ I listened yesterday morning to oral arguments presented (via video conference) on Monday before the Ninth Circuit Court of Appeals in the case Dr. Seuss Enterprises v. ComicMix LLC. SENATORS ASK U.S. COPYRIGHT, PATENT OFFICES TO STUDY INFRINGEMENT BY STATES via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 4/29/2020 URL: https://www.hollywoodreporter.com/thr-esq/senators-ask-us-copyright-patent-offices-study-infringement-by-states-1292382 To prime new IP legislation, Senators Thom Tillis and Patrick Leahy want findings by April 30, 2021. SEINFELD FINDS FRIENDLY CROWD IN 2ND CIRC. 'COMEDIANS' ARGS via Intellectual Property Law360 by Pete Brush on 4/29/2020 URL: https://www.law360.com/ip/articles/1268616 A Second Circuit panel looked primed Wednesday to sink a writer's copyright claim asserting comedian Jerry Seinfeld poached the hit Netflix show “Comedians in Cars Getting Coffee,” with three judges saying flatly that it looked like the writer waited far too long to come in to federal court.

Joshua L. Simmons joshua.simmons@kirkland.com

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APPEALS COURT REVIEWS 'STAR TREK'/DR. SEUSS MASHUP via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 4/29/2020 URL: https://www.hollywoodreporter.com/thr-esq/appeals-court-reviews-star-trek-dr-seuss-mashup-1292054 The Ninth Circuit appears skeptical about a district judge's decision to end a copyright lawsuit. HIGH COURT COPYRIGHT RULING EXPANDS GOV'T EDICTS DOCTRINE via Intellectual Property Law360 by Eleanor M. Lackman & Craig Bradley on 4/29/2020 URL: https://www.law360.com/ip/articles/1267746 On April 27, the U.S. Supreme Court for the first time in 130 years addressed the government edicts doctrine, a court-made rule holding that state government edicts having the force of law are not eligible for copyright protection. COPYRIGHT LAWYERS ON SCOTUS DECISION IN GEORGIA V. PUBLIC.RESOURCE.ORG: EXPECTED, BUT POSSIBLY PROBLEMATIC via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 4/29/2020 URL: https://www.ipwatchdog.com/2020/04/29/copyright-lawyers-scotus-decision-georgia-v-public-resource-org-expected-possibly-problematic/id=121163/ On Monday, the U.S. Supreme Court ruled in Georgia et al. v. Public.Resource.Org., Inc. that a state code revision commission cannot claim copyright protection over annotated state code. The ruling upheld the U.S. Court of Appeals for the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org, Inc., which reversed-in-part, vacated-in-part and remanded a lower court’s ruling in a copyright infringement case involving an annotated version of Georgia’s official state... FROM TIKTOK TO INSTAGRAM: HOW TO LEGALLY LIVE STREAM via IPWatchdog.com | Patents & Patent Law by Nicholas Rozansky on 4/30/2020 URL: https://www.ipwatchdog.com/2020/04/30/tiktok-instagram-legally-live-stream/id=121150/ Every day, DJs, athletes, entertainers and influencers broadcast live on Instagram, YouTube and other similar channels. Whether you are a professional entertainer or just connecting with friends and family, broadcasting and sharing content online raises many legal issues, including intellectual property, publicity rights, commercial speech, and contractual terms of service. Accordingly, digital content creators should be cautious with what they publish. In this article, we briefly explore these...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE COPYRIGHT BATTLE OVER THE BISEXUAL PRIDE FLAG via Plagiarism Today by Jonathan Bailey on 4/30/2020 URL: https://www.plagiarismtoday.com/2020/04/29/the-copyright-battle-over-the-bisexual-pride-flag/ Dating back to 1987, BiNet USA is a charity and advocacy group that supports bisexual people of all varieties and helps fight for their inclusion within the LGBTQ+ community and outside of it. CONTENT IN QUARANTINE: COPYRIGHT BEST PRACTICES FOR PANDEMIC via Intellectual Property Law360 by Scott Sholder on 4/30/2020 URL: https://www.law360.com/ip/articles/1269265 At a time when we are stuck at home, working (or, sadly for many, not working) the tenet that content is king has never been more relevant.

Joshua L. Simmons joshua.simmons@kirkland.com

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May 2020

DREW BARRYMORE, WALMART ACCUSED OF STEALING FABRIC PRINT via Intellectual Property Law360 by Craig Clough on 5/1/2020 URL: https://www.law360.com/ip/articles/1269486 Actress Drew Barrymore and Walmart were sued in California federal court Thursday by an indie designer who alleges they swiped her print design for Barrymore's line of home goods sold at Walmart stores and online, infringing her copyright. COPYRIGHT OFFICE EXTENDS COVID DEADLINE ADJUSTMENTS INTO JULY via Bloomberg Law by Kyle Jahner on 5/1/2020 URL: https://news.bloomberglaw.com/ip-law/copyright-office-extends-covid-deadline-adjustments-into-july Light streams in the Library of Congress. ANOTHER 512(F) CLAIM FAILS–NINGBO MIZHIHE V DOE via Technology & Marketing Law Blog by Eric Goldman on 5/2/2020 URL: https://blog.ericgoldman.org/archives/2020/05/another-512f-claim-fails-ningbo-mizhihe-v-doe.htm The plaintiff is a Chinese vendor that claims copyright in unicorn images (see depictions on the right). USTR SPECIAL 301 REPORT AND REVIEW OF NOTORIOUS MARKETS HIGHLIGHT CONTINUED CONCERNS WITH CHINA via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 5/4/2020 URL: https://www.ipwatchdog.com/2020/05/04/ustr-special-301-report-review-notorious-markets-highlight-continued-concerns-china/id=121240/ On April 29, the Office of the U.S. Trade Representative (USTR) released its 2020 Special 301 Report on Intellectual Property Protection and its 2019 Review of Notorious Markets for Counterfeiting and Piracy. The Report identifies countries and IP-related market access barriers and steps necessary to address those barriers. Section I of the Report highlights “Developments in Intellectual Property Rights Protection, Enforcement, and Related Market Access” and Section II is a Priority Watch List...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WATCH OUT NORTH CAROLINA! QUEEN ANNE WILL GET HER REVENGE via Hugh Stephens Blog on 5/4/2020 URL: http://hughstephensblog.net/2020/05/04/watch-out-north-carolina-queen-anne-will-get-her-revenge/ For several years now I, and others, have been writing (here, here, and finally, here) about the so-called “Blackbeard case” and his ship the Queen Anne’s Revenge, sunk off the North Carolina coast in 1718. WHY ORACLE MIGHT BE SWEATING A REQUEST FOR EXTRA BRIEFING IN ROW WITH GOOGLE via Law.com by Scott Graham on 5/4/2020 URL: https://www.law.com/2020/05/04/why-oracle-might-be-sweating-a-request-for-extra-briefing-in-row-with-google/ The Supreme Court wants the parties to address the standard of review for assessing the San Francisco jury's verdict on fair use. If the Supreme Court applies a stricter standard than the Federal Circuit, then Google probably wins. APPLE FIGHTS US GOVERNMENT INTERVENTION IN IPHONE COPYRIGHT CASE via Forbes by Thomas Brewster on 5/4/2020 URL: https://www.forbes.com/sites/thomasbrewster/2020/05/04/apple-fights-us-government-intervention-in-iphone-copyright-case/ Apple is fighting a Department of Justice intervention in its copyright suit against cybersecurity startup Corellium, according to recently-unsealed court documents. EXPLAINING THE ALMOST UNEXPLAINABLE: SOURCE CODE EVIDENCE AT TRIAL via Law.com by David A. Prange & Benjamin C. Linden on 5/4/2020 URL: https://www.law.com/legaltechnews/2020/05/04/explaining-the-almost-unexplainable-source-code-evidence-at-trial/ The past decade has seen a proliferation of products and services that use computer networks, the Internet of Things, or the Industrial Internet of Things. This technological evolution has resulted in increased complexity in litigation involving computer-based products and services. In many types of litigation, such as claims for patent infringement, copyright infringement, trade secret misappropriation, or software licensing disputes, computer source code is at the forefront of the case.

Joshua L. Simmons joshua.simmons@kirkland.com

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6TH CIRC. JUDGE KNOCKS COPYRIGHT 'GROOVE' IN EVERLY BROS. SUIT via Intellectual Property Law360 by Mike LaSusa on 5/4/2020 URL: https://www.law360.com/ip/articles/1270279 A Sixth Circuit judge expressed worry Monday that courts have gotten stuck in a "groove" of misinterpreting copyright laws, while concurring in a divided ruling that revived a suit over rights to the 1960 song "Cathy's Clown" by the Everly Brothers. STARZ SAYS MGM LICENSED EXCLUSIVE FILMS TO COMPETITORS via Intellectual Property Law360 by Mike LaSusa on 5/4/2020 URL: https://www.law360.com/ip/articles/1270350 Starz Entertainment LLC sued MGM Domestic Television Distribution LLC on Monday in California federal court, claiming the movie studio unit gave licenses to Starz competitors allowing them to show films that were supposed to be exclusive to Starz's platform. STARZ SUES MGM FOR NOT HONORING EXCLUSIVITY DEAL via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 5/4/2020 URL: https://www.hollywoodreporter.com/thr-esq/starz-sues-mgm-not-honoring-exclusivity-deal-1293250 The pay TV network alleges that MGM unlawfully licensed hundreds of movies to its competitors. SIXTH CIRCUIT REVIVES COPYRIGHT DISPUTE OVER EVERLY BROTHERS SONG via Courthouse News Service by Kevin Koeninger on 5/5/2020 URL: http://www.courthousenews.com/sixth-circuit-revives-copyright-dispute-over-everly-brothers-song/ The Sixth Circuit breathed new life into a contentious copyright dispute between Don Everly and the successors of his late brother, Phil Everly, over authorship of the duo’s 1960 hit, “Cathy’s Clown,” which went on to become their best-selling single. HOW YOUR WEB DESIGNER COULD LAND YOU IN COPYRIGHT TROUBLE via Plagiarism Today by Jonathan Bailey on 5/5/2020 URL: https://www.plagiarismtoday.com/2020/05/05/how-your-web-designer-could-land-you-in-copyright-trouble/ Whether you are building your first website or your 100th, it’s a common practice to either seek out a theme to build off of or to simply hire someone to do the work for you.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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GITHUB TAKES DOWN POPCORN TIME DESKTOP APP AFTER COPYRIGHT COMPLAINT via Vice by Jordan Pearson on 5/5/2020 URL: https://www.vice.com/en_us/article/8894gg/github-takes-down-popcorn-time-desktop-app-after-mpa-dmca GitHub has removed pages belonging to the popular torrent streaming app Popcorn Time after the Motion Picture Association, a trade group that represents major Hollywood studios, filed a copyright claim. SENATOR THOM TILLIS: IF IP STAKEHOLDERS CAN’T FIND CONSENSUS, CONGRESS CAN’T HELP via IPWatchdog.com | Patents & Patent Law by Gene Quinn on 5/5/2020 URL: https://www.ipwatchdog.com/2020/05/05/senator-thom-tillis-ip-stakeholders-cant-find-consensus-congress-cant-help/id=121262/ Senator Thom Tillis (R-NC) arguably has more pressing issues to focus on than intellectual property at the moment, as the nation scrambles to find solutions to the many economic and health crises caused by the coronavirus pandemic and COVID-19. And yet, Tillis has somehow managed to remain focused on IP, with recent movement in the areas of copyright and trademark modernization, as well as exploration into the implications of Allen et al. v. Cooper, Governor of North Carolina, et al. I recently... JASON MRAZ NEARS DEAL WITH COORS OVER SONG IN INSTAGRAM AD via Intellectual Property Law360 by Craig Clough on 5/5/2020 URL: https://www.law360.com/ip/articles/1270594 Jason Mraz and MillerCoors have agreed to settle the Grammy Award-winning singer-songwriter's lawsuit accusing the company of illegally using his hit song "I'm Yours" in an Instagram advertisement for Coors Light, according to a filing in California federal court Monday. WHEN IT COMES TO IP, SUPREME COURT REALLY HATES RIGID RULES via Intellectual Property Law360 by Bill Donahue on 5/5/2020 URL: https://www.law360.com/ip/articles/1270641 A ruling last month by the U.S. Supreme Court that struck down an "inflexible precondition" for big trademark awards was just the latest in a string of high court decisions that rejected bright-line rules in intellectual property cases.

Joshua L. Simmons joshua.simmons@kirkland.com

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THOMSON REUTERS CLAIMS COMPETITOR'S AI-POWERED BOT HIJACKED WESTLAW DATA via Law.com by Alaina Lancaster on 5/6/2020 URL: https://www.law.com/2020/05/06/thomson-reuters-claims-competitors-ai-powered-bot-hijacked-westlaw-data/ Thomson Reuters is accusing legal research competitor Ross Intelligence of using artificial intelligence to scrape proprietary data out of its Westlaw database. JORDAN TEQUILA BRAND USED PHOTOS WITHOUT PAYING, SUIT SAYS via Intellectual Property Law360 by Zachary Zagger on 5/6/2020 URL: https://www.law360.com/ip/articles/1270912 Cincoro, a premium tequila brand part-owned by NBA legend Michael Jordan, stiffed a photographer it hired for a shoot in Mexico by using her photos to promote its launch last year without ever paying her to license the images, according to a copyright suit filed this week. REUTERS ACCUSES LEGAL STARTUP OF STEALING WESTLAW CONTENT via Intellectual Property Law360 by Bill Donahue on 5/6/2020 URL: https://www.law360.com/ip/articles/1271031 Thomson Reuters filed a copyright lawsuit Wednesday against a legal research startup called ROSS Intelligence, accusing the company of illegally copying huge swaths of the Westlaw database to create a competing service. FAIR USE PROTECTS A HIGHLY CROPPED PHOTO–HARBUS V. MANHATTAN INSTITUTE via Technology & Marketing Law Blog by Eric Goldman on 5/7/2020 URL: https://blog.ericgoldman.org/archives/2020/05/fair-use-protects-a-highly-cropped-photo-harbus-v-manhattan-institute.htm Harbus is a photographer.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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APPEALS COURT GIVES JERRY SEINFELD THE WIN IN 'COMEDIANS IN CARS' DISPUTE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 5/7/2020 URL: https://www.hollywoodreporter.com/thr-esq/appeals-court-gives-jerry-seinfeld-win-comedians-cars-dispute-1293775 The Second Circuit affirms a decision that Christian Charles, who directed the pilot, had waited too long to challenge Seinfeld's claim of being the sole author of the show. SEINFELD BEATS 'COMEDIANS IN CARS' SUIT AT 2ND. CIRC. via Intellectual Property Law360 by Bill Donahue on 5/7/2020 URL: https://www.law360.com/ip/articles/1271360 The Second Circuit on Thursday rejected a lawsuit that claimed Jerry Seinfeld stole the concept for his "Comedians in Cars Getting Coffee" series from a onetime collaborator, affirming a lower court that said the accuser waited too long to sue. PLACES A SEUSS-TREK MASHUP WILL GO MAY INCLUDE BACK TO COURT via Bloomberg Law by Kyle Jahner on 5/7/2020 URL: https://news.bloomberglaw.com/ip-law/places-a-seuss-trek-mashup-will-go-may-include-back-to-court The Ninth Circuit may be preparing to issue a ruling in a copyright fight over a Dr. Seuss-Star Trek mashup to clarify when use of an existing work is transformative enough to constitute fair use. JUDGE BLASTS LIEBOWITZ FOR 'WORST KIND OF LAWYERING' via Intellectual Property Law360 by Bill Donahue on 5/8/2020 URL: https://www.law360.com/ip/articles/1271620 An Illinois federal judge sharply criticized copyright attorney Richard Liebowitz as a "legal lamprey" and "an example of the worst kind of lawyering," but also said such litigation behavior was merely the "fetid backwash" of rampant internet infringement.

Joshua L. Simmons joshua.simmons@kirkland.com

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NICKELBACK SUED BY TEXAS MUSICIAN OVER 'ROCKSTAR' COPYRIGHT via Bloomberg Law by Blake Brittain on 5/8/2020 URL: https://news.bloomberglaw.com/ip-law/nickelback-sued-by-texas-musician-over-rockstar-copyright Nickelback was sued in Texas federal court Friday by a guitarist and songwriter who says the Canadian band ripped off his song “Rock Star” for its 2005 hit of the same name. COURT ORDERS 'COPYRIGHT TROLL' INTO FIRM MANAGEMENT COURSE via Bloomberg Law by Porter Wells on 5/8/2020 URL: https://news.bloomberglaw.com/ip-law/court-orders-copyright-troll-into-firm-management-course Copyright lawyer Richard Liebowitz found himself on the receiving end of sanctions from not one, but two federal judges this week. GEORGIA V. PUBLIC RESOURCE: MUCH ADO ABOUT VERY LITTLE via The Illusion of More by David Newhoff on 5/9/2020 URL: http://illusionofmore.com/georgia-v-public-resource-much-ado-about-very-little/ I was on the fence with regard to commenting on Georgia v. Public Resource. Its details are arcane, rather dull, and, despite rising to the level of a Supreme Court decision, is generally inapplicable to copyright law. SOCIAL MEDIA INFLUENCERS BEWARE – STREET ART IS PROTECTED BY COPYRIGHT via IPWatchdog.com | Patents & Patent Law by Michael Garfinkel on 5/9/2020 URL: https://www.ipwatchdog.com/2020/05/09/social-media-influencers-beware-street-art-protected-copyright/id=121490/ The U.S. Court of Appeals for the Second Circuit recently confirmed that street art is, in fact, protected by copyright law. Castillo v. G&M Realty L.P (Feb. 2020). But you wouldn’t know that from looking at Instagram. In recent years, the social media explosion has transformed “aerosol art” from a nuisance to a promotional tool. What used to be painted over the next morning, can now garner attention for a location and lead to flocks of social media junkies posing for and posting pics,...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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CRAIG WRIGHT’S DOCTORAL THESIS BEING INVESTIGATED FOR PLAGIARISM via Plagiarism Today by Jonathan Bailey on 5/11/2020 URL: https://www.plagiarismtoday.com/2020/05/11/craig-wrights-doctoral-thesis-being-investigated-for-plagiarism/ We’ve spoken about Craig Wright on this site twice before. First, we looked at the Bitcoin copyright battle, where he claimed that his copyright registration for the original Bitcoin code and whitepaper was proof that he was Bitcoin’s creator, Satoshi Nakamoto. WIPO HELPS IN THE FIGHT AGAINST ONLINE PIRACY via Hugh Stephens Blog on 5/11/2020 URL: http://hughstephensblog.net/2020/05/11/wipo-helps-in-the-fight-against-online-piracy/ Last month for World Intellectual Property Day, April 26, I wrote a blog posting on pirate site blocking, and the need to find a global solution to the growing global problem of online content streaming piracy. MARTHA'S VINEYARD ARTIST MUST CATALOG WORKS IN PORN IP CASE via Intellectual Property Law360 by Brian Dowling on 5/11/2020 URL: https://www.law360.com/ip/articles/1272238 A Martha's Vineyard artist surprised to find her rented-out island home was used for a series of adult films has 45 days to catalog how long each of her works appeared in the movies if she wants to press copyright claims against the pornography company, a federal judge ruled Monday. 2 COPYRIGHT RULINGS REVEAL EVOLVING PROTECTION FOR STREET ART via Intellectual Property Law360 by Bobby Ghajar et al. on 5/12/2020 URL: https://www.law360.com/ip/articles/1270335 While street art has taken strides from the underground to the mainstream as a celebrated form of expression, artists are learning that they still have a long way to go to protect their rights fully. UNNAMED AUTHORS MAY SUE BASED ON GROUP COPYRIGHTS, 2D CIR. SAYS via Bloomberg Law by Blake Brittain on 5/12/2020 URL: https://news.bloomberglaw.com/us-law-week/unnamed-authors-may-sue-based-on-group-copyrights-2d-cir-says A photographer’s copyright infringement case against Scholastic Inc. is headed back to Manhattan federal court after the Second Circuit found his copyrights were properly registered in a group registration that didn’t list him as the author of the compilation.

Joshua L. Simmons joshua.simmons@kirkland.com

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NITRO TV STREAMING SERVICE BLOCKED IN STUDIOS' PIRACY SUIT via Intellectual Property Law360 by Mike LaSusa on 5/12/2020 URL: https://www.law360.com/ip/articles/1272778 Entertainment industry heavyweights including Disney, Amazon, Columbia and Universal have scored an early victory in their suit against Nitro TV, securing an order from a California federal court blocking the streaming service from allegedly pirating their copyrighted content. TIKTOK IS PUTTING STEEP RESTRICTIONS ON HOW BRANDS CAN USE MUSIC IN THEIR VIDEOS TO PRESERVE THE ... via Business Insider by Paige Leskin on 5/12/2020 URL: https://www.businessinsider.com/tiktok-music-restrictions-brands-royalty-free-commercial-use-copyright-infringement-2020-5 TikTok has enacted strict limits on the music and soundtracks that brands can access when producing content on the platform. WHAT A PITY AMC TOOK 'MICKEY' SONG FOR TRAILER, SINGER SAYS via Intellectual Property Law360 by Craig Clough on 5/12/2020 URL: https://www.law360.com/ip/articles/1272616 Singer and choreographer Toni Basil sued AMC on Monday in California federal court over the cable channel's alleged "willful, intentional and purposeful use and exploitation" of her No. 1 hit song "Mickey" in a promo trailer for the series "Preacher." APPLE HIT WITH COPYRIGHT SUIT OVER SONG IN APPLE TV+ SHOW via Intellectual Property Law360 by Hailey Konnath on 5/12/2020 URL: https://www.law360.com/ip/articles/1272942 A Bay Area hip hop producer accused Apple Inc. and NBCUniversal Media LLC on Tuesday of using one of his production company's songs without authorization in the Apple TV+ show "Amazing Stories," hitting the tech and media giants with a copyright infringement suit in California federal court. LIEBOWITZ SLAMMED AS 'CLEAR AND PRESENT DANGER' TO THE LAW via Intellectual Property Law360 by Tiffany Hu on 5/12/2020 URL: https://www.law360.com/ip/articles/1272752 A Colorado judge is the latest to lay into copyright attorney Richard Liebowitz, saying he represents a "clear and present danger" to the justice system and ordering him to work with a more experienced attorney in the state or risk getting his copyright lawsuit thrown out.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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MINISTER'S WIDOW CAN GET ATTORNEYS' FEES IN NINTH CIRCUIT COPYRIGHT CASE via Bloomberg Law by Blake Brittain on 5/13/2020 URL: https://news.bloomberglaw.com/us-law-week/ministers-widow-can-get-attorneys-fees-in-ninth-circuit-copyright-case A minister’s widow may be entitled to attorneys’ fees in a case involving the copyrights to her late husband’s video-recorded sermons, the Ninth Circuit said Wednesday. ORACLE SLAMS GIBSON DUNN'S 'VEXATIOUS' WORK FOR RIMINI via Intellectual Property Law360 by Dave Simpson on 5/13/2020 URL: https://www.law360.com/ip/articles/1273264 Rimini Street Inc. and Gibson Dunn & Crutcher LLP should be sanctioned for vexatiously repeating the same rejected arguments seven times in oppositions to an injunction that bars the software support company from copying Oracle Corp.'s software, Oracle said in Nevada federal court Tuesday. ATTY FEES OK IN COPYRIGHT DECLARATORY RELIEF ACTIONS: 9TH CIRC. via Intellectual Property Law360 by Dave Simpson on 5/13/2020 URL: https://www.law360.com/ip/articles/1273313 Any legal action that hinges on the existence of a valid copyright and whether that copyright has been infringed, even if the claim is for declaratory relief, invokes the Copyright Act and is therefore eligible for attorney fees, the Ninth Circuit ruled Wednesday, vacating a lower court's order. 2019 REVIEW OF NOTORIOUS MARKETS FOR COUNTERFEITING AND PIRACY via Patent Docs by Kevin E. Noonan on 5/13/2020 URL: https://www.patentdocs.org/2020/05/2019-review-of-notorious-markets-for-counterfeiting-and-piracy.html The 2019 Review of Notorious Markets for Counterfeiting and Piracy provides a list of such markets (the NML), of both physical and virtual (online) varieties. BIG WIN FOR COPYCAT PRODUCTS via Patent Law Blog (Patently-O) by Dennis Crouch on 5/14/2020 URL: https://patentlyo.com/patent/2020/05/big-copycat-products.html This case is going to end up being a big one for our online marketplace. Many many producers are finding knock-off versions of their products sold via Amazon — often with Amazon’s direct

Joshua L. Simmons joshua.simmons@kirkland.com

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backing. The decision here support’s Amazon’s approach and is especially important coming from the pro-protection Federal Circuit. Importantly, the court here does not allow IP rights to be improperly extended in order to catch a counterfeit. COPYRIGHT TROLL SMACKDOWN REVEALS NEED FOR CASE ACT via The Illusion of More by David Newhoff on 5/14/2020 URL: http://illusionofmore.com/copyright-troll-smackdown-reveals-need-for-case-act/ The wicked deeds of the infamous copyright troll have been cited among the excuses to reject many proposed improvements for copyright enforcement in the digital age. TOYS R US CLEARED BY FED. CIRC. IN CHALK TOY IP CASE via Intellectual Property Law360 by Ryan Davis on 5/14/2020 URL: https://www.law360.com/ip/articles/1273647 The Federal Circuit ruled Thursday that a toy chalk holder designed to look like a No. 2 pencil, which was sold at Toys R Us, does not infringe Lanard Toys' design patents or trade dress, and that Lanard's copyright covering the item is invalid because it does not qualify as a work of art. ONLINE PLATFORMS WANT IP OWNERS TO TALK AND BEWARE OF BOTS via Managing Intellectual Property | IP Strategy by Rani Mehta on 5/15/2020 URL: https://www.managingip.com/article/b1lmy789s9m2g1/online-platforms-want-ip-owners-to-talk-and-beware-of-bots Counsel at Amazon, Tumblr, Redbubble and elsewhere set out how they balance user freedom with protecting third-party intellectual property INJUNCTION ON CHRISTMAS LIGHT SCULPTURES DEEMED PROPERLY LIFTED via Bloomberg Law by Kyle Jahner on 5/15/2020 URL: https://news.bloomberglaw.com/ip-law/injunction-on-christmas-light-sculptures-deemed-properly-lifted A holiday lights show company failed to convince the Sixth Circuit to reinstate an injunction on light sculptures that allegedly infringed its copyright.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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UBISOFT ACCUSES GOOGLE, APPLE OF SELLING INFRINGING GAME via Intellectual Property Law360 by Dorothy Atkins on 5/15/2020 URL: https://www.law360.com/ip/articles/1274333 Ubisoft Inc. hit Google, Apple and Alibaba Group's game developer with a copyright infringement lawsuit in California federal court Friday, demanding that they stop making and selling an unauthorized copycat version of its top-selling video game "Tom Clancy's Rainbow Six: Siege." (NOT) COPYRIGHT INFRINGEMENT: IS DBRAND INFRINGING NINTENDO’S IP? via IPWatchdog.com | Patents & Patent Law by Samantha Levin on 5/16/2020 URL: https://www.ipwatchdog.com/2020/05/16/not-copyright-infringement-dbrand-infringing-nintendos-ip/id=121637/ Is imitation really the highest form of flattery? Nintendo might not think so after seeing dbrand’s latest Switch skin set. The Nintendo Switch has become extremely popular amidst social distancing, work from home, and stay at home requirements during the COVID-19 pandemic. The console’s combination of handheld and traditional features, along with its wide variety of games, appeals to a large audience and provides an engaging way to spend time at home. THE ETHICS OF LISTENING TO MUSIC—ESPECIALLY VINYL—IN THIS AGE OF COVID-19 via Hugh Stephens Blog on 5/18/2020 URL: http://hughstephensblog.net/2020/05/18/the-ethics-of-listening-to-music-especially-vinyl-in-this-age-of-covid-19/ For those of us staying at home these days, music has become a Godsend. CONNECTED PRODUCTS, DISAPPEARING FEATURES via Intellectual Property Law360 by Dan Venglarik on 5/19/2020 URL: https://www.law360.com/ip/articles/1262426 Who owns a car purchased with specialty software features enabled, but not specifically paid for? And is the manufacturer legally entitled to disable those features after the sale? Software-featured products and remote updates in the increasingly connected world of the internet of everything are creating situations that customers find perplexing.

Joshua L. Simmons joshua.simmons@kirkland.com

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NIKE DENIED FULL WIN IN KAWHI LEONARD LOGO IP FIGHT via Intellectual Property Law360 by Zachary Zagger on 5/19/2020 URL: https://www.law360.com/ip/articles/1274897 An Oregon federal judge on Monday refused to grant Nike a quick win on claims that Kawhi Leonard infringed the sports shoe and apparel giant's copyright over a "Claw" logo based on Leonard's notably large hands after tossing claims by the NBA Finals MVP, who left Nike for rival New Balance, that he is the true owner of the logo. SPOTIFY CALLS EXEC BEHIND MUSIC RIGHTS GROUP A 'FRAUDSTER' via Intellectual Property Law360 by Bryan Koenig on 5/19/2020 URL: https://www.law360.com/ip/articles/1275029 A 21-year-old behind a music rights organization suing all the major players in music streaming and broadcasting for allegedly boycotting his organization is really just a "fraudster" who created "millions" of fake streaming accounts to gin up royalty payments, Spotify said Monday. COPYRIGHT OFFICE OPINES ON NATIONAL EMERGENCY LIBRARY. CRITICS OPINE ON COPYRIGHT OFFICE. via The Illusion of More by David Newhoff on 5/20/2020 URL: http://illusionofmore.com/copyright-office-opines-on-national-emergency-library-critics-opine-on-copyright-office/ On April 16, Senator Udall (NM) wrote a letter asking the U.S. Copyright Office to provide Congress with guidance on the role of libraries and the potential need to expand (within the law) digital lending during national emergencies. ABBEY ROAD PRODUCER MUST HAND OVER DOCS IN COPYRIGHT SPAT via Intellectual Property Law360 by Bonnie Eslinger on 5/20/2020 URL: https://www.law360.com/ip/articles/1275360 A London judge on Wednesday ordered the producer behind "Live from Abbey Road" to turn over correspondence in a copyright suit brought by major labels over his plan to auction off recordings of musical performances by Ed Sheeran, The Killers and others.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SQUARESPACE: PLEASE STOP STRIPPING COPYRIGHT DATA FROM OUR PHOTOS via PetaPixel by Penny Gentieu on 5/20/2020 URL: https://petapixel.com/2020/05/20/squarespace-please-stop-stripping-copyright-data-from-our-photos/ A few months ago I found out about the upcoming Google Licensable badge. Provided you embed the required metadata in your image files, it’s a label that will be added to your photos in Google Images, with links to a page that includes your Web statement of rights and a link to license the photo. COPYRIGHT BOTS AND CLASSICAL MUSICIANS ARE FIGHTING ONLINE. THE BOTS ARE WINNING. via Washington Post by Michael Andor Brodeur on 5/21/2020 URL: https://www.washingtonpost.com/entertainment/music/copyright-bots-and-classical-musicians-are-fighting-online-the-bots-are-winning/2020/05/20/a11e349c-98ae-11ea-89fd-28fb313d1886_story.html That is, until that recent Sunday, when his audience started to disappear, one by one, all the way down to none. INSTAGRAM'S LATEST FEATURE COULD SAVE YOU FROM COPYRIGHT ISSUES via Times of India on 5/21/2020 URL: https://timesofindia.indiatimes.com/gadgets-news/instagrams-latest-feature-could-save-you-from-copyright-issues/articleshow/75865782.cms Photo-sharing app Instagram has updated its guidelines regarding the use of copyrighted music in live videos, Stories etc and has a new update to ... COPYRIGHT OFFICE SAYS DMCA HAS 'TILTED ASKEW' via Intellectual Property Law360 by Bill Donahue on 5/21/2020 URL: https://www.law360.com/ip/articles/1275893 The U.S. Copyright Office on Thursday called for changes to the Digital Millennium Copyright Act that governs how websites like YouTube police online infringement, saying the system has "tilted askew" in favor of tech companies.

Joshua L. Simmons joshua.simmons@kirkland.com

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COPYRIGHT OFFICE SAYS LANDMARK PIRACY LAW NEEDS FINE-TUNING via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 5/21/2020 URL: https://www.hollywoodreporter.com/thr-esq/copyright-office-says-landmark-piracy-law-needs-fine-tuning-1295488 A multi-year study concludes that Section 512 of the Digital Millennium Copyright Act no longer strikes a proper balance between rights owners and rights users. REVISITING PROPOSED SOLUTION TO STATE IMMUNITY FROM IP SUITS via Intellectual Property Law360 by Sarah Fink on 5/21/2020 URL: https://www.law360.com/ip/articles/1272444 Under most circumstances, a copyright holder may sue an infringer for damages in federal court. But the U.S. Supreme Court recently held in Allen v. Cooper that when the infringer is a state, the copyright holder may not sue for damages due to the state's sovereign immunity under the Eleventh Amendment. 2ND CIRC. ASKED TO RETHINK SEINFELD RULING AFTER EVERLY BROS. via Intellectual Property Law360 by Lauren Berg on 5/21/2020 URL: https://www.law360.com/ip/articles/1276160 A onetime Jerry Seinfeld collaborator asked the Second Circuit on Thursday to rethink its decision tossing his time-barred allegations that Seinfeld stole the concept for "Comedians in Cars Getting Coffee," pointing to a recent Sixth Circuit decision examining the time limits in a copyright row over an Everly Brothers song. COPYRIGHT OFFICE'S DMCA REPORT: 4 PARTS YOU GOTTA READ via Intellectual Property Law360 by Bill Donahue on 5/21/2020 URL: https://www.law360.com/ip/articles/1276114 If you haven't had a chance to read the U.S. Copyright Office's report on the Digital Millennium Copyright Act — it's 200 pages, after all — here are four key sections you need to check out. 'GLEE' SCHOOL COPYRIGHT FIGHT HEADED TO SUPREME COURT via Intellectual Property Law360 by Bill Donahue on 5/22/2020 URL: https://www.law360.com/ip/articles/1276405 A music company that sued the high school known for inspiring the television series "Glee" is planning a trip to the U.S. Supreme Court, where it will challenge a Ninth Circuit ruling that blasted the company for its "aggressive litigation strategy."

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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DOES MASNICK NOT KNOW THAT THE PUBLIC IS NOT AN ONLINE SERVICE PROVIDER? via The Illusion of More by David Newhoff on 5/23/2020 URL: http://illusionofmore.com/does-masnick-not-know-that-the-public-is-not-an-online-service-provider/ Signaling one of the talking points I expect we’ll be seeing quite often as the DMCA fight brews—and it is brewing—Mike Masnick and others have declared that the Copyright Office, in its newly released report on DMCA Section 512, neglected to include the public among the stakeholders with a vested interest in the 1998 addition to the copyright law. THESE MONSTERS ARE LEGALLY OWNED BY DUNGEONS & DRAGONS (SO YOU CAN'T STEAL THEM) via Gamer by Scott Baird on 5/24/2020 URL: https://www.thegamer.com/dungeons-dragons-monsters-copyright/ Some popular monsters are considered to be copyrighted parts of Dungeons & Dragons and cannot be used in other games without permission. WHY WOULD ANYONE INFRINGE THE “WORLD’S WORST MOVIE”? (ACTUALLY THERE WAS NO INFRINGEMENT—ONTARIO COURT RULES IT WAS A FAIR DEALING) via Hugh Stephens Blog on 5/25/2020 URL: http://hughstephensblog.net/2020/05/25/why-would-anyone-infringe-the-worlds-worst-movie-actually-there-was-no-infringement-ontario-court-rules-it-was-a-fair-dealing/ The only cult movie I have ever watched is Rocky Horror Picture Show, and that was years ago. SCALIA LAW STUDENTS AND CPIP SCHOLARS MAKE AN IMPACT IN COPYRIGHT OFFICE SECTION 512 STUDY via Center for the Protection of Intellectual Property by CPIP on 5/26/2020 URL: https://cpip.gmu.edu/2020/05/26/scalia-law-students-and-cpip-scholars-make-an-impact-in-copyright-office-section-512-study/ The U.S. Copyright Office released its long-awaited report on Section 512 of Title 17 late last week.

Joshua L. Simmons joshua.simmons@kirkland.com

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THE COPYRIGHT WAR IN WOLF-KINK EROTICA via Plagiarism Today by Jonathan Bailey on 5/26/2020 URL: https://www.plagiarismtoday.com/2020/05/26/the-copyright-war-in-wolf-kink-erotica/ A recent article by Alexandra Alter at the New York Times drew attention to a copyright battle that has divided the wolf-kink erotica scene. SECOND CIRCUIT JOINS NINTH CIRCUIT APPROACH TO ASSESSING INDIVIDUAL COPYRIGHT CLAIMS IN GROUP REGISTRATIONS via IPWatchdog.com | Patents & Patent Law by Steve Brachmann on 5/26/2020 URL: https://www.ipwatchdog.com/2020/05/26/second-circuit-joins-ninth-circuit-approach-assessing-individual-copyright-claims-group-registrations/id=121906/ On May 12, the U.S. Court of Appeals for the Second Circuit issued a decision in Sohm v. Scholastic in which the appellate court reversed in part a decision handed out by the U.S. District Court for the Southern District of New York (SDNY) granting partial summary judgment to Sohm for Scholastic’s infringement of copyright to six photographs and dismissing other claims by Sohm. Among the issues decided by the Second Circuit on appeal was an issue of first impression on group registrations. The... GOOGLE'S FAIR USE DEFENSE AT HIGH COURT IS DISINGENUOUS via Intellectual Property Law360 by James Skyles on 5/26/2020 URL: https://www.law360.com/ip/articles/1276410 Due to the COVID-19 pandemic, the U.S. Supreme Court has postponed oral arguments in Google Inc. v. Oracle Corp. AI IS GETTING MORE CREATIVE. BUT WHO SHOULD OWN THE ART IT PRODUCES? via Singularity Hub by Thomas Freund on 5/26/2020 URL: https://singularityhub.com/2020/05/26/ai-is-getting-more-creative-but-who-should-own-the-art-it-produces/ Creativity is a trait that makes humans unique from other species.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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CASIO USED A COPYRIGHT CLAIM TO WIPE THIS HACKER'S CALCULATOR MOD OFF THE INTERNET via Vice by Samantha Cole on 5/26/2020 URL: https://www.vice.com/en_us/article/jgx88y/casio-used-a-copyright-claim-to-wipe-this-calculator-mod-off-the-internet Electronics manufacturer Casio hit a hacker-hobbyist who converted an old scientific calculator to a Wifi-enabled smart device with a DMCA takedown notice, claiming that he copied the company’s code to do so. JUSTICES WON'T REVIEW OIL SURVEY DATA INFRINGEMENT ROW via Intellectual Property Law360 by Morgan Conley on 5/26/2020 URL: https://www.law360.com/ip/articles/1276674 The U.S. Supreme Court on Tuesday declined to consider a dispute over the alleged infringement of copyrighted seismic data brought by a Canadian oil exploration company against its U.S. competitor. YOUTUBE REMOVED MICHAEL MOORE'S CONTROVERSIAL FILM DUE TO COPYRIGHT INFRINGEMENT CLAIM via Forbes by Rebecca Bellan on 5/27/2020 URL: https://www.forbes.com/sites/rebeccabellan/2020/05/26/youtube-removed-michael-moores-controversial-film-due-to-copyright-infringement-claim/ On Monday, YouTube took down Planet of the Humans, a documentary produced by Michael Moore and directed by Jeff Gibbs, due to a copyright infringement claim. APPLE FIGHTS RIVAL'S EARLY WIN BID IN IOS IP ROW via Intellectual Property Law360 by Jasmin Boyce on 5/27/2020 URL: https://www.law360.com/ip/articles/1277272 Apple Inc. asked a Florida federal court Tuesday not to let software developer Corellium escape its copyright claims over the sale of cloned iOS software, saying the development company can't justify its replication of "everything" that makes up Apple's operating system with a fair use defense.

Joshua L. Simmons joshua.simmons@kirkland.com

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'POTTERHEAD' GROUP WANTS TO END WARNER BROS. TM LAWSUIT via Intellectual Property Law360 by Bill Donahue on 5/27/2020 URL: https://www.law360.com/ip/articles/1277411 A fitness-oriented charity group is asking a California federal judge to toss out a lawsuit that claims it violated Warner Bros.' "Harry Potter" trademarks by offering a "Potterhead Running Club." RIMINI BLASTS ORACLE'S 'ASTOUNDING' BID FOR SANCTIONS via Intellectual Property Law360 by Tiffany Hu on 5/27/2020 URL: https://www.law360.com/ip/articles/1277325 Rimini Street Inc. is firing back at Oracle's "astounding display of incivility" in a software copyright dispute, telling a Nevada federal judge the tech giant is the one going against court orders that it requested itself. NETFLIX, AMAZON, APPLE BEAT IP SUIT OVER KIDS' SONG IN DOC via Intellectual Property Law360 by Craig Clough on 5/27/2020 URL: https://www.law360.com/ip/articles/1277535 A New York federal judge held Wednesday that the inclusion of a children's song in a documentary about burlesque performers was fair use while tossing a suit brought by the songwriters against Amazon, Netflix and Apple. SECTION 512 REPORT SUGGESTS FINE-TUNING KNOWLEDGE AND ELIGIBILITY REQUIREMENTS FOR DMCA SAFE HARBORS via IPWatchdog.com | Patents & Patent Law by Steve Brachmann on 5/28/2020 URL: https://www.ipwatchdog.com/2020/05/28/section-512-report-suggests-fine-tuning-knowledge-eligibility-requirements-dmca-safe-harbors/id=121931/ On May 21, the U.S. Copyright Office published a report on Section 512 of Title 17 of the U.S. Code, which governs limitations on copyright liability to materials published online. Safe harbor provisions in Section 512, which were enacted as part of the Digital Millennium Copyright Act (DMCA), have allowed online service providers to operate tech platforms without facing liability for infringing content posted on those platforms. While the Copyright Office acknowledges that the careful balance...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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TYSON FURY RAGES AT 'MUSIC POLICE' INSTAGRAM FOR DELETING HIS WORKOUTS FOR BREACHING COPYRIGHT 'AND ... via Sun by Jack Figg on 5/28/2020 URL: https://www.thesun.co.uk/sport/boxing/11728537/tyson-fury-music-police-instagram-workouts/ TYSON FURY was left raging at the "music police" after his Instagram Live workout was ended for breaching copyright. JUDGE FINDS UNLICENSED SONG IN BURLESQUE DOCUMENTARY TO BE "FAIR USE" OF COPYRIGHT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 5/28/2020 URL: https://www.hollywoodreporter.com/thr-esq/judge-finds-unlicensed-song-burlesque-documentary-be-fair-use-copyright-1296189 Netflix is able to prevail over the musicians behind the children's song, "Fish Sticks n’ Tater Tots." UNDERSTANDING THE U.S. COPYRIGHT OFFICE DMCA REPORT via Plagiarism Today by Jonathan Bailey on 5/28/2020 URL: https://www.plagiarismtoday.com/2020/05/28/parsing-the-u-s-copyright-office-dmca-report/ Last week, the United States Copyright Office (USCO), released a much-anticipated report about the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions. LIEBOWITZ SANCTIONED SO OFTEN JUDGE SAYS HE'S LOST TRACK via Intellectual Property Law360 by Bill Donahue on 5/28/2020 URL: https://www.law360.com/ip/articles/1277662 A Colorado federal judge who declared Richard Liebowitz a "clear and present danger" to the justice system said Wednesday that the prolific copyright lawyer is being sanctioned so frequently that "it is hard to keep up."

Joshua L. Simmons joshua.simmons@kirkland.com

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M. NIGHT SHYAMALAN WINS DISMISSAL OF 'SERVANT' COPYRIGHT SUIT via Variety by Gene Maddaus on 5/28/2020 URL: https://variety.com/2020/biz/news/m-night-shyamalan-servant-copyright-suit-dismissed-1234619229/ A federal judge on Thursday threw out a copyright lawsuit against M. Night Shyamalan and Apple, which had accused him of stealing elements from a 2013 independent film for his Apple TV Plus series “Servant.” APPLE, M. NIGHT SHYAMALAN BEAT CLAIMS 'SERVANT' WAS A COPY via Intellectual Property Law360 by Craig Clough on 5/28/2020 URL: https://www.law360.com/ip/articles/1277882 A California federal judge on Thursday dismissed a copyright lawsuit filed by a filmmaker over director M. Night Shyamalan's Apple TV+ series "Servant," saying the alleged similarities between the works "pale in comparison to the differences in the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events." ATTY SAYS SUIT OVER VIDANGEL'S $62M TRIAL LOSS IS BARRED via Intellectual Property Law360 by Cara Salvatore on 5/28/2020 URL: https://www.law360.com/ip/articles/1277490 The bankruptcy trustee for VidAngel can't sue a former company lawyer over work he did for the streaming service years before it lost a $62 million copyright case to major Hollywood studios, the attorney told a Utah federal court. WHAT HAPPENS WHEN THE BIGGEST TROLL ON TWITTER IS THE PRESIDENT? via The Illusion of More by David Newhoff on 5/29/2020 URL: http://illusionofmore.com/what-happens-when-the-biggest-troll-on-twitter-is-the-president/ This week, as Twitter CEO Jack Dorsey emerges a champion of truth in a world of truthiness, we must not lose sight of the fact that the folly of conflating the speech right with social media platforms has played a major role in leading us to this absurd moment of conflict between Trump and Twitter.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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FORTNITE CREATOR BEATS 'RUNNING MAN' DANCE IP SUIT via Intellectual Property Law360 by Bill Donahue on 5/29/2020 URL: https://www.law360.com/ip/articles/1278113 A federal judge on Friday tossed out a lawsuit claiming the creators of the video game Fortnite stole a "running man" dance from two former college basketball players, saying the case was a "square peg" being jammed into "round holes." COPYRIGHT OWNERS HOPE NEW REPORT WILL BRING ‘TECH TO THE TABLE’ via Managing Intellectual Property | IP Strategy by Rani Mehta on 5/29/2020 URL: https://www.managingip.com/article/b1lv3k4xpc3hv9/copyright-owners-hope-new-report-will-bring-tech-to-the-table Tumblr, Authors Guild and Recording Industry Association counsel have mixed reactions to the US Copyright Office’s view that the DMCA is unbalanced 9TH CIRC. SAYS SUIT AGAINST H&M HINGES ON COPYRIGHT VALIDITY via Intellectual Property Law360 by Mike LaSusa on 5/29/2020 URL: https://www.law360.com/ip/articles/1278250 The Ninth Circuit on Friday upended fashion company Unicolors Inc.'s win in a case accusing H&M of stealing a copyright-protected design, saying the trial court needs to find out if Unicolor's copyright registration holds up despite containing inaccuracies. NY COURT WON'T RECONSIDER SANCTIONS FOR 'NOTORIOUS' ATTY via Intellectual Property Law360 by Craig Clough on 5/29/2020 URL: https://www.law360.com/ip/articles/1278307 A New York federal judge on Friday denied a bid to reconsider an award of attorney fees and sanctions against Richard Liebowitz and his law firm for not verifying that a photograph was registered before filing a copyright suit, saying the request improperly tried to relitigate issues and advance new arguments. FAIR USE OF FLICKERS via Classical Scene by Vance R. Koven on 5/30/2020 URL: https://www.classical-scene.com/2020/05/30/fair-flickers/ Even as our communities slowly unlock, and however tentatively the tumblers are turning, we’ve already become accustomed to the replacement of our cherished communal musical events with figurative and literal flickers reaching us via our computers, smart TVs, and mobile devices.

Joshua L. Simmons joshua.simmons@kirkland.com

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June 2020

NINTH CIRCUIT WEIGHS IN BEHIND H&M ON FABRIC COPYRIGHT APPEAL via World IP Review by Rory O'Neill on 6/1/2020 URL: https://www.worldipreview.com/news/ninth-circuit-weighs-in-behind-h-m-on-fabric-copyright-appeal-19722 A US federal appeals court has overturned a California fabric maker’s $780,000 copyright infringement win over Swedish fashion retailer H&M. THE AM-FM BILL AND THE STATUS OF TERRESTRIAL MUSIC BROADCAST PERFORMANCE RIGHTS via Center for the Protection of Intellectual Property by David Ward on 6/1/2020 URL: https://cpip.gmu.edu/2020/06/01/the-am-fm-bill-and-the-status-of-terrestrial-music-broadcast-performance-rights/ This past Wednesday, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a virtual online briefing on the current state of music rights. IN BRIEF: UNICOLORS' COPYRIGHT WIN AGAINST H&M UNRAVELS IN 9TH CIRCUIT via Reuters by Barbara Grzincic on 6/1/2020 URL: https://www.reuters.com/article/copyright-hm/in-brief-unicolors-copyright-win-against-hm-unravels-in-9th-circuit-idUSL1N2DE0PV The 9th U.S. Circuit Court of Appeals on Friday stripped textile-design firm Unicolors Inc of its copyright infringement verdict against fast-fashion retailer H&M Hennes & Mauritz, saying the trial judge erred in evaluating whether Unicolors’ copyright registration was valid. PUBLISHERS SUE INTERNET ARCHIVE OVER FREE E-BOOKS via NYT > Media & Advertising by Elizabeth A. Harris on 6/1/2020 URL: https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html Penguin Random House, HarperCollins, Hachette and Wiley accused the nonprofit of piracy for making over 1 million books free online during the coronavirus outbreak.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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PUBLISHERS CHARGE THE INTERNET ARCHIVE WITH COPYRIGHT INFRINGEMENT via Publishers Weekly by Jim Milliot on 6/1/2020 URL: https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/83472-publishers-charge-the-internet-archive-with-copyright-infringement.html Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed a lawsuit today in the U.S. District Court for the Southern District of New York charging the Internet Archive with copyright infringement. SPACEX LAUNCH FOOTAGE WAS TAKEN DOWN THANKS TO BOGUS COPYRIGHT CLAIM via Ars Technica by Kate Cox on 6/1/2020 URL: https://arstechnica.com/?p=1680275 This weekend's launch, in which SpaceX's Falcon 9 rocket successfully propelled the Crew Dragon spacecraft and the two astronauts on board from Florida safely into space, was amazing, awe-inspiring, and frankly, just plain cool to watch. RETHINKING THE BALANCE OF THE DMCA via Plagiarism Today by Jonathan Bailey on 6/1/2020 URL: https://www.plagiarismtoday.com/2020/06/01/rethinking-the-balance-of-the-dmca/ Last week, the U.S. Copyright Office (USCO) released its long-awaited report on Section 512 of the Digital Millennium Copyright Act (DMCA). SCT: COPYRIGHTING LABELS AND SCOPE OF 271(G) via Patent Law Blog (Patently-O) by Dennis Crouch on 6/1/2020 URL: https://patentlyo.com/patent/2020/06/copyrighting-labels-scope.html Syngenta sued Willowood for both patent and copyright infringement associated with its generic fungicide compound. MICROSOFT SAYS SOFTWARE SELLERS STEALING IP WITH ILLEGAL KEYS via Intellectual Property Law360 by Bonnie Eslinger on 6/1/2020 URL: https://www.law360.com/ip/articles/1277273 Microsoft Corp. slapped two British computer software companies with copyright and trademark infringement claims, saying they are peddling unauthorized product license keys for its popular software products.

Joshua L. Simmons joshua.simmons@kirkland.com

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PUBLISHERS DECRY INTERNET ARCHIVE'S 'INDUSTRIAL SCALE' PIRACY via Intellectual Property Law360 by Dani Kass on 6/1/2020 URL: https://www.law360.com/ip/articles/1278656 Four major publishing houses on Monday accused the Internet Archive of engaging in "willful digital piracy on an industrial scale" with its Open Library, where users can borrow e-books made by scanning physical books. WIPO REVISES AND EXPANDS AI POLICY ISSUES via IPWatchdog.com | Patents & Patent Law by James Nurton on 6/1/2020 URL: https://www.ipwatchdog.com/2020/06/01/wipo-revises-expands-ai-policy-issues/id=122071/ The World Intellectual Property Organization (WIPO) has published a Revised Issue Paper on Artificial Intelligence and IP Policy. SOME PEOPLE WILL SAY ANYTHING TO HURT CREATORS via The Illusion of More by David Newhoff on 6/1/2020 URL: http://illusionofmore.com/some-people-will-say-anything-to-hurt-creators/ You know how it’s offensive when a certain president uses a trope like “Do Nothing Democrats” to sling mud in lieu of articulating some kind of coherent, let alone moral, policy on any issue? LAWSUIT OVER ONLINE BOOK LENDING COULD BANKRUPT INTERNET ARCHIVE via Ars Technica by Timothy B. Lee on 6/1/2020 URL: https://arstechnica.com/?p=1680461 Four of the nation's leading book publishers have sued the Internet Archive, the online library best known for maintaining the Internet Wayback Machine. COPYRIGHT EXTENDS TO THEME, PLOT AND STORYLINE OF LITERARY WORKS: BOMBAY HIGH COURT via Hindustan Times by Kanchan Chaudhari on 6/2/2020 URL: https://www.hindustantimes.com/india-news/copyright-extends-to-theme-plot-and-storyline-of-literary-works-bombay-high-court/story-nacCJnUag2BLmg68XMf4IN.html Bombay High Court has held that in the case of literary artworks, copyright extends not only to the expression of the core idea but also to its theme, plot and the storyline.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COPYRIGHT OR COPYWRONG? via Business World by Josemaria Carlo F. Magsino on 6/2/2020 URL: https://www.bworldonline.com/copyright-or-copywrong/ Within just two months, the way we lived our lives has immensely changed. Essentially everything is now done within the confines of one’s home, be it work, exercise, or hobbies. COPYRIGHT TAKES CENTER STAGE AT AAP ANNUAL MEETING via Publishers Weekly by Jim Milliot on 6/2/2020 URL: https://www.publishersweekly.com/pw/by-topic/industry-news/trade-shows-events/article/83475-copyright-takes-center-stage-at-aap-annual-meeting.html The Association of American Publishers marked its 50th anniversary with a 90-minute virtual annual meeting on June 1 that touched on the changes that have taken place in recent years as the organization has scaled back some of its operations and refocused its priorities. 2ND CIRC. COPYRIGHT RULING OFFERS RELIEF FROM LATE-FILED SUITS via Intellectual Property Law360 by Andrea Calvaruso & Taraneh Marciano on 6/2/2020 URL: https://www.law360.com/ip/articles/1278910 The potential for prevailing party attorney fees afforded by the U.S. Copyright Act[1] often provides leverage to plaintiffs in settlement discussions. Given the high costs of litigation, a party accused of copyright infringement may agree to pay a monetary settlement rather than incur the costs necessary to defend a lawsuit. LOG CABIN' SCULPTURE REMAKE DIDN'T INFRINGE ARTIST'S COPYRIGHT via Bloomberg Law by Blake Brittain on 6/2/2020 URL: https://news.bloomberglaw.com/ip-law/log-cabin-sculpture-remake-didnt-infringe-artists-copyright A German art collector’s refurbishment and attempted resale of artist Cady Noland’s “log cabin” sculpture in Germany didn’t violate U.S. copyright law, a Manhattan federal court said.

Joshua L. Simmons joshua.simmons@kirkland.com

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WHY INTELLECTUAL PROPERTY PROTECTION MATTERS IN THE TIME OF CORONAVIRUS via Global Innovation Policy Center by Thomas J. Donohue on 6/2/2020 URL: https://www.theglobalipcenter.com/why-intellectual-property-protection-matters-in-the-time-of-coronavirus/ The coronavirus is placing a huge strain on hospitals, doctors, and nurses. While some states are beginning to see a plateau or decline in cases, others have yet to be hit with the full force of this terrible pandemic. Meanwhile, its economic impact is proving to be relentless and wide ranging. JURY'S COPYRIGHT AWARD AGAINST BUILDER DEEMED EXCESSIVE via Bloomberg Law by Kyle Jahner on 6/2/2020 URL: https://news.bloomberglaw.com/ip-law/jurys-copyright-award-against-builder-deemed-excessive A jury’s verdict ordering a construction company to pay $296,000 for home design copyright infringement was excessive given the home sale price, the Sixth Circuit ruled in a split opinion. ROCK STARS, TECH GIANTS ARGUE OVER DMCA AT SENATE HEARING via Intellectual Property Law360 by Bill Donahue on 6/2/2020 URL: https://www.law360.com/ip/articles/1279295 Rock legends, tech industry lobbyists and other copyright experts testified Tuesday before a Senate committee about the Digital Millennium Copyright Act's system of notice-and-takedown, offering sharply divergent views as lawmakers mull potential changes. THIRD SENATE IP SUBCOMMITTEE HEARING ON DMCA: THE ‘GRAND BARGAIN’ IS NO LONGER WORKING via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 6/2/2020 URL: https://www.ipwatchdog.com/2020/06/02/senate-ip-subcommittee-hearing-dmca-reform-grand-bargain-no-longer-working/id=122124/ In the first part of a two-panel hearing today on whether the Digital Millennium Copyright Act (DMCA) is working for the 21st Century, Senate Judiciary Committee, Subcommittee on Intellectual Property Ranking Member Senator Chris Coons (D-DE) said he was struck by the conclusion of a recent Copyright Office report that found that Congress’ original intended balance for section 512 “has been tilted askew.” Subcommittee Chairman, Senator Thom Tillis (R-NC), added that fixing the problems may...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COX CAN'T TOPPLE $1B PIRACY VERDICT, BUT WINS SOME TRIMS via Intellectual Property Law360 by Mike LaSusa on 6/2/2020 URL: https://www.law360.com/ip/articles/1279371 A Virginia federal judge on Tuesday largely upheld a $1 billion internet piracy verdict won by major record labels against Cox Communications, but said he would need to reassess how many songs had been involved in the lawsuit in order to recalculate the award. DMCA REVIEW III – SJC SOUNDS SKEPTICAL THAT EVERYTHING IS FINE via The Illusion of More by David Newhoff on 6/3/2020 URL: http://illusionofmore.com/dmca-review-iii-sjc-sounds-skeptical-that-everything-is-fine/ Yesterday afternoon, the Senate Judiciary Committee (part of it anyway) held the third hearing in its ongoing review of the Digital Millennium Copyright Act (1998). BLUNTING COPYRIGHT ENFORCERS' DRACONIAN SETTLEMENT DEMANDS via Intellectual Property Law360 by Jordan Feirman on 6/3/2020 URL: https://www.law360.com/ip/articles/1279336 Imagine the following: A client calls you because she received a letter on law firm letterhead accusing her company of copyright infringement for posting an image online. PUBLISHERS SUE INTERNET ARCHIVE OVER NATIONAL EMERGENCY LIBRARY via Plagiarism Today by Jonathan Bailey on 6/3/2020 URL: https://www.plagiarismtoday.com/2020/06/03/publishers-sue-internet-archive-over-national-emergency-library/ On March 24, the Internet Archive (IA) announced the launch of the National Emergency Library (NEL). THE WEEKND SETTLES COPYRIGHT FIGHT, AIMS TO END ANOTHER via Intellectual Property Law360 by Bill Donahue on 6/3/2020 URL: https://www.law360.com/ip/articles/1279259 The Weeknd is having a busy week of copyright litigation, first settling a lawsuit that accused him of illegally sampling a song by the indie band Yeasayer, and then moving to escape another case that claimed he ripped off an obscure 2005 song.

Joshua L. Simmons joshua.simmons@kirkland.com

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STARTUP AND USER REPS SQUARE OFF WITH INDEPENDENT CREATORS IN PANEL TWO OF DMCA HEARING via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 6/4/2020 URL: https://www.ipwatchdog.com/2020/06/04/startup-user-reps-square-off-independent-creators-panel-two-dmca-hearing/id=122189/ Earlier this week, the Senate IP Subcommittee met to hear from two panels of witnesses about whether and how to reform the Digital Millennium Copyright Act for the 21st Century. In the first panel, representatives for big tech and academia were juxtaposed with successful artist Don Henley of the Eagles and prolific author and Authors Guild President Douglas Preston—with tech arguing that changes to the DMCA to strengthen copyright protections would cripple the internet as we know it, and Henley... INSTAGRAM JUST THREW USERS OF ITS EMBEDDING API UNDER THE BUS via Ars Technica by Timothy B. Lee on 6/4/2020 URL: https://arstechnica.com/?p=1681121 Instagram does not provide users of its embedding API a copyright license to display embedded images on other websites, the company said in a Thursday email to Ars Technica. 2ND CIRC. GRAPPLES WITH GRAMMAR IN FABRIC IP COVERAGE FIGHT via Intellectual Property Law360 by Jeff Sistrunk on 6/4/2020 URL: https://www.law360.com/ip/articles/1279930 A Second Circuit panel parsed the grammar and punctuation of a provision in a Hartford Fire Insurance Co. policy on Thursday as it weighed fabric supplier Spandex House Inc.'s argument that the insurer should be required to fund its defense of a copyright infringement lawsuit. SEAN O'CONNOR'S HISTORICAL TAKE ON DIFFERENT TYPES OF INTELLECTUAL PROPERTY via Written Description by Camilla Hrdy on 6/4/2020 URL: https://writtendescription.blogspot.com/2020/06/sean-oconnors-historical-take-on.html I truly enjoyed Sean O'Connor's new paper, forthcoming in the George Mason Law Review, called "Distinguishing Different Kinds of Property in Patents and Copyrights."

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE COPYRIGHT LAW OF EMBEDDING JUST GOT A LOT MORE INTERESTING via The Laboratorium by James Grimmelman on 6/4/2020 URL: https://2d.laboratorium.net/post/620050481035804672 Tim Lee has a remarkable story at Ars Technica about a remarkable copyright case, McGucken v. Newsweek. TWITTER REMOVES TRUMP CAMPAIGN FLOYD TRIBUTE ON COPYRIGHT ISSUE via Bloomberg by Vlad Savov & Melissa Cheok on 6/4/2020 URL: https://www.bloomberg.com/news/articles/2020-06-05/twitter-removes-trump-campaign-floyd-tribute-on-copyright-issue Twitter has removed a Trump campaign video tribute to George Floyd due to a copyright issue, according to message displayed on the original tweet. TWITTER TAKES DOWN TRUMP CAMPAIGN VIDEOS OVER COPYRIGHT COMPLAINT via Politico by Cristiano Lima on 6/5/2020 URL: https://www.politico.com/news/2020/06/04/twitter-trump-copyright-302679 Twitter left up the posts but removed the videos and placed an overlay on them that reads, “This media has been disabled in response to a report by the copyright owner.” LITIGATORS OF THE WEEK: KIRKLAND TRIO DANCES OFF WITH A WIN IN VIDEO GAME COPYRIGHT SUITS via AmLaw Litigation Daily by Jenna Greene on 6/5/2020 URL: https://www.law.com/litigationdaily/2020/06/05/litigators-of-the-week-kirkland-trio-dances-off-with-a-win-in-video-game-copyright-suits/ Our Litigators of the Week are Kirkland & Ellis partners Dale Cendali, Joshua Simmons and Shanti Sadtler Conway, who notched another win in cutting-edge litigation that questions the protectability of dance steps, what constitutes choreography and the relationship between copyright and trademark law.

Joshua L. Simmons joshua.simmons@kirkland.com

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U.S. COPYRIGHT OFFICE PUBLISHES FEDERAL REGISTER NOTICE ANNOUNCING STATE SOVEREIGN IMMUNITY STUDY via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 6/5/2020 URL: https://www.ipwatchdog.com/2020/06/05/us-copyright-office-publishes-federal-register-notice-announcing-state-sovereign-immunity-study/id=122200/ On June 3, the U.S. Copyright Office published a Federal Register notice regarding a study it is initiating to “evaluate the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law, as well as the extent to which such infringements appear to be based on intentional or reckless conduct.” The Office requested public input in the form of written comments on or before August 3, 2020 to assist the Office in preparing a report to... COPYRIGHT OFFICE SHOULD CALL FOR FURTHER DMCA REBALANCING via Intellectual Property Law360 by Doug Mirell & Josh Geller on 6/5/2020 URL: https://www.law360.com/ip/articles/1280194 On May 21, while much of the country was focused on fallout from the COVID-19 pandemic, the U.S. Copyright Office finally issued a report on the current state of Section 512 of the Digital Millennium Copyright Act. CHALLENGE TO STUFFED TOY COPYRIGHTS 'JUST FLUFF,' JUDGE SAYS via Intellectual Property Law360 by Lauren Berg on 6/5/2020 URL: https://www.law360.com/ip/articles/1280151 A retail company's challenge to the validity of stuffed toy copyrights asserted by Beverly Hills Teddy Bear Co. is "all just fluff," a Manhattan federal judge said Thursday, finding that there isn't enough evidence showing the registrations contain inaccuracies. DMCA HEARINGS III (PART 2): INDEPENDENT CREATORS MUST REMAIN IN THE FOREGROUND via The Illusion of More by David Newhoff on 6/8/2020 URL: http://illusionofmore.com/dmca-hearings-iii-part-2-independent-creators-must-remain-in-the-foreground/ How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead [...]

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WHAT THE AGE OF THE “HACK” TEACHES US ABOUT COPYRIGHT TERMS via Copyright Alliance by Jay Cleofe on 6/8/2020 URL: https://copyrightalliance.org/ca_post/what-the-age-of-the-hack-teaches-us-about-copyright-terms/ Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. TWITCH STREAMERS HIT WITH TIDAL WAVE OF DMCA NOTICES via Plagiarism Today by Jonathan Bailey on 6/8/2020 URL: https://www.plagiarismtoday.com/2020/06/08/twitch-streamers-hit-with-tidal-wave-of-dmca-notices/ Over the past few days, streamers at Twitch.tv have been hit with an influx of Digital Millennium Copyright Act (DMCA) notices for older videos that were recorded between 2017 and 2019. 2ND CIRC. SAYS WALES MUST FACE DYLAN THOMAS COPYRIGHT SUIT via Intellectual Property Law360 by Bill Donahue on 6/8/2020 URL: https://www.law360.com/ip/articles/1280816 The Second Circuit ruled Monday that the government of Wales can't hide behind sovereign immunity to avoid a U.S. lawsuit over tourism ads that allegedly used copyrighted photos of Welsh poet Dylan Thomas. ORACLE URGES 9TH CIRC. TO REVIVE SOFTWARE IP SUIT AGAINST HP via Intellectual Property Law360 by Craig Clough on 6/8/2020 URL: https://www.law360.com/ip/articles/1281010 Oracle Corp. urged a Ninth Circuit panel at a hearing Monday to revive its software copyright lawsuit against Hewlett Packard Enterprise Co., saying the company presented clear evidence of infringement and that the case should have been sent to a jury.

Joshua L. Simmons joshua.simmons@kirkland.com

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2ND CIRCUIT CLIPS SOVEREIGN IMMUNITY IN COPYRIGHT LAWSUIT AGAINST GOVERNMENT OF WALES via New York Law Journal by Tom McParland on 6/8/2020 URL: https://www.law.com/newyorklawjournal/2020/06/08/2nd-circuit-clips-sovereign-immunity-in-copyright-lawsuit-against-government-of-wales/ The U.S. Court of Appeals for the Second Circuit on Monday allowed a copyright infringement case against the government of Wales to proceed toward trial, finding that its use of rare photographs to promote domestic tourism was not protected by sovereign immunity. HOW DOES COPYRIGHT LAW INFLUENCE TRADEMARK REGISTRATION? via Managing Intellectual Property | Copyright by Kathleen Henning & Kieran O'Connell on 6/9/2020 URL: https://www.managingip.com/article/b1lzhw0kjyc3k2/how-does-copyright-law-influence-trademark-registration What happens when a third party files a trademark application for your unregistered trademark? INSTAGRAM AND THE DEATH OF EMBEDDING via Plagiarism Today by Jonathan Bailey on 6/9/2020 URL: https://www.plagiarismtoday.com/2020/06/09/instagram-and-the-death-of-embedding/ Back in April, a New York court ruled against photographer Stephanie Sinclair in her lawsuit against Mashable. 2ND CIRC. WON'T SAY IF SKIN IS COPYRIGHT'S 'TANGIBLE MEDIUM' via Intellectual Property Law360 by Bill Donahue on 6/9/2020 URL: https://www.law360.com/ip/articles/1280813 The Second Circuit is refusing to wade into a "lively academic debate" over a novel question: whether human skin can be the kind of "tangible medium of expression" required for copyright protection. HOW 'BLURRED LINES' COPYRIGHT RULING IS AFFECTING MUSIC BIZ via Intellectual Property Law360 by Christopher Dyess on 6/9/2020 URL: https://www.law360.com/ip/articles/1279787 I have been a musician for over 25 years — longer than I have been a litigator — and one thing I knew even as a teenage musician was that artistic influence is the engine that gives life to artistic expression.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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AFTER SETBACK, NEW 'LET'S GET IT ON' SUIT FILED AGAINST SHEERAN via Intellectual Property Law360 by Bill Donahue on 6/9/2020 URL: https://www.law360.com/ip/articles/1280842 A company that's already suing Ed Sheeran for infringing Marvin Gaye's "Let's Get It On" has filed a new, separate lawsuit in an unorthodox effort to avoid a recent adverse ruling. WHEN IS A “MANDATORY COPYRIGHT TARIFF” MANDATORY ONLY IF YOU OPT-IN? WHEN YOU’RE IN CANADA, THAT’S WHEN. via Hugh Stephens Blog on 6/10/2020 URL: http://hughstephensblog.net/2020/06/10/when-is-a-mandatory-copyright-tariff-mandatory-only-if-you-opt-in-when-youre-in-canada-thats-when/ It’s a long and complicated story, and it may not be over. THE DIFFERENCE BETWEEN ‘COPYRIGHT FREE’ AND ‘ROYALTY FREE’ via Plagiarism Today by Jonathan Bailey on 6/10/2020 URL: https://www.plagiarismtoday.com/2020/06/10/the-difference-between-copyright-free-and-royalty-free/ If you’re looking for images, music, or film clips to use with your content, you’ve likely run across two similar but very different terms: “Copyright Free” and “Royalty Free.” REBALANCING DMCA: GOOD BUMPER STICKER, BAD PUBLIC POLICY via Intellectual Property Law360 by Seth Greenstein on 6/10/2020 URL: https://www.law360.com/ip/articles/1281460 In recent weeks, a report from the U.S. Copyright Office and congressional testimony from musicians, composers, writers and photographers have asserted that Digital Millennium Copyright Act provisions designed to insulate online companies from infringing acts of online users have "tilted askew." GERMAN PUBLISHERS DROP SUIT AGAINST GOOGLE, HANDING HENGELER MUELLER A WIN via Law.com International by Eva von Schaper on 6/10/2020 URL: https://www.law.com/international-edition/2020/06/10/german-publishers-drop-suit-against-google-handing-hengeler-mueller-a-win/ A consortium of German publishers has dropped its claim against Google in Berlin Regional Court asserting that the tech giant was infringing copyrights by displaying news snippets in its search engine results.

Joshua L. Simmons joshua.simmons@kirkland.com

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INTERNET ARCHIVE ENDS “EMERGENCY LIBRARY” EARLY TO APPEASE PUBLISHERS via Ars Technica by Timothy B. Lee on 6/11/2020 URL: https://arstechnica.com/?p=1683040 The Internet Archive has ended its National Emergency Library programs two weeks earlier than originally scheduled, the organization announced in a Wednesday blog post. ECJ SAYS COPYRIGHT MAY COVER TECHNICAL DESIGNS IN BIKE ROW via Intellectual Property Law360 by Christopher Crosby on 6/11/2020 URL: https://www.law360.com/ip/articles/1281946 Europe's top court ruled Thursday amid a simmering dispute over folding bicycles between a British manufacturer and a rival that a design can be copyrighted even if it encompasses features that are technical and necessary for it to function. INTERNET ARCHIVE WILL END ITS PROGRAM FOR FREE E-BOOKS via NYT > Media & Advertising by Elizabeth A. Harris on 6/11/2020 URL: https://www.nytimes.com/2020/06/11/books/internet-archive-national-emergency-library-coronavirus.html Internet Archive is ending its program of offering free, unrestricted copies of e-books because of a lawsuit from publishers, which said lending out books without compensation for authors or publishing houses was “willful mass copyright infringement.” INTERNET ARCHIVE WILL LOSE BIG IN SUIT WITH PUBLISHERS via The Illusion of More by David Newhoff on 6/11/2020 URL: http://illusionofmore.com/internet-archive-will-lose-big-in-suit-with-publishers/ There is one consistent flaw inherent to most anti-copyright agendas. Because so many contemporary theories and attitudes tilting against copyright are largely predicated on the [...] SENATOR RON WYDEN, STOP HARMING INDEPENDENT CREATORS via IPWatchdog.com | Patents & Patent Law by Eric Priest on 6/11/2020 URL: https://www.ipwatchdog.com/2020/06/11/senator-ron-wyden-stop-harming-independent-creators/id=122424/ As the current pandemic eviscerates jobs throughout our economy, Congress has a rare opportunity to improve the lot of one long-besieged group of workers: creators.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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'BLACK MIRROR' PRODUCER WANTS PLOT COPYRIGHT CLAIMS TOSSED via Intellectual Property Law360 by Lauraann Wood on 6/12/2020 URL: https://www.law360.com/ip/articles/1282248 The British production company behind Netflix series "Black Mirror" argued Thursday that it shouldn't have to face copyright claims in Illinois federal court over an episode featuring Miley Cyrus simply because Netflix distributed the episode in the United States. FORTNITE DEFEATS ANOTHER LAWSUIT OVER EMOTE DANCE MOVES–BRANTLEY V. EPIC GAMES via Technology & Marketing Law Blog by Eric Goldman on 6/13/2020 URL: https://blog.ericgoldman.org/archives/2020/06/fortnite-defeats-another-lawsuit-over-emote-dance-moves-brantley-v-epic-games.htm This case involves the “Running Man” dance, a 2016 fad. (Note: the dance is not the same as the old-skool Running Man dance move, a 1980s classic that I’ve attempted on occasion). SENATE IP SUBCOMMITTEE HEARING ON DMCA EXPOSES NOTICE-AND-TAKEDOWN PROBLEMS FOR ARTISTS AND AUTHORS via Center for the Protection of Intellectual Property by Yumi Oda on 6/15/2020 URL: https://cpip.gmu.edu/2020/06/15/senate-ip-subcommittee-hearing-on-dmca-exposes-notice-and-takedown-problems-for-artists-and-authors/ On June 2, the Senate Subcommittee on Intellectual Property held a virtual online hearing entitled Is the DMCA’s Notice-and-Takedown System Working in the 21st Century? WHY IS PIRACY SO COMMON IN CHINA? CONFUCIAN CULTURAL TRADITIONS OR JUST PLAIN COMMERCIAL ADVANTAGE? (A HISTORICAL PERSPECTIVE) via Hugh Stephens Blog on 6/15/2020 URL: http://hughstephensblog.net/2020/06/15/why-is-piracy-so-common-in-china-confucian-cultural-traditions-or-just-plain-commercial-advantage-a-historical-perspective/ I usually write about current international copyright issues but occasionally I dip back into the past to look at where copyright has come from.

Joshua L. Simmons joshua.simmons@kirkland.com

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AMAZON GETS PARTIAL WIN IN TIN PAN ALLEY COPYRIGHT CASE via Bloomberg Law by Blake Brittain on 6/15/2020 URL: https://news.bloomberglaw.com/ip-law/amazon-gets-partial-win-in-tin-pan-alley-copyright-case Amazon.com Inc. escaped one of the copyright claims brought against it by the heirs of three prominent Tin Pan Alley songwriters, because making the ... AUTHOR CLIVE BARKER SUES TO RECAPTURE 'HELLRAISER' COPYRIGHTS via Bloomberg Law by Blake Brittain on 6/15/2020 URL: https://news.bloomberglaw.com/ip-law/author-clive-barker-sues-to-recapture-hellraiser-copyrights ... of the Copyright Act of 1976 allows an artist to terminate their transfer of a copyright in their work 35 years after the transfer in certain circumstances. 'HELLRAISER' SCREENWRITER WANTS TO TAKE BACK COPYRIGHTS via Intellectual Property Law360 by Bill Donahue on 6/15/2020 URL: https://www.law360.com/ip/articles/1283116 The screenwriter behind the 1987 horror film "Hellraiser" is suing to reclaim the copyrights to his work, represented by the same lawyer waging a similar fight over "Friday the 13th." FACING LAWSUIT, INTERNET ARCHIVE ENDS PANDEMIC PROJECT EARLY via Intellectual Property Law360 by Bill Donahue on 6/15/2020 URL: https://www.law360.com/ip/articles/1282941 Following a copyright lawsuit filed by major book publishers, the Internet Archive is ending its National Emergency Library project that aimed to make more digital copies of books available during the COVID-19 pandemic. SONGWRITERS SEEK $6M IN ATTYS FEES FROM $20M NAPSTER DEAL via Intellectual Property Law360 by Dave Simpson on 6/15/2020 URL: https://www.law360.com/ip/articles/1283091 A class of songwriters has asked a California federal court to approve $6.1 million in attorney fees from a $20.4 million deal the court has preliminarily approved to end claims that Napster failed to pay millions in so-called mechanical royalties.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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DO ONLINE STORYTIMES VIOLATE COPYRIGHT? via American Libraries by Tomas A. Lipinski on 6/16/2020 URL: https://americanlibrariesmagazine.org/2020/06/16/do-online-storytimes-violate-copyright/ In this column, Lipinski explores two topics that have made headlines this year: privacy concerns around the 2020 US Census and copyright issues ... COPYRIGHT AND GHOSTWRITING via Plagiarism Today by Jonathan Bailey on 6/16/2020 URL: https://www.plagiarismtoday.com/2020/06/16/copyright-and-ghostwriting/ The ethics of ghostwriting are often the subject of much debate. Though often seen as plagiarism, such as with the battle over Christiane Serruya story, it remains a common practice for many books and creations in general. MUSIC RIGHTS GROUP EXEC ASSAILS SPOTIFY COUNTERCLAIMS via Intellectual Property Law360 by Bryan Koenig on 6/16/2020 URL: https://www.law360.com/ip/articles/1283361 The 21-year-old behind a music rights organization suing all the major players in music streaming and broadcasting for allegedly boycotting his organization asked a Florida federal judge Monday to toss Spotify's "procedurally defective, legally deficient" counterclaims against his unfair competition allegations. JUDGE FLAYS TICKET BIZ FOR 'COMPLETE LACK OF CANDOR' via Intellectual Property Law360 by Sarah Jarvis on 6/16/2020 URL: https://www.law360.com/ip/articles/1283572 A New York federal judge on Tuesday blocked Seat Scouts LLC from selling assets covered by a preliminary injunction, lambasting the parties for "a literally never-ending letter-writing campaign" that is "utterly devoid of legal argument yet filled with ad hominem attacks." PHOTOGRAPHER SELLING COPYRIGHT TO NIRVANA'S FIRST MAJOR MAGAZINE COVER SHOOT via Peta Pixel by Michael Zhang on 6/17/2020 URL: https://petapixel.com/2020/06/17/photographer-selling-copyright-to-nirvanas-first-major-magazine-cover-shoot/ ... auction includes copyright and all. “I photographed Nirvana for their first major magazine cover — SPIN January 1992,” Watermann tells PetaPixel.

Joshua L. Simmons joshua.simmons@kirkland.com

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3 BIZARRE COPYRIGHT STORIES YOU MAY HAVE MISSED via Plagiarism Today by Jonathan Bailey on 6/17/2020 URL: https://www.plagiarismtoday.com/2020/06/17/3-bizarre-copyright-stories-you-may-have-missed/ Back in May, I penned an article entitled 3 Plagiarism Stories That You Need to Read. It was a look at three interesting and important plagiarism stories that, for various reasons, were not the subject of full articles. NETFLIX GETS LAW PROFESSORS' BACKING IN 'NARCOS' COPYRIGHT CASE via Bloomberg Law by Blake Brittain on 6/17/2020 URL: https://news.bloomberglaw.com/ip-law/netflix-gets-law-professors-backing-in-narcos-copyright-case A group of prominent intellectual property law professors told the Eleventh Circuit that Netflix Inc. 's show “Narcos” doesn't infringe the copyrights of a ... 2ND CIRC. WON'T STRETCH SPANDEX CO.'S COVERAGE TO IP FIGHT via Intellectual Property Law360 by Jeff Sistrunk on 6/17/2020 URL: https://www.law360.com/ip/articles/1283880 The Second Circuit on Wednesday affirmed that Hartford Fire Insurance Co. is not required to fund Spandex House Inc.'s defense of a copyright infringement lawsuit, agreeing with a lower court that coverage for the spandex supplier is foreclosed by an expansive policy exclusion for intellectual property claims. FEES DENIED IN 'FRIVOLOUS' COPYRIGHT CASE AT SEVENTH CIRCUIT via Bloomberg Law by Blake Brittain on 6/17/2020 URL: https://news.bloomberglaw.com/ip-law/fees-denied-in-frivolous-copyright-case-at-seventh-circuit A wellness store's “baseless” and “objectively unreasonable” copyright claims against a former employee didn't require an attorneys' fees award, the ... BEYONCÉ, JAY-Z HIT WITH IP SUIT OVER 'BLACK EFFECT' MONOLOGUE via Intellectual Property Law360 by Hailey Konnath on 6/17/2020 URL: https://www.law360.com/ip/articles/1283922 Beyoncé and Jay-Z used a recording of a Jamaican artist speaking about love on the 2018 track "Black Effect" without her permission, according to a copyright infringement suit filed Wednesday in California federal court.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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7TH CIRC. REJECTS FEES DESPITE 'FRIVOLOUS' COPYRIGHT CLAIMS via Intellectual Property Law360 by Lauraann Wood on 6/17/2020 URL: https://www.law360.com/ip/articles/1284089 The Seventh Circuit ruled Wednesday that a former wellness shop manager was not entitled to an award of attorney fees after his former employer sued him over his launch of a competing business, despite the fact the lawsuit's copyright claims were deemed "frivolous." CJEU SAYS COPYRIGHT PROTECTION MAY APPLY TO PRODUCT DESIGNS IF TECHNICAL RESULT DOESN’T PREVENT CREATIVE CHOICE via IPWatchdog.com | Patents & Patent Law by Steve Brachmann on 6/18/2020 URL: https://www.ipwatchdog.com/2020/06/18/cjeu-says-copyright-protection-may-apply-product-designs-technical-result-doesnt-prevent-creative-choice/id=122571/ On June 11, the Fifth Chamber of the Court of Justice of the European Union (CJEU) issued a decision in Brompton Bicycle Ltd. v. Chedech/Get2Get in which the EU’s highest court held that European copyright law extends protection to product shapes producing a technical result when the shape is an original work resulting from the author’s intellectual creation. The decision is notable both for the CJEU’s departure from the advocate general’s opinion in the case as well as its sharp contrast to... SENATORS TARGET THEFT OF UNIVERSITIES' IP FROM CHINA, OTHERS via Intellectual Property Law360 by Rachel O'Brien on 6/18/2020 URL: https://www.law360.com/ip/articles/1284454 A group of bipartisan senators led by Ohio Republican Rob Portman announced Thursday that it was introducing a bill to prevent China and other foreign governments from stealing intellectual property developed at U.S. colleges and universities. NINTENDO THREATENS REPAIR SHOP FOR ADVERTISING SWITCH MOD CHIP INSTALLS via Vice by Matthew Gault on 6/18/2020 URL: https://www.vice.com/en_us/article/7kpxbb/nintendo-threatens-repair-shop-for-advertising-switch-mod-chip-installs Nintendo doesn't want anyone to install mod chips in the Switch, and it's claiming that doing so violates the Digital Millennium Copyright Act (DMCA).

Joshua L. Simmons joshua.simmons@kirkland.com

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HORSE JUMPING LEAGUE FIGHTS EX-PARTNERS' BID TO DITCH SUIT via Intellectual Property Law360 by Carolina Bolado on 6/18/2020 URL: https://www.law360.com/ip/articles/1284563 The National Equestrian League asked a Florida federal judge on Wednesday to reject a bid by former partners to dismiss the league's claims that they stole the league's confidential information to form a rival horse jumping league. JAY-Z & BEYONCE FACE COPYRIGHT LAWSUIT OVER 'BLACK EFFECT' VOCALS YOUTUBE ALLEGED TO RACIALLY ... via Billboard by Carl Lamarre on 6/18/2020 URL: https://www.billboard.com/articles/business/legal-and-management/9404967/jay-z-beyonce-black-effect-lawsuit-lenora-stines Stines is looking to be compensated since her voice usage in the first 60 seconds of "Black Effect" infringes on copyright. According to the lawsuit, ... MAKEUP ARTISTS CAN TEACH AN AI A THING OR TWO ABOUT PROTECTING ITS COPYRIGHT via CTech by Dov Greenbaum on 6/19/2020 URL: https://www.calcalistech.com/ctech/articles/0,7340,L-3834214,00.html Copyright. Video games have seen a surge in popularity during the recent coronavirus (Covid-19) pandemic, soaring to almost $11 billion in U.S. ... FACEBOOK YANKS TRUMP POST WITH FAKED CNN VIDEO OVER COPYRIGHT INFRINGEMENT via Variety by Todd Spangler on 6/19/2020 URL: https://variety.com/2020/digital/news/facebook-trump-faked-cnn-video-copyright-infringement-1234643088/ “We received a copyright complaint from the rights holder of this video under the Digital Millennium Copyright Act and have removed the post,” a ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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APPEALS COURT REVIVES COPYRIGHT LAWSUIT OVER 'SHAPE OF WATER' via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 6/22/2020 URL: https://www.hollywoodreporter.com/thr-esq/appeals-court-revives-copyright-lawsuit-shape-water-1299700 An appeals court says that additional evidence, including expert testimony, is needed to weigh similarities between the Academy Award-winning film and a play by the Pulitzer Prize-winning Paul Zindel. NEW COPYRIGHT GROUP REGISTRATION ALLOWS UP TO 50 ONLINE WORKS via Bloomberg Law by Kyle Jahner on 6/22/2020 URL: https://news.bloomberglaw.com/ip-law/new-copyright-group-registration-allows-up-to-50-online-works Authors can include up to 50 short literary works, blog posts, or social media posts in a single group copyright registration as of Aug. 21 under a new ... 9TH CIRCUIT REVIVES COPYRIGHT SUIT INVOLVING 'SHAPE OF WATER' via Recorder by Ross Todd on 6/22/2020 URL: https://www.law.com/therecorder/2020/06/22/9th-circuit-revives-copyright-suit-involving-shape-of-water/ 9th Circuit Revives Copyright Suit Involving 'Shape of Water'. The ruling is a win for Alex Kozinski, the former chief judge of the Ninth Circuit who ... KOZINSKI WINS REVIVAL OF 'SHAPE OF WATER' IP SUIT AT 9TH CIRC. via Intellectual Property Law360 by Dave Simpson on 6/22/2020 URL: https://www.law360.com/ip/articles/1285473 Former Judge Alex Kozinski scored a win for his client Monday following his first return to the Ninth Circuit since stepping down over accusations of lewd behavior when a circuit panel revived a copyright infringement suit against the makers of the Oscar-winning film "The Shape of Water." CAN MUSICIANS STOP TRUMP FROM USING THEIR SONGS? via Intellectual Property Law360 by Bill Donahue on 6/22/2020 URL: https://www.law360.com/ip/articles/1285518 Tom Petty's family is trying to block President Donald Trump from using "I Won't Back Down" at campaign rallies, but it isn't as easy as simply asking him to stop.

Joshua L. Simmons joshua.simmons@kirkland.com

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NEW COPYRIGHT GROUP REGISTRATION ALLOWS UP TO 50 ONLINE WORKS via Bloomberg Law by Kyle Jahner on 6/22/2020 URL: https://news.bloomberglaw.com/tech-and-telecom-law/new-copyright-group-registration-allows-up-to-50-online-works The Copyright Office, part of the Library of Congress (foreground) issued the rule in response to a 2017 joint petition from several organizations. YVES SAINT LAURENT IS ON THE HOOK FOR COPYRIGHT DAMAGES FOR USING HEDI SLIMANE-ERA IMAGERY ... via Fashion Law on 6/23/2020 URL: https://www.thefashionlaw.com/yves-saint-laurent-is-on-the-hook-for-copyright-damages-for-using-hedi-slimane-era-imagery-per-paris-court-of-appeal/ ... remuneration for his services does not exempt YSL from paying damages for copyright infringement,” the judges stated in a June 19 decision. LESSONS FROM JERRY SEINFELD’S SECOND CIRCUIT COPYRIGHT WIN via IPWatchdog.com | Patents & Patent Law by C. Dale Quisenberry on 6/24/2020 URL: https://www.ipwatchdog.com/2020/06/24/lessons-jerry-seinfelds-second-circuit-copyright-win/id=122757/ You may have seen a web series featuring Jerry Seinfeld called Comedians in Cars Getting Coffee. The basic premise of the show is that Seinfeld and another famous comedian take a drive in a classic car and stop along the way at a coffee shop to share stories. It’s essentially a moving talk show without an audience. Examples of comedians who’ve appeared on the show include Tina Fey, Jim Carrey, Stephen Colbert, Chris Rock, Eddie Murphy, Jimmy Fallon and many others. One notable exception to the... ALLEN V. COOPER REVISITED PART I: STATE OF PLAY via The Illusion of More by David Newhoff on 6/24/2020 URL: http://illusionofmore.com/allen-v-cooper-revisited-part-i-state-of-play/ Ever since the case Allen v. Cooper first appeared on my radar, and especially after the Supreme Court handed down its decision in late March, [...]

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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CONAN DOYLE ESTATE SUES NETFLIX OVER COMING MOVIE ABOUT SHERLOCK HOLMES' SISTER via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 6/24/2020 URL: https://www.hollywoodreporter.com/thr-esq/conan-doyle-estate-sues-netflix-coming-movie-sherlock-holmes-sister-1300108 'Enola Holmes' infringes the last 10 books from Doyle about the famous detective, alleges a new complaint. PUTTING AMAZON ON USTR’S “HIT LIST” via Hugh Stephens Blog on 6/24/2020 URL: http://hughstephensblog.net/2020/06/24/putting-amazon-on-ustrs-hit-list/ Getting recognized by the US Trade Representative’s Office (USTR) in its annual “Notorious Markets” piracy and counterfeiting report is not the sort of recognition that most companies seek. NETFLIX HIT WITH COPYRIGHT SUIT OVER SHERLOCK HOLMES SPINOFF via Intellectual Property Law360 by Bill Donahue on 6/24/2020 URL: https://www.law360.com/ip/articles/1286252 The estate of Sherlock Holmes author Arthur Conan Doyle is suing Netflix for copyright infringement over an upcoming movie about Holmes' sister, six years after a federal court ruled the famed detective was largely in the public domain. COURT RECONSIDERS MASHABLE'S WIN IN EMBEDDING SUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 6/24/2020 URL: https://www.hollywoodreporter.com/thr-esq/court-reconsiders-mashables-win-embedding-suit-1300156 Does Instagram give embedders a sublicense to use copyrighted images? A court now says the answer is ambiguous. JUDGE REVIVES PHOTOG'S SUIT OVER EMBEDDED INSTAGRAM POSTS via Intellectual Property Law360 by Bill Donahue on 6/24/2020 URL: https://www.law360.com/ip/articles/1286412 A Manhattan federal judge on Wednesday revived a copyright lawsuit against Mashable over its use of "embedded" Instagram posts, reversing her own previous ruling that Instagram's terms of service gave the news website the right to use a photographer's image.

Joshua L. Simmons joshua.simmons@kirkland.com

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CHICAGO HOUSE MUSIC DUO SAY RECORD LABEL EXPLOITED THEM via Intellectual Property Law360 by Celeste Bott on 6/24/2020 URL: https://www.law360.com/ip/articles/1286166 Two prominent artists from Chicago's 1980s house music scene filed suit in Illinois federal court Tuesday alleging that Trax Records, a record label specializing in the genre, exploited them and other popular house musicians "with neither permission nor license to further reap the fruits of their creative output." PUBLISHER DOESN'T DESERVE $25M IN IP ROW, COURT TOLD via Intellectual Property Law360 by Morgan Conley on 6/24/2020 URL: https://www.law360.com/ip/articles/1286158 An energy industry newsletter publisher is fighting to land $25.7 million from Kayne Anderson Capital Advisors LP for its unauthorized access to articles, while the investment firm says its liability should be capped at roughly $2.8 million, the statutory minimum. MASHABLE COPYRIGHT CASE REVIVED AFTER REREAD OF INSTAGRAM TERMS via Bloomberg Law by Blake Brittain on 6/24/2020 URL: https://news.bloomberglaw.com/ip-law/mashable-copyright-case-revived-after-reread-of-instagram-terms A photographer's copyright infringement case against Mashable was revived Wednesday after a Manhattan federal court ruled it erred in finding ... U.S. COPYRIGHT OFFICE CREATES NEW REGISTRATION PROCESS FOR ONLINE AUTHORS via Plagiarism Today by Jonathan Bailey on 6/25/2020 URL: https://www.plagiarismtoday.com/2020/06/25/u-s-copyright-office-creates-new-registration-process-for-online-authors/ On June 22, the U.S. Copyright Office announced that it is creating a brand new registration process, this one aimed to help writers online that regular shorter-form content, such as blog posts, news articles and other short literary content.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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TOP 7 COPYRIGHT RULINGS OF 2020: A MIDYEAR REPORT via Intellectual Property Law360 by Bill Donahue on 6/25/2020 URL: https://www.law360.com/ip/articles/1284138 From tattoos in video games to billion-dollar piracy verdicts to "Stairway to Heaven," the first half of 2020 was an action-packed time for copyright lawyers. As we head into the back half of the year, here are the seven big copyright decisions you need to know. PHOTOG ACCUSES LAW FIRM OF REPOSTING COPYRIGHTED VIDEO via Intellectual Property Law360 by Emma Cueto on 6/25/2020 URL: https://www.law360.com/ip/articles/1286888 A Pulitzer Prize-winning photojournalist filed suit on Thursday against national plaintiffs firm Morgan & Morgan PLLC over a copyrighted video allegedly posted on the firm's website of a fatal 2017 fire in Pennsylvania. TRAX RECORDS HIT WITH FEDERAL COPYRIGHT INFRINGEMENT LAWSUIT OVER ROYALTIES UK COMPETITION ... via Billboard by Claudia Rosenbaum on 6/26/2020 URL: https://www.billboard.com/articles/news/9409421/trax-records-federal-copyright-infringement-lawsuit-over-royalties Chicago-based Trax Records has been sued over its alleged failure to pay royalties. Artists Larry Heard and Richard Owens filed a federal copyright ... WHY THE STREISAND EFFECT IS MISUNDERSTOOD via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 6/26/2020 URL: https://www.hollywoodreporter.com/thr-esq/why-streisand-effect-is-misunderstood-1299990 The phenomenon, coined to describe censorship attempts that backfire, has been increasingly invoked online — from Donald Trump's legal threats to HBO Max's 'Gone With the Wind' reckoning — but is it real? COPYRIGHT IN PRIDE via Copyright: Creativity at Work by Holland Gormley on 6/26/2020 URL: https://blogs.loc.gov/copyright/2020/06/copyright-in-pride/ June is Pride Month, and this year is the 50th anniversary of the first pride parade in New York City.

Joshua L. Simmons joshua.simmons@kirkland.com

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JUDGE SAYS LIEBOWITZ MIGHT NEED TO BE BANNED FROM SDNY via Intellectual Property Law360 by Bill Donahue on 6/26/2020 URL: https://www.law360.com/ip/articles/1287090 Citing a "deplorable" record of misconduct and lies under oath, a Manhattan federal judge on Friday ordered copyright attorney Richard Liebowitz to pay more than $100,000 in sanctions — and referred him for a possible suspension from practicing law in the Southern District. EMBEDDING SOCIAL MEDIA SUDDENLY LOOKS RISKY FOR WEBSITES via Intellectual Property Law360 by Bill Donahue on 6/26/2020 URL: https://www.law360.com/ip/articles/1287260 Recent copyright rulings have prompted Instagram to clarify that websites should not "embed" posts without first clearing "all necessary rights," potentially forcing a major change in how digital media companies approach social media. 4TH CIRC. REVIVES IP SUIT OVER RUSSIAN 'STREAM-RIPPING' SITES via Intellectual Property Law360 by Craig Clough on 6/26/2020 URL: https://www.law360.com/ip/articles/1287288 The Fourth Circuit on Friday held that a lower court wrongly tossed a suit by a dozen U.S. record companies against a Russian man over his so-called stream-ripping websites used to pirate music, finding "plentiful" evidence that the Virginia federal court has personal jurisdiction over his online activities. STEINBECK FAMILY BATTLE APPEALED TO SUPREME COURT via Lawyers.com by Steven Todd Lowe on 6/26/2020 URL: https://blogs.lawyers.com/attorney/copyrights/steinbeck-family-battle-appealed-to-supreme-court-63374/ After he died in 1968, he left the copyright interests in his works to his third wife, Elaine Steinbeck. However, Steinbeck's sons, John IV and Thom (not ... RUNNING GEOTARGETED ADVERTISING CONFERS PERSONAL JURISDICTION–UMG RECORDINGS V. KURBANOV via Technology & Marketing Law Blog by Eric Goldman on 6/27/2020 URL: https://blog.ericgoldman.org/archives/2020/06/running-geotargeted-advertising-confers-personal-jurisdiction-umg-recordings-v-kurbanov.htm The plaintiffs brought a copyright infringement lawsuit in the Eastern District of Virginia federal court.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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ILLEGAL CIRCULATION OF E-NEWSPAPERS ONLINE AND THROUGH MESSAGING APPS: IMPLICATIONS FOR COPYRIGHT AND CONTRACTUAL VIOLATIONS via IPWatchdog.com | Patents & Patent Law by Akanksha Rajpurohit on 6/27/2020 URL: https://www.ipwatchdog.com/2020/06/27/illegal-circulation-e-newspapers-online-messaging-apps-implications-copyright-contractual-violations/id=122828/ On March 25, 2020, the Indian government declared lockdown throughout the country, and we could not have anticipated the number of issues across all sectors that would surface in such a short time. Copyright infringement through social media turned out to be one such issue. At a time when so many industries are facing losses both in terms of work and revenue, the newspaper industry in India has not been spared. The newspaper companies have lost a large number of subscribers to their physical... ABRAHAM LINCOLN’S GIFT TO COPYRIGHT FOR PHOTOGRAPHERS via Copyright Alliance by Jay Cleofe on 6/29/2020 URL: https://copyrightalliance.org/ca_post/abraham-lincolns-gift-to-copyright-for-photographers-by-zvi-s-rosen/ We don’t typically think of Abraham Lincoln and copyright all that often together – he’s famously the only president to receive a patent, but as far as I’m aware he never registered a copyright (the pre-1870 copyright records are not yet available digitally, but there’s no mention of Lincoln registering a copyright in a transcription of Illinois copyright records from before 1850). CALIFORNIA POLICE ARE USING COPYRIGHT TO HIDE SURVEILLANCE DOCUMENTS via Vice by Edward Ongweso Jr. on 6/29/2020 URL: https://www.vice.com/en_us/article/5dzdqq/california-police-are-using-copyright-to-hide-surveillance-documents The agency has said that it will not comply on copyright grounds. Any attempt to download training materials concerning facial recognition technology or ... LITIGIOUS PORN STUDIO ENDS BATTLE WITH FORMER LAW FIRM via Intellectual Property Law360 by Bill Donahue on 6/29/2020 URL: https://www.law360.com/ip/articles/1287774 Malibu Media, a pornography studio that's filed thousands of copyright cases against internet downloaders, has reached a settlement to resolve accusations that the company owed a former law firm nearly $300,000 in unpaid bills.

Joshua L. Simmons joshua.simmons@kirkland.com

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COPYRIGHT OFFICE BEGINS PERIOD OF PETITIONING FOR EXEMPTIONS TO SECTION 1201 OF THE DMCA via IPWatchdog.com | Patents & Patent Law by Steve Brachmann on 6/29/2020 URL: https://www.ipwatchdog.com/2020/06/29/copyright-office-begins-period-petitioning-exemptions-section-1201-dmca/id=122887/ On June 22, the U.S. Copyright Office published a request for petitions in the Federal Register, which officially kicked off the eighth triennial rulemaking process for temporary exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA). While Section 1201 generally prohibits the circumvention of technological protection measures (TPMs), which copyright owners use to prevent unauthorized access to and copying of protected works, the law instructs the Copyright Office to grant... NIKE SUED BY DESIGNER OVER NBA ALL-STAR WEEKEND MERCHANDISE via Bloomberg Law by Blake Brittain on 6/29/2020 URL: https://news.bloomberglaw.com/ip-law/nike-sued-by-designer-over-nba-all-star-weekend-merchandise Giordano sued Nike, Hudson, and others for copyright and trademark infringement. To advertise the collection, a sculpture of the logo was installed in ... NIKE PILFERED '6-POINT STAR' LOGO FOR NBA APPAREL, SUIT SAYS via Intellectual Property Law360 by Hailey Konnath on 6/29/2020 URL: https://www.law360.com/ip/articles/1287799 New York City fashion brand Faded Royalty on Monday accused Nike and Michael Jordan of stealing its "6-Point Star" logo for their NBA 2020 All Star Weekend apparel, according to a copyright infringement suit filed in New York federal court seeking at least $10 million in damages. 'COPYRIGHT TROLL' LAWYER SANCTIONED FOR LYING UNDER OATH via Reuters by Jan Wolfe on 6/29/2020 URL: https://www.reuters.com/article/ip-copyright-sanction/copyright-troll-lawyer-sanctioned-for-lying-under-oath-idUSL1N2E704I Richard Liebowitz, a New York lawyer notorious for filing low-value copyright cases on behalf of photographers, has been fined for lying under oath ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COPYRIGHT PROTECTION OF PRODUCTS: WHERE ARE WE, AND WHAT NEXT? via Managing Intellectual Property | Copyright by John Coldham & Khemi Salhan on 6/30/2020 URL: https://www.managingip.com/article/b1m7flm4m11zfr/copyright-protection-of-products-where-are-we-and-what-next With the dust settling from a landmark CJEU ruling on copyright and designs, John Coldham and Khemi Salhan of Gowling WLG examine the potential practical implications, particularly for the UK DIRECTOR APPEALS LOSS IN COPYRIGHT CASE AGAINST APPLE, SHYAMALAN via Bloomberg Law by Blake Brittain on 6/30/2020 URL: https://news.bloomberglaw.com/ip-law/director-appeals-loss-in-copyright-case-against-apple-shyamalan Director Appeals Loss in Copyright Case Against Apple, Shyamalan. By Blake Brittain. June 30, 2020, 9:10 AM. Listen. Court ruled Apple TV show ...

Joshua L. Simmons joshua.simmons@kirkland.com

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July 2020

INTERNATIONAL BOOK PIRACY: HOW CANADA GOT CAUGHT IN THE 19TH CENTURY BRITISH-US COPYRIGHT WARS via Hugh Stephens Blog on 7/1/2020 URL: http://hughstephensblog.net/2020/07/01/international-book-piracy-how-canada-got-caught-in-the-19th-century-british-us-copyright-wars/ I think it is appropriate to post this blog on Canada Day, July 1, the day that marks Canada’s gradual transition from colony to nation, because it sheds light on the struggle that the new dominion faced in the years after Confederation in 1867 to assert its political independence from Britain, the imperial power and its economic independence from its powerful neighbour, the United States. BACK TO SCHOOL: HOW A PULITZER-WINNING PHOTOGRAPHER TOOK COPYRIGHT LAW INTO HIS OWN HANDS via CreativeFuture by Justin Sanders on 7/1/2020 URL: https://creativefuture.org/back-to-school-how-a-pulitzer-winning-photographer-took-copyright-law-into-his-own-hands/ For most creatives, when faced with the pervasive problem of litigating infringement of their work, the solution is to hire a lawyer. COPYRIGHT OFFICE QUESTIONS IDEA OF 'STAY-DOWN' SYSTEM via Intellectual Property Law360 by Bill Donahue on 7/1/2020 URL: https://www.law360.com/ip/articles/1287992 The U.S. Copyright Office is declining — for now — to push for radical changes to the Digital Millennium Copyright Act that would require websites like YouTube to permanently ban infringing materials, saying such an approach would raise a slew of difficult questions. IN REVERSAL, LITIGIOUS PORN CO. CAN UNMASK DOWNLOADERS via Intellectual Property Law360 by Bill Donahue on 7/1/2020 URL: https://www.law360.com/ip/articles/1288644 A New Jersey federal judge ruled Tuesday that Strike 3 Holdings — a porn studio that has filed thousands of copyright lawsuits — must be allowed to unmasks illegal downloaders, overturning a judge who sharply criticized the company's mass litigation.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE STATUE OF LIBERTY: A COPYRIGHT INSPIRATION via Copyright: Creativity at Work by Nicole Lamberson on 7/2/2020 URL: https://blogs.loc.gov/copyright/2020/07/the-statue-of-liberty-a-copyright-inspiration/ Bartholdi deposited this photo of his model of the Statue of Liberty with the Copyright Office. UNCHANGED PASSWORD DOOMS COPYRIGHT CLAIMS FOR DRILLING COMPANY via Bloomberg Law by Maeve Allsup on 7/2/2020 URL: https://news.bloomberglaw.com/us-law-week/unchanged-password-dooms-copyright-claims-for-drilling-company Digital Drilling Data Systems LLC can't pursue copyright claims against a competitor that scraped schema and data from a program built using an ... COMPOSER SAYS YOUTUBE FOSTERS 'HOTBED' OF COPYRIGHT PIRACY via Law360: Media & Entertainment by Hailey Konnath on 7/2/2020 URL: https://www.law360.com/media/articles/1289174 Grammy Award-winning composer Maria Schneider hit YouTube with a putative class action in California federal court Thursday alleging it facilitates a "hotbed" of copyright infringement through its enforcement system, which she said only protects major studios and record labels and abandons "ordinary creators" like her. CORONAVIRUS EXPOSES BIG TECH’S BIG BAD IDEAS FOR ARTISTS via The Illusion of More by David Newhoff on 7/6/2020 URL: http://illusionofmore.com/coronavirus-exposes-big-techs-big-bad-ideas-for-artists/ Emergencies have a way of shining a bright light on flawed thinking and dumb ideas. 5TH CIRC. SAYS $1M ATTY FEE REQUEST NEEDS RECONSIDERATION via Intellectual Property Law360 by Michele Casady on 7/6/2020 URL: https://www.law360.com/ip/articles/1289357 The Fifth Circuit has determined that drilling data company Petrolink Services Inc. will get another chance to prove it's entitled to about $1 million in attorney fees for a lawsuit in which it beat back copyright infringement claims but was found by a jury to have unjustly enriched itself.

Joshua L. Simmons joshua.simmons@kirkland.com

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9TH CIRC. QUESTIONS SINKING OF DISNEY 'PIRATES' IP SUIT via Intellectual Property Law360 by Craig Clough on 7/6/2020 URL: https://www.law360.com/ip/articles/1289604 Two judges on a Ninth Circuit panel on Monday questioned the dismissal of claims that Disney's "Pirates of the Caribbean" franchise copied two screenwriters' script, suggesting the lower court's ruling that the script included generic and unprotectable staples of the pirate genre was premature. DISH WANTS $16.8M DEFAULT OVER PIRATED CONTENT via Intellectual Property Law360 by Nadia Dreid on 7/6/2020 URL: https://www.law360.com/ip/articles/1289473 Dish Network says it deserves a $16.8 million payday by default after the owner of more than a dozen websites that survive off of siphoning its content failed to respond to the satellite company's suit seeking to stop the pirating. GAME MAKER SEEKS COPYRIGHT JUDGMENT OVER NBA 2K19 DANCE STEP via Bloomberg Law by Maeve Allsup on 7/6/2020 URL: https://news.bloomberglaw.com/us-law-week/game-maker-seeks-copyright-judgment-over-nba-2k19-dance-step Brandon Sims sent letters alleging copyright infringement and demanding an unidentified amount of money, Take Two Interactive Software Inc. told the ... TECH INDUSTRY WANTS US-STYLE COPYRIGHT RULES IN UK TRADE DEAL via World IP Review by Rory O'Neill on 7/7/2020 URL: https://www.worldipreview.com/news/tech-industry-wants-us-style-copyright-rules-in-uk-trade-deal-19919 Big tech firms including Facebook, Google, and Amazon want US-style safe harbour protections from copyright liability enshrined in any US-UK free ... SUPREME COURT AFFIRMANCE OF API COPYRIGHTABILITY EVER MORE LIKELY--DEFERENCE TO JURY (WITH RESPECT TO "FAIR USE") IS GOOGLE'S LAST LINE OF DEFENSE via FOSS Patents by Florian Mueller on 7/7/2020 URL: http://www.fosspatents.com/2020/07/supreme-court-affirmance-of-api.html For a few years I've limited my commentary on the Oracle v. Google Android-Java copyright case to procedural matters, without reiterating the reasons for which I believe the thousands of

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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lines of Java API code asserted in that case are protected by copyright, and their use by Google was unfair. THE CASE FOR THE CASE ACT, WHICH PROVIDES STREAMLINED COPYRIGHT PROTECTION FOR SONGWRITERS ... via Variety by David Israelite on 7/7/2020 URL: https://variety.com/2020/biz/news/case-act-copyright-israelite-1234699867/ No longer will creators be compelled to enforce their copyrights in federal court, in person, with the burden of exorbitant attorney's fees. The bill has ... MGM CALLS STARZ'S LICENSING CLAIMS 'MASSIVELY OVERSTATED' via Intellectual Property Law360 by Lauren Berg on 7/7/2020 URL: https://www.law360.com/ip/articles/1289876 An MGM subsidiary urged a California federal judge Monday to toss Starz's licensing lawsuit claiming the movie studio unit allowed Starz competitors to show films and TV shows that were supposed to be exclusive to Starz's platform, saying the claims are "massively overstated" and come too late. DISNEY SAYS PIRATE ORIGINALITY PROTECTS IT FROM COPYRIGHT CLAIM via Bloomberg Law by Kyle Jahner on 7/7/2020 URL: https://news.bloomberglaw.com/ip-law/disney-says-pirate-originality-protects-it-from-copyright-claim A copyright infringement lawsuit against Disney over its “Pirates of the Caribbean” movies could hinge on the Ninth Circuit's view of how courts should ... 'SHAPE OF WATER' RULING WILL CHILL SPEECH, 9TH CIRC. TOLD via Intellectual Property Law360 by Bill Donahue on 7/7/2020 URL: https://www.law360.com/ip/articles/1289742 The creators of "The Shape of Water" are urging the full Ninth Circuit to undo a ruling last month that revived a copyright lawsuit over the Oscar-winning film, warning that it will chill free speech by promoting "protracted, meritless lawsuits."

Joshua L. Simmons joshua.simmons@kirkland.com

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JOHN GRISHAM, SCOTT TUROW TEAM WITH AMAZON IN PIRACY SUIT via Intellectual Property Law360 by Lauren Berg on 7/7/2020 URL: https://www.law360.com/ip/articles/1289974 Amazon, Penguin Random House, John Grisham and other big-name authors filed suit Tuesday in Seattle federal court against the Ukrainian owners of e-book websites they claim are pirating works such as Grisham's legal thriller "The Litigators" and Scott Turow's "The Burden of Proof." EMINEM'S PUBLISHER SUES HARRY FOX AGENCY, ALLEGING IT CONSPIRED WITH SPOTIFY TO SKIMP ON ROYALTIES via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 7/8/2020 URL: https://www.hollywoodreporter.com/thr-esq/eminems-publisher-sues-harry-fox-agency-alleging-it-conspired-spotify-skimp-royalties-1302412 Eight Mile Style alleges Spotify and HFA conspired to conceal copyright infringement by backdating Notices of Intention to obtain compulsory mechanical licenses and falsifying royalty documents. IGN BRAZIL STEALS VIDEOS FROM YOUTUBER via Plagiarism Today by Jonathan Bailey on 7/8/2020 URL: https://www.plagiarismtoday.com/2020/07/08/ign-brazil-steals-videos-from-youtuber/ For the second time in recent memory, the video game publication IGN finds itself in the middle of a plagiarism controversy. ANALYSING THE RELATIONSHIP BETWEEN AI AND COPYRIGHT LAW via Managing Intellectual Property | Copyright by Mutlu Yildirim Kose on 7/9/2020 URL: https://www.managingip.com/article/b1mf4lxn2qdwxs/analysing-the-relationship-between-ai-and-copyright-law Artificial intelligence (AI), which does not yet have a solid definition, can generally be described as "the ability of a digital computer or computer controlled robot to perform tasks commonly associated with intelligent beings."

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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VIDEO PLATFORMS CAN WITHHOLD IP INFRINGERS' CONTACT INFO via Intellectual Property Law360 by Bonnie Eslinger on 7/9/2020 URL: https://www.law360.com/ip/articles/1290490 YouTube and other online platforms only have to provide the postal address — but not the email, phone number or IP address — of users who illegally upload movies without the copyright holder's consent, the European Union's highest court ruled Thursday. JUDGE VOWS BENCH WARRANTS FOR MEN IN ILLEGAL STREAMING SUIT via Intellectual Property Law360 by Khorri Atkinson on 7/9/2020 URL: https://www.law360.com/ip/articles/1290668 A Virginia federal judge overseeing the government's case against allegedly illegal television and movie streaming services vowed to issue bench warrants for two people facing federal charges after they failed to show in court on Thursday. CLASS ACTION © SUIT AGAINST YOUTUBE IS A BIG FRIGGIN’ DEAL via The Illusion of More by David Newhoff on 7/10/2020 URL: http://illusionofmore.com/class-action-suit-against-youtube-is-a-big-friggin-deal/ When Viacom et al, in 2014, settled their copyright infringement suit against YouTube, that outcome had significant consequences for millions of independent creators. PROPERTY MANAGER SEEKS EXIT FROM MURAL DESTRUCTION SUIT via Intellectual Property Law360 by McCord Pagan on 7/10/2020 URL: https://www.law360.com/ip/articles/1290681 A real estate property manager asked a Pennsylvania federal court to grant the company a quick escape from a lawsuit filed by a Pittsburgh mural artist over the destruction of his artwork. CANCEL CULTURE, COPYRIGHT AND THE HARPER'S LETTER via Hill by Sean O'Connor on 7/11/2020 URL: https://thehill.com/opinion/judiciary/506893-cancel-culture-copyright-and-the-harpers-letter Rather than primarily an “incentive to create,” copyright gives incentives and protection to make controversial public statements. Our virtual public square ...

Joshua L. Simmons joshua.simmons@kirkland.com

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ARTIFICIAL INTELLIGENCE CAN’T PATENT INVENTIONS: SO WHAT? via IPWatchdog.com | Patents & Patent Law by Stephanie Skaff on 7/13/2020 URL: https://www.ipwatchdog.com/2020/07/13/artificial-intelligence-cant-patent-inventions/id=123226/ The USPTO’s recent landmark decision (16/524,350) concluding artificial intelligence (AI) cannot be a named patent inventor perhaps sparked fears of super-robots inventing critical technologies that, alas, receive no patent protection. If an AI identifies new, more efficient battery chemicals, will that new battery be unpatentable? If an AI builds chemical compounds that become the next […] COPYRIGHT OFFICE QUESTIONS LEGALITY OF INTERNET ARCHIVE’S NATIONAL EMERGENCY LIBRARY via Center for the Protection of Intellectual Property by Devlin Hartline on 7/13/2020 URL: https://cpip.gmu.edu/2020/07/13/copyright-office-questions-legality-of-internet-archives-national-emergency-library/ On March 24, the Internet Archive (Archive) unveiled what it called the “National Emergency Library” (NEL) in order to “address our unprecedented global and immediate need for access to reading and research materials.” The announcement specified that Archive would suspend the waitlist for 1.4 million books in its unlicensed “lending library” until at least June 30, thus allowing an unlimited number of people to download electronic copies of the same book at the same time. ORACLE V GOOGLE COPYRIGHT CASE SLATED FOR SUPREME COURT ARGUMENTS via CRN by Joseph Tsidulko on 7/13/2020 URL: https://www.crn.com/news/mobility/oracle-v-google-copyright-case-slated-for-supreme-court-arguments The nine justices will hear lawyers argue the copyright dispute on Oct. 7 over Google's use of Java APIs to develop its Android mobile operating ... TWITTER SIDESTEPS DMCA LAW IGNORING NOTICES SENT VIA EMAIL via Vox Indie by Ellen Seidler on 7/13/2020 URL: http://www.voxindie.org/twitter-sidesteps-dmca-law-ignoring-notices-sent-via-email/ As many of you know all too well, getting pirated content removed from the web is a time consuming task. Not only does one have to find the infringing content, but has to take the time to send a DMCA notice to the service provider hosting the illicit links and/or files to get the pirated […]

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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LEGAL STARTUP SAYS WESTLAW WANTS 'MONOPOLY' OVER LAW TEXTS via Intellectual Property Law360 by Bill Donahue on 7/13/2020 URL: https://www.law360.com/ip/articles/1291572 A legal research startup called ROSS Intelligence fired back Monday at a copyright lawsuit filed by Westlaw owner Thomson Reuters, accusing the bigger company of seeking "a monopoly over access to public legal texts." VIDANGEL ASKS 9TH CIRC. TO NIX BLOCK ON STREAMING SERVICE via Intellectual Property Law360 by Mike LaSusa on 7/13/2020 URL: https://www.law360.com/ip/articles/1291581 VidAngel Inc. has asked the Ninth Circuit to upend a California federal judge's "astoundingly vague and overbroad" order that blocked VidAngel from playing sanitized versions of movies by Walt Disney and other studios that sued the family-friendly streaming service into bankruptcy. MET BEATS IP SUIT OVER VAN HALEN PIC WITH FAIR USE DEFENSE via Intellectual Property Law360 by Lauren Berg on 7/13/2020 URL: https://www.law360.com/ip/articles/1291527 A New York federal judge Monday tossed a photographer's intellectual property lawsuit claiming the Metropolitan Museum of Art improperly included his photo of musician Eddie Van Halen on its website for a rock music exhibition, finding that the photo's inclusion counts as fair use. HOW THE WTO HELPED TO END SPORTS BROADCAST PIRACY IN THE MIDDLE EAST via Hugh Stephens Blog on 7/14/2020 URL: http://hughstephensblog.net/2020/07/14/how-the-wto-helped-to-end-sports-broadcast-piracy-in-the-middle-east/ These days the World Trade Organization (WTO) is facing many challenges. SHAKING UP THE FUNDAMENTAL LAWS OF US INTERNET via Intellectual Property Law360 by Susan Goldsmith on 7/14/2020 URL: https://www.law360.com/ip/articles/1291318 Your recent news feed likely has included a lot of alarmed chatter about an executive order[1] threatening to end certain protections for social media platforms.

Joshua L. Simmons joshua.simmons@kirkland.com

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ALLEN V. COOPER REVISITED: PART II – THAT DAMNED ELEVENTH AMENDMENT via The Illusion of More by David Newhoff on 7/14/2020 URL: http://illusionofmore.com/allen-v-cooper-revisited-part-ii-that-damned-eleventh-amendment/ In my first post in this series, I tried to summarize (albeit in nearly 3,000 words) the reasons why the states, and arms of the states, may freely infringe intellectual property without fear of being sued for monetary damages. DC CIRC. OVERTURNS SCATHING RULING AGAINST PORN CO. via Intellectual Property Law360 by Bill Donahue on 7/14/2020 URL: https://www.law360.com/ip/articles/1292145 The D.C. Circuit on Tuesday revived one of thousands of copyright lawsuits filed by a porn studio called Strike 3 Holdings, overturning a lower judge who sharply criticized the company as a "troll" that has flooded courts with cases "smacking of extortion." SLASHING $25M VERDICT DENIES PUBLISHER A FAIR TRIAL, COURT TOLD via Intellectual Property Law360 by Morgan Conley on 7/15/2020 URL: https://www.law360.com/ip/articles/1292294 An energy industry newsletter publisher is defending its right to collect $25.7 million from Kayne Anderson Capital Advisors LP for unauthorized access to articles, telling a Texas federal court the investment firm is attempting to manufacture a problem with the jury's verdict to minimize its liability. AMAZON SHOULDN'T HAVE STREAMED SPELLING BEE DOC, SUIT SAYS via Intellectual Property Law360 by Lauren Berg on 7/15/2020 URL: https://www.law360.com/ip/articles/1292156 Amazon streamed "Spellbound," an Academy Award-nominated documentary about eight competitors in the 1999 Scripps Spelling Bee, without permission, according to a lawsuit filed Tuesday by the documentary's distributor in California federal court. ECJ TOLD WEB PLATFORMS NOT LIABLE FOR PIRATED IP, FOR NOW via Intellectual Property Law360 by Bonnie Eslinger on 7/16/2020 URL: https://www.law360.com/ip/articles/1292608 Online platform operators like YouTube are not liable under European Union law when their users illegally upload copyrighted works — for now, an adviser to the EU's highest court said Thursday.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COPYRIGHT OFFICE PRESENTS: 150 YEARS OF CELEBRATING CREATIVITY via Copyright: Creativity at Work by Steve Andreadis on 7/16/2020 URL: https://blogs.loc.gov/copyright/2020/07/copyright-office-presents-150-years-of-celebrating-creativity/ On July 8, 2020, we here at the U.S. Copyright Office celebrated the Office’s 150th birthday. SCREENWRITER CLAIMS 'STRANGER THINGS' FULL OF FAMILIAR STUFF via Intellectual Property Law360 by Hailey Konnath on 7/16/2020 URL: https://www.law360.com/ip/articles/1292636 Netflix and the creators of "Stranger Things" are facing another intellectual property suit over the show, this time from a screenwriter claiming the popular series features ideas stolen from his undeveloped feature film script, according to a complaint filed Wednesday in California federal court. VALERIE HARPER'S FOUR EMMYS WITHDRAWN FROM AUCTION AFTER TV ACADEMY LAWSUIT (EXCLUSIVE) via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Scott Feinberg on 7/17/2020 URL: https://www.hollywoodreporter.com/race/valerie-harpers-four-emmys-withdrawn-auction-tv-academy-lawsuit-1303537 The U.S. District Court granted a temporary restraining order that blocks Julien's from selling the statuettes, at least for now. QATAR AIRWAYS CAN'T ESCAPE MUSIC COPYRIGHT SUIT IN UK via Intellectual Property Law360 by Joanne Faulkner on 7/17/2020 URL: https://www.law360.com/ip/articles/1293130 A major copyright infringement case brought by a music royalties society over the use of its members' repertoire on Qatar Airways flights should be heard in the English courts, a judge ruled Friday.

Joshua L. Simmons joshua.simmons@kirkland.com

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PANDEMIC BINGE HIT 'TIGER KING' SPARKS TRADEMARK LAWSUIT CALLING FOR "DESTRUCTION" OF THE SERIES via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 7/17/2020 URL: https://www.hollywoodreporter.com/thr-esq/tiger-king-sparks-trademark-suit-netflix-cbs-imagine-1303568 Hollywood Weekly Magazine claims it coined the phrase "Tiger King" and its advertisers are upset over a perceived connection to the "tawdry television program." SOFTWARE COPYRIGHT WIN BASED ON DESTROYED EVIDENCE AFFIRMED via Bloomberg Law by Kyle Jahner on 7/17/2020 URL: https://news.bloomberglaw.com/ip-law/software-copyright-win-based-on-destroyed-evidence-affirmed ... justified a copyright and trade secret win for a company that develops business software for law enforcement agencies, the Fourth Circuit affirmed. NETFLIX ACCUSED OF RIPPING OFF 'TIGER KING' FROM MAGAZINE via Intellectual Property Law360 by Dorothy Atkins on 7/17/2020 URL: https://www.law360.com/ip/articles/1293244 Hollywood Weekly Magazine hit Netflix with a copyright and trademark infringement lawsuit in California federal court Friday, accusing the streaming giant of ripping off its magazine stories to create the hit show "Tiger King." COX ACCUSES DISH OF TRYING TO AIR ITS STATIONS FOR FREE via Intellectual Property Law360 by Nadia Dreid on 7/17/2020 URL: https://www.law360.com/ip/articles/1293100 Dish Network is trying to get away with illegally transmitting Cox Media Group's content while the pair battle out a contract dispute in Illinois federal court by wielding an unrelated restraining order in an "unprecedented fashion," according to Cox. INSTACART SAYS UBER'S CORNERSHOP STOLE PRODUCT PHOTOS via Intellectual Property Law360 by Hailey Konnath on 7/17/2020 URL: https://www.law360.com/ip/articles/1293030 Instacart has accused grocery delivery competitor Cornershop of scraping its platform and stealing thousands of copyrighted product images, descriptions, pricing data and more in a

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"brazen" scheme that Cornershop has carried out "with striking audacity," according to a suit filed in Texas federal court. NEW ZEALAND’S ONGOING COPYRIGHT REVIEW PROCESS: MBIE’S REVISED OBJECTIVES PAPER WITHDRAWN via Hugh Stephens Blog on 7/20/2020 URL: http://hughstephensblog.net/2020/07/20/new-zealands-ongoing-copyright-review-process-mbies-revised-objectives-paper-withdrawn/ Earlier this month it was reported that the department of the New Zealand government responsible for leading the current review of the Copyright Act (1994), the Ministry of Business, Innovation and Employment (MBIE) had issued a welcome statement withdrawing the revised objectives paper for the review it had released back in November of last year. IS IT OK TO EMBED INSTAGRAM PHOTOS? ¯\_(?)_/¯ via Technology & Marketing Law Blog by Venkat Balasubramani on 7/20/2020 URL: https://blog.ericgoldman.org/archives/2020/07/is-it-ok-to-embed-instagram-photos-%c2%af_%e3%83%84_-%c2%af.htm We recently covered Sinclair v. Ziff Davis, addressing whether Instagram’s terms of service authorize a third party to publish photos posted to Instagram by embedding those photos online. 5POINTZ OWNER TELLS HIGH COURT ART LAW IS UNCONSTITUTIONAL via Intellectual Property Law360 by Bill Donahue on 7/20/2020 URL: https://www.law360.com/ip/articles/1293642 A New York City real estate developer who destroyed a famed graffiti space known as 5Pointz asked the U.S. Supreme Court on Monday to strike down as unconstitutional a federal law that protects works of art from harm. PORN DISTRIBUTION COMPANY LOSES PIRACY SUIT APPEAL AGAINST WEB HOST via Ars Technica by Kate Cox on 7/21/2020 URL: https://arstechnica.com/?p=1693172 A federal appeals court has upheld a ruling that site hosts are not liable for copyright infringement committed by the sites they host, so long as they take the "simple measures" of forwarding claims to the site owner.

Joshua L. Simmons joshua.simmons@kirkland.com

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THESE 10 DECISIONS REMADE THE COPYRIGHT LANDSCAPE via Intellectual Property Law360 by Bill Donahue on 7/21/2020 URL: https://www.law360.com/ip/articles/1294205 The U.S. Supreme Court churned out a slew of trademark and copyright decisions this term, but the most important rulings of the last decade were more often issued by lower courts. Here, Law360 ranks the blockbuster decisions, at the high court and beyond, that shaped copyright law into what it is today. GIANT SKELETON COPYRIGHT CASE REVIVED BY TENTH CIRCUIT via Bloomberg Law by Blake Brittain on 7/21/2020 URL: https://news.bloomberglaw.com/ip-law/giant-skeleton-copyright-case-revived-by-tenth-circuit The U.S. District Court for the District of Colorado prematurely buried the case after finding that the Maniken was a copyright-ineligible “useful article,” the ... BELARUS JOINS MARRAKESH TREATY AS 70TH MEMBER via YouTube by World Intellectual Property Organization – WIPO on 7/22/2020 URL: https://www.youtube.com/watch?v=792JtpoXgGQ WIPO Director General Francis Gurry on July 22, 2020, received the instrument of accession to the Marrakesh Treaty from Ambassador Yury Ambrazevich, Permanent Representative of the Republic of Belarus to the United Nations Office and other international organizations in Geneva. Including Belarus, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled counts 70 contracting parties covering 97 countries. WHY ARE PIZZERIAS ARGUING WHETHER WEB BROWSING IS COPYRIGHT INFRINGEMENT?–IMAPIZZA V. AT PIZZA via Technology & Marketing Law Blog by Eric Goldman on 7/22/2020 URL: https://blog.ericgoldman.org/archives/2020/07/why-are-pizzerias-arguing-whether-web-browsing-is-copyright-infringement-imapizza-v-at-pizza.htm “&Pizza” runs an East Coast pizzeria chain. “@Pizza” runs a UK pizzeria chain. Let’s disregard that both brands are terrible (the & and @ symbols plus the generic term–UGH) and that @Pizza may not own its eponymous Twitter account (the account is suspended).

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RECENT COURT VIEWS ON "MAKING AVAILABLE" CONTROVERSY IN COPYRIGHT INFRINGEMENT via Law.com by Stan Soocher on 7/22/2020 URL: https://www.law.com/2020/07/22/recent-court-views-on-making-available-controversy-in-copyright-infringement/ This article appeared in Entertainment Law & Finance, your monthly source for real-world news and strategy from major players in entertainment, contract and intellectual property law — serious analysis of the issues and case law that affect your practice. APPLE, SHYAMALAN RECOUP FEES AFTER BEATING COPYRIGHT SUIT via Intellectual Property Law360 by Bill Donahue on 7/22/2020 URL: https://www.law360.com/ip/articles/1294475 A California federal judge is ordering a screenwriter to repay more than $160,000 in legal bills that Apple and M. Night Shyamalan spent fending off her failed copyright infringement lawsuit over the Apple TV+ series "Servant." DISNEY'S WIN IN 'PIRATES' COPYRIGHT SUIT REVERSED BY NINTH CIR. via Bloomberg Law by Blake Brittain on 7/22/2020 URL: https://news.bloomberglaw.com/ip-law/disneys-win-in-pirates-copyright-suit-reversed-by-ninth-cir A copyright suit alleging that Walt Disney Co. ripped off a screenplay for the first “Pirates of the Caribbean” film was revived by the U.S. Court of ... THE MISFITS DROP COPYRIGHT CASE OVER COFFEE-TABLE BOOK via Bloomberg Law by Blake Brittain on 7/22/2020 URL: https://news.bloomberglaw.com/ip-law/the-misfits-drop-copyright-case-over-coffee-table-book Abrams Inc.'s coffee-table book “Scream With Me—The Enduring Legacy of the Misfits” infringed its trademarks and copyrights by misusing its logos and ...

Joshua L. Simmons joshua.simmons@kirkland.com

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WYDEN ATTEMPTS TO STALL CASE ACT: SENATE HOLDS ARE NOT SUPPOSED TO BE DEAD ENDS via IPWatchdog.com | Patents & Patent Law by David Newhoff on 7/22/2020 URL: https://www.ipwatchdog.com/2020/07/22/senate-holds-not-supposed-dead-ends/id=123463/ Under Rule VII of the Rules of the Senate, bills can only move forward by unanimous consent. Consequently, a single senator may place a “hold” on a bill to keep it from passing. In principle, the rule exists to ensure that any senator may suspend the legislative process in order to review and research a proposal, particularly in cases where his or her state has a keen interest. In practice, of course, senate holds are wielded like one-man filibusters that often mask ulterior motives. Holds are... FORTNITE GAME DEVELOPER DOESN'T MISS A BEAT IN “RUNNING MAN” DANCE IP via Lawyers.com by Steven Todd Lowe on 7/22/2020 URL: https://blogs.lawyers.com/attorney/entertainment-law/fortnite-game-developer-doesnt-miss-a-beat-in-running-man-dance-ip-63836/ Posted on July 22, 2020 in Copyrights, Entertainment Law. On May 29, 2020, Judge Paul W. Grimm of the United States District Court for the District of ... DC CIRC. BACKS COPYRIGHT JUDGES' SANCTION POWER via Intellectual Property Law360 by Andrew Strickler on 7/22/2020 URL: https://www.law360.com/ip/articles/1294023 The D.C. Circuit on Tuesday backed a decision by a judicial copyright board to sanction an agent that purported to represent a fictitious entity seeking royalties for broadcast copyrights by denying it the right to pursue many claims altogether. TAYLOR SWIFT SHAKES OFF SOUL ARTIST'S IP SUIT YET AGAIN via Intellectual Property Law360 by Lauren Berg on 7/22/2020 URL: https://www.law360.com/ip/articles/1294560 A California federal judge Tuesday tossed for good a Los Angeles soul artist's fourth lawsuit claiming Taylor Swift ripped off his song "Haters Gone Hate" to create her hit "Shake It Off," saying he might be declared a vexatious litigant if he keeps filing the same dismissed claims.

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9TH CIRC. REVIVES DISNEY 'PIRATES' SCRIPT IP SUIT via Intellectual Property Law360 by Mike LaSusa on 7/22/2020 URL: https://www.law360.com/ip/articles/1294642 A Ninth Circuit panel on Wednesday upended a California federal court's dismissal of claims that Disney's "Pirates of the Caribbean" film franchise copied two screenwriters' script, saying the lower court wrongly concluded the two works were not sufficiently similar for the suit to go ahead. CBS’S OVERZEALOUS COPYRIGHT BOTS HIT STAR TREK VIRTUAL COMIC-CON PANEL via Ars Technica by Kate Cox on 7/23/2020 URL: https://arstechnica.com/?p=1694047 San Diego Comic-Con—like just about every large conference, convention, and gathering in 2020—has had to switch to an online-only, virtual format this year due to the continuing pandemic. INTERNET ARCHIVE TO PUBLISHERS: DROP 'NEEDLESS' COPYRIGHT LAWSUIT AND WORK WITH US via Publishers Weekly by Andrew Albanese on 7/23/2020 URL: https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/83929-internet-archive-to-publishers-drop-needless-copyright-lawsuit-and-work-with-us.html During a 30-minute Zoom press conference on July 22, Internet Archive founder Brewster Kahle urged the four major publishers suing over the organization’s book scanning efforts to consider settling the dispute in the boardroom rather than the courtroom. ALASKA AIRLINES AD INFRINGED COPYRIGHTED MURAL, ARTIST SAYS via Intellectual Property Law360 by Dave Simpson on 7/23/2020 URL: https://www.law360.com/ip/articles/1294940 An Oakland-based artist hit Alaska Airlines Inc. with a copyright infringement suit in California federal court Thursday, alleging it used an image of one of her prominent murals in advertisements without permission.

Joshua L. Simmons joshua.simmons@kirkland.com

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LED ZEPPELIN COMES TO THE WEEKND'S RESCUE IN IP FIGHT via Intellectual Property Law360 by Lauren Berg on 7/23/2020 URL: https://www.law360.com/ip/articles/1294982 A California federal judge on Wednesday tossed a lawsuit accusing Canadian R&B artist The Weeknd of ripping off a song by a trio of British songwriters to make his track "A Lonely Night," saying the songwriters didn't show enough similarity under the Ninth Circuit's recent Led Zeppelin ruling. NO EASY FIX SEEN FOR DIGITAL COPYRIGHT LAW AMID CONTENT FLOOD via Bloomberg Law by Kyle Jahner on 7/24/2020 URL: https://news.bloomberglaw.com/ip-law/no-easy-fix-seen-for-digital-copyright-law-amid-content-flood The Digital Millennium Copyright Act shields platforms from copyright liability if they remove infringing content posted by users when notified. But since ... PRINT-ON-DEMAND VENDOR DOESN’T QUALIFY FOR DMCA SAFE HARBOR–FEINGOLD V. RAGEON via Technology & Marketing Law Blog by Eric Goldman on 7/24/2020 URL: https://blog.ericgoldman.org/archives/2020/07/print-on-demand-vendor-doesnt-qualify-for-dmca-safe-harbor-feingold-v-rageon.htm This case involves two copyright-protected photos that users submitted to the RageOn print-on-demand service. THE WEEKND DEFEATS COPYRIGHT CLAIMS OVER 'A LONELY NIGHT' via Bloomberg Law by Blake Brittain on 7/24/2020 URL: https://news.bloomberglaw.com/ip-law/the-weeknd-defeats-copyright-claims-over-a-lonely-night ... professional moniker of musician Abel Tesfaye—alleging that “A Lonely Night” infringed the copyright in their musical composition “I Need to Love. GOOGLE DRIVE REMAINS A HAVEN FOR MOVIE PIRACY via Vox Indie by Ellen Seidler on 7/24/2020 URL: http://www.voxindie.org/google-drive-movie-piracy-haven/ Google ignores safe harbor requirements of DMCA too Writing about online piracy and Google is a bit like living in the movie Groundhog Day. Day after day reality repeats itself. However,

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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unlike Groundhog Day, there are no minor changes in the timeline that lead to a different outcome. When it comes to Google Drive and […] COPYRIGHT LAWYER RICHARD BUSCH ON HIS BATTLE WITH SPOTIFY & WHY THE 'BLURRED LINES' RULING STILL ... via www.billboard by Claudia Rosenbaum on 7/27/2020 URL: https://www.billboard.com/articles/business/9424126/copyright-lawyer-richard-busch-interview-photos “I told her I didn't really know music law or copyright, but she said, 'You can learn,' ” remembers Busch. “Eight months later, I filed what is now ... 2ND CIRC. WON'T PAUSE HARSH SANCTIONS AGAINST LIEBOWITZ via Intellectual Property Law360 by Bill Donahue on 7/27/2020 URL: https://www.law360.com/ip/articles/1295789 The Second Circuit on Monday refused to grant Richard Liebowitz an emergency stay on a sanctions order requiring the embattled copyright lawyer to inform clients and judges around the country about his "extraordinary record of misconduct." PRINCETON, FACEBOOK MUST FACE IMAGING TRADE SECRET CLAIMS via Intellectual Property Law360 by Lauren Berg on 7/27/2020 URL: https://www.law360.com/ip/articles/1295474 A California federal judge has cut copyright claims from a 3D-imaging firm's revised suit accusing Facebook and Princeton University of illegally downloading its data to use in artificial intelligence projects, but allowed the company to keep its amended trade secrets claims. MOVIE PIRATES FLOURISH ON YOUTUBE via Vox Indie by Ellen Seidler on 7/28/2020 URL: http://www.voxindie.org/movie-pirates-flourish-on-youtube/ YouTube has always been a conduit for online movie and music piracy. Some copyright infringement is prevented by YouTube’s Content ID system. Although not perfect by any stretch, the fingerprinting technology does (usually) alert creators (who are lucky enough to have access to the tool) when their content is illegally uploaded. Unfortunately, YouTubers have found […]

Joshua L. Simmons joshua.simmons@kirkland.com

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YELLOWCARD ENDS COPYRIGHT LAWSUIT AGAINST JUICE WRLD REPUBLIC RECORDS IS FIRST LABEL TO ... via www.billboard by Claudia Rosenbaum on 7/28/2020 URL: https://www.billboard.com/articles/business/9425725/yellowcard-ends-copyright-lawsuit-juice-wrld-lucid-dreams Jarad Higgins) over his 2018 hit "Lucid Dreams." The pop-rock band filed a federal copyright infringement case against Higgins last October alleging that ... DOJ ANTITRUST CHIEF TACKLES MUSIC LICENSING DEALS via Intellectual Property Law360 by Bryan Koenig on 7/28/2020 URL: https://www.law360.com/ip/articles/1295891 As the U.S. Department of Justice conducts its second review in four years of the decades-old deals governing the country's two main music licensing groups, the agency's top antitrust official focused Tuesday on how much the industry has changed even as he avoided predicting the consent decrees' ultimate fate. INTERNET ARCHIVE ANSWERS PUBLISHERS' COPYRIGHT LAWSUIT via Publishers Weekly by Andrew Albanese on 7/29/2020 URL: https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/83971-internet-archive-answers-publishers-copyright-lawsuit.html In a July 28 filing, the Internet Archive answered a copyright infringement lawsuit filed by four major publishers, asserting that its long-running book ... 9TH CIRC. MAKING IT HARDER FOR STUDIOS TO BEAT COPYRIGHT SUITS via Intellectual Property Law360 by Bill Donahue on 7/29/2020 URL: https://www.law360.com/ip/articles/1296112 The Ninth Circuit — a court once labeled the "Court of Appeals for the Hollywood Circuit" — has issued a string of copyright rulings that will make it harder for big entertainment companies to fend off lawsuits from aggrieved creators. FULL 9TH CIRC. WON'T UNDO 'SHAPE OF WATER' COPYRIGHT RULING via Intellectual Property Law360 by Bill Donahue on 7/29/2020 URL: https://www.law360.com/ip/articles/1296661 The full Ninth Circuit refused on Wednesday to undo a copyright ruling on the Oscar-winning "The Shape of Water" that Disney has warned will promote "protracted, meritless lawsuits."

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WHAT’S FAIR? SENATE IP SUBCOMMITTEE CONTEMPLATES PROBLEMS WITH COPYRIGHT FAIR USE REGIME via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 7/30/2020 URL: https://www.ipwatchdog.com/2020/07/30/whats-fair-senate-ip-subcommittee-contemplates-problems-with-copyright-fair-use-regime/id=123614/ The Senate Judiciary Committee’s Subcommittee on Intellectual Property on Tuesday continued its year-long series of hearings on the Digital Millennium Copyright Act (DMCA), this time focusing on the question, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?” Subcommittee Chairman Thom Tillis (R-NC) said that fair use has traditionally been “a bit of a touchy subject in copyright discussions,” but plays an important role in encouraging free speech and promoting... INTERNET ARCHIVE HITS BACK AT PUBLISHERS' COPYRIGHT CLAIMS via World IP Review by Sarah Morgan on 7/30/2020 URL: https://www.worldipreview.com/news/internet-archive-hits-back-at-publishers-copyright-claims-20003 Internet Archive, COVID-19, coronavirus, piracy, copyright infringement, Hachette Book Group, HarperCollins, John Wiley & Sons, Penguin Random ...

Joshua L. Simmons joshua.simmons@kirkland.com

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August 2020

DATA CENTER AVOIDS COPYRIGHT LIABILITY BY FORWARDING DMCA NOTICES TO ITS CUSTOMER–ALS SCAN V. STEADFAST via Technology & Marketing Law Blog by Eric Goldman on 8/2/2020 URL: https://blog.ericgoldman.org/archives/2020/08/data-center-avoids-copyright-liability-by-forwarding-dmca-notices-to-its-customer-als-scan-v-steadfast.htm Steadfast operates data centers. KEEP MOVING FORWARD: PERFORMANCE OF THE COPYRIGHT OFFICE DURING COVID-19 via Copyright: Creativity at Work by Maria Strong on 8/3/2020 URL: https://blogs.loc.gov/copyright/2020/08/keep-moving-forward-performance-of-the-copyright-office-during-covid-19/ The U.S. Copyright Office has taken a number of actions to ensure that mission-critical functions continue during the ongoing challenges caused by COVID-19. REQUEST FOR AMICI: TELL SCOTUS TO INCENTIVIZE ORIGINAL FICTIONAL CHARACTERS THROUGH COPYRIGHT via IPWatchdog.com | Patents & Patent Law by Patrick Arenz on 8/3/2020 URL: https://www.ipwatchdog.com/2020/08/03/request-amici-tell-scotus-incentivize-original-fictional-characters-copyright/id=123665/ Some fictional characters are heroes; others are villains. Some mimic reality and others personify fantasy. And some appear in comic books and video games, while others in television shows and movies. Fictional characters epitomize the essence of creativity. And while copyright law is designed to encourage creative works, the law on character copyrights is in chaos. Every circuit to address this area of copyright law applies a different test. And some tests—like the Ninth Circuit’s—favor... DISNEY BEATS ANOTHER 'INSIDE OUT' COPYRIGHT CASE AT 9TH CIRC. via Intellectual Property Law360 by Bill Donahue on 8/3/2020 URL: https://www.law360.com/ip/articles/1298054 The Ninth Circuit on Monday rejected another copyright lawsuit against Walt Disney Co. over Pixar's animated hit "Inside Out," saying it was acceptable for a trial judge to use "common sense" to dismiss the case without input from experts.

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HOLLYWOOD STUDIOS SEEK $6.4M ATTY FEES FOR VIDANGEL IP WIN via Intellectual Property Law360 by Hailey Konnath on 8/3/2020 URL: https://www.law360.com/ip/articles/1297891 Disney and other Hollywood studios say VidAngel should pay $6.4 million in attorney fees after Munger Tolles & Olson LLP attorneys secured the studios a $62.4 million verdict in a long-running copyright suit over streamed films, claiming opposing counsel "made this litigation as difficult and costly as possible." SENATE IP SUBCOMMITTEE HEARING ADDRESSES INTERSECTION OF DMCA AND FAIR USE via Center for the Protection of Intellectual Property by Yumi Oda on 8/4/2020 URL: https://cpip.gmu.edu/2020/08/04/senate-ip-subcommittee-hearing-addresses-intersection-of-dmca-and-fair-use/ As part of its year-long review of the Digital Millennium Copyright Act (DMCA), the Senate Subcommittee on Intellectual Property tackled yet another contentious issue in our copyright system—fair use. USCO’S STUDY OFFERS HOPE FOR REFORM OF THE “NOTICE AND TAKEDOWN” LAW, BUT DUCKS THE ISSUE ON SITE BLOCKING via Hugh Stephens Blog on 8/4/2020 URL: http://hughstephensblog.net/2020/08/04/uscos-study-offers-hope-for-reform-of-the-notice-and-takedown-law-but-ducks-the-issue-on-site-blocking/ The US Copyright Office (USCO) recently released its 200 page study on Section 512 of the 1998 Digital Millennium Copyright Act (DMCA), the legislation passed to implement US obligations under the WIPO (World Intellectual Property Organization) Copyright Treaty. This section of the DMCA is otherwise known and better described as the Online Copyright Infringement Liability […] DMCA HEARING IV – CONTEMPLATING FAIR USE via The Illusion of More by David Newhoff on 8/4/2020 URL: http://illusionofmore.com/dmca-hearing-iv-contemplating-fair-use/ With the first three DMCA review hearings before the Senate Subcommittee on IP, it was fairly easy to identify the salient matters most likely to survive beyond this inquiry period and become part of the substantive debate on possible legislative revision.

Joshua L. Simmons joshua.simmons@kirkland.com

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ROUND HILL MUSIC FILES $32M COPYRIGHT INFRINGEMENT LAWSUIT AGAINST TUNECORE WARNER MUSIC ... via Billboard by Claudia Rosenbaum on 8/4/2020 URL: https://www.billboard.com/articles/business/9428988/round-hill-music-tunecore-copyright-lawsuit Round Hill is seeking damages of $150,000 for willful copyright infringement, contributory copyright infringement, and vicarious copyright infringement, ... NEIL YOUNG SUES DONALD TRUMP CAMPAIGN FOR COPYRIGHT INFRINGEMENT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 8/4/2020 URL: https://www.hollywoodreporter.com/thr-esq/neil-young-sues-donald-trump-campaign-copyright-infringement-1305863 The legendary musician alleges that Trump lacked license to play "Rockin' in the Free World" and "Devil's Sidewalk" at a campaign rally in Tulsa. 10 WAYS EU COPYRIGHT IS DIFFERENT FROM THE US via Plagiarism Today by Jonathan Bailey on 8/4/2020 URL: https://www.plagiarismtoday.com/2020/08/04/10-ways-eu-copyright-is-different-from-the-us/ In recent years, the European Union has been stepping up and taking a larger and larger role in governing the internet. NEIL YOUNG SUES TRUMP CAMPAIGN FOR USING SONGS AT RALLIES via Intellectual Property Law360 by Bill Donahue on 8/4/2020 URL: https://www.law360.com/ip/articles/1298410 Rock star Neil Young launched a copyright lawsuit in Manhattan federal court Tuesday aimed at blocking President Donald Trump's reelection campaign from playing his songs at rallies, saying he would not let his music be used to support "ignorance and hate." HIGH COURT ASKED TO CLEAR UP COPYRIGHTS FOR CHARACTERS via Intellectual Property Law360 by Bill Donahue on 8/4/2020 URL: https://www.law360.com/ip/articles/1298300 A child development specialist is asking the U.S. Supreme Court to revive her copyright lawsuit against Walt Disney Co. over Pixar's animated hit "Inside Out," warning that circuit courts have created "chaos" over protection for fictional characters.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COUNTRY RAPPER CAN'T AVOID SUIT SAYING HE SHOT UP PAINTINGS via Intellectual Property Law360 by Nathan Hale on 8/4/2020 URL: https://www.law360.com/ip/articles/1298047 A country rap performer cannot escape a Florida artist's claim that he violated the federal Visual Artists Rights Act by shooting up two of his paintings with guns and making derogatory remarks about the artist on social media, a Florida federal judge said Monday. IAP DEFEATS VICARIOUS COPYRIGHT INFRINGEMENT CLAIM–UMG V. BRIGHT HOUSE via Technology & Marketing Law Blog by Eric Goldman on 8/5/2020 URL: https://blog.ericgoldman.org/archives/2020/08/iap-defeats-vicarious-copyright-infringement-claim-umg-v-bright-house.htm In a good ruling for Internet access providers (IAPs), a court said that the IAP Bright House wasn’t vicariously liable for its users’ copyright infringing activity because the IAP lacked a direct financial benefit. 2ND CIRC. WON'T REVIVE HONEY HARVESTING COPYRIGHT SUIT via Intellectual Property Law360 by Dorothy Atkins on 8/5/2020 URL: https://www.law360.com/ip/articles/1298284 The Second Circuit on Tuesday backed a mail-order catalog's win in a copyright infringement lawsuit brought by the maker of a honey harvesting product, rejecting arguments that the catalog ripped off the product maker's intellectual property by replacing his brand with a rival in nearly identical ads. GOOGLE V. ORACLE PERSPECTIVE: GOOGLE’S ANDROID ‘CHEAT CODE’ WAS TO COPY ORACLE’S CODE via IPWatchdog.com | Patents & Patent Law by Steven Tepp on 8/5/2020 URL: https://www.ipwatchdog.com/2020/08/05/google-v-oracle-perspective-googles-android-cheat-code-copy-oracles-code/id=123789/ In two months, the Supreme Court will hear the oral argument in the long-running Google v. Oracle software copyright case. At issue is the availability of copyright protection for computer programs and in particular the copyright protection of code in Oracle’s Java platform, which Google admits it copied for its Android operating system without obtaining a license. Google also claims its commercial use of that code in competition with Oracle is protected under copyright law’s fair use doctrine,...

Joshua L. Simmons joshua.simmons@kirkland.com

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LEGAL FICTION: 8 RULINGS ON COPYRIGHTED CHARACTERS via Intellectual Property Law360 by Bill Donahue on 8/5/2020 URL: https://www.law360.com/ip/articles/1298767 An author who sued The Walt Disney Co. over "Inside Out" is asking the U.S. Supreme Court to rule that her "Moodsters" are copyrightable characters, but winning that kind of special treatment is no easy task. GOOGLE V. ORACLE VI – GOOGLE’S DISTRACT, DIVIDE, AND CONQUER STRATEGY via The Illusion of More by David Newhoff on 8/6/2020 URL: http://illusionofmore.com/google-v-oracle-vi-googles-distract-divide-and-conquer-strategy/ As proceedings in Google v. Oracle were delayed by the coronavirus, I also paused writing about the case, but now that oral arguments are scheduled for October 7, this topic will return to the headlines in copyright and tech news. DISNEY SAYS 'PIRATES' COPYRIGHT RULING MUST BE UNDONE via Intellectual Property Law360 by Bill Donahue on 8/6/2020 URL: https://www.law360.com/ip/articles/1298915 The Walt Disney Co. is asking the full Ninth Circuit to overturn a ruling last month that revived a copyright lawsuit over "Pirates of the Caribbean," arguing it will lead to "an unnecessary quagmire of discovery." MARTHA'S VINEYARD ARTIST WINS COPYRIGHT CLAIM IN PORN IP CASE via Intellectual Property Law360 by Brian Dowling on 8/6/2020 URL: https://www.law360.com/ip/articles/1299245 An adult film producer and her distribution company violated a Massachusetts artist's copyrights when the feature-length movies they shot at the artist's Martha's Vineyard home captured many of her works adorning the seaside abode, a federal judge ruled Thursday.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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GOOGLE V. ORACLE VII: GOOGLE’S GASLIGHT DEFENSE, A LESSON FROM THE AGE OF MELODRAMA via The Illusion of More by David Newhoff on 8/7/2020 URL: http://illusionofmore.com/google-v-oracle-vii-googles-gaslight-defense-a-lesson-from-the-age-of-melodrama/ Google and its supporting amici rely substantially on painting a landscape of a contemporary software industry that is highly dependent on what they describe as “reimplementation” of certain types of computer code. SCHLUMBERGER LOSES COPYRIGHT CLAIM IN STOLEN SOFTWARE SUIT via Intellectual Property Law360 by Morgan Conley on 8/7/2020 URL: https://www.law360.com/ip/articles/1299303 A Canadian oilfield services company's hydraulics software isn't similar enough to drilling software developed by a Schlumberger unit to support a copyright infringement claim, a Texas federal judge has ruled. MISSY ELLIOTT LAUNCHES COPYRIGHT SUIT OVER EARLY RECORDINGS via Intellectual Property Law360 by Hannah Albarazi on 8/7/2020 URL: https://www.law360.com/ip/articles/1299311 Grammy-winning rapper Missy Elliott has lodged a lawsuit against a producer she claims is unlawfully trying to sell recordings she created at his studio in the 1990s, asking a Florida federal court to grant declaratory judgment that she is the sole owner of the recordings' copyrights. GOOGLE, ORACLE SPAR OVER 7TH AMENDMENT AT HIGH COURT via Intellectual Property Law360 by Bill Donahue on 8/7/2020 URL: https://www.law360.com/ip/articles/1276838 Responding to an unusual call for extra briefing, Google and Oracle on Friday filed dueling arguments with the U.S. Supreme Court over whether their decadelong copyright war should end with an anti-climactic ruling on appellate deference.

Joshua L. Simmons joshua.simmons@kirkland.com

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A SECOND CIRCUIT PANEL MISUNDERSTANDS THE COPYRIGHT ACT’S STATUTE OF LIMITATIONS (GUEST BLOG POST) via Technology & Marketing Law Blog by Tyler Ochoa on 8/7/2020 URL: https://blog.ericgoldman.org/archives/2020/08/a-second-circuit-panel-misunderstands-the-copyright-acts-statute-of-limitations-guest-blog-post.htm In Sohm v. Scholastic, Inc., 959 F.3d 39 (2d Cir. 2020), a Second Circuit panel held that “the discovery rule applies for statute of limitations purposes in determining when a copyright infringement claim accrues under the Copyright Act.” SONY, OTHERS LOOK TO REVIVE PIRATING CLAIM AT 11TH CIRC. via Intellectual Property Law360 by Carolina Bolado on 8/7/2020 URL: https://www.law360.com/ip/articles/1299507 A host of music labels want the Eleventh Circuit to take a look at a ruling last month that trimmed their suit against telecommunications company Bright House Networks over its alleged failure to curb internet subscribers' pirating activity, according to a filing Thursday. DC CIRC. BREATHES NEW LIFE INTO COPYRIGHT ROYALTY HIKE FIGHT via Intellectual Property Law360 by Nadia Dreid on 8/7/2020 URL: https://www.law360.com/ip/articles/1299549 The D.C. Circuit doesn't completely see eye to eye with the Copyright Royalty Board's choice to hike the rates that streaming services must pay songwriters and publishers, but exactly how much it disagrees isn't clear — the panel sealed its Friday opinion vacating part of the ruling. MUSIC RIGHTS GROUP'S PORTFOLIO UNDESIRABLE, GOOGLE SAYS via Intellectual Property Law360 by Bryan Koenig on 8/7/2020 URL: https://www.law360.com/ip/articles/1299525 Streaming giants Apple, Amazon, Google and Spotify on Friday denied waging a group boycott against a music rights organization run by a 21-year-old self-described "musical prodigy," telling a Connecticut federal court there's no antitrust case because no one wants its music. ROCKIN’ IN THE FREE(BOOTING) WORLD: NEIL YOUNG V. TRUMP FOR AMERICA via The Illusion of More by David Newhoff on 8/10/2020 URL: http://illusionofmore.com/rockin-in-the-freebooting-world-neil-young-v-trump-for-america/ Recent reports that Neil Young is no longer asking or insisting that the Trump campaign stop using his music, but is instead suing Trump for America for copyright infringement, highlights

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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the extent to which this longstanding controversy between artists and politicians has heated up in recent years. ARE LIBRARIES THE ENEMY OF AUTHORS AND PUBLISHERS? via Hugh Stephens Blog on 8/10/2020 URL: http://hughstephensblog.net/2020/08/10/are-libraries-the-enemy-of-authors-and-publishers/ As regular readers of this blog will know, I am unabashedly and unapologetically pro-©, pro-creator, pro-author, pro-artist, pro-publisher and a strong supporter of our cultural and entertainment industries. I am also pro-public library. This raises the question of what to do about publisher Kenneth Whyte’s long and controversial opinion piece that appeared in the Globe and […] MUSICIANS ARE COMING AFTER JEFF BEZOS FOR COPYRIGHT INFRINGEMENT AFTER THE AMAZON CEO TOLD ... via Business Insider by Katie Canales on 8/10/2020 URL: https://www.businessinsider.com/twitch-amazon-copyrighted-music-letter-jeff-bezos-2020-8 Twitch, which Amazon acquired in 2014 for almost $1 billion, issues takedown notices for copyrighted music instead of licensing music. The letter ... COPYRIGHT LAW ISSUES PLAGUE SHERLOCK HOLMES SUIT via Intellectual Property Law360 by Stephen Lee on 8/10/2020 URL: https://www.law360.com/ip/articles/1298812 A new lawsuit over Sherlock Holmes faces some significant problems, legally and factually. DEMO REEL CLIPS RULED FAIR USE IN DIRECTOR'S SUIT AGAINST ACTRESS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 8/10/2020 URL: https://www.hollywoodreporter.com/thr-esq/demo-reel-clips-ruled-fair-use-directors-suit-actress-1306502 Director Robin Bain in 2018 sued actress Jessica Taylor Haid over her use of clips from 'Nowhereland' on her acting reel.

Joshua L. Simmons joshua.simmons@kirkland.com

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AMC TAKES 'MICKEY' SINGER BY THE HAND AND SETTLES SUIT via Intellectual Property Law360 by Craig Clough on 8/10/2020 URL: https://www.law360.com/ip/articles/1300017 Singer and choreographer Toni Basil told a California federal judge Monday that she reached an agreement with AMC over the cable channel's alleged "willful, intentional and purposeful use and exploitation" of her No. 1 hit song "Mickey" in a promo trailer for the series "Preacher." ARTISTS URGE BEZOS TO TAKE ACTION AGAINST THE STREAMING OF UNLICENSED MUSIC ON TWITCH via IPWatchdog.com | Patents & Patent Law on 8/11/2020 URL: https://www.ipwatchdog.com/2020/08/11/artists-urge-bezos-take-action-streaming-unlicensed-music-twitch/id=123988/ On August 10, the Executive Board of the nonprofit organization Artist Rights Alliance (ARA) published a letter to Jeff Bezos, the Founder and Chief Executive Officer of Amazon.com, Inc. In the letter, the ARA asked Bezos to answer the question of whether the Twitch platform allows users to post or stream unlicensed music and to take necessary actions to stop such activity. The ARA advocates for a healthy music economy and for the rights of musicians, performers, and songwriters in the digital... JUDGE WILL CLARIFY WHETHER MANY MUSICIANS CAN LATER RECLAIM RIGHTS FROM RECORD LABELS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 8/11/2020 URL: https://www.hollywoodreporter.com/thr-esq/judge-will-clarify-musicians-can-reclaim-rights-record-labels-1306773 A New York federal judge agrees to entertain a declaratory judgment in a proposed class action over copyright termination rights. GOOGLE BEATS SONG LYRIC SCRAPING LAWSUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 8/11/2020 URL: https://www.hollywoodreporter.com/thr-esq/google-beats-song-lyric-scraping-lawsuit-1306788 Google may have been caught "redhanded," but a federal judge rules that Genius hasn't alleged any viable claims not be preempted by copyright law.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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REUTERS FIGHTS TO KEEP CLAIMS AGAINST LEGAL STARTUP ALIVE via Intellectual Property Law360 by Jeff Montgomery on 8/11/2020 URL: https://www.law360.com/ip/articles/1300115 Thomson Reuters and West Publishing accused ROSS Intelligence on Monday of ignoring the heart of their federal suit in Delaware alleging ROSS infringed Westlaw copyrights and interfered with a former user's contract in order to hijack protected content. GOOGLE BEATS LAWSUIT OVER GENIUS LYRICS via Intellectual Property Law360 by Bill Donahue on 8/11/2020 URL: https://www.law360.com/ip/articles/1300286 A Brooklyn federal judge on Monday tossed out a lawsuit filed by the lyrics website Genius accusing Google of misappropriating the company's content, saying the case was preempted by federal copyright law. MUSIC STREAMERS WIN APPEAL OVER ROYALTY HIKE FOR SONG OWNERS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 8/11/2020 URL: https://www.hollywoodreporter.com/thr-esq/music-streamers-win-appeal-royalty-hike-song-owners-1306981 In a setback for publishers and songwriters, the DC Circuit Court of Appeals tells the Copyright Royalty Board to try again with respect to the rate paid by Spotify and other digital outlets. VIDANGEL WANTS 9TH CIRC. TO ERASE MOVIE STUDIOS' $62M IP WIN via Intellectual Property Law360 by Cara Salvatore on 8/11/2020 URL: https://www.law360.com/ip/articles/1300317 Movie-sanitizing service VidAngel has asked the Ninth Circuit to erase a $62 million verdict against it in a copyright-infringement suit brought by major Hollywood movie studios such as Disney and Warner Bros., saying there were errors at trial. A DECADE OF JUSTICE DELAYED: ON THIS DAY TEN YEARS AGO, ORACLE SUED GOOGLE OVER PATENTS AND COPYRIGHTED WORKS via FOSS Patents by Florian Mueller on 8/12/2020 URL: http://www.fosspatents.com/2020/08/a-decade-of-justice-delayed-on-this-day.html Ten years--or 3653 days--ago, a wholly-owned subsidiary of Oracle Corporation named Oracle America, which until earlier that year was known as Sun Microsystems, filed a patent and

Joshua L. Simmons joshua.simmons@kirkland.com

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copyright infringement complaint against Google in the Northern District of California (click on the image to enlarge; this post continues below the image): 4 BURNING QUESTIONS ABOUT COPYRIGHT IN THE AGE OF ARTIFICIAL INTELLIGENCE via CreativeFuture by Brett Williams on 8/12/2020 URL: https://creativefuture.org/artificial-intelligence-copyright/ Artificial intelligence is already impacting how artistic works are created – in ways both exciting and troubling. ZEPPELIN ACCUSERS ASK SUPREME COURT TO TACKLE 'STAIRWAY' via Intellectual Property Law360 by Bill Donahue on 8/12/2020 URL: https://www.law360.com/ip/articles/1300627 A long-running copyright battle over Led Zeppelin's "Stairway To Heaven" has reached the steps of the U.S. Supreme Court, with a petition warning the justices that the case has been a "disaster" for artists and a "gift" to record companies. STARZ ARGUES IT ISN'T OBLIGATED TO SCAN EVERY PLATFORM FOR INFRINGEMENTS IN MGM SUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 8/12/2020 URL: https://www.hollywoodreporter.com/thr-esq/starz-argues-it-isnt-obligated-scan-platform-infringements-mgm-suit-1307150 The network says it doesn't have to "monitor the offerings of every third-party platform that exhibits movies or television episodes, every day, against every exclusivity window" to make sure thousands of licensed films aren't being infringed. SPOTIFY, AMAZON WIN REDO OVER HIKED STREAMING ROYALTIES via Intellectual Property Law360 by Tiffany Hu on 8/12/2020 URL: https://www.law360.com/ip/articles/1300455 The D.C. Circuit said on Tuesday that the Copyright Royalty Board made procedural errors that "blindsided" Spotify and other streaming platforms, unsealing an Aug. 7 decision and explaining why it had overturned a ruling that ordered the serves to pay substantially more to songwriters.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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TAYLOR SWIFT AGAIN AIMS TO SHAKE OFF LYRICS COPYRIGHT SUIT via Intellectual Property Law360 by Bill Donahue on 8/12/2020 URL: https://www.law360.com/ip/articles/1300458 A little under a year after the Ninth Circuit revived a lawsuit accusing Taylor Swift of ripping off lyrics for "Shake It Off," the pop star is once again asking a federal judge to boot the case. SUPREME COURT ASKED TO REVIEW "STAIRWAY TO HEAVEN" FIGHT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 8/13/2020 URL: https://www.hollywoodreporter.com/thr-esq/supreme-court-asked-review-stairway-heaven-fight-1307260 Led Zeppelin's copyright win is challenged one last time. STATUTORY COPYRIGHT DAMAGES OFFER MUSICIANS A VIABLE OPTION via Intellectual Property Law360 by Christopher Dyess on 8/13/2020 URL: https://www.law360.com/ip/articles/1298815 Writing original music, while a labor of love, is difficult. Typically, it starts with inspiration that turns into an idea that the musician must translate into chord changes, melody and lyrics. 'FAMILY FRIENDLY' STREAMING SERVICE VIDANGEL APPEALS $62 MILLION COPYRIGHT VERDICT via MediaPost by Wendy Davis on 8/13/2020 URL: https://www.mediapost.com/publications/article/354733/family-friendly-streaming-service-vidangel-appea.html The Family Movie Act provides that copyright infringement laws don't apply to technology that mutes or hides "limited portions of audio or video ... DISNEY, NETFLIX SUE STREAMING SERVICE FOR COPYRIGHT INFRINGEMENT via Bloomberg Law by Jake Holland on 8/13/2020 URL: https://news.bloomberglaw.com/ip-law/disney-netflix-sue-streaming-service-for-copyright-infringement , Netflix Studios , and Paramount Pictures Corp. for allegedly infringing their copyrights. Florida-based Crystal Clear Media illegally offers copyrighted ...

Joshua L. Simmons joshua.simmons@kirkland.com

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ZEPPELIN'S 'STAIRWAY' WIN 'ERODES' COPYRIGHT LAW, SCOTUS TOLD via Bloomberg Law by Blake Brittain on 8/13/2020 URL: https://news.bloomberglaw.com/ip-law/zeppelins-stairway-win-erodes-copyright-law-scotus-told The U.S. Supreme Court should review a full appeals court's decision that Led Zeppelin's “Stairway to Heaven” doesn't infringe the copyright in Spirit's ... BUZZFEED LOSES 2ND CIRC. COPYRIGHT BATTLE OVER PHOTO CREDIT via Intellectual Property Law360 by Bill Donahue on 8/13/2020 URL: https://www.law360.com/ip/articles/1300989 The Second Circuit ruled against BuzzFeed on Thursday in a copyright lawsuit over the unauthorized use of a photojournalist's image, rejecting the company's novel defenses under the Digital Millennium Copyright Act. NINTH CIRCUIT AFFIRMS DISMISSAL OF COPYRIGHT INFRINGEMENT CLAIM AGAINST DISNEY’S INSIDE OUT MOVIE via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 8/15/2020 URL: https://www.ipwatchdog.com/2020/08/15/ninth-circuit-affirms-dismissal-copyright-infringement-claim-disneys-inside-movie/id=124078/ On August 3, the United States Court of Appeals for the Ninth Circuit, in Masterson v. Walt Disney Company, affirmed a district court’s dismissal of Carla Masterson’s copyright infringement claims against The Walt Disney Co. The infringement claim was based on Masterson’s allegation that Disney's Inside Out (the Movie) violated her copyrights in her book of poetry, What's On the Other Side of the Rainbow? (A Book of Feelings) (the Book) and her movie script, The Secret of the Golden Mirror (the... LIZZO NOTCHES A WIN IN ‘TRUTH HURTS’ COPYRIGHT CASE via NYT > Media & Advertising by Ben Sisario on 8/17/2020 URL: https://www.nytimes.com/2020/08/17/arts/music/lizzo-truth-hurts-lawsuit.html A judge ruled that just because a group of songwriters worked on one “DNA test” song with Lizzo doesn’t mean they have a claim to another.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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CBS BEATS COPYRIGHT CLAIMS OVER 'STAR TREK: DISCOVERY' via Bloomberg Law by Blake Brittain on 8/17/2020 URL: https://news.bloomberglaw.com/us-law-week/cbs-beats-copyright-claims-over-star-trek-discovery Anas Osama Ibrahim Abdin owns a copyright in the “distillation” of the concept for his video game “Tardigrades,” a compilation of images, descriptions, ... THE LATEST LEGAL TRENDS IN DATA SCRAPING AND OWNERSHIP via Intellectual Property Law360 by Wesley Horner & Bart Eppenauer on 8/17/2020 URL: https://www.law360.com/ip/articles/1300419 For many people, the best place to start learning is the internet. From casual browsing to competitive intelligence, publicly available data is one of our best sources of information. With the explosion of artificial intelligence, scraping data from public websites to train AI models has become the new normal. But to some, data scraping almost seems like hacking. POLISH PORN SITE OWNER ESCAPES COPYRIGHT CLAIMS AT NINTH CIRCUIT via Bloomberg Law by Blake Brittain on 8/17/2020 URL: https://news.bloomberglaw.com/ip-law/polish-porn-site-owner-escapes-copyright-claims-at-ninth-circuit A porn producer's copyright and trademark claims against the Polish owner of a site that uploaded its material for free were properly bounced from ... MEDIA CO. ORDERED TO STOP 'CARTOON CLASSICS' DMCA NOTICES via Intellectual Property Law360 by Tiffany Hu on 8/17/2020 URL: https://www.law360.com/ip/articles/1301675 A California federal judge has ordered a company to stop using Amazon's takedown process amid a legal dispute over the labeling of "cartoon classics" like Popeye and Bugs Bunny, the first time the judge has issued a mandatory injunction in nearly a decade, according to an attorney.

Joshua L. Simmons joshua.simmons@kirkland.com

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3-JUDGE PANEL NEEDS 4 OPINIONS TO REJECT PORN COMPANY'S COPYRIGHT CLAIM via Law.com by Scott Graham on 8/17/2020 URL: https://www.law.com/2020/08/17/3-judge-panel-needs-4-opinions-to-reject-porn-companys-copyright-claim/ Ninth Circuit Judges from left: Ronald Gould, Sandra Ikuta and Ryan Nelson. All three judges wrote an opinion in a decision released Monday, with Nelson writing a concurrence to his own majority ruling. PUBLISHERS WIN $6.1M IN IP BATTLE WITH ONLINE SELLERS via Intellectual Property Law360 by Tiffany Hu on 8/17/2020 URL: https://www.law360.com/ip/articles/1301917 McGraw-Hill and other textbook publishers on Monday scored a $6.1 million victory in New York federal court in a lawsuit over a "brazen" scheme to illegally sell educational materials to students after the sellers failed to respond to the copyright allegations. 'HIGHLY ILLOGICAL' 'STAR TREK' COPYING CLAIMS NIXED AT 2ND CIRC. via Intellectual Property Law360 by Mike LaSusa on 8/17/2020 URL: https://www.law360.com/ip/articles/1301758 The Second Circuit on Monday called a video game creator's copyright suit "highly illogical," nixing his claims that a recent "Star Trek" series ripped off key characters and plot points from his work in a decision riddled with references to the science fiction phenomenon. POP STAR LIZZO DODGES 'TRUTH HURTS' IP CLAIMS, FOR NOW via Intellectual Property Law360 by Mike LaSusa on 8/17/2020 URL: https://www.law360.com/ip/articles/1302065 Pop star Lizzo has won a bid to nix counterclaims by three songwriters who say they deserve credit for her chart-topping song "Truth Hurts," though the California federal judge handling the lawsuit decided to give the songwriters another chance to make their case.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WILL THE SUPREME COURT PROVIDE THE FAIR USE CLARITY THAT IP LAW NEEDS? via IPWatchdog.com | Patents & Patent Law by Terry Campo on 8/18/2020 URL: https://www.ipwatchdog.com/2020/08/18/will-supreme-court-provide-fair-use-clarity-ip-law-needs/id=124128/ On July 30, IP Watchdog Editor-in-Chief Eileen McDermott reported that, as part of its series on a 1990s copyright modernization bill known as the Digital Millennium Copyright Act, the Senate Subcommittee on Intellectual Property recently held a hearing relating to what is known as the fair use doctrine – an exemption to copyright law that has long confused innovators and consumers alike. Thankfully, the days of this ill-defined system, which breeds cronyism, not justice, may soon be numbered.... CHINA'S NATIONAL PEOPLE'S CONGRESS RELEASES SECOND DRAFT OF AMENDED COPYRIGHT LAW via National Law Review by Aaron Wininger on 8/18/2020 URL: https://www.natlawreview.com/article/china-s-national-people-s-congress-releases-second-draft-amended-copyright-law This clause caused some controversy for being overly broad potentially leading to numerous complaints against copyright owners unwilling to license ... MY FIXATION WITH FIXATION via Hugh Stephens Blog on 8/18/2020 URL: http://hughstephensblog.net/2020/08/18/my-fixation-with-fixation/ Sometimes I write about really serious copyright topics, like the economic impact of piracy or proposed changes in copyright legislation, and sometimes the blog posts are more whimsical (monkey selfie), light-hearted (rubber ducky), or practical (recipes), but they all deal with real copyright issues. I will let you decide which category this blog falls into, […] NICKI MINAJ WARNS EXPERIMENTATION AT STAKE IN TRACY CHAPMAN COPYRIGHT SUIT via THR, Esq. | Hollywood Reporter by Eriq Gardner on 8/18/2020 URL: https://www.hollywoodreporter.com/thr-esq/nicki-minaj-warns-experimentation-at-stake-in-tracy-chapman-copyright-suit Tracy Chapman goes for the win against Nicki Minaj, who predicts the case "will have a significant impact on the music recording industry, one way or the other."

Joshua L. Simmons joshua.simmons@kirkland.com

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CAN'T HELP FALLING IN LOVE' WRITER'S HEIRS CAN'T HELP FILING SUIT via Intellectual Property Law360 by Lauren Berg on 8/18/2020 URL: https://www.law360.com/ip/articles/1302375 The daughter and grandson of one of the composers for Elvis Presley's hit "Can't Help Falling In Love" claim in a lawsuit filed Tuesday in New York federal court that a brand management company is hindering their ability to take back the rights to the song. AMAZON CAN'T USE ZILLOW TO NIX WILLIAMS-SONOMA'S IP CLAIM via Intellectual Property Law360 by Craig Clough on 8/18/2020 URL: https://www.law360.com/ip/articles/1302118 A California judge on Monday denied Amazon's bid to dismiss a copyright infringement claim from Williams-Sonoma's suit over allegedly unauthorized online sales of the cookware maker's goods, ruling that the complaint sufficiently pled its accusations that Amazon improperly uses Williams-Sonoma's photos in advertisements. DC CIRC. REVIVES FIGHT OVER GRANDFATHERED ROYALTY RATES via Intellectual Property Law360 by Tiffany Hu on 8/18/2020 URL: https://www.law360.com/ip/articles/1302296 The D.C. Circuit on Tuesday said the Copyright Royalty Board needs to take another look at what Music Choice must pay in royalties for its digital music services, finding the board erred in "categorically" excluding it from a lower rate for preexisting services. A NEW COPYRIGHT OFFICE WAREHOUSE–25 YEARS IN THE MAKING via Copyright: Creativity at Work by Paul Capel on 8/19/2020 URL: https://blogs.loc.gov/copyright/2020/08/a-new-copyright-office-warehouse-25-years-in-the-making/ The United States Copyright Office holds the most comprehensive collection of copyright records in the world.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THE INTERNET INDUSTRY SHOULD NOT PICK THE NEXT REGISTER OF COPYRIGHTS via The Illusion of More by David Newhoff on 8/19/2020 URL: http://illusionofmore.com/the-internet-industry-should-not-pick-the-next-register-of-copyrights/ Even under normal circumstances, anyone can be forgiven for missing the memo that by the end of this month, the Librarian of Congress, Dr. Carla Hayden, will make her pick for the new Register of Copyrights. 2ND CIRC. BACKS RICK ROSS IN 50 CENT'S PUBLICITY RIGHTS FIGHT via Intellectual Property Law360 by Dorothy Atkins on 8/19/2020 URL: https://www.law360.com/ip/articles/1302664 The Second Circuit affirmed Wednesday a ruling that handed Rick Ross a win in a copyright dispute with 50 Cent over Ross' sampling of the rapper's hit song "In Da Club" to promote his own album "Black Market," finding federal law preempts 50 Cent's state right-to-publicity claim. JUDGE WANTS LIEBOWITZ BANNED FROM NORTHERN DISTRICT OF NY via Intellectual Property Law360 by Tiffany Hu on 8/19/2020 URL: https://www.law360.com/ip/articles/1302812 A New York federal judge is pushing for Richard Liebowitz's removal from the roll of attorneys who can practice in the Northern District after sanctioning the prolific litigator for inflating figures for both himself and his client in a copyright lawsuit over a photo of pork. SOHM-THING WICKED THIS WAY COMES: THE SECOND CIRCUIT STUMBLES IN APPLYING THE COPYRIGHT ACT’S STATUTE OF LIMITATIONS via Above the Law by Scott Alan Burroughs on 8/19/2020 URL: https://abovethelaw.com/2020/08/sohm-thing-wicked-this-way-comes-the-second-circuit-stumbles-in-applying-the-copyright-acts-statute-of-limitations/ One of the crucial conclusions reached in the ruling was the wrong one.

Joshua L. Simmons joshua.simmons@kirkland.com

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EIGHTH CIRCUIT AFFIRMS HOLDING THAT DISCLOSURE OF SOURCE CODE WAS AUTHORIZED UNDER THE PARTIES’ AGREEMENT via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 8/20/2020 URL: https://www.ipwatchdog.com/2020/08/20/eighth-circuit-affirms-holding-disclosure-source-code-authorized-parties-agreement/id=124469/ On August 14, the United States Court of Appeals for the Eighth Circuit affirmed in part and vacated in part a district court decision in MPAY Inc. v. Erie Custom Computer Applications, Inc, et. al. In particular, the Circuit Court affirmed the district court’s conclusion that MPAY had not shown a likelihood of success on the merits of its copyright infringement or trade secret misappropriation claims. The Circuit court also affirmed the district court's decision to deny preliminary injunctive... ORACLE REVIVES SOME HP COPYRIGHT CLAIMS OVER SOLARIS SOFTWARE via Bloomberg Law by Blake Brittain on 8/20/2020 URL: https://news.bloomberglaw.com/ip-law/oracle-revives-some-hp-copyright-claims-over-solaris-software Some Oracle America Inc. claims that Hewlett Packard Enterprise Co. infringed its copyrights by installing patches for its Solaris software on customer ... HOW A NEW RULING COULD CHANGE THE DMCA via Plagiarism Today by Jonathan Bailey on 8/20/2020 URL: https://www.plagiarismtoday.com/2020/08/20/how-a-new-ruling-could-change-the-dmca/ When most people think of the Digital Millennium Copyright Act (DMCA) they think of the notice-and-takedown provisions. That’s the portion that grabs most of the headlines and the section most people deal with on a day-to-day basis. 5TH CIRC. COPYRIGHT CASE IS CAUTIONARY TALE FOR BIG DATA COS. via Intellectual Property Law360 by Matthew Fagan on 8/20/2020 URL: https://www.law360.com/ip/articles/1300736 In July, a government-appointed panel in India recommended that the country establish a repository in which companies would be required to deposit their data. The data would be anonymized and shared with local industries so that they could build their own digital businesses.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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9TH CIRC. REVIVES ORACLE'S SOFTWARE IP SUIT AGAINST HP via Intellectual Property Law360 by Kevin Stawicki on 8/20/2020 URL: https://www.law360.com/ip/articles/1303110 The Ninth Circuit on Thursday revived Oracle Corp.'s software copyright lawsuit against Hewlett Packard Enterprise Co., finding that Oracle presented enough evidence that HPE infringed its copyrights, meddled with customer relationships and violated California's competition law. NINTH CIRCUIT HANDS COPYRIGHT REPRIEVE TO ORACLE IN HPE SUIT via World IP Review by Rory O'Neill on 8/21/2020 URL: https://www.worldipreview.com/news/ninth-circuit-hands-copyright-reprieve-to-oracle-in-hpe-suit-20112 A federal appeals court has partially cancelled a copyright win for Hewlett Packard Enterprises (HPE) over US software developer Oracle. 'EMPIRE' COPYRIGHT SUIT FIZZLES ON SECOND TRIP TO 9TH CIRC. via Intellectual Property Law360 by Mike LaSusa on 8/21/2020 URL: https://www.law360.com/ip/articles/1303554 A man who claims Fox ripped off a concept he came up with to create the network's hit television show "Empire" suffered a blow Friday when the Ninth Circuit, which had previously revived the suit, ruled that a lower court had been right to toss the case again. FREEING THE ABORIGINAL FLAG: HOW A 'UNITING SYMBOL' ENDED UP IN THE HANDS OF THE FEW via Guardian by Lorena Allam on 8/22/2020 URL: https://www.theguardian.com/australia-news/2020/aug/22/freeing-the-aboriginal-flag-how-a-uniting-symbol-ended-up-in-the-hands-of-the-few As creator and sole copyright holder, Thomas is its owner and can grant licences to other parties to make copies of the flag, or refuse permission ...

Joshua L. Simmons joshua.simmons@kirkland.com

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COURT ORDERS RIGHTSOWNER TO WITHDRAW DMCA TAKEDOWN NOTICES SENT TO AMAZON–BEYOND BLOND V. HELDMAN via Technology & Marketing Law Blog by Eric Goldman on 8/22/2020 URL: https://blog.ericgoldman.org/archives/2020/08/court-orders-rightsowner-to-withdraw-dmca-takedown-notices-sent-to-amazon-beyond-blond-v-heldman.htm This case involves an Amazon seller, the plaintiff, who packages and republishes public domain cartoon videos, like Bugs Bunny, Popeye, and Mighty Mouse. 50 CENT'S RIGHT OF PUBLICITY CLAIM PREEMPTED BY COPYRIGHT LAW via Rothman's Roadmap To The Right of Publicity by Jennifer E. Rothman on 8/22/2020 URL: http://www.rightofpublicityroadmap.com/node/190 Earlier this week, the Second Circuit, in an opinion penned by Judge Pierre Leval, held that a right of publicity claim by rap artist Curtis James Jackson III, better known as 50 Cent, was preempted by federal copyright law. COPYRIGHT ON THE ROCKS via Hugh Stephens Blog on 8/24/2020 URL: http://hughstephensblog.net/2020/08/24/copyright-on-the-rocks/ I was enjoying the hike along the rugged southern coast of Vancouver Island. Across the rippling waters of the Strait of Juan de Fuca, the snow-capped Olympic Mountains in Washington State glistened in the morning sun. Below me the sea crashed into the rocks and a seal poked its head through the fields of bull […] KENDRICK LAMAR SUED FOR COPYRIGHT INFRINGEMENT OVER 'LOYALTY' via Bloomberg Law by Blake Brittain on 8/24/2020 URL: https://news.bloomberglaw.com/ip-law/kendrick-lamar-sued-for-copyright-infringement-over-loyalty Kendrick Lamar Sued for Copyright Infringement Over 'Loyalty'. By Blake Brittain. Aug. 24, 2020, 7:26 AM. Listen. COURT: C.D. Cal. TRACK DOCKET: ... RAPPER KENDRICK LAMAR HIT WITH COPYRIGHT SUIT OVER 'LOYALTY' via Intellectual Property Law360 by Craig Clough on 8/24/2020 URL: https://www.law360.com/ip/articles/1303697 Musician Terrance Hayes sued Kendrick Lamar for copyright infringement in California federal court on Friday, accusing the Grammy-winning rapper of stealing Hayes' song "Loyalty" for his own track of the same name.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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6TH CIRC. LOWERS $6.7M SOFTWARE CO. IP AWARD AGAINST CARRIER via Intellectual Property Law360 by Kevin Stawicki on 8/24/2020 URL: https://www.law360.com/ip/articles/1303535 The Sixth Circuit lowered a $6.7 million judgment for software maker Ecimos LLC to $5.6 million in its suit accusing air conditioning manufacturer Carrier Corp. of creating copycat software with stolen trade secrets, finding that part of the jury award was "speculative at best." STOCK PHOTO AGENCY SAYS VAPE CO. COPIED PROTECTED IMAGE via Intellectual Property Law360 by Sarah Jarvis on 8/24/2020 URL: https://www.law360.com/ip/articles/1303937 An e-cigarette company has been hit with a copyright suit from a stock food photo agency in Texas federal court for allegedly using a copyright-protected picture of ice cream to sell an e-liquid product on the company's website. NICKI MINAJ WANTS JURY TO RESOLVE COPYRIGHT "WHO DONE IT?" via THR, Esq. | Hollywood Reporter by Eriq Gardner on 8/25/2020 URL: https://www.hollywoodreporter.com/thr-esq/nicki-minaj-wants-jury-to-resolve-copyright-who-done-it The hip-hop star fights Tracy Chapman's allegation of leaking an unauthorized song by explaining away damning evidence and suggesting a different culprit — Nas? TRACY CHAPMAN, NICKI MINAJ BATTLE OVER FAIR USE IN RADIO LEAK via Intellectual Property Law360 by Bill Donahue on 8/25/2020 URL: https://www.law360.com/ip/articles/1304255 Singer-songwriter Tracy Chapman and rapper Nicki Minaj are battling over whether copyright law's fair use doctrine protects an unauthorized music sample that was never released but was leaked to a radio station. JUDGE RECOMMENDS ATTORNEYS' FEES FOR NETFLIX IN 'NARCOS' CASE via Bloomberg Law by Blake Brittain on 8/25/2020 URL: https://news.bloomberglaw.com/ip-law/judge-recommends-attorneys-fees-for-netflix-in-narcos-case Netflix Inc. should be awarded over $240,000 in attorneys' fees for defending against copyright infringement claims brought by a Colombian journalist ...

Joshua L. Simmons joshua.simmons@kirkland.com

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PHOTOGRAPHER FALLS SHORT IN COPYRIGHT CASE AGAINST SYRACUSE via news.bloomberglaw by Jake Holland on 8/25/2020 URL: https://news.bloomberglaw.com/ip-law/photographer-falls-short-in-copyright-case-against-syracuse ... on the university's social media channels and not for commercial purposes such as the billboard, an act he said constituted copyright infringement. TO EMBED OR NOT TO EMBED?: A NEW CHALLENGE TO EMBEDDING IMAGES FROM SOCIAL MEDIA via National Law Review by Corrine A. Irish on 8/26/2020 URL: https://www.natlawreview.com/article/to-embed-or-not-to-embed-new-challenge-to-embedding-images-social-media In so ruling, the Court did not consider whether the server test precludes a copyright infringement claim for embedding an image hosted on another site. ATTORNEY-PHOTOGRAPHER OWES LEGAL COSTS IN SKYLINE COPYRIGHT CASE via Bloomberg Law by Matthew Bultman on 8/26/2020 URL: https://news.bloomberglaw.com/ip-law/attorney-photographer-owes-legal-costs-in-skyline-copyright-case An Indiana lawyer must cover $170,000 in court fees that a real estate company spent in defending against his copyright lawsuit over a photograph of ... TAYLOR SWIFT COPYRIGHT ACCUSERS SAY 'EMPIRE' DOESN'T MATTER via Intellectual Property Law360 by Bill Donahue on 8/26/2020 URL: https://www.law360.com/ip/articles/1304810 Taylor Swift thinks a Ninth Circuit ruling last week on the show "Empire" could help her defeat copyright infringement accusations over "Shake It Off," but the songwriters who are suing her say it should have "no effect" on their case. BUZZ-SAWED: GIVE COPYRIGHT CREDIT OR FACE STATUTORY DAMAGES, FEES, COSTS via National Law Review by Jodi Benassi on 8/26/2020 URL: https://www.natlawreview.com/article/buzz-sawed-give-copyright-credit-or-face-statutory-damages-fees-costs Mango asserted copyright infringement, alleging that BuzzFeed removed or altered the copyright management information (CMI), a violation under the ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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THREE CHARGED WITH LEAKING MOVIES AS PART OF GLOBAL PIRACY RING via NYT > Media & Advertising by Jacey Fortin on 8/26/2020 URL: https://www.nytimes.com/2020/08/26/business/media/piracy-ring-movies-internet.html Three men are facing federal charges of participating in an international piracy ring that distributed popular movies and television shows online before their release dates, prosecutors announced Wednesday. FEDS ACCUSE 3 OF GLOBAL MOVIE AND TV PIRACY SCHEME via Intellectual Property Law360 by Stewart Bishop on 8/26/2020 URL: https://www.law360.com/ip/articles/1304584 New York federal prosecutors unveiled copyright infringement charges Wednesday against three purported members of an international movie and television piracy group, saying they caused tens of millions of dollars in losses to film production studios. INSTAGRAM SHARING RIGHTS AT CENTER OF PHOTOGRAPHER'S LEGAL BATTLE via THR, Esq. | Hollywood Reporter by Ashley Cullins on 8/27/2020 URL: https://www.hollywoodreporter.com/thr-esq/instagram-sharing-rights-at-center-of-photographers-legal-battle There’s been no shortage of social media-related disputes in the internet age, but an ongoing legal fight between Volvo, a professional photographer and a model is poised to reframe how brands treat Instagram content. ONLINE PIRACY MORE SOPHISTICATED AND INSIDIOUS THAN EVER via The Illusion of More by David Newhoff on 8/27/2020 URL: http://illusionofmore.com/online-piracy-more-sophisticated-and-insidious-than-ever/ I haven’t written about enterprise scale piracy in a while. SCOTUS WILL DENY CERT IN LED ZEPPELIN CASE, SAY LAWYERS via Managing Intellectual Property | Copyright by Rani Mehta on 8/27/2020 URL: https://www.managingip.com/article/b1n3vq5sk2bzlg/scotus-will-deny-cert-in-led-zeppelin-case-say-lawyers Counsel say Michael Skidmore’s writ of certiorari lacks the evidence to compel the US Supreme Court to hear his copyright case against Stairway to Heaven

Joshua L. Simmons joshua.simmons@kirkland.com

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TONI BASIL LOSES APPEAL OVER UNAUTHORIZED USE OF "MICKEY" via THR, Esq. | Hollywood Reporter by Ashley Cullins on 8/28/2020 URL: https://www.hollywoodreporter.com/thr-esq/toni-basil-loses-appeal-over-unauthorized-use-of-mickey A California appeals court has agreed with an LA judge that the singer's claims are preempted by the U.S. Copyright Act. 'STAR ATHLETICA' THREE YEARS ON via New York Law Journal by David Jacoby on 8/28/2020 URL: https://www.law.com/newyorklawjournal/2020/08/28/star-athletica-three-years-on/ In Star Athletica, Varsity Brands had secured roughly 200 copyright ... whether the accused uniforms violated plaintiff's copyrights was pending. INFRINGING POLISH WEBSITE ISN’T SUBJECT TO PERSONAL JURISDICTION IN THE UNITED STATES–AMA V. WANAT via Technology & Marketing Law Blog by Venkat Balasubramani on 8/30/2020 URL: https://blog.ericgoldman.org/archives/2020/08/infringing-polish-website-isnt-subject-to-personal-jurisdiction-in-the-united-states-ama-v-wanat.htm AMA Multimedia sued Marcin Wanat, Maciej Madon, and MW Media, a Poland-based partnership. ‘MERGER’ AND ACQUISITION: GOOGLE’S COPYRIGHT CONTORTION TO EXCUSE COPYING via IPWatchdog.com | Patents & Patent Law by Steven Tepp on 8/31/2020 URL: https://www.ipwatchdog.com/2020/08/31/merger-acquisition-googles-copyright-contortion-excuse-copying/id=124712/ The Supreme Court is set to hear oral argument on October 7 from Oracle and Google in their long-running Java intellectual property case. The questions raised in Google v. Oracle go to the heart of the scope of copyright protection of all computer programs. I’ve already written about the flaws in Google’s primary argument, which tries to conflate the creative Java code it copied to make its Android mobile operating system more attractive to developers and speed it to market, with the function...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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PUBLISHERS, INTERNET ARCHIVE PROPOSE YEARLONG DISCOVERY PLAN FOR COPYRIGHT CASE via Publishers Weekly by Andrew Albanese on 8/31/2020 URL: https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/84228-publishers-internet-archive-propose-yearlong-discovery-plan-for-copyright-case.html Plaintiffs' legal and contractual rights in the Works cited in the complaint, and the copyright registration for such Works. Plaintiffs' sales, licenses, or ... FACEBOOK COULD BLOCK SHARING OF NEWS STORIES IN AUSTRALIA via NYT > Media & Advertising by Daisuke Wakabayashi & Mike Isaac on 8/31/2020 URL: https://www.nytimes.com/2020/08/31/technology/facebook-block-news-stories-australia.html The move, a response to pressure to pay publishers when their stories are posted on the social network, could add to internet silos springing up around the world. FULL 9TH CIRC. DENIES DISNEY'S BID TO UNDO 'PIRATES' IP RULING via Intellectual Property Law360 by Kevin Stawicki on 8/31/2020 URL: https://www.law360.com/ip/articles/1305981 The Ninth Circuit has shut down the Walt Disney Co.'s bid to overturn a ruling that revived a copyright lawsuit claiming it stole an unproduced screenplay to create the "Pirates of the Caribbean" movie franchise. FACEBOOK SAYS IT WILL BAR NEWS SHARING IN AUSTRALIA IF PROPOSED PAYMENT RULES BECOME LAW via WSJ.com: Technology by Mike Cherney on 8/31/2020 URL: https://www.wsj.com/articles/facebook-says-it-will-bar-news-sharing-in-australia-if-proposed-payment-rules-become-law-11598931060 Facebook Inc. has threatened to stop allowing Australians to share news on its site and on Instagram if lawmakers allow media companies to demand payment from digital platforms.

Joshua L. Simmons joshua.simmons@kirkland.com

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September 2020

NEW GROUP COPYRIGHT REGISTRATION OPTION RAISES QUESTIONS AROUND DEFINITION OF ‘PUBLISHED’ IN THE DIGITAL AGE via IPWatchdog.com | Patents & Patent Law on 9/1/2020 URL: https://www.ipwatchdog.com/2020/09/01/new-group-copyright-registration-option-raises-questions-around-definition-published-digital-age/id=124731/ The United States Copyright Office recently released a New Group Registration Option for Short Online Literary Works (GRTX), which would allow an applicant to register up to 50 short online literary works with one application and one filing fee. A group registration covers the copyrightable text in each literary work submitted with the group registration, such that the copyright owner may seek a separate award for each work infringed. ELECTRIC AVENUE' SINGER SUES TRUMP CAMPAIGN FOR COPYRIGHT INFRINGEMENT: EXCLUSIVE JOHNNY DEPP ... via Billboard by Gil Kaufman on 9/1/2020 URL: https://www.billboard.com/articles/business/legal-and-management/9443245/eddy-grant-lawsuit-trump-campaign-video-copyright-infringement "This is copyright 101," his lawyer tells Billboard. Singer Eddy Grant filed a copyright lawsuit against Pres. Donald Trump's campaign on Tuesday (Sept. WHAT I WISH THEY TAUGHT ME ABOUT COPYRIGHT IN ART SCHOOL via Copyright: Creativity at Work by Holland Gormley on 9/1/2020 URL: https://blogs.loc.gov/copyright/2020/09/what-i-wish-they-taught-me-about-copyright-in-art-school/ I have a confession to make. I made it all the way through a BFA in photography without knowing what exactly copyright was or what it meant for me and my work. "ELECTRIC AVENUE" SINGER FILES SUIT AGAINST TRUMP CAMPAIGN FOR COPYRIGHT INFRINGEMENT via THR, Esq. | Hollywood Reporter by Gil Kaufman on 9/1/2020 URL: https://www.hollywoodreporter.com/thr-esq/electric-avenue-singer-files-suit-against-trump-campaign-for-copyright-infringement Eddy Grant argues his signature hit was used without permission in a campaign video. "This is copyright 101," his lawyer tells Billboard.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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WHAT 11TH CIRC. GUITAR RULING MEANS FOR COPYRIGHT LITIGANTS via Intellectual Property Law360 by Doug Rettew et al. on 9/1/2020 URL: https://www.law360.com/ip/articles/1302931 From the world of heavy metal rock-and-roll comes an important lesson for both putative copyright owners and accused infringers. If the accused infringer believes that the putative owner does not actually own the rights in the asserted copyright, it must speak up and repudiate ownership. Once that happens, the accuser must act within three years. If it doesn't, its claim is barred. RCN MUST FACE THE MUSIC FROM LABELS OVER ONLINE PIRACY via Intellectual Property Law360 by Bill Wichert on 9/1/2020 URL: https://www.law360.com/ip/articles/1306420 A New Jersey federal judge has said that major record labels can keep going after RCN Telecom Services LLC over allegations that it didn't do enough to prevent its subscribers from illegally downloading and distributing music, finding that the record companies sufficiently alleged that the internet service provider knew about and encouraged such infringement. ELECTRIC AVENUE' SINGER SUES TRUMP OVER TWITTER VIDEO via Intellectual Property Law360 by Bill Donahue on 9/1/2020 URL: https://www.law360.com/ip/articles/1306505 The singer behind the song "Electric Avenue" is suing President Donald Trump and his reelection campaign for using the iconic 1980s track without permission in a social media video attacking Joe Biden. ARE CHANGES TO THE DMCA ON THE HORIZON? via National Law Review by Philip R. Zender on 9/2/2020 URL: https://www.natlawreview.com/article/are-changes-to-dmca-horizon The Digital Millennium Copyright Act was passed in 1998 to address multiple issues related to using copyrighted materials on online platforms. Among ...

Joshua L. Simmons joshua.simmons@kirkland.com

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LIABILITY FOR COPYRIGHT INFRINGEMENT ATTACHES IF CONDUCT EXCEEDS SCOPE OF LICENSE via National Law Review by Jodi Benassi on 9/2/2020 URL: https://www.natlawreview.com/article/liability-copyright-infringement-attaches-if-conduct-exceeds-scope-license Oracle owns registered copyrights for Solaris software, including copyrighted software patches. Oracle requires its customers have a prepaid annual ... TAYLOR SWIFT LOSES BID TO ESCAPE 'SHAKE IT OFF' LYRICS CASE via Intellectual Property Law360 by Bill Donahue on 9/2/2020 URL: https://www.law360.com/ip/articles/1306945 A year after being overturned by the Ninth Circuit, a California federal judge on Wednesday refused to toss out a lawsuit accusing Taylor Swift of ripping off lyrics for "Shake It Off," sending the case toward more litigation and an eventual trial. COPYRIGHT-PROTECTED WORKS CAN BE USED AS EVIDENCE, SAYS AG via World IP Review by Rory O'Neill on 9/3/2020 URL: https://www.worldipreview.com/news/copyright-protected-works-can-be-used-as-evidence-says-ag-20143 Litigants should not be liable for submitting copyright-protected material in evidence to a court, an adviser to the EU's top court has said. FOUR OUT OF EIGHT DOESN’T CUT IT: THE IP SAFEGUARDS THAT MOST LAWYERS MISS WHEN PROTECTING SOFTWARE via IPWatchdog.com | Patents & Patent Law by Marty Mellican on 9/3/2020 URL: https://www.ipwatchdog.com/2020/09/03/four-eight-doesnt-cut-ip-software-safeguards-lawyers-miss/id=124854/ Software is an extremely valuable good for those who produce it because it provides value to the software’s end users. That value, however, also makes it a target for those who would prefer to obtain the value without compensating the software producer. As a result, like with any valuable asset, software suppliers and Internet of Things (IoT) companies must implement safeguards to protect it. Since software is intellectual property, attorneys who work for or advise software producers (which,...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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USE OF INFRINGING PRODUCT, MISAPPROPRIATED TRADE SECRETS MAY CONTINUE—FOR A LICENSING FEE via National Law Review by Jackie L. Toney on 9/3/2020 URL: https://www.natlawreview.com/article/use-infringing-product-misappropriated-trade-secrets-may-continue-licensing-fee The jury awarded ECIMOS copyright and contract damages. The district court also imposed a permanent injunction against Carrier's use of the infringing ... NOT YOUR GRANDFATHER'S INTERNET ROYALTIES? DMCA FAVORABLE RATES MIGHT APPLY TO INTERNET OFFERINGS via National Law Review by Christopher M. Bruno on 9/3/2020 URL: https://www.natlawreview.com/article/not-your-grandfather-s-internet-royalties-dmca-favorable-rates-might-apply-to Reversing the Copyright Royalty Board's determination that a favorable grandfathered royalty rate did not apply to internet streaming audio ... TAYLOR SWIFT MUST FACE 'SHAKE IT OFF' CASE AFTER 9TH CIR. REMAND via Bloomberg Law by Kyle Jahner & Blake Brittain on 9/3/2020 URL: https://news.bloomberglaw.com/ip-law/taylor-swift-must-face-shake-it-off-case-after-9th-cir-remand ... infringed the copyright in a 2001 song, in a Los Angeles federal court decision demonstrating how tough it is to resolve copyright complaints quickly. FORD COUNTERS MUSIC CO.'S $8M IP SUIT WITH FALSE AD CLAIM via Intellectual Property Law360 by Hailey Konnath on 9/3/2020 URL: https://www.law360.com/ip/articles/1306958 Ford Motor Co. on Wednesday vehemently denied claims it infringed a slew of copyrights belonging to an online music library, firing back with false advertising counterclaims accusing Freeplay Music of operating a "bait-and-switch" scheme in which it tricks customers into believing its music is truly free when it is not.

Joshua L. Simmons joshua.simmons@kirkland.com

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VOLVO CAN'T EVADE PHOTOGRAPHER'S SUIT OVER INSTAGRAM POST via THR, Esq. | Hollywood Reporter by Ashley Cullins on 9/4/2020 URL: https://www.hollywoodreporter.com/thr-esq/volvo-cant-evade-photographers-suit-over-instagram-post A California federal judge has denied the automaker's motion to dismiss a lawsuit from photographer Jack Schroeder and model Britni Sumida. UBER FIGHTS TO MOVE INSTACART COPYRIGHT SUIT TO CALIFORNIA via Intellectual Property Law360 by Michelle Casady on 9/4/2020 URL: https://www.law360.com/ip/articles/1307548 Uber-owned grocery delivery company Cornershop has asked a Texas federal judge to either dismiss a copyright suit brought against it by competitor Instacart or transfer it to California, where both companies are headquartered in San Francisco. ALA. FIRM MUST FACE ATTY'S IP SUIT OVER FCA BOOK IN OHIO via Intellectual Property Law360 by Emma Cueto on 9/4/2020 URL: https://www.law360.com/ip/articles/1307399 An Ohio federal court declined to throw out a suit accusing Alabama law firm Beasley Allen Crow Methvin Portis & Miles PC and one of its principals of putting out a book that lifted material from an Ohio lawyer's treatise, saying that the suit can proceed in the Buckeye State. TELEVISION ACADEMY SUES AFTER EMMY STATUETTE GIVEN CORONAVIRUS via THR, Esq. | Hollywood Reporter by Eriq Gardner on 9/4/2020 URL: https://www.hollywoodreporter.com/thr-esq/television-academy-sues-after-emmy-statuette-given-coronavirus The defendant used the image to market the Crony Awards, honoring countries that refused to lock down for the pandemic. VIDANGEL TO PAY $9.9M TO ESCAPE MOVIE STUDIOS' $62M IP WIN via Intellectual Property Law360 by Dave Simpson on 9/4/2020 URL: https://www.law360.com/ip/articles/1307805 Movie-sanitizing service VidAngel Inc. has cut a deal to pay Disney and other major Hollywood studios $9.9 million and drop its Ninth Circuit appeal of their $62.4 million copyright infringement suit win, according to filings in Utah bankruptcy court Friday.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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512(F) CLAIM FAILS IN THE 11TH CIRCUIT–JOHNSON V. NEW DESTINY CHRISTIAN CENTER via Technology & Marketing Law Blog by Eric Goldman on 9/6/2020 URL: https://blog.ericgoldman.org/archives/2020/09/512f-claim-fails-in-the-11th-circuit-johnson-v-new-destiny-christian-center.htm This is a long-running and complex copyright takedown dispute that has been triggering my Westlaw alerts for years. GOOGLE: AN ORACLE OF WISDOM IN ITS FASCINATING SUBMISSION TO THE EUROPEAN COMMISSION via IPWatchdog.com | Patents & Patent Law by Neil Turkewitz on 9/7/2020 URL: https://www.ipwatchdog.com/2020/09/07/google-oracle-wisdom-fascinating-submission-european-commission/id=124846/ On June 2, the European Commission launched a far-reaching consultation as part of its examination of a forthcoming Digital Services Act (DSA), aimed at identifying areas where new rules at the European level might advance the interests of European societies. Part of that examination was specifically aimed at considering the application of ex ante regulation of dominant platforms. To this end, the impact assessment will examine different policy options for the effective ex ante regulatory... ECJ BACKS MUSICIANS IN IRISH ROYALTY SPAT WITH LABELS via Intellectual Property Law360 by Bonnie Eslinger on 9/8/2020 URL: https://www.law360.com/ip/articles/1307877 Europe's highest court gave U.S. musicians a boost on Tuesday in their battle with major record labels over royalties, saying that recording artists outside Europe have to get a cut of the profits when their music is broadcast in Ireland. UNDOING THE DAMAGE OF THE FEDERAL COURT OF APPEAL’S DECISION ON “MANDATORY” TARIFFS via Hugh Stephens Blog on 9/8/2020 URL: http://hughstephensblog.net/2020/09/08/undoing-the-damage-of-the-federal-court-of-appeals-decision-on-mandatory-tariffs/ In April of this year, the Federal Court of Appeal (FCA) handed down its decision on the appeal by York University of an earlier Federal Court decision regarding a dispute between York and Access Copyright (the authors and publishing collective rights management organization) over York’s unlicensed use of material from Access Copyright’s repertoire. The initial […]

Joshua L. Simmons joshua.simmons@kirkland.com

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SUPREME COURT TO CONSIDER PETITIONS IN THREE COPYRIGHT CASES via New York Law Journal by AUTHOR on 9/8/2020 URL: https://www.law.com/newyorklawjournal/2020/09/08/supreme-court-to-consider-petitions-in-three-copyright-cases/ Graphically depicted characters held to merit copyright protection include James Bond and Godzilla. Id. at 1020. The Moodsters are five color-coded, ... IN 'JERSEY BOYS' RULING, APPEALS COURT ADOPTS NEW STANDARD FOR NONFICTION via THR, Esq. | Hollywood Reporter by Eriq Gardner on 9/8/2020 URL: https://www.hollywoodreporter.com/thr-esq/in-jersey-boys-ruling-appeals-court-adopts-new-standard-for-nonfiction If an author represents the work as true, he or she can't later say it was made up to carry a copyright lawsuit. 9TH CIRC. SAYS 'JERSEY BOYS' MUSICAL DIDN'T INFRINGE BOOK via Intellectual Property Law360 by Bill Donahue on 9/8/2020 URL: https://www.law360.com/ip/articles/1308144 The Ninth Circuit ruled Tuesday that the Broadway hit "Jersey Boys" didn't infringe an autobiography of one of the real-life singers featured in the musical, saying the play mostly just borrowed historical facts that can't be locked up by copyrights. ATTY SAYS ELLEN BARKIN'S TWEET OF BIRD-FLIP PHOTO WAS FAIR USE via Intellectual Property Law360 by Pete Brush on 9/8/2020 URL: https://www.law360.com/ip/articles/1308169 Ellen Barkin's lawyer told a Manhattan federal judge Tuesday the actress has a fair-use defense to copyright claims brought by a photographer who snapped her flipping the bird during convicted rapist Harvey Weinstein's criminal trial and sued after she tweeted the photo. THE WEEKND'S COPYRIGHT WIN FAILS TO JUSTIFY ATTORNEYS' FEES via Bloomberg Law by Blake Brittain on 9/8/2020 URL: https://news.bloomberglaw.com/ip-law/the-weeknds-copyright-win-fails-to-justify-attorneys-fees ... Tesfaye—and others, alleging that “A Lonely Night” infringed the copyright in their musical composition “I Need to Love.” But the court ruled in July.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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NINTH CIRCUIT SIDES WITH 'JERSEY BOYS' WRITERS IN COPYRIGHT BATTLE via Courthouse News Service by Kent Lauer on 9/8/2020 URL: https://www.courthousenews.com/ninth-circuit-sides-with-jersey-boys-writers-in-copyright-battle/ The panel's opinion, written by Judge Marsha Berzon, focuses primarily on the principle that copyright does not protect historical facts. “On close ... COPYRIGHT NOTEBOOK: THE IMPORTANCE OF ARTISTS’ AGENCY via Center for the Protection of Intellectual Property by Sandra Aistars on 9/9/2020 URL: https://cpip.gmu.edu/2020/09/09/copyright-notebook-the-importance-of-artists-agency/ I am looking forward to hosting a keynote conversation with Grammy-winning composer, performer, songwriter, best-selling author, and essayist Rosanne Cash this week at CPIP’s The Evolving Music Ecosystem conference. HISTORIC COURT CASES THAT HELPED SHAPE SCOPE OF COPYRIGHT PROTECTIONS via Copyright: Creativity at Work by Anandashankar Mazumdar on 9/9/2020 URL: https://blogs.loc.gov/copyright/2020/09/historic-court-cases-that-helped-shape-scope-of-copyright-protections/ As the Copyright Office celebrates its 150th birthday, we can look back more than 240 years through the history of copyright protections in the United States to see how the law has changed in response to changing technologies and economics. BLOOMBERG LAW’S ‘IP REPORTING’ PARROTS BIG TECH’S MISINFORMATION CAMPAIGN via CreativeFuture by Brett Williams on 9/9/2020 URL: https://creativefuture.org/big-tech-parrot/ I produced and distributed movies for over 30 years. NINTH CIRCUIT: UNDER THE “ASSERTED TRUTH DOCTRINE” (F/K/A “COPYRIGHT ESTOPPEL”) AUTHORS OF NONFICTION ... via National Law Review by Joseph A. Meckes on 9/9/2020 URL: https://www.natlawreview.com/article/ninth-circuit-under-asserted-truth-doctrine-fka-copyright-estoppel-authors Because copyright law under the Constitution is intended “to promote the Progress of Science and useful Arts,” copyright law simply does not protect ...

Joshua L. Simmons joshua.simmons@kirkland.com

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MURAL ARTIST SAYS DEVELOPER JUMPING GUN ON BID TO EXIT SUIT via Intellectual Property Law360 by Isaac Monterose on 9/9/2020 URL: https://www.law360.com/ip/articles/1308497 A Pittsburgh mural artist is fighting a property manager's attempt to escape his Visual Artists Rights Act suit over his destroyed building murals, arguing that the company's summary judgment request shouldn't be granted before discovery is complete. PURSUING A BETTER HARMONIZATION OF COPYRIGHT LAW AND COMMUNICATIONS LAW via IPWatchdog.com | Patents & Patent Law by Stuart N. Brotman on 9/10/2020 URL: https://www.ipwatchdog.com/2020/09/10/pursuing-better-harmonization-copyright-law-communications-law/id=125080/ Until 1976, the worlds of American copyright and communications law operated largely in parallel universes. Under the U.S. Constitution, Congress is vested with the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This authority was first used in the enactment of the Copyright Act of 1790, with modern copyright law first reflected in the Copyright Act of 1909.... COMIC ARTIST GREG LAND ACCUSED OF PLAGIARISM (AGAIN) via Plagiarism Today by Jonathan Bailey on 9/10/2020 URL: https://www.plagiarismtoday.com/2020/09/10/comic-artist-greg-land-accused-of-plagiarism-again/ To call Greg Land a controversial figure in comic book circles is an understatement. ATTY GROUP URGES JUSTICES TO TAKE 'INSIDE OUT' COPYRIGHT CASE via Intellectual Property Law360 by Adam Lidgett on 9/10/2020 URL: https://www.law360.com/ip/articles/1308835 A California attorneys group that represents entertainment industry creative professionals has thrown its support behind a child development specialist's attempt to have the U.S. Supreme Court revive her copyright lawsuit against The Walt Disney Co. over Pixar's animated hit "Inside Out."

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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FACT OR FICTION: 9TH CIRC. CLEANS UP COPYRIGHT FOR REAL STORIES via Intellectual Property Law360 by Bill Donahue on 9/10/2020 URL: https://www.law360.com/ip/articles/1309114 With a copyright ruling this week on the Broadway hit "Jersey Boys," the Ninth Circuit made life a little easier for filmmakers and other creatives who want to make biopics and other based-on-a-true-story projects. TATTOO ARTIST FIGHTS WWE'S BID TO NIX COPYRIGHT SUIT via Intellectual Property Law360 by Ryan Boysen on 9/10/2020 URL: https://www.law360.com/ip/articles/1308919 World Wrestling Entertainment Inc. and video game maker Take-Two Interactive Software Inc. shouldn't be given an easy out in a suit claiming they violated a tattoo artist's intellectual property rights by reproducing her designs on the digital avatar of a star wrestler, the artist told an Illinois federal judge Thursday. JUSTICES ASKED TO AX 'UNPRECEDENTED' BAN IN SOFTWARE FIGHT via Intellectual Property Law360 by Tiffany Hu on 9/10/2020 URL: https://www.law360.com/ip/articles/1309001 The U.S. Supreme Court has been asked to overturn a Fourth Circuit ruling that barred a U.K. software company from selling its products in the U.S. until it pays a $79 million judgment to SAS Institute Inc. in their long-running legal battle. HUFFPOST PREVAILS IN JON HAMM CROTCH PHOTO DISPUTE via Intellectual Property Law360 by Bill Donahue on 9/10/2020 URL: https://www.law360.com/ip/articles/1309159 A Manhattan federal judge ruled Thursday that HuffPost didn't violate copyright law by republishing a famous image of actor Jon Hamm that went viral in 2013 because it appeared to prominently display his genitals.

Joshua L. Simmons joshua.simmons@kirkland.com

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SEPTEMBER BRINGS A NEW PHASE OF OPERATIONS AND CONTINUED OUTREACH EFFORTS via Copyright: Creativity at Work by Maria Strong on 9/11/2020 URL: https://blogs.loc.gov/copyright/2020/09/september-brings-a-new-phase-of-operations-and-continued-outreach-efforts/ September brings a time of change. I’ve always seen this month as the start of a new year; I guess I still schedule things by the academic calendar. For government agencies, September is the last month of the fiscal year, and so we are working to close out one year and launch the next. 6TH CIRC. SAYS JURORS' OUTSIDE INFO TRIGGERS NEW IP TRIAL via Intellectual Property Law360 by Cara Salvatore on 9/11/2020 URL: https://www.law360.com/ip/articles/1309130 The Sixth Circuit has ordered a new trial on 3D design software maker Dassault's copyright and trademark infringement claims against a Detroit software educator, saying the jury's receipt of "extraneous" information during deliberations, before awarding $250,000 to Dassault, was a "palpable defect." THIS COPYRIGHT FAIR USE OPINION DISCUSSES JON HAMM’S CROTCH 25 TIMES–SCHWARTZWALD V. OATH via Technology & Marketing Law Blog by Eric Goldman on 9/12/2020 URL: https://blog.ericgoldman.org/archives/2020/09/this-copyright-fair-use-opinion-discusses-jon-hamms-crotch-25-times-schwartzwald-v-oath.htm TL; DR: fair use supports another motion to dismiss a photo copyright case. A ruling of mild interest to copyright lawyers. APIS SHOULD TAKE CENTRE STAGE IN GOOGLE V ORACLE, LAWYERS SAY via Managing Intellectual Property | Copyright by Rani Mehta on 9/14/2020 URL: https://www.managingip.com/article/b1nbghs23nym2t/apis-should-take-centre-stage-in-google-v-oracle-lawyers-say Creative Commons, Mapbox, Red Hat, and three other lawyers discuss what they expect and would like to see from Google v Oracle oral arguments

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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A DAY OF RECKONING IS COMING FOR GOOGLE, FACEBOOK AND MAJOR ONLINE PLATFORMS THAT ACCESS NEWS CONTENT WITHOUT PAYMENT: WILL CANADA BE THE NEXT COUNTRY TO TAKE ACTION? via Hugh Stephens Blog on 9/14/2020 URL: http://hughstephensblog.net/2020/09/14/a-day-of-reckoning-is-coming-for-google-facebook-and-major-online-platforms-that-access-news-content-without-payment-will-canada-be-the-next-country-to-take-action/ Newspapers and news magazines are struggling but online news aggregators, like Google and Facebook, are thriving. The ad dollars that prop up the internet behemoths have drifted away from the producers of the news to those who facilitate access to it without having to invest in the creation of the content that attracts consumer eyeballs. […] A CLOSER LOOK AT A TROUBLING ANTI-SCRAPING RULING FROM SPRING–COMPULIFE SOFTWARE V. NEWMAN (GUEST BLOG POST) via Technology & Marketing Law Blog by Kieran McCarthy on 9/14/2020 URL: https://blog.ericgoldman.org/archives/2020/09/a-closer-look-at-a-troubling-anti-scraping-ruling-from-spring-compulife-software-v-newman-guest-blog-post.htm Compulife Software, Inc. v. Newman is the first circuit court case in more than half a decade to expand liability for web scrapers under state and federal law. OLD SPICE WHISTLER SUES NETWORKS FOR COPYRIGHT INFRINGEMENT via Bloomberg Law by Rani Mehta on 9/14/2020 URL: https://news.bloomberglaw.com/ip-law/old-spice-whistler-sues-networks-for-copyright-infringement ... networks and others in Los Angeles federal court for allegedly infringing his copyright by distributing the ads, after filing a related lawsuit against Old ... NINTH CIRCUIT HOLDS THAT JERSEY BOYS DID NOT INFRINGE ‘PROTECTED EXPRESSIVE ELEMENTS’ OF AUTOBIOGRAPHICAL BOOK via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 9/14/2020 URL: https://www.ipwatchdog.com/2020/09/14/ninth-circuit-holds-jersey-boys-not-infringe-autobiographical-book/id=125188/ Last week, the U.S. Court of Appeals for the Ninth Circuit affirmed a decision on appeal from the U.S. District Court for the District of Nevada in Corbello v. Valli. In particular, the Ninth Circuit affirmed the district court’s judgment after a jury trial in favor of Valli, wherein the panel held that the musical, Jersey Boys, did not infringe Corbello’s copyright in an autobiography of Four Seasons’ band member Tommy DeVito. In the late 1980s, Tommy DeVito engaged with writer Rex Woodard to...

Joshua L. Simmons joshua.simmons@kirkland.com

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2ND CIRCUIT TO WEIGH WARHOL'S 'FAIR USE' OF PRINCE PHOTO via Reuters by Jan Wolfe on 9/14/2020 URL: https://www.reuters.com/article/ip-copyright-warhol-idUSL1N2GB27B A federal appeals court on Tuesday will weigh in on whether Andy Warhol engaged in copyright infringement in the 1980s when he repurposed ... DISH DODGES COX'S ALLEGATIONS OF 'BRAZEN' IP INFRINGEMENT via Intellectual Property Law360 by Mike LaSusa on 9/14/2020 URL: https://www.law360.com/ip/articles/1310083 Dish Network dodged a lawsuit accusing it of illegally transmitting Cox Media Group's content, with an Illinois federal judge on Monday sweeping aside Cox's contention that Dish had sought to shield itself behind a state court restraining order in an "unprecedented fashion." DISH NETWORK ESCAPES COPYRIGHT CLAIMS OVER COX TV RETRANSMISSION via Bloomberg Law by Blake Brittain on 9/15/2020 URL: https://news.bloomberglaw.com/ip-law/dish-network-escapes-copyright-claims-over-cox-tv-retransmission Dish Network LLC escaped copyright infringement claims for allegedly retransmitting Cox television stations without permission, a Chicago federal ... ALLEN V. COOPER REVISITED III: DATA SUGGESTS STATES WILLFULLY INFRINGE COPYRIGHTS via The Illusion of More by David Newhoff on 9/15/2020 URL: http://illusionofmore.com/allen-v-cooper-revisited-iii-data-suggests-states-willfully-infringe-copyrights/ In my first two Revisited posts summarizing the legislative and judicial history leading up to the Supreme Court decision in Allen v. Cooper, I dove into some fairly deep waters. COPYRIGHT FIGHT OVER 'LIFE' GAME DERAILS AT 1ST CIRCUIT via Courthouse News Service by Thomas F. Harrison on 9/15/2020 URL: https://www.courthousenews.com/copyright-fight-over-life-game-derails-at-1st-circuit/ Fighting to control the copyright of “The Game of Life,” the heirs of a board game designer spun the wheel Tuesday in the First Circuit ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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'TIGER KING' ZOO WORKER SUES NETFLIX OVER FOOTAGE via Intellectual Property Law360 by Bill Donahue on 9/15/2020 URL: https://www.law360.com/ip/articles/1310342 A former employee of the zoo from Netflix's smash-hit documentary series "Tiger King" is suing the studio for copyright infringement, claiming it used his footage without permission. NFL STAR DESHAUN WATSON SUED FOR POSTING PHOTO OF HIMSELF via Intellectual Property Law360 by Bill Donahue on 9/15/2020 URL: https://www.law360.com/ip/articles/1310447 A Houston sports photographer is suing NFL quarterback Deshaun Watson for repeatedly posting copyrighted images of himself to Instagram without permission. WARHOL FOUNDATION ATTORNEY DEFENDS 'FAIR USE' OF PRINCE PHOTOGRAPH IN 2ND CIRCUIT ARGUMENT via New York Law Journal by Tom McParland on 9/15/2020 URL: https://www.law.com/newyorklawjournal/2020/09/15/warhol-foundation-attorney-defends-fair-use-of-prince-photograph-in-2nd-circuit-argument/ The argument, which aims to protect potentially thousands of Warhol works from copyright infringement challenges, centered on whether U.S. District ... WARHOL TRANSFORMATION OF PRINCE PHOTO DEBATED AT 2ND CIRCUIT via Courthouse News Service by Josh Russell on 9/15/2020 URL: https://www.courthousenews.com/warhol-transformation-of-prince-photo-debate-at-2nd-circuit/ Anticipating a copyright suit by Goldsmith, the Andy Warhol Foundation for the Visual Arts filed suit in April 2017. The foundation was founded in 1987 ... JUDGE RULES IN FAVOR OF NICKI MINAJ IN TRACY CHAPMAN COPYRIGHT DISPUTE via Variety by Gene Maddaus on 9/16/2020 URL: https://variety.com/2020/music/news/nicki-minaj-copyright-lawsuit-tracy-chapman-1234772693/ U.S. district judge Virginia A. Phillips ruled that Minaj's experimentation with Chapman's song constitutes “fair use” and is not copyright infringement.

Joshua L. Simmons joshua.simmons@kirkland.com

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PROMOTING PROGRESS: CELEBRATING THE CONSTITUTION’S INTELLECTUAL PROPERTY CLAUSE via Copyright: Creativity at Work by Catherine Zaller Rowland on 9/17/2020 URL: https://blogs.loc.gov/copyright/2020/09/promoting-progress-celebrating-the-constitutions-intellectual-property-clause/ Today is Constitution Day, which is a day of great celebration in copyright. In addition to all of the other treasures in the Constitution, of which there are many, our country’s founding document includes the foundation for U.S. copyright law. NICKI MINAJ GETS FAIR USE WIN, HEADS TO COPYRIGHT TRIAL via THR, Esq. | Hollywood Reporter by Eriq Gardner on 9/17/2020 URL: https://www.hollywoodreporter.com/thr-esq/nicki-minaj-gets-fair-use-win-heads-to-copyright-trial A judge writes that requiring artists to get clearances before going into the studio would stifle innovation. COPYRIGHT FIGHT OVER LEAKED NICKI MINAJ SONG HEADED TO TRIAL via Intellectual Property Law360 by Bill Donahue on 9/17/2020 URL: https://www.law360.com/ip/articles/1311189 A California federal judge ruled Wednesday that rapper Nicki Minaj was protected by copyright's fair use doctrine when she privately "experimented" with sampling a song by Tracy Chapman, but left it undecided whether she was legally responsible for the track getting leaked to a radio station. 'BILLIONS' BATTLE WON'T BE RECONSIDERED BY JUDGE via THR, Esq. | Hollywood Reporter by Ashley Cullins on 9/17/2020 URL: https://www.hollywoodreporter.com/thr-esq/billions-battle-wont-be-reconsidered-by-judge Performance coach Denise Shull claimed one of the characters is based on her, but the court isn't convinced. CELEBRITIES KEEP GETTING SUED OVER INSTAGRAMS OF THEMSELVES via Intellectual Property Law360 by Bill Donahue on 9/17/2020 URL: https://www.law360.com/ip/articles/1310980 With the filing of a new copyright lawsuit this week, NFL quarterback Deshaun Watson became the latest celebrity to face a bizarre modern legal dilemma: being sued for posting an image of themselves to social media.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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APPLE SUED FOR ALLEGEDLY STEALING RACIALLY DIVERSE EMOJIS via Intellectual Property Law360 by Mike LaSusa on 9/18/2020 URL: https://www.law360.com/ip/articles/1311909 The creator of a set of emojis that exhibit varied skin tones sued Apple Inc. in Texas federal court Friday, claiming the tech giant infringed its copyright-protected invention after it was released through the App Store and iTunes. CHINA STRENGTHENS THE PROTECTION OF COPYRIGHT via Managing Intellectual Property | Copyright by Bruce Fu on 9/19/2020 URL: https://www.managingip.com/article/b1n8qlk7wx4ht6/china-strengthens-the-protection-of-copyright To strengthen copyright protection, and to implement relevant provisions of the Economic and Trade Agreement between the US and China, on August 5 2020, the Supreme People's Court of the People's Republic of China (the SPC) issued a draft Opinions on Strengthening the Protection of Copyright and Copyright related Rights (??????????????????????) for public consultation. GOOGLE V. ORACLE IX: A POOR FAIR USE DEFENSE IS AN OPPORTUNITY FOR GUIDANCE via The Illusion of More by David Newhoff on 9/21/2020 URL: http://illusionofmore.com/google-v-oracle-ix-a-poor-fair-use-defense-is-an-opportunity-for-guidance/ I share the sorrow of millions at the passing of Justice Ruth Bader Ginsburg. The world has lost a genius of the law, who, in addition to her immeasurable contributions to American justice, was a great lover of the arts and a true champion of the rights of creators. My deepest condolences to her family, colleagues, and friends. CANADA’S FIRST SITE BLOCKING ORDER: WHAT IS DRIVING THE OBJECTORS? via Hugh Stephens Blog on 9/21/2020 URL: http://hughstephensblog.net/2020/09/21/canadas-first-site-blocking-order-what-is-driving-the-objectors/ Back in November of last year, the Federal Court of Canada issued Canada’s first site blocking order, an injunction requiring a number of Canadian ISPs to block two sites (GoldTV.biz and GoldTV.ca) that were providing pirated streaming content to Canadian households from offshore servers. Since then the target of blocking has shifted as the pirate […]

Joshua L. Simmons joshua.simmons@kirkland.com

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SHIRA PERLMUTTER TO HEAD U.S. COPYRIGHT OFFICE via IPWatchdog.com | Patents & Patent Law on 9/21/2020 URL: https://www.ipwatchdog.com/2020/09/21/shira-perlmutter-head-u-s-copyright-office/id=125429/ The U.S. Patent and Trademark Office (USPTO) announced today that Shira Perlmutter, the Office’s Chief Policy Officer and Director for International Affairs, has been chosen by Librarian of Congress Carla Hayden to be the 14th U.S. Register of Copyrights. Maria Strong has been serving as Acting Register since January 2020, after former Register Karyn Temple left the position in December 2019. Temple had been promoted to Register in March 2019 following two and a half years serving as Acting... USPTO OFFICIAL TAPPED TO LEAD COPYRIGHT OFFICE via Intellectual Property Law360 by Bill Donahue on 9/21/2020 URL: https://www.law360.com/ip/articles/1312081 The Library of Congress appointed a new head of the U.S. Copyright Office on Monday, tapping U.S. Patent and Trademark Office policy director Shira Perlmutter to serve as the 14th register of copyrights. SENATE IP SUBCOMMITTEE CONTINUES SEARCH FOR BALANCE ON POTENTIAL COPYRIGHT REFORMS via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 9/21/2020 URL: https://www.ipwatchdog.com/2020/09/21/senate-ip-subcommittee-continues-search-balance-potential-copyright-reforms/id=125465/ On September 16, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled “Are Reforms to Section 1201 Needed and Warranted?”, which continued the Subcommittee’s year-long series of hearings on the Digital Millennium Copyright Act (DMCA). Chairman Thom Tillis (D-NC) began by explaining that section 1201 was Enacted in 1998 as part of the DMCA to protect against the circumvention of technological protection measures used by copyright owners to prevent... A SUPREME COURT WITHOUT RBG MAY IMPACT HOLLYWOOD'S GRIP ON INTELLECTUAL PROPERTY via THR, Esq. | Hollywood Reporter by Eriq Gardner on 9/21/2020 URL: https://www.hollywoodreporter.com/thr-esq/a-supreme-court-without-rbg-may-impact-hollywoods-grip-on-intellectual-property The Supreme Court loses its most pro-copyright voice just as the high court is set to hear its most important copyright case in decades.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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RBG'S LEGACY CAN GUIDE HIGH COURT IN ORACLE COPYRIGHT CASE via Intellectual Property Law360 by Sandra Aistars on 9/21/2020 URL: https://www.law360.com/ip/articles/1312316 As America mourns the passing of one of its great civil rights icons and judicial pathmakers — Justice Ruth Bader Ginsburg — stakeholders and other observers must not only contemplate what her absence means for the upcoming election but also next month's start of oral arguments at the U.S. Supreme Court. JOURNALIST OWES NETFLIX $250K ATTY FEES, COSTS IN 'NARCOS' SUIT via Intellectual Property Law360 by Lauren Berg on 9/21/2020 URL: https://www.law360.com/ip/articles/1312198 A well-known Colombian journalist must pay more than $250,000 in attorney fees and costs to Netflix, a Florida federal judge ruled Monday, following the defeat of her suit claiming the streaming giant's "Narcos" ripped off scenes from her memoir involving her romantic relationship with Pablo Escobar. SONGWRITER ACCUSES DC CIRC. OF IGNORING ARTISTS' REALITIES via Intellectual Property Law360 by Dani Kass on 9/21/2020 URL: https://www.law360.com/ip/articles/1312273 The D.C. Circuit "missed the practical reality" of its decision to overturn a ruling that would have made Spotify and other streaming services pay artists significantly higher royalties, an independent songwriter said Monday. GINSBURG REMEMBERED AS STEADFAST PRO-COPYRIGHT VOICE via Intellectual Property Law360 by Ryan Davis on 9/21/2020 URL: https://www.law360.com/ip/articles/1312244 Justice Ruth Bader Ginsburg's steadfast support for copyright owners was one of the hallmarks of her U.S. Supreme Court tenure, and her decisions strengthening copyright protection will have a lasting impact on the law, experts say. YOUTUBE CALLS PIRACY CLASS ACTION 'BADLY MISGUIDED' via Intellectual Property Law360 by Bill Donahue on 9/22/2020 URL: https://www.law360.com/ip/articles/1312738 YouTube is pushing back on a class action that claims the site's anti-piracy tools are only designed to protect big movie studios and record labels, calling it a "badly misguided" case filed by a company that has abused the Digital Millennium Copyright Act takedown process.

Joshua L. Simmons joshua.simmons@kirkland.com

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DESIGNER'S SOCIAL MEDIA POSTS INFRINGED PHOTO, JUDGE SAYS via Intellectual Property Law360 by Bill Donahue on 9/22/2020 URL: https://www.law360.com/ip/articles/1312842 A Manhattan federal judge is holding fashion designer Elie Tahari Ltd. liable for copyright infringement for posting a photographer's image to social media, rejecting the defense that sharing images online has become so "commonplace" that it didn't matter. NETFLIX WINS $250000 IN FEES, COSTS IN 'NARCOS' COPYRIGHT CASE via Bloomberg Law by Blake Brittain on 9/22/2020 URL: https://news.bloomberglaw.com/ip-law/netflix-wins-250-000-in-fees-costs-in-narcos-copyright-case Virginia Vallejo sued Netflix for allegedly infringing copyrights in her memoir “Amando a Pablo, Odiando a Escobar,” about her relationship with Pablo ... DISNEY, PIXAR'S 'TOY STORY 4' ACCUSED OF COPYING EVEL KNIEVEL via Intellectual Property Law360 by Lauren Berg on 9/22/2020 URL: https://www.law360.com/ip/articles/1312833 The owner of the Evel Knievel brand accused The Walt Disney Co. and Pixar of ripping off the famous motorcycle daredevil's likeness for the stuntman character Duke Caboom in last year's "Toy Story 4," according to a lawsuit filed Tuesday in Nevada federal court. MACKLEMORE GETS FEES FROM SAMPLING SUIT WIN, 5TH CIRC. SAYS via Intellectual Property Law360 by Mike LaSusa on 9/22/2020 URL: https://www.law360.com/ip/articles/1312861 The Fifth Circuit ruled Tuesday that hip-hop duo Macklemore and Ryan Lewis can keep legal fees they won after beating a lawsuit by New Orleans jazz artist Paul Batiste, which claimed some of their popular songs, such as "Thrift Shop," featured illegal samples. ART FOUNDATION TELLS COURT TO END 'LOVE' SCULPTOR ESTATE ROW via Intellectual Property Law360 by Hailey Konnath on 9/22/2020 URL: https://www.law360.com/ip/articles/1312786 A New York federal court should pump the breaks on the winding and bitter battle over the work and legacy of the late sculptor Robert Indiana, known best for his "LOVE" image, an art foundation said Monday, saying it has reached an agreement with the artist's estate's beneficiary.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SEINFELD DEMANDS $1M AFTER BEATING 'COMEDIANS IN CARS' CASE via Intellectual Property Law360 by Bill Donahue on 9/23/2020 URL: https://www.law360.com/ip/articles/1313189 Attorneys for Jerry Seinfeld squared off before a Manhattan federal judge Wednesday with lawyers representing a former creative partner who accused him of stealing "Comedians in Cars Getting Coffee," battling over whether the accuser must now repay the superstar's nearly million-dollar legal bill. SONY, OTHERS CAN'T TAKE PIRATING CLAIM TO 11TH CIRC. via Intellectual Property Law360 by Carolina Bolado on 9/23/2020 URL: https://www.law360.com/ip/articles/1312853 A Florida federal judge on Tuesday refused to allow music labels to appeal the dismissal of part of their suit against telecommunications company Bright House Networks over its alleged failure to curb internet subscribers' pirating activity. INSTACART STRIKES DEAL FOR CORNERSHOP TO STOP IMAGE SCRAPES via Intellectual Property Law360 by Michelle Casady on 9/23/2020 URL: https://www.law360.com/ip/articles/1313068 Grocery delivery company Instacart on Wednesday reached an agreement with Uber-owned competitor Cornershop on the terms of a preliminary injunction that will bar Cornershop from scraping Instacart's platform of copyrighted product images and descriptions. COPYRIGHT OFFICE PRESENTS AT NATIONAL BOOK FESTIVAL via Copyright: Creativity at Work by George Thuronyi on 9/24/2020 URL: https://blogs.loc.gov/copyright/2020/09/copyright-office-presents-at-national-book-festival/ We’re geared up this weekend to welcome everyone to learn all about copyright. On Sept. 26 and 27, join the U.S. Copyright Office at the National Book Festival and learn about how copyright empowers today's authors and protects diverse perspectives. We’ll be all-virtual this year, and that means people around the country, and even around the world, can participate. Our booth features videos, handouts, postcards, live-chat, and more.

Joshua L. Simmons joshua.simmons@kirkland.com

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DMCA HEARING 5: MORE CONSENSUS THAN YOU MIGHT THINK ON SECTION 1201 via The Illusion of More by David Newhoff on 9/24/2020 URL: http://illusionofmore.com/dmca-hearing-5-more-consensus-than-you-might-think-on-section-1201/ On September 16th, the IP Subcommittee of the Senate Judiciary Committee held hearing number five in its ongoing review of the 22-year-old Digital Millennium Copyright Act. SENATE IP SUBCOMMITTEE HEARING ADDRESSES SECTION 1201 REFORM via Center for the Protection of Intellectual Property by Liz Velander on 9/24/2020 URL: https://cpip.gmu.edu/2020/09/24/senate-ip-subcommittee-hearing-addresses-section-1201-reform/ Last week, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled “Are Reforms to Section 1201 Needed and Warranted?” GOOGLE’S FAIR USE SHELL GAME via IPWatchdog.com | Patents & Patent Law by Steven Tepp on 9/24/2020 URL: https://www.ipwatchdog.com/2020/09/24/googles-fair-use-shell-game/id=125573/ Google has admitted it copied over 11,000 lines of Oracle’s creative Java code to build its Android smartphone platform, that it makes commercial use of the code it copied, and that it uses the code for the same purpose as Oracle and those who license its products. Now, Google wants the Supreme Court to hold that this is fair use under American copyright law. Stripping away the diversions that Google and its amici offer the Court, these are the core facts which show how extreme Google’s... CONCERNS OVER ANTI-AUTHOR BIAS IN ALI’S COPYRIGHT RESTATEMENT via The Authors Guild by Jennifer Simms on 9/24/2020 URL: https://www.authorsguild.org/industry-advocacy/concerns-over-anti-author-bias-in-alis-copyright-restatement/ Last week, Chris Sprigman, the lead drafter of the American Law Institute’s (ALI) controversial Restatement of Copyright Law, wrote a series of tweets attacking authors for taking a stance against the Internet Archive’s practice of unauthorized digitization and lending of books, demonstrating a complete lack of understanding of the Constitutional foundations of copyright law and the supply side of the copyright system, which is premised on the ability of authors’ to be compensated for their work.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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VIDEO POST: VIEW(S) FROM THE OTHER SIDE via Mostly IP History by Zvi S. Rosen on 9/24/2020 URL: http://www.zvirosen.com/2020/09/24/video-post-views-from-the-other-side/ It’s been a long time since I posted – I remember getting the last post out in late March and thinking that things would hopefully be back to normal by the Spring, which has obviously not come to pass. 6TH CIRC. BACKS TRAINING GUIDE COPYRIGHT WIN FOR HEATING CO. via Intellectual Property Law360 by Adam Lidgett on 9/24/2020 URL: https://www.law360.com/ip/articles/1313225 The Sixth Circuit has refused to invalidate a heating and plumbing company's copyright on a technician training guide, finding that a federal jury adequately found there was "enough original material" in the guide to warrant a copyright. SPOTIFY WANTS CLAIMS FROM 'CRYPTIC' MUSIC RIGHTS GROUP CUT via Intellectual Property Law360 by Bryan Koenig on 9/25/2020 URL: https://www.law360.com/ip/articles/1313817 Spotify urged a Florida federal judge Thursday to cut back unfair competition claims from a 21-year-old behind a music rights organization separately suing all the major players in music streaming and broadcasting for allegedly boycotting his organization, blasting the unfair competition allegations as misleading. COSTAR ACCUSES 'FREE-RIDING' STARTUP OF 'REMARKABLE' THEFT via Intellectual Property Law360 by Craig Clough on 9/25/2020 URL: https://www.law360.com/ip/articles/1313776 Commercial real estate information giant CoStar filed a lawsuit Friday in California federal court accusing rival CREXi of instituting a widescale theft of its online listing information, property photos and subscription database through an organized scheme "remarkable in its scope." WWE HEADED TO TRIAL FOR COPYING WRESTLER'S TATTOOS FOR VIDEO GAME via THR, Esq. | Hollywood Reporter by Eriq Gardner on 9/28/2020 URL: https://www.hollywoodreporter.com/thr-esq/wwe-headed-to-trial-for-copying-wrestlers-tattoos-for-video-game The question for a jury is whether the claim rises to copyright infringement.

Joshua L. Simmons joshua.simmons@kirkland.com

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ILL. COURT REJECTS DEFENSES FOR COPYING TATTOOS IN WWE GAME via Intellectual Property Law360 by Lauraann Wood on 9/28/2020 URL: https://www.law360.com/ip/articles/1314212 An Illinois federal judge has sided with a tattoo artist on claims that World Wrestling Entertainment Inc. and video game maker Take-Two Interactive Software Inc. copied her designs on a star wrestler's video game avatar, and rejected the companies' fair use and licensing defenses against her claim. CALIFORNIA COURT’S FINDING OF FAIR USE FOR NICKI MINAJ AFFIRMS PUBLIC BENEFIT OF ARTISTIC EXPERIMENTATION via IPWatchdog.com | Patents & Patent Law by Steve Brachmann on 9/29/2020 URL: https://www.ipwatchdog.com/2020/09/29/california-courts-finding-fair-use-nicki-minaj-affirms-public-benefit-artistic-experimentation/id=125646/ In a ruling earlier this month, U.S. District Judge Virginia A. Phillips of the Central District of California granted partial summary judgment in favor of Onika Tanya Maraj, who performs rap under the stage name Nicki Minaj, resolving a copyright infringement dispute originally filed in 2018 by singer-songwriter Tracy Chapman over Minaj’s unauthorized use of Chapman’s 1988 single “Baby Can I Hold You.” In ruling that Minaj had established a fair use defense to Chapman’s copyright infringement... CELEBRITY DISINFORMATION VICTIMS HAVE PANOPLY OF REMEDIES via Intellectual Property Law360 by Matthew Ferraro & Louis Tompros on 9/29/2020 URL: https://www.law360.com/ip/articles/1312609 Last month, the tea party-affiliated political group FreedomWorks sought to drive social media users to a website peddling unsubstantiated fears of mail-in voting.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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October 2020

GOOGLE V. ORACLE X: THE TAO OF GOOGLE via The Illusion of More by David Newhoff on 10/1/2020 URL: http://illusionofmore.com/google-v-oracle-x-the-tao-of-google/ While reading a few other articles about this case, articles written by actual legal experts, I was reminded that Google v. Oracle, despite its epic scale and likely significance as a precedential ruling, is, in fact, not terribly complicated. CHICAGO CUBS WANT WORLD SERIES COLLECTIBLE SUIT TOSSED OUT via Intellectual Property Law360 by Lauraann Wood on 10/1/2020 URL: https://www.law360.com/ip/articles/1315651 The Chicago Cubs claim a Michigan man struck out with allegations the team created a 2016 World Series collectible that unlawfully copied a design he created in 1984 because his collectible isn't entitled to copyright protection. HOUSE JUDICIARY COMMITTEE STEPS INTO COPYRIGHT REFORM DEBATE via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 10/1/2020 URL: https://www.ipwatchdog.com/2020/10/01/house-judiciary-committee-steps-copyright-reform-debate/id=125801/ Yesterday, the U.S. House of Representatives Committee on the Judiciary held a hearing titled “Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. § 512 After Two Decades.” House Judiciary Chairman Jerrold Nadler (D-NY) began by explaining that the purpose of the hearing was to examine whether Section 512, a key provision of copyright law that guides how copyright and parts of the internet interact with each other, has fared well in... 'LOVE' ARTIST'S ESTATE DODGES SANCTIONS OVER DELETED EMAILS via Intellectual Property Law360 by Kevin Stawicki on 10/1/2020 URL: https://www.law360.com/ip/articles/1315648 A New York magistrate judge has rejected the Morgan Art Foundation's attempt to sanction the estate of artist Robert Indiana for its alleged role in deleting thousands of the late artist's emails and obstructing a legal battle over the rights to his iconic "LOVE" sculpture.

Joshua L. Simmons joshua.simmons@kirkland.com

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YOKO ONO SUES FORMER JOHN LENNON PERSONAL ASSISTANT OVER COPYRIGHT INFRINGEMENT via Fox Business by Lucas Manfredi on 10/2/2020 URL: https://www.foxbusiness.com/lifestyle/yoko-ono-sues-former-john-lennon-personal-assistant-over-copyright-infringement In 2002, Ono settled the lawsuit with Seaman, who agreed to give up his copyright to hundreds of family photos of the Lennon family, and to be bound ... NIKOLA ISSUES COPYRIGHT TAKEDOWNS AGAINST CRITICS WHO USE ROLLING-TRUCK CLIP via Ars Technica by Jon Brodkin on 10/2/2020 URL: https://arstechnica.com/?p=1711297 Nikola has issued copyright-takedown notices targeting critics on YouTube who used clips of the promotional video in which a Nikola prototype truck was seen rolling down a hill. PUBLISHERS ESCAPE FEE AWARD AS GSU E-RESERVES CASE FINALLY ENDS via Publishers Weekly by Andrew Albanese on 10/2/2020 URL: https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/84514-publishers-escape-fee-award-as-gsu-e-reserves-case-finally-ends.html And while the plaintiff publishers once again were deemed by the court to have lost the closely-watched copyright suit, the plaintiff publisher's financial ... FEDS CHARGE LEADERS OF INT'L VIDEO GAME PIRACY GROUP via Intellectual Property Law360 by Lauren Berg on 10/2/2020 URL: https://www.law360.com/ip/articles/1316466 Three leaders of the international piracy group Team Xecuter have been indicted on charges of leading a criminal enterprise to sell illegal devices that hack Nintendo, Sony and Microsoft video game consoles to play pirated copies of games, the U.S. Department of Justice announced Friday. KANYE WEST SETTLES IP SUIT OVER 'LIFE OF PABLO' PRAYER SAMPLE via Intellectual Property Law360 by Hannah Albarazi on 10/2/2020 URL: https://www.law360.com/ip/articles/1316479 Kanye West has reached an undisclosed settlement to end a lawsuit brought by parents who alleged that he sampled an audio recording of their daughter praying on his 2016 album "The Life of Pablo" without permission, a South Carolina federal judge said Friday.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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COPYRIGHT OWNER CLAIMS OWNERSHIP OVER DEPICTING EMOJI SYMBOLS IN MULTIPLE COLORS–CUB CLUB V. APPLE via Technology & Marketing Law Blog by Eric Goldman on 10/4/2020 URL: https://blog.ericgoldman.org/archives/2020/10/copyright-owner-claims-ownership-over-depicting-emoji-symbols-in-multiple-colors-cub-club-v-apple.htm My Emojis and the Law paper argued that: (1) the diversity of emoji depictions (sometimes called fragmentation) creates potential misunderstandings that cause a host of novel and thorny legal issues, and (2) depiction diversity is the unwanted and unnecessary consequence of intellectual property protection for individual emoji symbols. DMCA REVIEW SHOULD BE ABOUT COPYRIGHT, NO? via The Illusion of More by David Newhoff on 10/4/2020 URL: http://illusionofmore.com/dmca-review-should-be-about-copyright-no/ On September 30, the House Judiciary Committee held a hearing to discuss the Copyright Office report, published in May, commenting on the efficacy of Section 512 of the Digital Millennium Copyright Act (DMCA). SUPREME COURT WON'T HEAR LED ZEPPELIN COPYRIGHT FIGHT via Intellectual Property Law360 by Bill Donahue on 10/5/2020 URL: https://www.law360.com/ip/articles/1308109 The U.S. Supreme Court on Monday refused to take up a long-running copyright battle over Led Zeppelin's "Stairway To Heaven," leaving in place a ruling that rejected infringement allegations over the iconic song. DID GOOGLE JUST BLINK? via Hugh Stephens Blog on 10/5/2020 URL: http://hughstephensblog.net/2020/10/05/did-google-just-blink/ The announcement on October 1 that Google will be paying $1 billion (over three years) to news publishers to create curated news content for Google News is a welcome sign that Google is finally starting to wake up and smell the coffee. Coming on top of its announcement in June that it would begin to […]

Joshua L. Simmons joshua.simmons@kirkland.com

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SUPREME COURT WON'T HEAR "STAIRWAY TO HEAVEN" COPYRIGHT FIGHT via THR, Esq. | Hollywood Reporter by Eriq Gardner on 10/5/2020 URL: https://www.hollywoodreporter.com/thr-esq/supreme-court-wont-hear-stairway-to-heaven-copyright-fight The justices also won't hear a lengthy dispute over the works of John Steinbeck. CASE PREVIEW: JUSTICES TO WEIGH IN ON LANDMARK COPYRIGHT BATTLE BETWEEN GOOGLE AND ORACLE via SCOTUSblog by Ronald Mann on 10/5/2020 URL: https://www.scotusblog.com/2020/10/case-preview-justices-to-weigh-in-on-landmark-copyright-battle-between-google-and-oracle/ The justices will close their first week back on the bench by finally hearing argument in Google v Oracle. SONY SUING MUSICIANS FOR ALLOWING ATTORNEY TO USE ALBUM ARTWORK via THR, Esq. | Hollywood Reporter by Eriq Gardner on 10/5/2020 URL: https://www.hollywoodreporter.com/thr-esq/sony-suing-musicians-for-allowing-attorney-to-use-album-artwork In a battle over copyright termination, Sony says Evan Cohen can't use his client's art to advertise his business. ‘STAIRWAY TO HEAVEN’ COPYRIGHT CASE WON’T GO TO SUPREME COURT via NYT > Media & Advertising by Ben Sisario on 10/5/2020 URL: https://www.nytimes.com/2020/10/05/arts/music/stairway-to-heaven-led-zeppelin-lawsuit.html The court’s decision leaves in place an appeals court ruling that Led Zeppelin did not copy part of a 1968 song, ending the long-running dispute. Robert Plant, left, with Jimmy Page at a Led Zeppelin reunion concert in 1988. The Supreme Court declined to hear a case involving “Taurus,” a 1968 song by the psychedelic band Spirit. SUPREME COURT WON'T HEAR CASE OVER 5POINTZ DESTRUCTION via Intellectual Property Law360 by Bill Donahue on 10/5/2020 URL: https://www.law360.com/ip/articles/1316987 The U.S. Supreme Court on Monday denied certiorari to a New York City real estate development firm that destroyed a famed graffiti space known as 5Pointz, leaving in place a $6.75 million damages award.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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PRINT CO. ACCUSES FURNITURE MAKER OF INFRINGING WOOD DESIGN via Intellectual Property Law360 by Sarah Martinson on 10/5/2020 URL: https://www.law360.com/ip/articles/1316879 A Georgia printing company has accused a Utah-based furniture manufacturer of importing and selling more than 350 types of furniture, including cabinets, tables and chairs, adorned with decorative paper of a wood grain design that infringes its copyrighted work. 8 MORE IP CASES THE JUSTICES REJECTED AT 1ST CONFERENCE via Intellectual Property Law360 by Ryan Davis et al. on 10/5/2020 URL: https://www.law360.com/ip/articles/1316929 The U.S. Supreme Court denied a series of intellectual property cases on Monday after the first conference of the term, including ones over bicycle chain and menu patents and the copyrights to John Steinbeck's works. CAN 21 SAVAGE COPYRIGHT OR TRADEMARK THE WORD 'YESSIRSKIII'? via Variety by Jem Aswad on 10/6/2020 URL: https://variety.com/2020/music/news/21-savage-copyright-trademark-yessirskiii-1234794538/ “Copyrights, trademark rights, and publicity rights. ... or product, as opposed to the intellectual ownership implied by copyright — is a different matter. GOOGLE ASKS SUPREME COURT TO UPSET DECADES OF COPYRIGHT LEGISLATION via Washington Times by Orrin G. Hatch on 10/6/2020 URL: https://www.washingtontimes.com/news/2020/oct/6/google-asks-supreme-court-to-upset-copyright/ Despite Congress' long-lasting view — that original computer programs are entitled to copyright protections just like all other literary works — Google ... THE GOOGLE-ORACLE COPYRIGHT WAR, EXPLAINED via Intellectual Property Law360 by Bill Donahue on 10/6/2020 URL: https://www.law360.com/ip/articles/1317193 The U.S. Supreme Court is set to hear arguments Wednesday in "the copyright lawsuit of the decade," pitting Google against Oracle in a titanic legal battle over smartphone software.

Joshua L. Simmons joshua.simmons@kirkland.com

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ED SHEERAN CAN'T GET TO US FOR COPYRIGHT TRIAL, LAWYER SAYS via Intellectual Property Law360 by Cara Salvatore on 10/6/2020 URL: https://www.law360.com/ip/articles/1317310 It will be "virtually impossible" for Ed Sheeran to participate in an upcoming copyright trial regarding a famous Marvin Gaye song while travel from the U.K. to the U.S. is at a standstill during the pandemic, the singer's lawyer told a New York federal judge. GOOGLE AND ORACLE'S DECADE-LONG COPYRIGHT BATTLE REACHES SUPREME COURT via NPR by Shannon Bond on 10/7/2020 URL: https://www.npr.org/2020/10/07/921018204/google-and-oracles-decade-long-copyright-battle-reaches-supreme-court "This has been the settled understanding of the application of copyright to software ever since we've been developing software," said Kent Walker, ... SUPREME COURT INCLINED TO AFFIRM FEDERAL CIRCUIT'S COPYRIGHTABILITY FINDING IN ORACLE V. GOOGLE, POSSIBLY UNANIMOUSLY--FAIR USE MAY BE REMANDED via FOSS Patents by Florian Mueller on 10/7/2020 URL: http://www.fosspatents.com/2020/10/supreme-court-inclined-to-affirm.html Judge William H. Alsup of the United States District Court for the Northern District of California may go down in history as the only U.S. judge ever to have found that code related to application programming interfaces (APIs) is not copyrightable only because it's related to APIs. NY ART DISPUTES HIGHLIGHT FAME'S ROLE IN COPYRIGHT SUITS via Intellectual Property Law360 by Susan Kohlmann & Jacob Tracer on 10/7/2020 URL: https://www.law360.com/ip/articles/1317010 Copyright law does not generally protect famous artists more than lesser-known ones. However, an exception to this rule may be developing regarding certain rights that attach to works of visual art under the Visual Artists Rights Act.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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JUSTICES LOOK FOR REASSURANCE THAT THE SKY WON’T FALL WHEN THEY RULE IN GOOGLE V. ORACLE via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 10/7/2020 URL: https://www.ipwatchdog.com/2020/10/07/justices-look-reassurance-sky-wont-fall-google-v-oracle/id=126052/ Google and Oracle each got to have their say in U.S. Supreme Court today, when eight justices heard oral argument in the closely-watched battle between the two tech giants. The questioning revealed some strong skepticism of Google’s arguments, but also potent fear that a ruling for either side might upend industry practices in computer programming. Both sides claim that a ruling for the other will harm innovation. The High Court agreed to hear Google’s petition for a writ of certiorari last... JUSTICES WARY OF 'SKY FALLING' IN GOOGLE-ORACLE SOFTWARE CASE via Intellectual Property Law360 by Bill Donahue on 10/7/2020 URL: https://www.law360.com/ip/articles/1317786 The U.S. Supreme Court heard arguments Wednesday in Google and Oracle's long-running copyright battle over smartphone software, wrangling with their dramatic warnings about what the case means for the future of the technology industry. 6 TAKEAWAYS FROM GOOGLE V. ORACLE AT SCOTUS via Law.com by Scott Graham on 10/7/2020 URL: https://www.law.com/2020/10/07/6-takeaways-from-google-v-oracle-at-scotus-403-55274/ Awkward analogies and a shift in emphasis from Google complicate arguments in an already complex case. UNPUBLISHED TWILIGHT SEQUEL SPARKS INTEREST IN COPYRIGHT DEPOSITS via Copyright: Creativity at Work by Alison Hall on 10/8/2020 URL: https://blogs.loc.gov/copyright/2020/10/unpublished-twilight-sequel-sparks-interest-in-copyright-deposits/ Recently, Twilight series author Stephenie Meyer talked about her unpublished sequel to the original Twilight story, Forever Dawn.

Joshua L. Simmons joshua.simmons@kirkland.com

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BENCH READING: WHAT THE SUPREME COURT JUSTICES SAID ABOUT APIS BEING COPYRIGHTABLE IN YESTERDAY'S ORACLE V. GOOGLE HEARING via FOSS Patents by Florian Mueller on 10/8/2020 URL: http://www.fosspatents.com/2020/10/bench-reading-what-supreme-court.html Other than a potential remand of the "fair use" question to the Federal Circuit, Google cannot realistically hope for anything positive to come out of yesterday's Supreme Court hearing in Google v. Oracle America (petitioner v. respondent as opposed to plaintiff v. defendant): the Android maker's non-copyrightability defense has a snow flake's chance in hell. GOOGLE’S SUPREME COURT FACEOFF WITH ORACLE WAS A DISASTER FOR GOOGLE via Ars Technica by Timothy B. Lee on 10/8/2020 URL: https://arstechnica.com/?p=1712477 The Supreme Court's eight justices on Wednesday seemed skeptical of Google's argument that application programming interfaces (APIs) are not protected by copyright law. 512(F) CLAIM SURVIVES MOTION TO DISMISS–BRANDYN LOVE V. NUCLEAR BLAST AMERICA via Technology & Marketing Law Blog by Eric Goldman on 10/8/2020 URL: https://blog.ericgoldman.org/archives/2020/10/512f-claim-survives-motion-to-dismiss-brandyn-love-v-nuclear-blast-america.htm This case involves two “heavy metal” bands, “We Are the End” and “Rings of Saturn” (the Spotify bio describes Rings of Saturn as “a progressive, technical deathcore outfit”). TOP UK IP CASES TO WATCH AS 2020 WINDS DOWN via Intellectual Property Law360 by Bonnie Eslinger on 10/8/2020 URL: https://www.law360.com/ip/articles/1318152 As the U.K. courts go full speed into the final term of the year, there are plenty of high-profile intellectual property cases to watch and keep attorneys busy. HIGH COURT ORACLE-GOOGLE COPYRIGHT WAR MAY BENEFIT ARTISTS via Intellectual Property Law360 by Sandra Aistars on 10/8/2020 URL: https://www.law360.com/ip/articles/1318139 You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SPORTS MAG SEEKS TO AX IP SUIT OVER TENNIS INSTAGRAM POST via Intellectual Property Law360 by Melissa Angell on 10/8/2020 URL: https://www.law360.com/ip/articles/1318082 United Sports Publications asked a New York federal judge Wednesday to dismiss a photographer's lawsuit alleging the sports magazine infringed his copyrights to an image of professional tennis player Caroline Wozniacki by embedding an Instagram post containing his photograph on the magazine's website. FACT CHECK: TEN FALSEHOODS AND FALLACIES GOOGLE'S LAWYER TOLD THE SUPREME COURT ABOUT ORACLE'S ANDROID-JAVA COPYRIGHT CASE via FOSS Patents by Florian Mueller on 10/9/2020 URL: http://www.fosspatents.com/2020/10/fact-check-ten-falsehoods-and-fallacies.html I live-tweeted about the Google v. Oracle America oral argument before the Supreme Court, and about five minutes into the hearing I already felt that Google was likely to lose the copyrightability part. AFRAID OF LOSING THE ANDROID-JAVA COPYRIGHT CASE, GOOGLE WAS LOOKING FOR PATENTS TO COUNTERSUE ORACLE, BUT FAILED TO FIND ANY SUITABLE ONES via FOSS Patents by Florian Mueller on 10/9/2020 URL: http://www.fosspatents.com/2020/10/afraid-of-losing-android-java-copyright.html I just published a detailed fact check that highlights at least ten major untruths Google's lawyer told the Supreme Court on Wednesday. ARGUMENT ANALYSIS: JUSTICES DEBATE LEGALITY OF GOOGLE’S USE OF JAVA INTERFACES IN ANDROID SOFTWARE CODE via SCOTUSblog by Ronald Mann on 10/9/2020 URL: https://www.scotusblog.com/2020/10/argument-analysis-justices-debate-legality-of-googles-use-of-java-in-android-software-code/ The justices finished up the first week of the new term by finally hearing argument in Google v. Oracle, a case that has been pending at the Supreme Court since the fall of 2018.

Joshua L. Simmons joshua.simmons@kirkland.com

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6 BIG MOMENTS FROM GOOGLE-ORACLE YOU NEED TO HEAR via Intellectual Property Law360 by Bill Donahue on 10/9/2020 URL: https://www.law360.com/ip/articles/1318431 Is software like a bank vault that needs cracking? Or is it more like a football team that can lose its best players? During arguments this week in Google and Oracle's complex battle over smartphone copyrights, the U.S. Supreme Court's justices tried out just about every analogy possible. USPTO PUBLISHES REPORT ON AI-RELATED POLICIES via Patent Docs by Michael Borella on 10/12/2020 URL: https://www.patentdocs.org/2020/10/uspto-publishes-report-on-ai-related-policies.html USPTO SealLast year, the U.S. Patent and Trademark Office (USPTO) issued a request for comments (RFC) on patenting artificial intelligence (AI) based inventions. COUNTING COPYRIGHT REGISTRATIONS BEFORE 1870 via Mostly IP History by Zvi S. Rosen on 10/12/2020 URL: http://www.zvirosen.com/2020/10/12/counting-copyright-registrations-before-1870/ This past spring/summer, my article (coauthored with Richard Schwinn, Ph.D) entitled “An Empirical Study of 225 Years of Copyright Registrations.” NICOLA SEARLE ON BUSINESS MODELS AND COPYRIGHT: THE LEGAL BUSINESS MODEL via Center for the Protection of Intellectual Property by Nicola Searle on 10/13/2020 URL: https://cpip.gmu.edu/2020/10/13/nicola-searle-on-business-models-and-copyright-the-legal-business-model/ The last two decades have made for interesting times in the media business. NATIVE ORG. SAYS NEIMAN MARCUS IP ROW BELONGS IN ALASKA via Intellectual Property Law360 by Emma Whitford on 10/13/2020 URL: https://www.law360.com/ip/articles/1319022 An Alaska Native organization has urged an Alaska federal court not to grant several Neiman Marcus entities' bid to ax a copyright suit over a patterned coat the organization says is appropriative, accusing the retailer of "outdated notions" of jurisdiction.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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VOICES, COPYRIGHTING AND DEEPFAKES via IPWatchdog.com | Patents & Patent Law by Ivy Attenborough on 10/14/2020 URL: https://www.ipwatchdog.com/2020/10/14/voices-copyrighting-deepfakes/id=126232/ Jay-Z recently tried to have a YouTube video removed for copyright violations. When YouTuber Voice Synthesis used an open-source program, Tacotron 2, to digitally impersonate Jay-Z's iconic voice saying different things or singing songs, his entertainment agency Roc Nation LLC claimed that the YouTuber "unlawfully uses an AI to impersonate our client’s voice" and infringe on Jay-Z's copyright. Roc Nation's assertion of copyright protection via YouTube's copyright strike system begs the... SIX LATIN AMERICAN AUTHORS YOU SHOULD KNOW via Copyright: Creativity at Work by Nicole Lamberson on 10/14/2020 URL: https://blogs.loc.gov/copyright/2020/10/six-latin-american-authors-you-should-know/ From September 15 to October 15, we observe National Hispanic Heritage Month, an annual celebration honoring the histories, cultures, and contributions of both Hispanic and Latin Americans in the United States. KATY PERRY ACCUSER CITES BEETHOVEN, STONES AT 9TH CIRC. via Intellectual Property Law360 by Bill Donahue on 10/14/2020 URL: https://www.law360.com/ip/articles/1319220 A rapper who claims Katy Perry copied his song is launching an appeal at the Ninth Circuit, citing Beethoven and the Rolling Stones in an effort to overturn a ruling that his allegedly stolen material was too simple for copyright protection. BARRETT ADDRESSES PATENTS, COPYRIGHTS ON DAY 3 OF HEARING via Intellectual Property Law360 by Ryan Davis on 10/14/2020 URL: https://www.law360.com/ip/articles/1319838 U.S. Supreme Court nominee Amy Coney Barrett said Wednesday that "clarity is certainly a virtue" in response to criticism of the high court's patent eligibility rulings, and said deciding how copyright law applies to new technology is a task for Congress. YOUR SKIN, MY RIGHT: UNIMAGINABLE CONSEQUENCES OF GIVING TATTOOS FULL COPYRIGHT PROTECTION via The Columbia Journal of Law & the Arts by Jiajun Lu on 10/15/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/329 Tattoos are commonplace among Americans, and especially millennials.

Joshua L. Simmons joshua.simmons@kirkland.com

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DISNEY LOOKS TO HOLD ONTO 'AVENGERS' PROFITS IN DISPUTE OVER "STOLEN" TECHNOLOGY via THR, Esq. | Hollywood Reporter by Eriq Gardner on 10/15/2020 URL: https://www.hollywoodreporter.com/thr-esq/disney-looks-to-hold-onto-avengers-profits-in-dispute-over-stolen-technology In a long-running lawsuit, the studio argues that its legal adversary can't establish a link between the use of special effects software and why consumers are buying movie tickets. TURKMENISTAN JOINS WIPO'S "BOOKS FOR BLIND" MARRAKESH TREATY via YouTube by World Intellectual Property Organization – WIPO on 10/15/2020 URL: https://www.youtube.com/watch?v=dpXdeIQLkrE WIPO Director General Daren Tang welcomes Turkmenistan's accession to the Marrakesh Treaty. With Turkmenistan's membership, the Treaty now covers 100 countries. The WIPO-administered Marrakesh Treaty makes the production and international transfer of specially-adapted books for people with blindness or visual impairments easier. Ambassador Atageldi Haljanov, Turkmenistan's Permanent Representative to the United Nations and other International Organizations in Geneva, deposited the instrument of accession on October 15, 2020. GOOGLE V. ORACLE AT THE SUPREME COURT: COPYRIGHTABILITY, FAIR USE, AND STANDARD OF REVIEW via Center for the Protection of Intellectual Property by Chris Wolfsen on 10/15/2020 URL: https://cpip.gmu.edu/2020/10/15/google-v-oracle-at-the-supreme-court-copyrightability-fair-use-and-standard-of-review/ Grocery store shelves, QWERTY keyboards, and restaurant menus. These are just three of the analogies that Supreme Court justices used to grapple with the complex issues in the long-awaited Google v. Oracle oral argument that was heard last Wednesday, October 7. The case between the two tech companies that has been brewing for over a decade comes down to 11,000 lines of Oracle’s Java code that Google copied, without permission, for use in its well-known Android smartphone platform—a competing product. ED SHEERAN COPYRIGHT TRIAL POSTPONED UNTIL SPRING via Intellectual Property Law360 by Bill Donahue on 10/16/2020 URL: https://www.law360.com/ip/articles/1320295 A Manhattan federal judge has postponed a looming copyright trial over whether Ed Sheeran's song "Thinking Out Loud" infringed Marvin Gaye's iconic "Let's Get It On," citing a strain on judicial resources amid the coronavirus pandemic.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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INDUSTRY GROUPS DROP SUIT OVER COPYRIGHTED REGULATIONS via Intellectual Property Law360 by Tiffany Hu on 10/16/2020 URL: https://www.law360.com/ip/articles/1320310 A long-running copyright fight over private industry rules that are later transformed into federal law came to an end when a trio of private organizations agreed to drop a lawsuit aiming to stop a nonprofit from publishing their testing standards online. JAMES CHARLES: COPYCAT OR COPYRIGHT LAWSUIT IN THE MAKING? via The Columbia Journal of Law & the Arts by Mona Mosavi on 10/18/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/343 James Charles is no stranger to online criticism. The 21-year-old media sensation first rose to fame as a YouTube beauty vlogger, and today, he is a makeup mogul with his own makeup line for Morphe Cosmetics. None of this came without controversy, especially last year when James accused Wet N’ Wild of ripping off his Morphe eyeshadow palette. Recently, the brand Teddy Fresh has raised accusations against James of ripping off the sweatshirt designs of Hila Klein, one half of the husband-wife Youtube duo H3H3. Both James and Hila designed color-blocked sweatshirts and released them this year, leading to the following accusations against James. HERO FORGE AND THE CONTROVERSY OVER MINIATURE COPYRIGHT via Plagiarism Today by Jonathan Bailey on 10/19/2020 URL: https://www.plagiarismtoday.com/2020/10/19/hero-forge-and-the-copyright-controversy-over-miniatures/ Miniatures have been growing in popularity over the past few years. These small figurines, used in a variety of both tabletop and role-playing games, have become both big business and a major creative outlet for their fans. SUPREME COURT AGREES TO HEAR APPEAL IN YORK V ACCESS COPYRIGHT CASE: WHAT DOES THIS MEAN FOR COPYRIGHT IN CANADA? via Hugh Stephens Blog on 10/19/2020 URL: http://hughstephensblog.net/2020/10/19/supreme-court-agrees-to-hear-appeal-in-york-v-access-copyright-case-what-does-this-mean-for-copyright-in-canada/ Last week the Supreme Court of Canada (SCC) agreed to hear the appeal of the Federal Court of Appeal’s (FCA) decision in the ongoing saga of York University v Access Copyright.

Joshua L. Simmons joshua.simmons@kirkland.com

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HOW A BIDEN ADMINISTRATION WOULD SHAPE IP POLICY via Intellectual Property Law360 by Charles Barquist & Maren Laurence on 10/19/2020 URL: https://www.law360.com/ip/articles/1319716 While the outcome of the presidential election is of course unknown, and reporting about the campaigns is dominated by more controversial topics, it is nevertheless worthwhile to consider the implications of a Joe Biden-Kamala Harris administration on intellectual property law and policy. FULL DC CIRC. WON'T UNDO STREAMING COS.' WIN IN ROYALTY ROW via Intellectual Property Law360 by Tiffany Hu on 10/19/2020 URL: https://www.law360.com/ip/articles/1320631 The full D.C. Circuit has rejected an independent songwriter's bid to reconsider its reversal of the Copyright Royalty Board's decision that would have made Spotify, Apple and other streaming services pay artists significantly higher royalties. MISSY ELLIOTT LOOKS TO KEEP COPYRIGHT CLAIMS IN FLA. via Intellectual Property Law360 by Carolina Bolado on 10/19/2020 URL: https://www.law360.com/ip/articles/1320752 Grammy-winning rapper Missy Elliott fought back efforts by a producer to dismiss her suit claiming he unlawfully tried to sell recordings she created at his studio in the 1990s, arguing that his threats to use the recordings if she did not agree to buy them should be enough to rope him into court in Florida. USPTO OFFICIAL TAPPED AS OFFICE'S ACTING POLICY CHIEF via Intellectual Property Law360 by Craig Clough on 10/19/2020 URL: https://www.law360.com/ip/articles/1320910 The U.S. Patent and Trademark Office announced Monday its deputy chief policy officer and senior counsel Mary Critharis will serve as the office's acting policy chief officer and director of international affairs. TILLIS SAID TO UNVEIL DRAFT DIGITAL COPYRIGHT BILL IN DECEMBER via Bloomberg Law by Ian Lopez & Kyle Jahner on 10/19/2020 URL: https://news.bloomberglaw.com/ip-law/tillis-said-to-unveil-draft-digital-copyright-bill-in-december Thom Tillis will release draft legislation to amend the Digital Millennium Copyright Act on Dec. 18, a Senate Republican aide said Monday. The law ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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USPTO APPOINTS MARY CRITHARIS ACTING CHIEF POLICY OFFICER AND DIRECTOR FOR INTERNATIONAL AFFAIRS via IPWatchdog.com | Patents & Patent Law on 10/20/2020 URL: https://www.ipwatchdog.com/2020/10/20/uspto-appoints-mary-critharis-acting-chief-policy-officer-director-international-affairs/id=126523/ Yesterday, the United States Patent and Trademark Office (USPTO) announced that Mary Critharis has been appointed as the USPTO’s Acting Chief Policy Officer and Director for International Affairs. According to the announcement, Critharis will serve in the role while the USPTO continues the process of identifying a permanent replacement for Shira Perlmutter, who was the Chief Policy Officer and Director for International Affairs for the past eight years. Last month, Perlmutter was chosen by... MICROSOFT SETTLES SOFTWARE THEFT CASE AGAINST UK VENDORS via Intellectual Property Law360 by Joanne Faulkner on 10/20/2020 URL: https://www.law360.com/ip/articles/1320053 Microsoft Corp. has settled its copyright and trademark infringement claim against two British companies accused of peddling unauthorized product license keys for its popular software products. POST MALONE CAN'T FIND EARLY ESCAPE FROM 'CIRCLES' IP SUIT via Intellectual Property Law360 by Craig Clough on 10/20/2020 URL: https://www.law360.com/ip/articles/1320964 A California federal judge ruled Monday that part of a lawsuit from a man claiming co-authorship of rapper Post Malone's No. 1 hit "Circles" can move forward, allowing claims that he helped write the tune to survive while tossing claims that he also is a joint author of the sound recording. TOM LEHRER: THE PUBLIC DOMAIN TANGO via Plagiarism Today by Jonathan Bailey on 10/21/2020 URL: https://www.plagiarismtoday.com/2020/10/21/tom-lehrer-the-public-domain-tango/ Without a doubt, Tom Lehrer is one of the most brilliant satirists in modern American history.

Joshua L. Simmons joshua.simmons@kirkland.com

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RUSSIAN OPERATOR ASKS JUSTICES TO EYE 'STREAM-RIPPING' SUIT via Intellectual Property Law360 by Tiffany Hu on 10/21/2020 URL: https://www.law360.com/ip/articles/1321273 A Russian man who operates so-called stream-ripping websites used to pirate music is asking the U.S. Supreme Court to overturn a ruling that American courts can hear a copyright lawsuit filed against him by several major U.S. record labels. TWITCH BLASTS STREAMERS WITH VAGUE, UNHELPFUL DMCA TAKEDOWN EMAILS via Ars Technica by Kate Cox on 10/21/2020 URL: https://arstechnica.com/?p=1716208 Streaming platform Twitch this week surprised many of its users when it sent out a huge batch of copyright takedown emails. PANDORA TELLS JUDGE TO TOSS TURTLES' PRE-1972 COPYRIGHT SUIT via Intellectual Property Law360 by Lauren Berg on 10/21/2020 URL: https://www.law360.com/ip/articles/1321861 Pandora urged a California federal judge to toss a copyright class action brought by rock band The Turtles over pre-1972 recordings, arguing at a hearing Wednesday that the claims are preempted by Congress' Music Modernization Act, while the band members argued they have exclusive public performance rights. LIEBOWITZ HIT WITH MALPRACTICE SUIT FROM FORMER CLIENT via Intellectual Property Law360 by Bill Donahue on 10/22/2020 URL: https://www.law360.com/ip/articles/1321865 A former client is suing copyright attorney Richard Liebowitz for legal malpractice, claiming the embattled lawyer botched two of his cases and then abandoned him to face thousands in penalties alone. AKERMAN FACES COPYRIGHT SUIT OVER PHOTO ON FIRM WEBSITE via Intellectual Property Law360 by Dave Simpson on 10/22/2020 URL: https://www.law360.com/ip/articles/1321931 Akerman LLP has been hit with a copyright infringement suit in California federal court by a wildlife photojournalist who says the firm did not get his permission to use one of his photographs of a ski resort on its website to illustrate its work on the $350 million Jay Peak EB-5 visa fraud case.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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UNIVERSAL MUST FACE KING CAKE BABY COPYRIGHT INFRINGEMENT CLAIMS via Bloomberg Law by Blake Brittain on 10/22/2020 URL: https://news.bloomberglaw.com/ip-law/universal-must-face-king-cake-baby-copyright-infringement-claims ... Death Day” and its sequel “Happy Death Day 2U” infringes an artist's copyright in his “King Cake Baby” design, a New Orleans federal court said. TV WRITER SUES DISNEY OVER 'MUPPET BABIES' REBOOT via Intellectual Property Law360 by Melisa Angell on 10/22/2020 URL: https://www.law360.com/ip/articles/1322289 Former "Muppet Babies" television show writer Jeffrey Scott sued the Walt Disney Co. on Thursday in California federal court, alleging that the network's reboot of the show did not compensate Scott for his ideas and used them without his consent. THE CHANGING NATURE OF SOUND RECORDING RIGHTS via Center for the Protection of Intellectual Property by Meghan Carlin on 10/23/2020 URL: https://cpip.gmu.edu/2020/10/23/the-changing-nature-of-sound-recording-rights/ The ongoing history of sound recording rights continues to provide a fascinating study in the United States’ copyright regime’s ability to contemplate and absorb new technologies into its framework. MUPPET BABIES' REBOOT SPURS LAWSUIT FROM TV WRITER via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 10/23/2020 URL: https://www.hollywoodreporter.com/thr-esq/muppet-babies-reboot-spurs-lawsuit-from-tv-writer Jeffrey Scott alleges Disney has copied the original production bible he created. PROFESSOR SAYS FAIR USE SHOULD COVER HARD-TO-FIND WORKS via Intellectual Property Law360 by Andrew Karpan on 10/23/2020 URL: https://www.law360.com/ip/articles/1322437 A Stanford law professor said that copyright law's fair use doctrine should extend to works that have "disappeared" from streaming services, ranging from racist episodes of TV shows to George Lucas' original cut of "Star Wars."

Joshua L. Simmons joshua.simmons@kirkland.com

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RUSSIAN SEQUEL TO BROADWAY MUSICAL RAISES COPYRIGHT CONCERNS via Forbes by Marc Hershberg on 10/25/2020 URL: https://www.forbes.com/sites/marchershberg/2020/10/25/russian-sequel-to-broadway-musical-raises-copyright-concerns/ Under federal copyright law, the authors of copyrighted works have the exclusive right to create and to allow others to create new works based on their ... WE’RE STILL UNSURE IF INSTAGRAM GRANTS USERS A SUBLICENSE TO EMBED PHOTOS via Technology & Marketing Law Blog by Venkat Balasubramani on 10/25/2020 URL: https://blog.ericgoldman.org/archives/2020/10/were-still-unsure-if-instagram-grants-users-a-sublicense-to-embed-photos.htm Newsweek asked the court to reconsider its ruling that the Instagram terms do not contain an express sublicense. PUBLISHERS TAKE INTERNET ARCHIVE TO COURT OVER OPEN LIBRARY via JLA Beat | The Columbia Journal of Law & the Arts by Anne Power on 10/25/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/352 In June 2020, four of publishing’s “Big Five” filed suit against the Internet Archive (“IA”) for copyright infringement. The suit was indirectly in response to IA’s National Emergency Library (“NEL”), a digital library that Brewster Kahle, IA’s eccentric billionaire founder, had established several months earlier to help students, educators, and researchers access digital versions of the print materials made inaccessible by the COVID-19 pandemic. The NEL was an expansion of IA’s Open Library, which had been loaning out digital scans of books for years. The NEL, however, did away with the Open Library’s waitlists in order to make any book available to any reader whenever they wanted. Kahle promised the library would be open until the crisis was over or until June 30, 2020, whichever came first. A POPULAR YOUTUBE DOWNLOADING TOOL HAS BEEN REMOVED FROM GITHUB BY THE RECORDING INDUSTRY via Gizmodo by Cam Wilson on 10/26/2020 URL: https://www.gizmodo.com.au/2020/10/a-popular-youtube-downloading-tool-has-been-removed-from-github-by-the-recording-industry/ And while it looks similar to a DMCA takedown notice — a document sent to a service hosting copyright material without approval to order its removal — ...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SCOTUS, GOOGLE V. ORACLE, AND APPELLATE REVIEW OF CIVIL JURY VERDICTS via Civil Procedure & Federal Courts Blog by Adam Steinman on 10/26/2020 URL: https://lawprofessors.typepad.com/civpro/2020/10/scotus-google-v-oracle-and-appellate-review-of-civil-jury-verdicts.html The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. TWENTY-FIVE YEARS OF US-VIETNAM COOPERATION—DON’T LET “DECREE 06” AND ONGOING PIRACY SPOIL IT! via Hugh Stephens Blog on 10/26/2020 URL: http://hughstephensblog.net/2020/10/26/twenty-five-years-of-us-vietnam-cooperation-dont-let-decree-06-and-ongoing-piracy-spoil-it/ How time flies! That is a truism we are all familiar with, but it was brought home to me forcefully when I was reminded by friends still living in Vietnam that this year, 2020, marks the 25th anniversary of the establishment of diplomatic relations between the United States and Vietnam. These two nations fought one […] FIX, OR TOSS? THE ‘RIGHT TO REPAIR’ MOVEMENT GAINS GROUND via New York Times by Paola Rosa-Aquino on 10/26/2020 URL: https://www.nytimes.com/2020/10/23/climate/right-to-repair.html Both Republicans and Democrats are pursuing laws to make it easier for people to fix cellphones, cars, even hospital ventilators. In Europe, the movement is further along. SECURITY INTERESTS: A MUST-HAVE FOR COPYRIGHT CO-OWNERS IN UNCERTAIN TIMES (GUEST COLUMN) via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Evie Whiting & Ashleigh R. Stanley on 10/26/2020 URL: https://www.hollywoodreporter.com/thr-esq/security-interests-a-must-have-for-copyright-co-owners-in-uncertain-times-guest-column What happens to a party who co-owns a copyright with a company that declares bankruptcy?

Joshua L. Simmons joshua.simmons@kirkland.com

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YOUTUBE-RIPPING SITE SUES RIAA OVER COPYRIGHT CLAIMS via Intellectual Property Law360 by Bill Donahue on 10/26/2020 URL: https://www.law360.com/ip/articles/1322891 A website that allows users to download music from YouTube is suing the Recording Industry Association of America, aiming to prove that the service doesn't violate copyright law. LEGAL NEWS CO. SAYS FIRM STEALS STORIES HOT OFF THE PRESSES via Intellectual Property Law360 by Emily Lever on 10/26/2020 URL: https://www.law360.com/ip/articles/1322914 Personal injury law news outlet The Legal Advocate has sued the Steinfeld Law Firm in New York federal court for allegedly ripping off stories and posting them on its own news site, i Legal News, to drum up business for the firm. BUZZFEED FACES COPYRIGHT FIGHT OVER INSTAGRAM EMBEDS via Intellectual Property Law360 by Bill Donahue on 10/26/2020 URL: https://www.law360.com/ip/articles/1322888 Six photojournalists are suing BuzzFeed for using their photos of this summer's George Floyd protests without permission, the latest copyright case to be filed over the use of embedded social media posts. A 512(F) CASE LEADS TO A RARE DAMAGES AWARD (ON A DEFAULT JUDGMENT)–CALIFORNIA BEACH V. DU via Technology & Marketing Law Blog by Eric Goldman on 10/27/2020 URL: https://blog.ericgoldman.org/archives/2020/10/a-512f-case-leads-to-a-rare-damages-award-on-a-default-judgment-california-beach-v-du.htm The plaintiff sells “Pop N Go” playpens. SAS INSTITUTE SOFTWARE ELEMENTS HELD NOT COPYRIGHT-ELIGIBLE via Bloomberg Law by Blake Brittain on 10/27/2020 URL: https://news.bloomberglaw.com/ip-law/sas-institute-software-elements-held-not-copyright-eligible The summary judgment against SAS came in a copyright and patent infringement suit in the U.S. District Court for the Eastern District of Texas. In a ...

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11TH CIRC. AFFIRMS NETFLIX WIN IN 'NARCOS' COPYRIGHT SUIT via Intellectual Property Law360 by Rosie Manins on 10/27/2020 URL: https://www.law360.com/ip/articles/1323436 Netflix and the makers of its television series "Narcos" did not infringe the copyright of a Colombian journalist who wrote about her love affair with notorious drug kingpin Pablo Escobar, the Eleventh Circuit ruled Tuesday, affirming the dismissal of her suit. NETFLIX'S WIN IN 'NARCOS' COPYRIGHT CASE AFFIRMED BY 11TH CIR. via Bloomberg Law by Blake Brittain on 10/27/2020 URL: https://news.bloomberglaw.com/ip-law/netflixs-win-in-narcos-copyright-case-affirmed-by-11th-cir Netflix Inc. didn't infringe a Colombian journalist's copyrights with scenes in “Narcos” that she alleged were taken from her memoir about her ... ED SHEERAN DUCKS SANCTIONS OVER ERROR IN 'SHAPE OF YOU' SUIT via Intellectual Property Law360 by Christopher Crosby on 10/28/2020 URL: https://www.law360.com/ip/articles/1323571 Ed Sheeran narrowly avoided losing a copyright infringement claim over the hit song "Shape of You" on Wednesday after a London judge said it would not be fair to penalize the singer for his lawyers' decision to stonewall a fellow artist seeking information on the song's composition. HOUSE JUDICIARY COMMITTEE HEARING REACTS TO COPYRIGHT OFFICE REPORT ON EFFICACY OF SECTION 512 via Center for the Protection of Intellectual Property by Liz Velander on 10/28/2020 URL: https://cpip.gmu.edu/2020/10/28/house-judiciary-committee-hearing-reacts-to-copyright-office-report-on-efficacy-of-section-512/ In late September, the House Judiciary Committee held a hearing entitled Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. 512 After Two Decades. As Chairman Jerrold Nadler (D-NY) explained, the hearing sought “perspectives on whether Section 512 is working efficiently and effectively for this new internet landscape.”

Joshua L. Simmons joshua.simmons@kirkland.com

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PANDORA CAN'T ESCAPE TURTLES' PRE-1972 COPYRIGHT SUIT via Intellectual Property Law360 by Lauren Berg on 10/28/2020 URL: https://www.law360.com/ip/articles/1323106 A California federal judge has denied Pandora's bid to escape a proposed copyright class action brought by rock band The Turtles over pre-1972 recordings, saying Pandora's broadcasting isn't protected under Golden State anti-SLAPP law or preempted by the federal Music Modernization Act. NETFLIX WILL SEE MORE COPYRIGHT LITIGATION AFTER ELEVENTH CIRCUIT RULING via Law.com by Michael A. Mora on 10/28/2020 URL: https://www.law.com/2020/10/28/netflix-will-see-more-copyright-litigation-after-eleventh-circuit-ruling/ A federal appeals court has ruled in favor of one of the leading American technology and media services providers, finding that one of its shows did not infringe the copyright of a Colombian journalist who wrote a memoir about her affair with drug kingpin Pablo Escobar and the rise of the Colombian drug trade. ATOS SAYS FILED MOTION AGAINST COPYRIGHT CLAIMS BY COGNIZANT via Bloomberg Law by Alan Katz on 10/28/2020 URL: https://news.bloomberglaw.com/ip-law/atos-says-filed-motion-against-copyright-claims-by-cognizant Atos , which said its Syntel unit was found liable by a U.S. jury of trade secret misappropriation and copyright infringement, said it had filed a motion ... SYNTEL HIT WITH $885M TRADE SECRETS VERDICT IN SOFTWARE ROW via Intellectual Property Law360 by Hailey Konnath on 10/28/2020 URL: https://www.law360.com/ip/articles/1323907 A New York federal jury slapped Syntel Inc. with an $855 million verdict Tuesday after finding that the information technology company misappropriated trade secrets and infringed copyrighted software related to a popular insurance administrative platform owned by Cognizant.

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OPINION: SENSITIVITY CRUCIAL AS AUSTRALIA SEEKS TO RESOLVE ABORIGINAL COPYRIGHT ROW via Managing Intellectual Property | Copyright by Ed Conlon on 10/29/2020 URL: https://www.managingip.com/article/b1p0mzvdx55nzy/opinion-sensitivity-crucial-as-australia-seeks-to-resolve-aboriginal-copyright-row The Australian government must proceed with care and caution in a flag copyright dispute that has caused resentment and confusion LEMLEY PROPOSES COPYRIGHT TERM LIMIT DISGUISED AS FAIR USE via The Illusion of More by David Newhoff on 10/29/2020 URL: http://illusionofmore.com/lemley-proposes-copyright-term-limit-disguised-as-fair-use/ Welcome to Professor Lemley’s Home for Wayward Works. Formerly known as the Asylum for Orphan Works, but we really prefer not to use the O-word as this connotes a state of abandonment and a feeling of being unwanted. Although we are certainly happy that the term Bastard Works was retired after 1912. COPYRIGHT HORROR STORIES via Copyright: Creativity at Work by Mary Daniel on 10/29/2020 URL: https://blogs.loc.gov/copyright/2020/10/copyright-horror-stories/ The Halloween season is the time of year for horror movies and scary stories. RATAJKOWSKI SAYS INSTAGRAM COPYRIGHT SUIT AIMED TO 'EXTORT' via Intellectual Property Law360 by Bill Donahue on 10/29/2020 URL: https://www.law360.com/ip/articles/1324033 Model Emily Ratajkowski is asking a New York federal judge to toss out a copyright lawsuit filed after she posted a paparazzi image of herself to Instagram, saying the case was filed with the aim of "extorting a settlement." JUDGE SAYS NEBRASKA DIDN'T WAIVE IMMUNITY IN COPYRIGHT ROW via Intellectual Property Law360 by Adam Lidgett on 10/29/2020 URL: https://www.law360.com/ip/articles/1323937 A federal judge has agreed to toss claims that the Nebraska Department of Education used copyrighted software without permission, finding the department never waived its immunity to those allegations.

Joshua L. Simmons joshua.simmons@kirkland.com

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5 SPOOKY INTELLECTUAL PROPERTY BATTLES FOR HALLOWEEN via Intellectual Property Law360 by Bill Donahue on 10/29/2020 URL: https://www.law360.com/ip/articles/1324216 With Halloween right around the corner, Law360 is breaking down the spookiest intellectual property news from the past year, ranging from Playboy Bunny costumes to the "Dancing Pumpkin Man" meme to Katy Perry's Halloween Instagram post. COPYRIGHT GAP GRANT NONTERMINATION WAS NO ACCIDENT via Intellectual Property Law360 by Jeffrey Payne on 10/30/2020 URL: https://www.law360.com/ip/articles/1323917 The Copyright Act of 1976 brought such a dramatic change to U.S. copyright law that its provisions did not become effective until two years after the act was passed, on Jan. 1, 1978. NETFLIX CALLS SHERLOCK HOLMES LAWSUIT 'ATTEMPT TO EXTORT' via Intellectual Property Law360 by Bill Donahue on 10/30/2020 URL: https://www.law360.com/ip/articles/1324737 Netflix urged a federal judge Friday to toss a copyright lawsuit over a recent movie centered on Sherlock Holmes' sister, likening the case to "extortion" by the estate of Holmes creator Arthur Conan Doyle. GOOGLE V. ORACLE: THE HIGH COURT HOLDS THE FUTURE OF IP IN ITS HANDS via IPWatchdog.com | Patents & Patent Law by Sue Ghosh Stricklett on 10/31/2020 URL: https://www.ipwatchdog.com/2020/10/31/google-v-oracle-high-court-holds-future-ip-hands/id=126937/ In what many regard as the intellectual property case of the century, the United States Supreme Court has—on October 7, 2020—presided over oral arguments in Google v. Oracle.

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November 2020

GOOGLE V. ORACLE XI: GOING IN CIRCLES AT ORAL ARGUMENTS via The Illusion of More by David Newhoff on 11/1/2020 URL: http://illusionofmore.com/google-v-oracle-xi-going-in-circles-at-oral-arguments/ On October 7, the Supreme Court finally heard oral arguments in the decade-long copyright software slugfest Google v. Oracle. REMEMBRANCE DAY, COVID—AND COPYRIGHT via Hugh Stephens Blog on 11/2/2020 URL: http://hughstephensblog.net/2020/11/02/remembrance-day-covid-and-copyright/ It’s that time of year again, with bright red poppies popping up on lapels of TV newscasters, politicians and members of the public (at least in Canada and the UK), just as surely as snowdrops appear in spring. I wrote about this phenomenon in a blog last year, reproduced below, covering the history of using […] EMBEDDED INSTAGRAM POST IS FAIR USE, JUDGE SAYS via Intellectual Property Law360 by Bill Donahue on 11/2/2020 URL: https://www.law360.com/ip/articles/1325111 A New York federal judge ruled Monday that a sports website was protected by copyright law's fair use doctrine when it embedded an Instagram image of professional tennis player Caroline Wozniacki, marking the latest ruling in a fast-developing area of law. JUSTICES ASKED TO REVIVE ZEPPELIN ACCUSER'S 'STAIRWAY' SUIT via Intellectual Property Law360 by Adam Lidgett on 11/2/2020 URL: https://www.law360.com/ip/articles/1324760 A man who accused Led Zeppelin of stealing "Stairway To Heaven" is still fighting to have the U.S. Supreme Court hear the long-running copyright battle, launching a last-ditch appeal that says earlier rulings in the case will allow for theft from artists.

Joshua L. Simmons joshua.simmons@kirkland.com

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ENOLA HOLMES' PRODUCERS BLAST COPYRIGHT INFRINGEMENT SUIT FROM CONAN DOYLE ESTATE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 11/2/2020 URL: https://www.hollywoodreporter.com/thr-esq/enola-holmes-producers-blast-copyright-infringement-suit-from-conan-doyle-estate "Allowing Plaintiff to prevent the creation of new works featuring public domain material runs contrary to the 'carefully crafted bargain' embodied in copyright law, and Plaintiff’s attempt to create a perpetual copyright should be rejected," argues the lawyer for Netflix, Legendary and others named as defendants in the suit. JACK BLACK, TONY HAWK FACE IP SUIT BY SKATEBOARD 'GODFATHER' via Intellectual Property Law360 by Craig Clough on 11/2/2020 URL: https://www.law360.com/ip/articles/1325244 Skateboard graphic artist Wesley Humpston alleges in a lawsuit filed in California federal court Friday that several social media posts coordinated by actor Jack Black, skateboarder Tony Hawk and skateboarding company The Berrics infringed his copyrighted artwork to promote the video game Tony Hawk's Pro Skater 1+2. AMAZON, WILLIAMS-SONOMA REACH SETTLEMENT TO END IP BATTLE via Intellectual Property Law360 by Bill Donahue on 11/3/2020 URL: https://www.law360.com/ip/articles/1325275 Amazon and Williams-Sonoma have reached a settlement to end a lawsuit that raised tough trademark and copyright questions about how online platforms can market brand-name merchandise. AMAZON, WILLIAMS-SONOMA SETTLE INTELLECTUAL PROPERTY FIGHT via Bloomberg Law by Kyle Jahner on 11/3/2020 URL: https://news.bloomberglaw.com/ip-law/amazon-williams-sonoma-settle-intellectual-property-fight Amazon contested the trademark allegations under the first-sale doctrine, which allows resellers to use the original producer's trademarks to identify its ...

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IF ORACLE WINS, CONSUMERS WIN via Inside Sources by Beau Brunson on 11/3/2020 URL: https://www.insidesources.com/if-oracle-wins-consumers-win/ Billed as the “copyright lawsuit of the decade,” trillion-dollar valued Google admits that it took — pirated, plagiarized, pinched, filched, copied, nabbed, ... MICROSOFT CLAIMS CO. SELLING 'BLACK MARKET' SOFTWARE KEYS via Intellectual Property Law360 by Craig Clough on 11/3/2020 URL: https://www.law360.com/ip/articles/1325504 Microsoft Inc. has accused a Florida company of infringing its copyrights and trademarks through the sale of "black market" access to Microsoft software or to unlicensed and counterfeit copies of its software. SKIDMORE SEEKS A SECOND CHANCE AT SCOTUS IN LED ZEPPELIN COPYRIGHT CASE via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 11/4/2020 URL: https://www.ipwatchdog.com/2020/11/04/skidmore-seeks-second-chance-scotus-led-zeppelin-copyright-case/id=127072/ On October 30, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, filed a petition for rehearing of the denial of its August 6 petition for writ of certiorari to the Supreme Court. In the original petition, Skidmore requested that the Supreme Court review a March judgment of the U.S. Court of Appeals for the Ninth Circuit siding with Led Zeppelin in a long-running case examining whether the opening notes of the band’s legendary song “Stairway to Heaven” infringed the song “Taurus,”... MARC JACOBS SAYS KURT COBAIN DIDN'T CREATE NIRVANA LOGO via Intellectual Property Law360 by Bill Donahue on 11/4/2020 URL: https://www.law360.com/ip/articles/1325816 Marc Jacobs is urging a federal judge to toss out a lawsuit accusing the designer of selling T-shirts that ripped off Nirvana's iconic "smiley face" logo, arguing there's no proof that late frontman Kurt Cobain actually created the copyrighted design.

Joshua L. Simmons joshua.simmons@kirkland.com

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DIESEL BRAND STOLE ARTIST'S PHOTO SHOOT CONCEPT, SUIT SAYS via Intellectual Property Law360 by Adam Lidgett on 11/4/2020 URL: https://www.law360.com/ip/articles/1325751 A Los Angeles-based artist has slammed fashion brand Diesel and photographer Terry Richardson with a copyright lawsuit, accusing the company of ripping off one of her works for an advertisement. NETFLIX FILES COPYRIGHT CLAIMS AGAINST TWEETS CRITICIZING MOVIE, TRAILER via Ars Technica by Kate Cox on 11/5/2020 URL: https://arstechnica.com/?p=1719528 Netflix is apparently fighting controversy about a film on its platform by issuing copyright takedown requests against tweets that include negative commentary about the movie, according to a new report. PHILLIE PHANATIC QUERY NOT ONE FOR COPYRIGHT OFFICE, COURT SAYS via Bloomberg Law by Kyle Jahner on 11/5/2020 URL: https://news.bloomberglaw.com/ip-law/phillie-phanatic-query-not-one-for-copyright-office-court-says Artists trying to reclaim rights to the Phillie Phanatic mascot costume failed to convince a New York federal court to ask the U.S. Copyright Office to ... INSIDE 'SINGLE LADIES' CHOREOGRAPHER JAQUEL KNIGHT'S QUEST TO COPYRIGHT HIS DANCES via Billboard by Rebecca Milzoff on 11/5/2020 URL: https://www.billboard.com/articles/business/9477613/jaquel-knight-beyonce-megan-thee-stallion-billboard-cover-story-interview-2020 Inside 'Single Ladies' Choreographer JaQuel Knight's Quest to Copyright His Dances. He's crafted iconic moves for stars like Beyoncé and Megan Thee ... DESIGNERS, BEWARE COPYRIGHT OFFICE FONT PROTECTION REVERSAL via Intellectual Property Law360 by Jeremy Goldman on 11/5/2020 URL: https://www.law360.com/ip/articles/1326032 A decades-long, quietly simmering battle over the copyrightability of fonts is poised to flare into all-out war in light of recent and largely unreported developments at the U.S. Copyright Office.

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TRADEMARKS AND THE FIRST AMENDMENT: LITIGATION TRENDS via New York Law Journal by Joshua Simmons on 11/6/2020 URL: https://www.law.com/newyorklawjournal/2020/11/06/trademarks-and-the-first-amendment-litigation-trends/ Trademarks and the First Amendment: Litigation Trends. The Supreme Court has recognized the conflict between trademark law's important ... WB STOLE MY DOG, PURPORTED RIN TIN TIN IP OWNER SAYS via Intellectual Property Law360 by Dave Simpson on 11/6/2020 URL: https://www.law360.com/ip/articles/1326549 Warner Bros. is ripping off a Montana man who claims a 50% stake in Rin Tin Tin by developing a new movie about the 1920s dog hero, the man claimed Thursday in a California federal court complaint, which lays out the supposed tangled history of the Rin Tin Tin intellectual property. WHY YOU NEED A DMCA AGENT via Plagiarism Today by Jonathan Bailey on 11/9/2020 URL: https://www.plagiarismtoday.com/2020/11/09/why-you-need-a-dmca-agent/ The Digital Millennium Copyright Act (DMCA) is a multi-faceted law that covers a variety of subjects including the circumvention of digital rights management tools to the removal of copyright management information. THE BIDEN ADMINISTRATION SHOULD AVOID PAST MISTAKES ON CYBER POLICY via The Illusion of More by David Newhoff on 11/9/2020 URL: http://illusionofmore.com/the-biden-administration-should-avoid-past-mistakes-on-cyber-policy/ As thoughts turn to transition and, with any luck, healing divisions, the Biden-Harris administration should avoid any temptation to repeat mistakes made by the Obama administration with regard to cyber policy. GENERATING STEAM WITH COPYRIGHT via Copyright: Creativity at Work by Steve Andreadis on 11/9/2020 URL: https://blogs.loc.gov/copyright/2020/11/generating-steam-with-copyright/ Yesterday, November 8, was National STEM/STEAM Day, a day to encourage people of all ages to get more involved in the fields of science, technology, engineering, art, and mathematics.

Joshua L. Simmons joshua.simmons@kirkland.com

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DOJ SHOULDN'T WEAKEN MUSIC LICENSING CONSENT DECREES via Intellectual Property Law360 by David Balto on 11/9/2020 URL: https://www.law360.com/ip/articles/1327128 At a recent online conference with the Computer and Communications Industry Association on the challenges of antitrust in an election year, Assistant U.S. Attorney General Makan Delrahim said that the Antitrust Division of the U.S. Department of Justice would like to modify the consent decrees between the DOJ and the nation's two largest performing rights organizations — the American Society of Composers, Authors and Publishers and Broadcast Music Inc. before the end of this year. UNIVERSAL MUSIC'S GC TOUTS INNOVATION OVER LITIGATION ALONE via Intellectual Property Law360 by Lauren Berg on 11/9/2020 URL: https://www.law360.com/ip/articles/1327286 Working with tech and business innovators helped the music industry combat internet piracy when a pure litigation strategy fell short, carving out a place for record labels in the new world of downloads and streaming platforms, Universal Music Group's general counsel told conference attendees Friday at the University of California, Berkeley School of Law. CHICAGO RECORD CO. WANTS HOUSE MUSIC DUO IP SUIT TRIMMED via Intellectual Property Law360 by Lauren Berg on 11/9/2020 URL: https://www.law360.com/ip/articles/1327036 Trax Records, a record label specializing in Chicago's 1980s house music, urged an Illinois federal judge over the weekend to toss the majority of a copyright infringement suit brought by two prominent artists in the genre who say the company exploited them and other popular house musicians. COPYRIGHT PLAINTIFFS CAN’T FIGURE OUT WHAT COPYRIGHTS THEY OWN, COURT SAYS Ż\_(?)_/Ż via Technology & Marketing Law Blog by Eric Goldman on 11/10/2020 URL: https://blog.ericgoldman.org/archives/2020/11/copyright-owners-cant-figure-out-what-copyrights-they-own-court-says-%c2%af_%e3%83%84_-%c2%af.htm This is one of several cases where major copyright owners are trying to punish Internet access providers (IAPs) for alleged infringements by their subscribers.

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COPYRIGHT OFFICE REGISTRATION PROCESSING TIMES CHANGE FOR THE SECOND HALF OF FISCAL 2020 via Copyright: Creativity at Work by Robert J. Kasunic on 11/10/2020 URL: https://blogs.loc.gov/copyright/2020/11/copyright-office-registration-processing-times-change-for-the-second-half-of-fiscal-2020/ This week, the Copyright Office released its registration processing times for the second half of fiscal 2020 (April–September 2020). INSURER CAN'T ESCAPE COVERAGE IN SOFTWARE INFRINGEMENT SUIT via Intellectual Property Law360 by Daphne Zhang on 11/10/2020 URL: https://www.law360.com/ip/articles/1327628 A New Jersey appeals court on Tuesday affirmed a trial court ruling that Mercer Insurance Co. has a duty to defend a computer software company against a competitor's copyright infringement claims and must pay roughly $337,500 to the company. PORN CO. MUST REVEAL PROFITS IN MARTHA'S VINEYARD IP SPAT via Intellectual Property Law360 by Brian Dowling on 11/10/2020 URL: https://www.law360.com/ip/articles/1327747 A Massachusetts federal judge on Tuesday ordered a porn producer to hand over documents showing how much profit it made off nearly a dozen movies shot at a Martha's Vineyard home that infringed the copyrights of the owner's belongings. NIKE ASKS COURT TO DISMISS DESIGNER'S STAR COPYRIGHT CLAIMS via Bloomberg Law by Blake Brittain on 11/10/2020 URL: https://news.bloomberglaw.com/ip-law/nike-asks-court-to-dismiss-designers-star-copyright-claims Rocco Giordano sued Nike in June for allegedly infringing copyrights and trademarks in his distorted six-point star logo. Giordano said he created the ... GOOD COPYRIGHT NEWS FOR SOCIAL MEDIA INFLUENCERS AND POTENTIALLY THE COMPANIES THAT HIRE THEM via National Law Review by David Halberstadter on 11/10/2020 URL: https://www.natlawreview.com/article/good-copyright-news-social-media-influencers-and-potentially-companies-hire-them Effective August 17, the US Copyright Office amended its regulations to establish a new “group registration” option for what it describes as “short ...

Joshua L. Simmons joshua.simmons@kirkland.com

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TRUMP TRIES "FAIR USE" DEFENSE IN SONG COPYRIGHT LAWSUIT via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 11/12/2020 URL: https://www.hollywoodreporter.com/thr-esq/trump-tries-fair-use-defense-in-song-copyright-lawsuit His presidential campaign asks a New York judge to dismiss a lawsuit brought by Eddy Grant over use of "Electric Avenue" as listeners will understand the "comedic, political purpose." SMELLS LIKE A NEW NIRVANA LAWSUIT IN SMILEY FACE LOGO FIGHT via Intellectual Property Law360 by Bill Donahue on 11/12/2020 URL: https://www.law360.com/ip/articles/1328165 Nirvana is launching a new front in the band's ongoing legal battle over its iconic "smiley face" logo, suing a former record label employee who has claimed that he, rather than lead singer Kurt Cobain, created the design. 2ND CIRC. WON'T REVIVE 'ROSEMARY'S BABY' COPYRIGHT FIGHT via Intellectual Property Law360 by Adam Lidgett on 11/12/2020 URL: https://www.law360.com/ip/articles/1328334 The Second Circuit refused to revive a woman's lawsuit claiming a two-part NBC version of "Rosemary's Baby" ripped off two of her short stories, finding Thursday that the plots of the miniseries and the stories are completely different. GOOGLE TAKES DOWN REPOSITORIES THAT CIRCUMVENT ITS WIDEVINE DRM via TorrentFreak by Ernesto Van der Sar on 11/13/2020 URL: https://torrentfreak.com/google-takes-down-repositories-that-circumvent-its-widevine-drm-201113/ With more ways to stream online video than ever before, protecting video continues to be a key issue for copyright holders. COSTA RICA JOINS WIPO'S BEIJING TREATY ON AUDIOVISUAL PERFORMANCES via YouTube by World Intellectual Property Organization – WIPO on 11/13/2020 URL: https://www.youtube.com/watch?v=E67hGkTUz9Y WIPO Director General Daren Tang welcomes Costa Rica's ratification of the Beijing Treaty on Audiovisual Performances. Costa Rica is the 36th State covered by the Treaty, which gives actors and other audiovisual performers more rights to their work, improving their earning conditions. Ambassador Catalina Devandas Aguilar, Costa Rica's Permanent Representative to

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the United Nations and other International Organizations in Geneva, deposited the instrument of ratification on November 13, 2020. More on the Beijing Treaty: https://www.wipo.int/beijing_treaty/ #wipo #directorgeneral #beijingtreaty #copyright WALT DISNEY TELLS JUSTICES TO AVOID CHARACTER COPYRIGHTS via Intellectual Property Law360 by Bill Donahue on 11/13/2020 URL: https://www.law360.com/ip/articles/1328860 The Walt Disney Co. urged the U.S. Supreme Court on Friday to steer clear of a copyright lawsuit over Pixar's animated hit "Inside Out," saying there's no need for the justices to weigh in on protection for fictional characters. DURING A TIME OF PANDEMIC, THERE IS MORE NEED THAN EVER TO NURTURE OUR CREATIVE INDUSTRIES. via Hugh Stephens Blog » Feed by hughstephensblog on 11/16/2020 URL: http://hughstephensblog.net/2020/11/16/during-a-time-of-pandemic-there-is-more-need-than-ever-to-nurture-our-creative-industries/ Last week I wrote about the challenges facing artists and cultural industries world-wide as a result of the global COVID pandemic. The closure of many venues, from museums to theatres to concert halls, has had a devastating effect–not only on artistic incomes but by stifling creativity and forcing people out of the creative industries. Some […] NO ENCORE FOR MUSIC PUBLISHERS WHO SAY COVID-19 WRECKED COPYRIGHT TRIAL via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 11/16/2020 URL: https://www.hollywoodreporter.com/thr-esq/no-encore-for-music-publishers-who-say-covid-19-wrecked-copyright-trial Music publishers were expecting to win huge damages in a five-year copyright battle over concert recordings. Did a health pandemic ruin these plans? STOCK PHOTO AGENCY ENDS COPYRIGHT SUIT AGAINST VAPE CO. via Intellectual Property Law360 by Katie Buehler on 11/16/2020 URL: https://www.law360.com/ip/articles/1329196 A stock food photo agency has settled its copyright suit filed in Texas federal court against an e-cigarette company that allegedly used a copyright-protected picture of ice cream to sell an e-liquid product on its website.

Joshua L. Simmons joshua.simmons@kirkland.com

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EMPLOYER GROUP SAYS LITTLER ATTYS FILCHED COPYRIGHTED FILES via Intellectual Property Law360 by Adam Lidgett on 11/16/2020 URL: https://www.law360.com/ip/articles/1329085 Employment law powerhouse Littler Mendelson PC has been accused in a new lawsuit in Virginia federal court of swiping mountains of copyrighted work from the Center for Workplace Compliance and using it to the firm's advantage. COMEDIANS IN CARS' SUIT AGAINST SEINFELD GOES TO HIGH COURT via Intellectual Property Law360 by Tiffany Hu on 11/16/2020 URL: https://www.law360.com/ip/articles/1329205 A onetime Jerry Seinfeld collaborator is urging the U.S. Supreme Court to revive a lawsuit that claimed the famous comedian stole the concept for his "Comedians in Cars Getting Coffee" series, saying guidance is needed to clarify between copyright ownership and authorship. ESPORTS INSIDERS POINT TO GROWING EMPLOYMENT CONCERNS via Intellectual Property Law360 by Zachary Zagger on 11/17/2020 URL: https://www.law360.com/ip/articles/1329448 Esports industry sources continue to view intellectual property and cybersecurity issues as top legal risks, but cyberbullying and labor and employment are increasingly emerging as areas of concern, a Foley & Lardner LLP survey released Tuesday reveals. THE DANGERS OF “COPYRIGHT-FREE” MUSIC via Plagiarism Today by Jonathan Bailey on 11/17/2020 URL: https://www.plagiarismtoday.com/2020/11/17/the-dangers-of-copyright-free-music/ Recently, musician T-Pain announced the launch his Pizzle Pack collection. It’s a collection of some 162 tracks being offered both for free and royalty-free to streamers. GITHUB AGREES RIAA CLAIM IS BUNK, RESTORES POPULAR YOUTUBE DOWNLOAD TOOL via Ars Technica by Kate Cox on 11/17/2020 URL: https://arstechnica.com/?p=1723734 GitHub has reversed its decision to boot YouTube-dl, a popular tool for archiving YouTube videos, from its platform. The company restored repositories this week after "additional information" convinced it that an archiving tool is not in and of itself a copyright violation—no matter what the music industry says.

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NIKE, KAWHI LEONARD END IP BATTLE OVER 'CLAW' LOGO via Intellectual Property Law360 by Lauren Berg on 11/17/2020 URL: https://www.law360.com/ip/articles/1329668 Nike Inc. and NBA star Kawhi Leonard have told an Oregon federal judge that they've agreed to drop their copyright ownership battle over a "Claw" logo based on the basketball player's notably large hands. MARC JACOBS SAYS NIRVANA HASN'T SHOWN IT OWNS LOGO via Intellectual Property Law360 by Adam Lidgett on 11/17/2020 URL: https://www.law360.com/ip/articles/1329765 Designer Marc Jacobs has pushed back at Nirvana's claim that it owns a copyright to the band's iconic smiley face logo, saying the band hasn't been able to rebut evidence that someone else besides its late frontman Kurt Cobain created it. YOUTUBE BATTLES COMPLEX ‘BORDERLINE’ CONTENT WHILE IGNORING WHAT’S SIMPLE – PIRACY via CreativeFuture by Brett Williams on 11/18/2020 URL: https://creativefuture.org/youtube-borderline-content/ YouTube is losing the battle against toxic content. SENATOR TILLIS INTERVIEW: ‘I WILL OVERHAUL THE DMCA IN 2021’ via Managing Intellectual Property | Copyright by Rani Mehta on 11/18/2020 URL: https://www.managingip.com/article/b1p9l10cg3htm5/senator-tillis-interview-i-will-overhaul-the-dmca-in-2021 In a Q&A with Managing IP, US Senator Thom Tillis discusses his efforts to reform the DMCA and what stakeholders can expect on Section 101 reform in 2021 PHOTOGRAPHER DROPS COPYRIGHT SUIT AGAINST MORGAN & MORGAN via Intellectual Property Law360 by Clarice Silber on 11/18/2020 URL: https://www.law360.com/ip/articles/1330014 A Pulitzer Prize-winning photojournalist is voluntarily dropping his lawsuit against national plaintiffs firm Morgan & Morgan PLLC over a copyrighted video of a fatal 2017 Pennsylvania fire allegedly posted on the firm's website.

Joshua L. Simmons joshua.simmons@kirkland.com

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EU COURT SAYS TV BROADCASTS DON'T HAVE TO RELICENSE SONGS via Intellectual Property Law360 by Julia Arciga on 11/18/2020 URL: https://www.law360.com/ip/articles/1330167 The European Court of Justice said television distributors don't have to pay music rights groups licensing fees to broadcast shows that include music if they've already paid for the songs' initial use, saying an intellectual property treaty does not consider music integrated in a video to be a separate use of that sound. JUDGE SAYS SEINFELD SHOULDN'T GET $1M FOR COPYRIGHT SUIT WIN via Intellectual Property Law360 by Bill Donahue on 11/18/2020 URL: https://www.law360.com/ip/articles/1329972 A New York federal judge said that Jerry Seinfeld is not entitled to recover nearly $1 million he spent defeating a lawsuit filed by a former creative partner who accused him of stealing "Comedians in Cars Getting Coffee." INSURER NEEDN'T COVER ISP'S COPYRIGHT FILM BATTLE via Intellectual Property Law360 by Daphne Zhang on 11/18/2020 URL: https://www.law360.com/ip/articles/1330028 A California federal judge freed National Fire Insurance Co. of Hartford from having to pay internet service provider Hurricane Electric LLC in an underlying copyright film infringement dispute, holding that a cease-and-desist letter against Hurricane was not a covered suit in its policy. COPYRIGHT FOR CHOREOGRAPHY: WHEN IS COPYING A DANCE A COPYRIGHT VIOLATION? via IPWatchdog.com | Patents & Patent Law by Laura Kees on 11/19/2020 URL: https://www.ipwatchdog.com/2020/11/19/copyright-choreography-copying-dance-copyright-violation/id=127455/ Recent news reports about choreographer JaQuel Knight’s efforts to copyright some of his iconic dance routines, such as Beyoncé’s “Single Ladies,” are a reminder that such works face steep hurdles when it comes to qualifying for protection. From ballet to breakdance and Swan Lake to Saturday Night Fever, dance is part of every culture—and a surprisingly frequent source of intellectual property conflict. While works of dance clearly are eligible for copyright protection under Section 102(a)(4)...

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SIX COPYRIGHT CONCEPTS YOUR K-12 STUDENTS SHOULD KNOW via Copyright: Creativity at Work by Nicole Lamberson on 11/19/2020 URL: https://blogs.loc.gov/copyright/2020/11/six-copyright-concepts-your-k-12-students-should-know/ Whether you’re teaching young students just starting out or preparing older students for life beyond high school, incorporating copyright concepts into your lesson plans can help engage a student’s creativity and foster an appreciation for the importance of protecting creative works. NINTENDO LAUNCHES LATEST SUIT OVER GAME-HACKING DEVICES via Intellectual Property Law360 by Bill Donahue on 11/19/2020 URL: https://www.law360.com/ip/articles/1330524 Nintendo is suing an Amazon vendor for copyright violations over devices that allow users to "hack" their Nintendo Switch consoles to play pirated games, the latest in an ongoing crackdown on such hardware. THE RATAJKOWSKI COPYRIGHT SUIT & AUTHORSHIP IN PHOTOGRAPHY via The Illusion of More by David Newhoff on 11/20/2020 URL: http://illusionofmore.com/the-ratajkowski-copyright-suit-authorship-in-photography/ In my recent post about the McCloskey photograph, I said that courts tend to favor a photographer’s right to capture and distribute an image, even in situations involving fairly substantial privacy invasions in order to obtain photographs of limited news value. WHO OWNS VACATION PHOTOS OF YOU? PROBABLY NOT YOU–HUBAY V. MENDEZ via Technology & Marketing Law Blog by Eric Goldman on 11/21/2020 URL: https://blog.ericgoldman.org/archives/2020/11/who-owns-vacation-photos-of-you-probably-not-you-hubay-v-mendez.htm A perennial copyright law professor hypothetical: who own the copyright to a person’s vacation photos? STREET ART: THE COMPLICATIONS OF COPYRIGHT via JLA Beat | The Columbia Journal of Law & the Arts by Gillian Wei on 11/22/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/366 Earlier this year, 23 prints created by the iconic street artist Banksy, sold at Sotheby’s for a collective amount of 2 million GBP. Professional artists are increasingly wandering out of their studios and turning to brick walls, blank billboards, and even the backs of delivery trucks as

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canvases for their work. As the line between fine art and street art becomes increasingly blurred, an important question arises: should the legal treatment of graffiti be reevaluated? AVOIDING COPYRIGHT LIABILITY FOR TATTOO DEPICTION IN MEDIA via Intellectual Property Law360 by Rowley Rice on 11/23/2020 URL: https://www.law360.com/ip/articles/1331168 The federal courts have seen a steady stream of copyright infringement litigation over media featuring professional athletes' tattoos. DOES CHINA HAVE A COPYCAT CULTURE? THE CASE OF “ARCHITECTURAL MIMICRY” via Hugh Stephens Blog on 11/23/2020 URL: http://hughstephensblog.net/2020/11/23/does-china-have-a-copycat-culture-the-case-of-architectural-mimicry/ It seems you can’t look at the news these days without the word “China” being in a headline. Will a Biden Administration be as tough on China as Trump? How will Justin Trudeau deal with the continued detention of Canadian citizens in China? What will Australia do about new Chinese trade retaliation? How will China’s […] TO EMBED, OR NOT TO EMBED, THAT IS THE QUESTION via Law.com - Newswire by Shaleen J. Patel & Mike Hobbs on 11/23/2020 URL: https://www.law.com/2020/11/23/to-embed-or-not-to-embed-that-is-the-question/ This article appeared in The Intellectual Property Strategist, an ALM/Law Journal Newsletters publication that provides a practical source of both business and litigation tactics in the fast-changing area of intellectual property law, including litigating IP rights, patent damages, venue and infringement issues, inter partes review, trademarks on social media – and more. FACEBOOK, PRINCETON HIT WITH REFRESHED AI DATA IP CLAIMS via Intellectual Property Law360 by Lauren Berg on 11/24/2020 URL: https://www.law360.com/ip/articles/1331902 A 3D-imaging firm took another crack at copyright claims accusing Facebook and Princeton University of illegally downloading its data to use in artificial intelligence projects in a new suit filed Monday in California federal court.

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COPYRIGHT PROTECTS SYSTEM DRAWING, NOT SYSTEM ITSELF: 6TH CIR. via Bloomberg Law by Blake Brittain on 11/24/2020 URL: https://news.bloomberglaw.com/ip-law/copyright-protects-system-drawing-not-system-itself-6th-cir Copyright law protects the drawings themselves, but the reproduction of the system outlined in them is a question for patent law, the U.S. Court of ... ATTYS IN 5POINTZ GRAFFITI DESTRUCTION CASE NET $2M IN FEES via Intellectual Property Law360 by Hailey Konnath on 11/24/2020 URL: https://www.law360.com/ip/articles/1332222 A New York City real estate developer that destroyed a famed graffiti space known as 5Pointz has agreed to pay attorneys at Eisenberg & Baum LLP, who are representing the artists behind the space, more than $2 million in attorney fees, according to a joint stipulation filed Tuesday. U.S. AND EU COPYRIGHT LAW DEVELOPMENTS REVIEWED AT INTA ANNUAL MEETING via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 11/25/2020 URL: https://www.ipwatchdog.com/2020/11/25/us-eu-copyright-law-developments-reviewed-inta-annual-meeting/id=127611/ Last week, during the International Trademark Association’s (INTA’s) all-virtual 2020 Annual Meeting & Leadership Meeting, panelists Naomi Jane Gray, Axel Nordemann and Catherine Zaller Rowland discussed perspectives in Copyright Law in a session titled “Hot Topics in Copyright: The New and Controversial Landscape.” APPLE ASKS COURT TO DISMISS EMOJI SKIN TONE COPYRIGHT CLAIMS via Bloomberg Law by Blake Brittain on 11/25/2020 URL: https://news.bloomberglaw.com/ip-law/apple-asks-court-to-dismiss-diverse-emoji-copyright-case Apple Inc.'s racially diverse emoji do not infringe Cub Club Investment LLC's copyrights in similar icons because skin tone is not copyrightable, the ...

Joshua L. Simmons joshua.simmons@kirkland.com

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AS DMCA REVIEW GETS REAL, ANTI-COPYRIGHT RHETORIC GETS MORE SURREAL via The Illusion of More by David Newhoff on 11/25/2020 URL: http://illusionofmore.com/as-dmca-review-gets-real-anti-copyright-rhetoric-gets-more-surreal/ Among the reasons I defend copyright is that I firmly believe it is inadvertently one of the most profound expressions of democratic principles in the American Constitution. When the framers essentially transposed English copyright into Article I of the Constitution, they could not possibly have imagined the full value—cultural, economic, and political—of vesting authors, with both the moral and pecuniary rights that would be embodied in copyright law. 512(F) CLAIM AGAINST ROBO-NOTICE SENDER CAN PROCEED–ENTTECH V. OKULARITY via Technology & Marketing Law Blog by Eric Goldman on 11/27/2020 URL: https://blog.ericgoldman.org/archives/2020/11/512f-claim-against-robo-notice-sender-can-proceed-enttech-v-okularity.htm Okularity “represents” several photography clearinghouses. DEVELOPER’S FINAL STRIKE AT GRAFFITI ARTISTS IS BRUSHED ASIDE BY THE SUPREME COURT via JLA Beat | The Columbia Journal of Law & the Arts by Alexandra Weissfisch on 11/30/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/367 Graffiti art plays a meaningful part in the art world. The graffiti art movement has relatively recently become widely accepted for its vibrant, stylistic, and creative nature. Nonetheless, graffiti artists continue to stand on uncertain grounds in the legal world, and tensions between graffiti and street art and property owners have become commonplace. These legal tensions have been somewhat eased by the Supreme Court’s recent rejection to hear the 5Pointz case. EMBATTLED COPYRIGHT LAWYER LIEBOWITZ SUSPENDED FROM SDNY via Intellectual Property Law360 by Bill Donahue on 11/30/2020 URL: https://www.law360.com/ip/articles/1333228 The Southern District of New York on Monday suspended copyright attorney Richard Liebowitz from practicing law in the district, citing a "repeated disregard" for its orders and scores of other disciplinary actions in courts around the country.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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December 2020

GOOGLE IP BATTLE SHOWS JUDGES SHOULD DECIDE FAIR USE via Intellectual Property Law360 by Bruce Fein on 12/1/2020 URL: https://www.law360.com/ip/articles/1331275 Legal certainty diminishes risks and spurs creative enterprise. Legal uncertainty heightens risks and deters enterprise. 'HELLRAISER' AUTHOR SETTLES COPYRIGHT FIGHT via Intellectual Property Law360 by Bill Donahue on 12/1/2020 URL: https://www.law360.com/ip/articles/1333477 The screenwriter behind the 1987 horror film "Hellraiser" has reached a settlement that will allow him to successfully reclaim the rights to his script under the Copyright Act's so-called termination right. AUTHOR CLIVE BARKER SETTLES 'HELLRAISER' COPYRIGHT DISPUTE via Bloomberg Law by Blake Brittain on 12/1/2020 URL: https://news.bloomberglaw.com/ip-law/author-clive-barker-settles-hellraiser-copyright-dispute The U.S. District Court for the Southern District of New York's Grievance Committee has suspended notorious copyright attorney Richard Liebowitz ... HIP-HOP STREAMING SITE CAN'T ESCAPE LABELS' COPYRIGHT SUIT via Intellectual Property Law360 by Tiffany Hu on 12/1/2020 URL: https://www.law360.com/ip/articles/1333448 A hip-hop music streaming service cannot use safe harbor immunity to completely shield itself from copyright allegations by major record labels, a Georgia federal judge has ruled. WHY THE SPINRILLA CASE MATTERS via Plagiarism Today by Jonathan Bailey on 12/2/2020 URL: https://www.plagiarismtoday.com/2020/12/02/why-the-spinrilla-case-matters/ On November 30th, a judge in the Northern District of Georgia handed down a significant ruling against the mixtape streaming company Spinrilla.

Joshua L. Simmons joshua.simmons@kirkland.com

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KOREAN COPYRIGHT REFORM: DON’T STIFLE KOREAN FILMMAKING via Hugh Stephens Blog on 12/2/2020 URL: http://hughstephensblog.net/2020/12/02/korean-copyright-reform-dont-stifle-korean-filmmaking/ The Korean film industry is one of the major artistic and cultural successes in Asia. The industry was propelled to prominence in Europe and North America through the 2019 film “Parasite”, which won the Palme d’Or at Cannes and Best Picture (plus three other awards) at the 2019 Academy Awards. Korean films have come a […] SEINFELD SAYS FAILED COPYRIGHT SUIT SHOULD NOT 'GET A PASS' via Intellectual Property Law360 by Bill Donahue on 12/2/2020 URL: https://www.law360.com/ip/articles/1333874 Jerry Seinfeld is urging a New York federal court to award him the nearly $1 million he spent defeating a lawsuit that accused him of stealing "Comedians in Cars Getting Coffee," saying the accuser shouldn't "get a pass" simply because the show makes plenty of money. GOOGLE FIGHTS TO END $1B SUIT THAT ALLEGES UNAUTHORIZED ADS via Intellectual Property Law360 by Dorothy Atkins on 12/3/2020 URL: https://www.law360.com/ip/articles/1334286 Google urged a California federal judge Thursday to throw out a proposed class action alleging the search giant made more than $1 billion from unauthorized advertisements it places on websites, arguing that courts have determined that pop up ads don't run afoul of website owners' copyrights. ARTIST SUES LAW SCHOOL TO SAVE UNDERGROUND RAILROAD MURALS via Intellectual Property Law360 by Andrew Karpan on 12/3/2020 URL: https://www.law360.com/ip/articles/1334294 A law school in Vermont won't be able to take down two allegedly offensive murals depicting the slaves in Underground Railroad without a legal fight, according to a lawsuit a painter lodged in federal court this week.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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STREAM-RIPPING IS NEXT FRONTIER FOR PIRACY WARS via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 12/4/2020 URL: https://www.hollywoodreporter.com/thr-esq/stream-ripping-is-next-frontier-for-piracy-wars The Recording Industry Association of America runs into some pushback after objecting to a tool that creates permanent copies of YouTube content. SYNTEL WANTS $855M VERDICT UNDONE IN TRADE SECRETS ROW via Intellectual Property Law360 by Hailey Konnath on 12/4/2020 URL: https://www.law360.com/ip/articles/1334889 Syntel Inc. on Friday urged a New York federal judge to throw out the $855 million verdict it's facing after a jury found that the information technology company misappropriated trade secrets and infringed copyrighted software, slamming the verdict as "contrary to the law" and "not supported by the evidence." IT’S MESHUGENAH TO OPERATE A STREAMING MIXTAPE SITE–ATLANTIC V. SPINRILLA via Technology & Marketing Law Blog by Eric Goldman on 12/5/2020 URL: https://blog.ericgoldman.org/archives/2020/12/its-meshugenah-to-operate-a-streaming-mixtape-site-atlantic-v-spinrilla.htm This is a brutal opinion. No matter how successful this defendant has been in the marketplace, copyright owner lawfare will almost certainly take it down. R.I.P. Spinrilla. THE USTR NOTORIOUS MARKETS REPORT: DOES IT PROVIDE FREE ADVERTISING FOR PIRATES? via Hugh Stephens Blog on 12/7/2020 URL: http://hughstephensblog.net/2020/12/07/the-ustr-notorious-markets-report-does-it-provide-free-advertising-for-pirates/ The USTR Notorious Markets Report: Does it Provide Free Advertising for Pirates? It’s that time of year again[i] when the Office of the US Trade Representative (USTR) seeks public comment and input to its annual “Notorious Markets” exercise, a supplement to the annual USTR Special 301 report on the intellectual property practices of other nations. […]

Joshua L. Simmons joshua.simmons@kirkland.com

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ANOTHER COURT SAYS EMBEDDING INSTAGRAM PHOTOS MAY BE FAIR USE–BOESEN V. UNITED SPORTS via Technology & Marketing Law Blog by Venkat Balasubramani on 12/7/2020 URL: https://blog.ericgoldman.org/archives/2020/12/another-court-says-embedding-instagram-photos-may-be-fair-use-boesen-v-united-sports.htm This is another Instagram embed case. For my most recent post on that topic, see this post. 3 WAYS SPOTIFY’S PLAGIARISM TOOL IS DIFFERENT via Plagiarism Today by Jonathan Bailey on 12/7/2020 URL: https://www.plagiarismtoday.com/2020/12/07/3-ways-spotifys-plagiarism-tool-is-different/ Last week, the music streaming service Spotify attracted headlines from all over the world after a European patent filing revealed that they were working on a new tool that would help spot songwriter plagiarism, whether accidental or intentional. TILLIS REPORT SUMS UP SENATE IP SUBCOMMITTEE’S WORK ON U.S. IP AND INNOVATION via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 12/7/2020 URL: https://www.ipwatchdog.com/2020/12/07/tillis-report-sums-senate-ip-subcommittees-work-u-s-ip-innovation/id=127985/ The Senate Judiciary Committee’s Subcommittee on Intellectual Property Chair, Senator Thom Tillis (R-NC), who was re-elected to a second term this November with about 49% of the vote, last week released the Subcommittee’s 116th Congressional Report. According to the report, Tillis held over 90 stakeholder meetings in 2019 and over 50 meetings in 2020, when discussions had to be moved to a virtual format due to the COVID-19 pandemic. Tillis has also held 17 Senate hearings since January 2019 on... NEIL YOUNG ENDS COPYRIGHT SUIT AGAINST DONALD TRUMP via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 12/7/2020 URL: https://www.hollywoodreporter.com/thr-esq/neil-young-ends-copyright-suit-against-donald-trump The legendary songwriter filed suit back in August after "Rockin' in the Free World" played at a Trump rally in Tulsa, Oklahoma.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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NEIL YOUNG ENDS FIGHT WITH TRUMP CAMPAIGN OVER RALLY MUSIC via Intellectual Property Law360 by Bill Donahue on 12/7/2020 URL: https://www.law360.com/ip/articles/1335469 Rock star Neil Young on Monday dropped a copyright lawsuit he filed against President Donald Trump's reelection campaign over the use of his songs at rallies. BOB DYLAN'S 600-SONG CATALOG IS A-CHANGIN' TO UMG'S CONTROL via Intellectual Property Law360 by Craig Clough on 12/7/2020 URL: https://www.law360.com/ip/articles/1335447 Music icon and Nobel Prize winner Bob Dylan sold his entire catalog of songs to Universal Music Group's publishing division Monday in a deal that covers more than 600 copyrights including beloved classics "Blowin' in the Wind" and "The Times They Are A-Changin'," as well as his recent songs. SOJOURNER TRUTH AND THE POWER OF COPYRIGHT REGISTRATION via Copyright: Creativity at Work by Marilyn Creswell on 12/8/2020 URL: https://blogs.loc.gov/copyright/2020/12/sojourner-truth-and-the-power-of-copyright-registration/ Sojourner Truth was a preacher, abolitionist, and suffragist. A lesser known fact is that she was also a copyright innovator. CONGRESS URGED TO KEEP IP ITEMS OUT OF SPENDING BILL via Intellectual Property Law360 by Tiffany Hu on 12/8/2020 URL: https://www.law360.com/ip/articles/1335194 The Computer & Communications Industry Association, Electronic Frontier Foundation and others are urging lawmakers not to include several "controversial" intellectual property measures in a "must-pass" government spending bill. 5 CHRISTMAS COPYRIGHT STORIES via Plagiarism Today by Jonathan Bailey on 12/9/2020 URL: https://www.plagiarismtoday.com/2020/12/09/5-christmas-copyright-stories/ Though I openly admit that Halloween is my favorite holiday, Christmas leaves plenty of opportunities to explore copyright and plagiarism issues from a more festive angle.

Joshua L. Simmons joshua.simmons@kirkland.com

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5TH CIRC. URGED TO END TEXAS A&M '12TH MAN' COPYRIGHT SUIT via Intellectual Property Law360 by Michelle Casady on 12/9/2020 URL: https://www.law360.com/ip/articles/1335768 A Texas A&M employee has asked the Fifth Circuit to overturn a lower court and extend him immunity from a copyright infringement lawsuit alleging he published on the university's website part of a book about the school's "12th Man" tradition. NETFLIX FREED FROM MAGAZINE'S 'TIGER KING' TM CLAIMS via Intellectual Property Law360 by Hailey Konnath on 12/10/2020 URL: https://www.law360.com/ip/articles/1336713 A California federal judge on Wednesday threw out a magazine's copyright and trademark infringement claims against Netflix over the popular "Tiger King" documentary series, ruling that the magazine hadn't shown it has a valid copyright and that the streaming giant's use of its marks was protected by the First Amendment. SENATE BILL AIMS TO PUNISH ILLEGAL STREAMING SERVICES via Intellectual Property Law360 by Hailey Konnath on 12/10/2020 URL: https://www.law360.com/ip/articles/1336849 A North Carolina U.S. senator unveiled bipartisan legislation Thursday that targets large-scale streaming services that offer pirated content by making it a felony for those services to offer copyrighted works without permission. ROSS SHUTS DOWN OPERATIONS, CITING FINANCIAL BURDEN FROM THOMSON REUTERS LAWSUIT via Law.com by Rhys Dipshan on 12/11/2020 URL: https://www.law.com/2020/12/11/ross-shuts-down-operations-citing-financial-burden-from-thomson-reuters-lawsuit-403-57026/ Today, ROSS Intelligence has announced that it will shut down its operations. In a statement published on its website, the San Francisco-based company noted that it has stopped accepting new customers on Dec. 7, and will stop offering its legal research platform as of Jan. 31, 2021. It will also help customers export their data and transition to other legal research tools starting in January.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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NETFLIX KNOCKS OUT TRADEMARK SUIT OVER 'TIGER KING' via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 12/11/2020 URL: https://www.hollywoodreporter.com/thr-esq/netflix-knocks-out-trademark-suit-over-tiger-king While Hollywood Weekly Magazine can amend its copyright claim against the streamer, a California federal judge isn't convinced the outlet can cure its deficiencies. PHILLIES SAY REDESIGNED PHANATIC IS LEGAL NO MATTER WHAT via Intellectual Property Law360 by Bill Donahue on 12/11/2020 URL: https://www.law360.com/ip/articles/1336895 Major League Baseball's Philadelphia Phillies are aiming for a walk-off victory in their yearlong battle over the rights to the Phanatic mascot, arguing they can continue to use a modified costume that debuted this year no matter how the case shakes out. MUHAMMAD ALI PHOTOGRAPHERS SAY WALMART STOLE PRINT DESIGN via Intellectual Property Law360 by Matthew Santoni on 12/11/2020 URL: https://www.law360.com/ip/articles/1336885 Two photographers, including a retired Philadelphia Court of Common Pleas judge, say Walmart and a subsidiary have illegally copied and sold a poster of boxer Muhammad Ali that they made and sold in the 1980s, according to a complaint filed in a Pennsylvania federal court. COPYRIGHT LAW IS BRICKING YOUR GAME CONSOLE. TIME TO FIX THAT via Ars Technica by Kyle Wiens on 12/12/2020 URL: https://arstechnica.com/?p=1729471 There aren't enough game consoles in the world for our upcoming locked-down holiday. Good luck finding a PS5 for Christmas. As Nintendo similarly struggles to keep up with demand, the number of people searching iFixit for Switch repair guides has more than tripled since last year. Traffic to our Joy-Con controller repair page started growing dramatically on March 14—the day after President Trump declared a national emergency. It’s been surging ever since. At a time when so many of us are turning to games for fun, stress relief, and social connection, it is imperative for our collective sanity that we press every game console into service.

Joshua L. Simmons joshua.simmons@kirkland.com

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VICTORIA’S “MORE PEACE, MORE JUSTICE” MURAL AND THE ACAB CONTROVERSY: WHO WAS “MORALLY RIGHT”? via Hugh Stephens Blog on 12/14/2020 URL: http://hughstephensblog.net/2020/12/14/victorias-more-peace-more-justice-mural-and-the-acab-controversy-who-was-morally-right/ Victoria’s “More Peace, More Justice” Mural and the ACAB Controversy: Who Was “Morally Right”? ICYMI, texting has brought many new terms into the English language. IMHO, there is a whole new language developing which, LOL, may leave the uninitiated grasping for the meaning of text abbreviations which, to others, is obvious. BTW, you might be […] I PAID SOMEONE $10 ON FIVERR TO WRITE THIS POST via Plagiarism Today by Jonathan Bailey on 12/14/2020 URL: https://www.plagiarismtoday.com/2020/12/14/i-paid-someone-10-on-fiverr-to-write-this-post/ With the holiday season here and an extended vacation on the horizon, I’ve been finding myself a bit less motivated and energetic than usual. HIGH COURT WON'T HEAR 'COMEDIANS IN CARS' COPYRIGHT CASE via Intellectual Property Law360 by Bill Donahue on 12/14/2020 URL: https://www.law360.com/ip/articles/1337398 The U.S. Supreme Court on Monday declined to revive a lawsuit that claimed Jerry Seinfeld stole the concept for his "Comedians in Cars Getting Coffee" series from a one-time collaborator, leaving in place a Second Circuit ruling that said the accuser waited too long to sue. TILLIS TARGETS CRIMINAL STREAMING SERVICES WITH ‘PROTECTING LAWFUL STREAMING ACT’ via IPWatchdog.com | Patents & Patent Law on 12/15/2020 URL: https://www.ipwatchdog.com/2020/12/15/tillis-targets-criminal-streaming-services-protecting-lawful-streaming-act/id=128284/ On Thursday, December 10, U.S. Senator Thom Tillis (R-NC), Chairman of the Senate Judiciary Subcommittee on Intellectual Property, released text of bipartisan legislation titled the “Protecting Lawful Streaming Act of 2020” (the Act). The Act would punish commercial, for profit streaming piracy services that willfully and for commercial advantage or private financial gain offer to the public illicit services dedicated to illegally streaming copyrighted material. The bill is co-sponsored by...

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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TOP 10 COPYRIGHT RULINGS OF 2020 via Intellectual Property Law360 by Bill Donahue on 12/15/2020 URL: https://www.law360.com/articles/1337573/top-10-copyright-rulings-of-2020 Even if this was a year you want to forget, there were plenty of important copyright rulings you'll need to remember — from pirate ships to destroyed graffiti, from Lebron's tattoos to Zeppelin's "Stairway." Here are Law360's top 10 copyright rulings of 2020, plus 10 more that just missed the cut. ‘WE WANT ACTION’: RIGHTSHOLDER REPS ADDRESS PLATFORMS IN IP SUBCOMMITTEE HEARING, AS DMCA REFORM DRAFT LOOMS via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 12/15/2020 URL: https://www.ipwatchdog.com/2020/12/15/want-action-rightsholder-reps-address-platforms-ip-subcommittee-hearing-dmca-reform-draft-looms/id=128327/ The Senate Judiciary Committee’s Subcommittee on Intellectual Property held its last hearing of the year on reforms to the Digital Millennium Copyright Act (DMCA) today, three days before Subcommittee Chairman Thom Tillis (R-NC) is set to release a discussion draft of a DMCA reform bill he has said will contain “revolutionary changes to online copyright law.” Tuesday’s hearing included representatives of YouTube and Facebook; Twitter refused to participate, and Tillis recently published a... TECH GIANTS MUST DO MORE TO TACKLE PIRACY, SEN. PANEL TOLD via Intellectual Property Law360 by Britain Eakin on 12/15/2020 URL: https://www.law360.com/ip/articles/1337016 Executives from Facebook and YouTube told a Senate Judiciary subcommittee Tuesday they've made tools for fighting copyright infringement accessible to all users on their platforms, but critics said they aren't doing enough to combat the problem. ALL SONGS ARE DERIVATIVE WORKS: COPYRIGHT AND THE REALITY OF MUSIC COMPOSITION via JLA Beat | The Columbia Journal of Law & the Arts by Gersham Johnson on 12/16/2020 URL: https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/370 Songwriters across the country likely breathed a sigh of relief in response to Led Zeppelin’s recent victory in the Supreme Court. The Court’s decision to deny certiorari and curtail an infringement suit—in a case holding that the band’s legendary 1971 song “Stairway to Heaven” did not infringe Spirit’s song “Taurus”—comes after a tidal wave of copyright infringement litigation that has led some songwriters to seek insurance for fear of facing crippling liability. But while courts may have begun putting the brakes on excessive music infringement claims, copyright law itself may continue standing in the way of musical progress.

Joshua L. Simmons joshua.simmons@kirkland.com

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A NEW TREND IN COPYRIGHT LITIGATION via Managing Intellectual Property | Copyright by Loc Xuan Le on 12/16/2020 URL: https://www.managingip.com/article/b1plvw6yvvltdh/a-new-trend-in-copyright-litigation A decade ago, intellectual property lawsuits were rarely handled by Vietnamese courts. They have become more common in recent years, but almost always with overseas IP owners in the plaintiff role, charging local Vietnamese entities with infringement, piracy, or counterfeiting. FAIR USE PERMITS NEWSPAPER TO REPUBLISH PHOTO TAKEN BY DRONE–CASTLE V. KINGSPORT PUBLISHING via Technology & Marketing Law Blog by Eric Goldman on 12/17/2020 URL: https://blog.ericgoldman.org/archives/2020/12/fair-use-permits-newspaper-to-republish-photo-taken-by-drone-castle-v-kingsport-publishing.htm Yes, this is another defense-favorable fair use ruling produced by a Richard Liebowitz lawsuit. ?????? INCONVENIENT FRICTION: DMCA REVIEW 2020 via The Illusion of More by David Newhoff on 12/17/2020 URL: http://illusionofmore.com/inconvenient-friction-dmca-review-2020/ Tomorrow (December 18, 2020), the Senate Judiciary Committee will present draft legislation with proposed amendments to the Digital Millennium Copyright Act of 1998. Whatever is in the draft will probably set someone’s hair on fire—or perhaps everyone’s hair on fire who has an interest in digital-age copyright enforcement. But any initial shouting will then hunker down for the drudgery of legislative haggling, which could take years. As Chairman Tillis noted in his opening remarks in the final 2020 DMCA hearing held on 12/15, it will most likely take all of his second term to get any new legislation “across the finish line.” CHINA PASSES HARSHER AMENDED COPYRIGHT LAW via Managing Intellectual Property | Copyright by Linda Zhao on 12/18/2020 URL: https://www.managingip.com/article/b1plvjd646ffr7/china-passes-harsher-amended-copyright-law To nurture a more protective and encouraging environment for innovation which is key to economic transformation and development, on November 11 2020, China promulgated the amended Copyright Law [2020 amendment], which will become effective on June 1 2021. The first Copyright Law was enacted in 1990 and was subsequently revised respectively in 2001 and 2010.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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9TH CIRC. SAYS DR. SEUSS-STAR TREK MASHUP ISN'T FAIR USE via Intellectual Property Law360 by Bill Donahue on 12/18/2020 URL: https://www.law360.com/articles/1312318/9th-circ-says-dr-seuss-star-trek-mashup-isn-t-fair-use The Ninth Circuit ruled Friday that a comic book "mashup" of Dr. Seuss and Star Trek was not protected by copyright law's fair use doctrine, reviving an infringement case filed by the famed author's estate. DR. SEUSS ENTERPRISES WINS APPEAL IN DISPUTE OVER 'STAR TREK' MASH UP via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Ashley Cullins on 12/18/2020 URL: https://www.hollywoodreporter.com/thr-esq/dr-seuss-enterprises-wins-appeal-in-dispute-over-star-trek-mash-up "The creators thought their Star Trek primer would be 'pretty well protected by parody,' but acknowledged that 'people in black robes' may disagree. Indeed, we do." NETFLIX SETTLES SHERLOCK HOLMES COPYRIGHT FIGHT via Intellectual Property Law360 by Bill Donahue on 12/18/2020 URL: https://www.law360.com/articles/1339465/netflix-settles-sherlock-holmes-copyright-fight Netflix and the estate of Sherlock Holmes creator Arthur Conan Doyle reached a settlement Friday to end a copyright lawsuit over a recent movie centered on the famed detective's sister. JURY WILL DECIDE IF VIDEOGAME CHARACTER INFRINGES A WRESTLING PERSONA–GI BRO V. CALL OF DUTY via Technology & Marketing Law Blog by Eric Goldman on 12/20/2020 URL: https://blog.ericgoldman.org/archives/2020/12/jury-will-decide-if-videogame-character-infringes-a-wrestling-persona-gi-bro-v-call-of-duty.htm The plaintiff is a wrestler, primarily known as Booker T. When he wrestles for WWE, he used the stage name G.I. Bro. There’s also a comic book line based on the G.I. Bro character. The defendant makes the Call of Duty videogames, including Call of Duty: Black Ops 4. Black Ops contained a character named David “Prophet” Wilkes. G.I. Bro claims that the Prophet infringes his character. On the left is G.I. Bro; on the right is the Prophet:

Joshua L. Simmons joshua.simmons@kirkland.com

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NETFLIX SETTLES 'ENOLA HOLMES' LAWSUIT WITH CONAN DOYLE ESTATE via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 12/21/2020 URL: https://www.hollywoodreporter.com/thr-esq/netflix-settles-enola-holmes-lawsuit-with-conan-doyle-estate The short-lived copyright suit alleged that the movie infringed upon Sherlock Holmes even though most of the stories about the famous detective are in the public domain. DECISION IN SEUSS/TREK MASHUP CASE IS ONE FOR THE BOOKS via The Illusion of More by David Newhoff on 12/21/2020 URL: http://illusionofmore.com/decision-in-seuss-trek-mashup-case-is-one-for-the-books/ Last week, the Ninth Circuit Court of Appeals issued a fair use decision in Dr. Seuss Enterprises (DSE) v. ComicMix. After oral arguments were presented in April, I wrote about this case as an example from which creators could learn what not to do when they propose to make substantial use of protected works—especially very famous works. The lawsuit involves an unpublished book called Oh, the Places You’ll Boldly Go (Boldly), a Dr. Seuss/Star Trek mashup that principally uses material from Seuss’s Oh, the Places You’ll Go! (Go!). THE COVID-19 STIMULUS BILL WOULD MAKE ILLEGAL STREAMING A FELONY via Legal News & Entertainment Law - Hollywood, ESQ. | Hollywood Reporter by Eriq Gardner on 12/21/2020 URL: https://www.hollywoodreporter.com/thr-esq/the-covid-19-stimulus-bill-would-make-illegal-streaming-a-felony Congress looks to provide relief to U.S. citizens and small businesses, but the omnibus bill includes some legislative priorities for the entertainment industry as well. 2020. THE ANNUS HORRIBILIS—BUT CREATORS AND CREATIVE INDUSTRIES WILL BOUNCE BACK via Hugh Stephens Blog » Feed on 12/21/2020 URL: https://hughstephensblog.net/2020/12/21/2020-the-annus-horribilis-but-creators-and-creative-industries-will-bounce-back/ They say that hindsight is 20/20. Well, looking back at 2020, the annus horribilis, one could be forgiven for not having a clear view of what was to come when the year began, with vague rumours circulating of yet another virus in China emanating from wild animal markets. Surely it couldn’t be as bad as […]

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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ELLEN BARKIN AGREES TO SETTLE SUIT OVER TWEETED BIRD-FLIP PIC via Intellectual Property Law360 by Pete Brush on 12/21/2020 URL: https://www.law360.com/articles/1339864/ellen-barkin-agrees-to-settle-suit-over-tweeted-bird-flip-pic Actress Ellen Barkin has agreed to settle copyright claims filed by a photographer who sued after she tweeted a photo he took of her flipping the bird during convicted rapist Harvey Weinstein's criminal trial in New York City, according to a Monday filing. CONGRESSIONAL SPENDING BILL FEATURES SEVERAL IP MEASURES via Intellectual Property Law360 by Ryan Davis on 12/21/2020 URL: https://www.law360.com/articles/1339937/congressional-spending-bill-features-several-ip-measures The massive $2.3 trillion spending and coronavirus relief bill set to pass Congress Monday night includes numerous intellectual property provisions, such as creating a copyright small claims court, making unauthorized streaming of copyrighted material a felony, and altering trademark and patent procedures. AUTHOR SAYS NETFLIX'S 'OUTER BANKS' RIPPED OFF HIS NOVEL via Intellectual Property Law360 by Lauren Berg on 12/21/2020 URL: https://www.law360.com/articles/1339926/author-says-netflix-s-outer-banks-ripped-off-his-novel The creators of the Netflix teen mystery series "Outer Banks" stole the treasure hunting adventure story from a high school English teacher's novel, according to a lawsuit filed Monday in Georgia federal court. OMNIBUS BILL PASSES CONGRESS, ANTI-COPYRIGHT CROWD TURNS SHRILL via The Illusion of More by David Newhoff on 12/22/2020 URL: http://illusionofmore.com/omnibus-bill-passes-congress-anti-copyright-crowd-turns-shrill/ I have covered the development of the CASE Act in depth. But because the usual gang of anti-copyright zealots began screaming on social media on the news that the small-claim copyright provision was attached to the omnibus spending bill that passed last night, I offer some responses to those allegations about CASE that are factually untrue as well as the predictions that are logically unsupportable. (In a separate post, I will discuss the felony streaming bill that also passed as part of the spending bill.)

Joshua L. Simmons joshua.simmons@kirkland.com

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WHAT’S THE PROTECTING LAWFUL STREAMING ACT REALLY ABOUT? via The Illusion of More by David Newhoff on 12/22/2020 URL: http://illusionofmore.com/whats-the-protecting-lawful-streaming-act-really-about/ As with the CASE Act, anti-copyright (and even some copyright-neutral) voices reacted on social media to the fact that a bill called the Protecting Lawful Streaming Act (PLSA) was attached to the massive omnibus spending package that passed Congress last night. What this bill will do is make enterprise-scale criminal copyright infringement, by means of digital streaming, a felony rather than a misdemeanor. So, once again, the gnashing of teeth began, alleging that Congress kowtowed to Hollywood, that this provision was snuck in as a rider at the 11th hour, and that making streaming a felony threatens all manner of innocent internet users. As usual, none of the above is true. NINTH CIRCUIT CLARIFIES TRANSFORMATIVE FAIR USE IN DR. SEUSS V. COMICMIX via Center for the Protection of Intellectual Property by Devlin Hartline on 12/22/2020 URL: https://cpip.gmu.edu/2020/12/22/ninth-circuit-clarifies-transformative-fair-use-in-dr-seuss-v-comicmix/ This past Friday, the Ninth Circuit handed down its opinion in Dr. Seuss v. ComicMix, a closely watched transformative fair use case. The decision marks an important milestone in the development of the fair use doctrine, especially as applied to mash-ups—where two or more preexisting works are blended together to create a new work. However, the court’s careful explanation of what constitutes transformativeness is not limited to mash-ups, and it will surely be influential for years to come. In this post, I’ll look at the various views expressed by the parties, amici, and courts as to what it means for a use to be transformative, and I’ll explain how the Ninth Circuit’s new guidance on transformativeness reins in some of the overly broad positions that have been urged. This decision should be welcome news for those who worry that a copyright owner’s right to make derivative works has been excessively narrowed by ever-expanding notions of transformative use. COVID-19 STIMULUS BILL WILL MAKE ILLEGAL STREAMING A FELONY | THR NEWS via YouTube by The Hollywood Reporter on 12/22/2020 URL: https://www.youtube.com/watch?v=hQJS0KrgMkg Congress looks to provide COVID-19 relief to U.S. citizens and small businesses, but the stimulus bill includes some legislative priorities for the entertainment industry as well. If passed, illegal streaming of works including movies and music tracks could carry a penalty of up to 10 years in jail.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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SOFTWARE CO. SEEKS $5M AFTER BEATING 'OUTRAGEOUS' IP SUIT via Intellectual Property Law360 by Katie Buehler on 12/22/2020 URL: https://www.law360.com/articles/1340279/software-co-seeks-5m-after-beating-outrageous-ip-suit An analytics software and services provider is seeking roughly $5.3 million in attorney fees and court costs after defeating a competing developer's "outrageous" suit that included claims related to more than 2,000 copyrights and four patents, according to Texas federal court filings. SENATOR TILLIS RELEASES DRAFT BILL TO MODERNIZE THE DIGITAL MILLENNIUM COPYRIGHT ACT via IPWatchdog.com | Patents & Patent Law by Rebecca Tapscott on 12/22/2020 URL: https://www.ipwatchdog.com/2020/12/22/tillis-draft-modernize-dmca/id=128552/ The discussion draft, which is intended to bring revolutionary changes to online copyright law, is a proposed DMCA modernization reform released to solicit comments from stakeholders and other interested parties. DRAFT BILL THAT WOULD REVAMP DMCA SPARKS DIVIDED REACTION via Intellectual Property Law360 by Britain Eakin on 12/22/2020 URL: https://www.law360.com/articles/1340196/draft-bill-that-would-revamp-dmca-sparks-divided-reaction A draft bill unveiled Tuesday to overhaul the Digital Millennium Copyright Act met divergent reactions, with the entertainment industry welcoming the effort and critics warning it could sound the death knell for online creativity. LATE-NIGHT RELIEF BILL WILL SPUR BIG CHANGES TO IP via Intellectual Property Law360 by Ryan Davis on 12/22/2020 URL: https://www.law360.com/articles/1340203/late-night-relief-bill-will-spur-big-changes-to-ip Intellectual property measures tucked into a huge government spending bill that Congress passed late Monday night have potentially dramatic ramifications for trademark and copyright law, experts say.

Joshua L. Simmons joshua.simmons@kirkland.com

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HOLIDAY GIFTS FOR IP OWNERS: SEVERAL SIGNIFICANT IP BILLS PASSED LAST MINUTE BY CONGRESS via IPWatchdog.com | Patents & Patent Law by Megan Bannigan on 12/23/2020 URL: https://www.ipwatchdog.com/2020/12/23/ip-bills-passed-last-minute-congress/id=128561/ Late Monday evening, Congress passed a massive omnibus budget bill to avert a federal government shutdown and provide critical COVID-19 relief. But that is not all – much to the surprise of the intellectual property world, the last-minute bill included several pieces of legislation, previously thought to be sidetracked in light of the current lame duck administration, that will alter the landscape of trademark, copyright and patent law as we know it. The changes include a Trademark... EUROPE’S TOP FIVE (NON-PATENT) IP DEVELOPMENTS OF 2020 via IPWatchdog.com | Patents & Patent Law by James Nurton on 12/23/2020 URL: https://www.ipwatchdog.com/2020/12/23/europes-top-five-non-patent-ip-developments-2020/id=128360/ In a previous piece, we covered the top five patent developments of the year in Europe. Here, we review some of the key cases and legislation that shaped 2020 in other areas of IP, including trademarks, copyright, design and legislative actions. At number one, in its judgment in Sky v SkyKick (Case C-371/18) in January, the CJEU said that an EU trademark cannot be invalidated for lack of clarity and precision, and provided guidance on what constitutes bad faith. The decision reassured owners of... YOU'LL BE ABLE TO DOWNLOAD A LOT MORE STUFF FOR FREE—LEGALLY—JAN. 1 via Forbes by Rob Pegoraro on 12/24/2020 URL: https://www.forbes.com/sites/robpegoraro/2020/12/24/youll-be-able-to-download-a-lot-more-stuff-for-free-legally-jan-1/ “The Founders' copyright was 14 years, renewable once,” noted Internet Archive founder Brewster Kahle in an email. He compared that to a different ... 2H 2020 QUICK LINKS, PART 1 (COPYRIGHT) via Technology & Marketing Law Blog by Eric Goldman on 12/27/2020 URL: https://blog.ericgoldman.org/archives/2020/12/2h-2020-quick-links-part-1-copyright.htm Plaintiffs have made allegations sufficient to satisfy the knowledge requirement at the pleading stage. As to actual knowledge, Plaintiffs aver that the five million notices sent to RCN by Rightscorp that provided the IP address of the user, the date and time of the activity, and the name of the infringed upon content is sufficient to confer actual knowledge to RCN.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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CONSOLIDATED APPROPRIATIONS ACT OF 2021 via Patent Law Blog (Patently-O) by Dennis Crouch on 12/28/2020 URL: https://patentlyo.com/patent/2020/12/consolidated-appropriations-2021.html The huge appropriations bill includes a few IP gems: NINTH CIRCUIT CONFIRMS: FAIR USE IS AN AFFIRMATIVE DEFENSE TO COPYRIGHT INFRINGEMENT via Center for the Protection of Intellectual Property by Devlin Hartline on 12/28/2020 URL: https://cpip.gmu.edu/2020/12/28/ninth-circuit-confirms-fair-use-is-an-affirmative-defense-to-copyright-infringement/ The Ninth Circuit’s recent decision clarifying transformative fair use in Dr. Seuss v. ComicMix gives much to admire (see my deep dive into the opinion here). The court held that a mash-up of plaintiff Seuss’ Oh, the Places You’ll Go! (Go!) with a Star Trek theme—entitled Oh, the Places You’ll Boldly Go (Boldly)—by defendant ComicMix was not fair use since it merely repackaged the original work without new purpose, meaning, message, expression, or character—in other words, it failed to be transformative. That holding is welcome news for those who are concerned that the rule of the derivative right is being swallowed by the exception of transformativeness. NORTH CAROLINA TEACHER FILES COPYRIGHT INFRINGEMENT SUIT AGAINST NETFLIX'S 'OUTER BANKS' via Deadline by Alexandra Del Rosario on 12/29/2020 URL: https://deadline.com/2020/12/north-carolina-author-netflix-outer-banks-copyright-infringement-1234662296/ A North Carolina English teacher and author has filed a lawsuit against Netflix and the creators of their hit show “Outer Banks,” claiming copyright ... APPLE LOSES COPYRIGHT BATTLE AGAINST SECURITY START-UP CORELLIUM via Washington Post by Reed Albergotti on 12/29/2020 URL: https://www.washingtonpost.com/technology/2020/12/29/apple-corellium-lawsuit/ A federal judge in Florida threw out Apple's claims that Corellium had violated copyright law with its software, which helps security researchers find ...

Joshua L. Simmons joshua.simmons@kirkland.com

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DORSEY RESPONSES TO SENATORS ON COPYRIGHT REFORM SHOW CONTEMPT FOR CONGRESS AND IP via IPWatchdog.com | Patents & Patent Law by Gene Quinn on 12/29/2020 URL: https://www.ipwatchdog.com/2020/12/29/dorsey-responses-senators-copyright-reform-show-contempt-congress-ip/id=128688/ On December 28, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, and Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, sent another letter to Twitter CEO Jack Dorsey expressing disappointment over the company’s continued refusal to cooperate on hearings around copyright reform. Tillis and Coons were joined by Senator Mazie Hirono (D-HI), as they often are on IP issues. The letter reiterated the senators’ frustration that Twitter refused to provide a... THE COPYRIGHT TOP FIVE OF 2020 via IPWatchdog.com | Patents & Patent Law by Eileen McDermott on 12/30/2020 URL: https://www.ipwatchdog.com/2020/12/30/copyright-top-five-2020/id=128681/ From the Google v. Oracle arguments to Congress’ year-long discussion around reform of the Digital Millennium Copyright Act (DMCA), 2020 was a big one for copyright law. A discussion draft of the DMCA reform bill was released on December 22 by Chairman of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, Thom Tillis (R-NC), and was meant to solicit comments from stakeholders and other interested parties. Chances the bill will be signed into law anytime soon are slim, but... MCCONNELL INTRODUCES BILL TYING $2K STIMULUS CHECKS TO SECTION 230 REPEAL via Ars Technica by Jennifer Ouellette on 12/30/2020 URL: https://arstechnica.com/tech-policy/2020/12/mcconnell-introduces-bill-tying-2k-stimulus-checks-to-section-230-repeal/ Senate Majority Leader Mitch McConnell (R-KY) has thrown a wrench into Congressional approval of an increase in government stimulus relief checks from $600 to $2,000. The House voted overwhelmingly on Monday to increase the payments, as President Trump had advocated for. Instead of voting on the House bill, however, McConnell blocked it and instead introduced a new bill tying higher stimulus payments to Section 230's full repeal, according to Verge, which obtained a copy of the bill's text.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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CORELLIUM NOTCHES PARTIAL VICTORY IN APPLE IOS COPYRIGHT CASE via Ars Technica by Kate Cox on 12/30/2020 URL: https://arstechnica.com/tech-policy/2020/12/corellium-notches-partial-victory-in-apple-ios-copyright-case/ Security firm Corellium, which develops software that researchers can use to analyze Apple products, has been handed a partial victory in Apple's lawsuit against it, as a judge ruled that its creation of virtual iOS environments does not violate Apple's copyrights. ‘LANDMARK’ COPYRIGHT ACT REFORM PROPOSED via The Media Institute by John Eggerton on 12/31/2020 URL: https://www.mediainstitute.org/2020/12/23/landmark-copyright-act-reform-proposed/ Sen. Thom Tillis (R-N.C.), fresh off the passage of his bill that would make illegal streaming a felony in some cases, has introduced a discussion draft of major copyright reform legislation that has computer companies fuming and studios gently applauding. 2021 TRIALS TO WATCH AS LITIGANTS RETURN TO COURT — HOPEFULLY via Intellectual Property Law360 by Cara Salvatore on 1/3/2021 URL: https://www.law360.com/articles/1338050/2021-trials-to-watch-as-litigants-return-to-court-hopefully After a year in which the coronavirus pandemic swiped numerous important trials off the table, 2021 is widely hoped to bring broad vaccine availability and a return to the courtroom for many who have been awaiting their days in court. COPYRIGHT CASES TO WATCH IN 2021 via Intellectual Property Law360 by Bill Donahue on 1/3/2021 URL: https://www.law360.com/articles/1338951/copyright-cases-to-watch-in-2021 Yes, we're all still waiting to find out what the U.S. Supreme Court says about Google v. Oracle, but that's not the only copyright case you need to be watching in 2021. Here are the four cases you need to watch in the year ahead, plus three more to keep tabs on.

Joshua L. Simmons joshua.simmons@kirkland.com

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VIII. COPYRIGHT LAW JOURNAL ARTICLES: JOURNAL OF THE COPYRIGHT SOCIETY OF THE USA

Vol. 66, No. 3 (Summer 2020)

A THIRD BITE AT THE APPLE?: STATUTORY TERMINATION RIGHTS AND ROYALTY GRANTS by Dean H. Adams As clients, lawyers, and judges have grappled with the complexity of the Copyright Act’s termination right for over forty years, uncertainty still remains as to the relationship between the termination right and the right to receive revenue from the exploitation of a copyright (a “royalty” right). At the same time a boom in intellectual property rights acquisitions and investments has made royalty grants and securitizations a valuable (and at times lucrative) business model. As these two worlds collide, an important question arises: Can the termination right found in § 203 and 304 work to effect termination of a royalty grant? This article addresses the general question by analyzing a scenario in which an author of a musical composition attempts to terminate the grant of the writer’s share of songwriter income. This article argues primarily that grants of royalty rights are not terminable and thus, as applied to the music publishing industry, authors cannot use the termination right to terminate grants of the “writer’s share” of songwriter income. In support of these conclusions, this article proposes an amendment to the Copyright Act to clarity the relationship between termination and royalty grants. This article concludes with a discussion of practical considerations for parties involved in royalty grants as they relate to the termination right. ONCE UPON A TIME IN HOLLYWOOD: AN EXAMINATION OF “SUBSTANTIAL SIMILARITY” IN CALIFORNIA IDEA SUBMISSION CASES” by David Aronoff It is fundamental that the U.S. Copyright Act does not protect ideas. Thus, a would-be motion picture or TV writer who believes that his or her ideas have been stolen by a Hollywood studio or streaming service in its latest hit programming is generally out of luck in seeking redress under a copyright infringement theory. However, the law has developed alternative theories of implied contract and confidentiality protection for ideas that are submitted for sale to and knowingly accepted by entertainment companies. Broadly speaking, a plaintiff asserting idea submission claims based on breach of implied-in-fact contract or breach of confidence legal theories must establish a direct contractual or confidential relationship with the defendant and the defendant’s “use” of the plaintiff’s idea in breach of the parties’ contract or confidence. However, the issue of “use” is often problematic in these cases. At what point does the defendant’s creation of a work embodying creative elements that are similar to the plaintiff’s idea cross the line so as to constitute a “use” of the plaintiff’s idea? This problem can be illustrated by a hypothetical. Assume that a few years ago, you had a chance encounter with the well-known director and producer Quentin Tarantino at Whole Foods. He

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stood behind you in the check-out line as you were buying a six-pack and he was purchasing organic arugula. Recognizing the famed film auteur, you turned to him and said ironically, “I’ve got a great idea for a movie.” Surprisingly, with a smile, he gamely replied as if at a blackjack table, “Hit me!” Not expecting an encouraging response, you stumbled for a moment, but then you fortuitously glimpsed a headline in the store’s newspaper rack, “Mastermind of murderous cult dead.” So with a stutter you replied, “Charles Manson.” Building confidence, you continued, “You should make a Charles Manson movie set in the 1960’s, but maybe even defeating Manson at the end like Hitler in your “Inglorious Basterds!” By this time the clerk has rung up your beers. As Tarantino appreciatively shakes his head, you walk away from the store convinced that you have the nous to be a Hollywood producer. Flash forward to the present. While you have continued your habit of imbibing afternoon beers, Tarantino has written, produced, and released Once Upon a Time in Hollywood. The film is an alternate timeline comedy-drama telling the fictional story of Rick Dalton, a faltering actor portrayed by Leonardo DiCaprio, and his stunt double, Cliff Booth, who is played by Brad Pitt, as they navigate the last gasps of Hollywood’s golden age in 1969. In the course of their fictional adventures, Dalton and Booth meet the real-life stars Bruce Lee and Sharon Tate and foil the plot by the murderous cult leader Charles Manson and his deranged followers to kill Tate and a group of her friends. The release of Tarantino’s film has thrown you for a loop. Like many people in Hollywood, you suffer from “that obsessive conviction, so common among authors and composers, that all similarities between their works and any others which appear later must inevitably be ascribed to plagiarism.” In light of this “obsessive conviction,” a number of questions immediately spring into your mind. Has Tarantino stolen your idea to produce a Charles Manson film in which Manson’s plans are defeated at the end? Could you prevail, or at least survive summary judgment, in an idea submission claim against Tarantino? What is the settlement value of your claim? Most importantly, can you leverage your claim into the Hollywood career that you had always envisioned? The answers to these questions turn, at least in part (putting aside the problematic question of whether the phrase “hit me!” in these circumstances was sufficient to manifest Tarantino’s consent to the formation of an implied-in-fact contract), on whether Tarantino “used” your idea. More specifically, is Once Upon a Time in Hollywood substantially similar to your concept such as to establish the use of your idea by Tarantino? This is an area of law that is not well delineated — especially in contrast to copyright law. Under the Copyright Act, a long line of authorities establishes that a claim of infringement can only be based on substantial similarities in original protectible expression after filtering out any alleged similarities based on factual materials, ideas (which are specifically excluded from copyright protection), scenes-a-faire, and other unprotected elements. After consulting with your lawyer, you realize that your potential copyright infringement claim against Tarantino is meritless because copyright does not protect facts, such as the story of Charles Manson and his followers, or unfixed bare ideas, including your proposal for a film in

Joshua L. Simmons joshua.simmons@kirkland.com

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which Manson is defeated. However, as discussed below, your potential idea submission claim against Tarantino might have more of a chance. After all, both your Charles Manson proposal and Once Upon a Time in Hollywood share similar ideas. Among other things, they are set in the same time and place, and use some of the same characters to tell a counterfactual version of the Manson family murders in which Manson’s plot to kill Sharon Tate and her friends is defeated. CONTRACTS MATTERED AS MUCH AS COPYRIGHTS by Robert W. Gomulkiewicz Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article, explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, contracts matter as much as copyrights in fostering innovation in the modern information economy because contracts enable the beneficial sharing of ideas and information. This insight about contracts is particularly vital for those judges and lawmakers who make decisions about innovation policy, including the scope of copyright law’s first sale doctrine and the enforceability of software license agreements. THE NEW DEVELOPMENT OF THE PRELIMINARY INJUNCTION INSTITUTION IN CHINA by Ling Yu Since 2001, when the institution of the preliminary injunction (PI) was introduced in China, there have been disputes over the scope of its application, subjects eligible to apply, procedures of the review, consideration factors, identification of a wrong application, and the removal of the preliminary injunction measures. The institution is, therefore, infrequently applicable in practice. In 2018, the Supreme People’s Court of China clarified these issues in a new judicial interpretation. This article analyzes the substantive and procedural rules established in the new interpretation based on the Chinese courts’ judgments since 2001 when the institution was introduced. Regarding the substantive rules, there are four factors that determine the necessity of the application of the injunction. Concerning the procedural rules, communication is regarded as principle, with no communication as an exception. The determination of the wrong application is based on the no-fault liability principle. The new developments demonstrate the transformation of judicial policy from “active and cautious” to “positive and reasonable. ”

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IX. COPYRIGHT LAW JOURNAL ARTICLES

ONLINE RULERS AS HYBRID BODIES: THE CASE OF INFRINGING CONTENT MONITORING in University of Pennsylvania Journal of Constitutional Law by Orit Fischman Afori on 4/15/2020 URL: https://ssrn.com/abstract=3580004 The digital information environment functions today as the backbone of democracies. This environment is operated by online intermediaries that control the flow of information and monitor content running through their “pipelines.” Thus far, content monitoring has been conducted with almost no regulation and according to the intermediaries’ own (commercial) policies. In that respect, online intermediaries have become, in fact, the online rulers. Therefore, the issue of online content monitoring stands at the heart of contemporary social and legal discourse, since it challenges other public, individual, or commercial entities’ constitutional rights and freedoms, such as freedom of speech, or more broadly, other “digital human rights.” Online rulers are facing a new legal and social challenge, since they are the ones expected to strike the appropriate constitutional balance, although they are private-commercial entities. This reality could be demonstrated through different practices concerning content monitoring in cases of allegedly copyright infringement, such as the legal schemes of “notice and takedown” or “blocking orders.” Online rulers are expected to act as gatekeepers for the sake of public interest — but without any legal infrastructure. Against this backdrop, the article aims to explore whether and how some of the basic public law standards, such as accountability, transparency, equality, and reasoning, could be imposed on relevant online rulers. European countries, in contrast to the U.S., are more willing to accept the introduction of public law standards into the private law sphere. According to an accepted doctrine, in some cases private entities may be perceived as a hybrid private/public body, and as a result the door opens for the direct imposition of some public law standards on such private entities. This article proposes that in relevant cases major online rulers should be acknowledged as hybrid bodies, in order to promote a balanced and fair digital information environment. There are many advantages in using this doctrine, which allows a gradual and dynamic application of public law principles, and on a global scale. The challenge for such potential legal move in the U.S. is greater, considering the current interpretation of the “state action doctrine,” which hinders the application of constitutional rights in the private sphere. Nevertheless, this current judicial restrictive approach could be relaxed by further future judicial elaborations. The significance of this article, therefore, lies in its potential to assist in shaping better policies and practices in the future that can and should be initiated by the U.S. judiciary. LEGAL INTERNALISM IN MODERN HISTORIES OF COPYRIGHT in Harvard Law Review by Shyamkrishna Balganesh & Taisu Zhang on 9/4/2020 URL: https://ssrn.com/abstract=3686883

Joshua L. Simmons joshua.simmons@kirkland.com

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Legal internal-ism refers to the internal point of view that professional participants in a legal practice develop towards it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internal-ism remains an important characteristic of all modern legal systems. In this Review Essay, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internal-ism. We argue that while their interdisciplinary emphasis adds to the conversation about copyright, it also overlooks the centrality of legal internal-ism in the evolution of copyright, a domain that has always been understood as a creation of the law. The Essay unpacks the core tenets of legal internal-ism, examines how it operates as an important variable of legal change, contrasts it with the idea of legal consciousness, and shows how legal internal-ism directs and regulates the entry of non-legal considerations into different areas of law. DAMAGES FOR NONECONOMIC HARM IN INTELLECTUAL PROPERTY LAW in Hastings Law Journal by Thomas F. Cotter on 3/31/2020 URL: https://ssrn.com/abstract=3565537 This article provides a comprehensive analysis of awards of “non-economic” damages for reputational and emotional harm in intellectual property (IP) law, including trademarks, copyright and moral rights, the right of publicity, and patent law. The article discusses, among other matters, the Second Circuit’s recent decision in Castillo v. G&M Realty LP, affirming a $6.75 million award of statutory damages for the infringement of artists’ moral rights in graffiti art; the European Union’s Intellectual Property Rights Enforcement Directive and its 2016 Liffers decision, which appear to require member states to award, where warranted, non-economic (“moral prejudice”) damages across the full range of IP cases; and some recent arguments in favor of awarding damages for emotional harm in, even, patent infringement actions. Prompted by these and other developments, I argue that courts should recognize reputational harm as a potentially cognizable injury throughout all of the branches of IP law, but that damages for emotional harm should be limited to right of publicity and moral rights matters. In addition, I discuss the various options for providing monetary relief in response to non-economic harm, including awards of general damages, statutory damages, disgorgement of the infringer’s profits, and enhanced or punitive damages; and I conclude with a set of recommendations for crafting awards in a manner that would both vindicate the relevant, cognizable interests of plaintiffs while reducing the risks of arbitrary, uncertain, and potentially over-deterrent relief. 'AN HUNDRED STORIES IN TEN DAYS': COVID-19 LESSONS FOR CULTURE, LEARNING, AND COPYRIGHT LAW in Osgoode Hall Law Journal by Carys J. Craig & Bob Tarantino on 8/5/2020 URL: https://ssrn.com/abstract=3691294

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In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life. In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of contexts driven by the coronavirus lockdown, focusing first on creative engagement and then on learning, foregrounding the damage done by encoding a permission-first approach into governance structures and digital platforms. These stories unsettle the common copyright narrative—the one that tells us that copyright encourages learning and the creation and dissemination of works—laying bare its disconnect from the current realities of our digital dependency. Turning to consider the justifications for copyright control, we underscore the critical role of user rights and substantive technological neutrality in crafting a flexible and fair copyright system for the future. The article concludes with some lessons that might be drawn from these tales of copyright in the time of COVID-19 to inform the development of new digital copyright norms for whatever “new normal” emerges. DAMSELS IN DISTRESS: COPYRIGHT WOES OF PERRY AND POLLY by Charles Cronin on 12/17/2019 URL: https://ssrn.com/abstract=3505663 On July 29, 2019 a jury in Los Angeles awarded Marcus Gray damages of nearly three million dollars pursuant to its verdict that Katy Perry’s hit “Dark Horse” infringed the copyright in Gray’s rap song 'Joyful Noise'. The verdict, which Perry has appealed, has generated considerable published opprobrium about its forebodings for songwriters, and more broadly the American popular music industry and consumers of its output. The recent disposition of the Perry dispute is not the first in which a court found liability based on allegations of copying a particular combination and arrangement of otherwise unprotectable elements in a musical work. Joseph Fishman traces the lineage of this basis to Austin v. Columbia Graphophone Co., a 1923 English case. This Article argues that Austin’s rationale for finding infringement betrays a misunderstanding of the interdependent, yet hierarchical, elements of music composition. The musical genres in Austin v. Columbia Graphophone are far removed from those in recent claims against Led Zeppelin, Katy Perry, et al. Austin, however, anticipates the very quandary that today bedevils courts adjudicating music infringement disputes that are based on allegations of similar arrangements of unprotectable expression. Recent cases in the United States have established that marginally original sculptural and visual works merit 'thin' protection, and that only virtually identical unauthorized copies may infringe them. This Article suggests that Austin might have been decided differently had the court applied this reasoning, and also recommends that courts in the United States should now extend this

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elevated threshold of infringement to music infringement cases in order to restore the damaged equipoise between owners of copyrighted musical works and musicians creating new ones. DEATH IN COPYRIGHT: REMARKS ON DURATION in Boston University Law Review by Abraham Drassinower on 2/12/2020 URL: https://ssrn.com/abstract=3521511 This Essay is an inquiry into the role of death in copyright law. I argue that the role of the author’s death in measuring copyright duration is intelligible as an indication of the way in which copyright law construes the formation of the right, and thus the juridical relation between author and work. Through the principle of independent creation, the originality doctrine posits an irretrievably personal link between author and work, and it is this link that accounts for the relevance of the author’s death in our conceptualization of copyright duration. In short, the theory of originality entails a theory of duration. By way of conclusion, I deploy this convergence of originality and duration, authorship and death, as a springboard to deepen our appreciation and to reevaluate fundamental aspects of the foundational opposition between Lord Mansfield and Justice Yates in the classic case of Millar v. Taylor. ORIGINALITY'S OTHER PATH in California Law Review by Joseph Fishman on 6/5/2020 URL: https://ssrn.com/abstract=3620118 Although the U.S. Supreme Court has famously spoken of a “historic kinship” between patent and copyright doctrine, the family resemblance is sometimes hard to see. One of the biggest differences between them today is how much ingenuity they require for earning protection. Obtaining a patent requires an invention so innovative that it would not have been obvious to a person having ordinary skill in the art. Copyright, by contrast, makes no such demand on authors, requiring an original work of only minimal creativity. Except sometimes it doesn’t. Puzzlingly, in some copyright cases dealing with musical arrangements, courts have demanded a patent-like level of creativity from putative authors. While these cases might seem like outliers, they have a pedigree that is both lengthy and largely unrecognized. The proposition that copyright originality should require patent-style inventiveness beyond artisans’ everyday creations goes back all the way to an 1850 music-infringement decision by Justice Samuel Nelson. In fact, only four months later, Nelson himself would author the Supreme Court patent opinion that is now credited as the touchstone for patent law’s own nonobviousness doctrine. His corresponding vision for copyright, though, came first. Drawing on original archival research, this Article challenges the standard account of what originality doctrine is and what courts can do with it. It identifies Nelson’s forgotten copyright legacy: a still-growing line of cases that treats music differently, sometimes even more analogous to patentable inventions than to other authorial works. These decisions seem to function as a hidden enclave within originality’s larger domain, playing by rules that others couldn’t get away

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with. They form originality’s other path, much less trod than the familiar one but with a doctrinal story of its own to tell. Originality and nonobviousness’s parallel beginnings reveal a period of leaky boundaries between copyright and patent, when many of the Justices considered a rule for one to be just as good for the other. Their recurring intersections, meanwhile, muddy today’s conventional narrative about copyright’s historic commitment to protecting even the most modestly creative works. VOLITION AND THE ‘NEW PUBLIC’: A CONVERGENCE OF US AND EU JUDICIAL APPROACHES TO COMMUNICATIONS TO THE PUBLIC in European Intellectual Property Review by Cheryl Foong on 2/2/2020 URL: https://ssrn.com/abstract=3516478 US and EU judicial approaches to the right to communicate to the public in copyright are converging towards a common factor – the consideration of the defendant’s fault or mental state. This article highlights this under-appreciated commonality between the two jurisdictions and critically analyses the negative impact that this trend brings to the advancement of copyright’s core objectives. PLAGIARIZE THIS PAPER in IDEA: The IP Law Review by Brian L. Frye on 10/1/2019 URL: https://ssrn.com/abstract=3462144 Plagiarism is the ultimate academic crime. But why? This essay reflects on academic plagiarism norms and concludes that they are not only unjustified, but also pernicious. It argues that attribution should be voluntary, not mandatory. TOWARDS A CONCEPTUAL FRAMEWORK OF ENTERTAINMENT LAW FOR THE TWENTY-FIRST CENTURY by Jon Garon on 6/2/2020 URL: https://ssrn.com/abstract=3591236 Throughout the history of entertainment, there have been only three goals of the state’s regulatory focus: health and safety concerns; content and cultural control; and monopoly power restrictions on those who control the media. The first has been to require health and safety standards comparable to businesses of all industries. It is the second and third goals of government regulation that make the entertainment industry stand apart. The second goal reflects the continuing state interest in managing the national culture first introduce through laws regulating theatrical players and the printing press. The third goal reflects the state’s interest in assuring that the individual and corporate influences on the media and culture do not grow too powerful. Governments use competition and antitrust laws to regulate the economic power and anti-competitive practices of the media empires. The technological innovations in computing and mobile devices provide for dramatically different solutions to monetize the digital marketplace

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and shape the culture of the society. The twenty-first century media streamers in film, television, music, and print will be very different from their counterparts from the previous decades. And just as the technology for delivery has changed, so have the powers of the U.S. government to control the content and manage the competition among the industry leaders. What has stayed the same is the innovative spirit that began with Gutenberg and fueled the invention of the camera, movie projector, phonograph, radio, and television. It informed the growth of the computer, the PC, the Internet, and the modern streaming services. At each stage, the media’s power to entertain, educate, persuade, and shape has remained unchallenged. Technology and culture are at a tipping point, just as they were when piracy triggered the end of the Stationers’ Company and the development of copyright law or the end of the Motion Picture Patents Company and the rapid growth of the motion picture industry. The printing press, the theatrical performance, the motion picture, and the TV show illustrate again and again that the medium is the message. From the middle ages forward, governments and society has learned to accept the relinquishment of control over the media and the power of the media companies to shape culture. In the coming years, those who best understand the implications of streaming, mobile devices, and new technologies will lead in its development. This article provides a conceptual framework to approach entertainment and the regulation of entertainment — entertainment law — from its historical origins and normative objectives. In most cases, these efforts apply at the margins because culture is simply too powerful a force to do more. Nonetheless, an understanding of the implications for entertainment law regulation will help the producers, regulators, and consumers of entertainment to understand the power of entertainment law and the foreseeable development of the law in the early twenty-first century. THE MACHINE AS AUTHOR in Iowa Law Review by Daniel J. Gervais on 3/25/2019 URL: https://ssrn.com/abstract=3359524 The use of Artificial Intelligence (AI) machines using deep learning neural networks to create material that facially looks like it should be protected by copyright is growing exponentially. From articles in national news media to music, film, poetry and painting, AI machines create material that has economic value and that competes with productions of human authors. The Article reviews both normative and doctrinal arguments for and against the protection by copyright of literary and artistic productions made by AI machines. The Article finds that the arguments in favor of protection are flawed and unconvincing and that a proper analysis of the history, purpose, and major doctrines of copyright law all lead to the conclusion that productions that do not result from human creative choices belong to the public domain. The Article proposes a test to determine which productions should be protected, including in case of collaboration between human and machine. Finally, the Article applies the proposed test to three specific fact patterns to illustrate its application.

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FAIR USE FACTOR FOUR REVISITED: VALUING THE ‘VALUE OF THE COPYRIGHTED WORK’ in Journal of the Copyright Society of the USA by Jane Ginsburg on 2/13/2020 URL: https://ssrn.com/abstract=3537703 Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies independent kinds of harm, and entails considerations distinct from market substitution. Those harms include the undermining of business models in which the “value of” the copied work may be its utility as a “draw” for goods or services other than the copied work. Relevant considerations also concern creators’ economic and moral interests in being recognized as the authors of the copied works. This Essay explores the basis for and consequences of according autonomous value to the inquiry into the impact of the use upon the “value of the copyrighted work.” IS THERE NO WAY TO THE TRUTH? COPYRIGHT LIABILITY AS A MODEL FOR RESTRICTING FAKE NEWS in Harvard Journal of Law & Technology by Michael Goodyear on 7/9/2020 URL: https://ssrn.com/abstract=3647504 A proliferation of fake news has flooded U.S. websites and social media. From misinformation affecting the 2016 election to individuals making profits off of creating false stories, the United States desperately needs a legal response to the fake news crisis. However, U.S. law has effectively forestalled any attempts to bring fake news to heel. The First Amendment has been held to protect fake news. The Communications Decency Act, codified as Section 230, protects online platforms from the remaining potential sources of vicarious liability for fake news. Instead, gradually, self-regulation by websites has started to fill this void. Proposed solutions have tried to look forward, suggesting revisions to the First Amendment and Communications Decency Act doctrine, or analyzing self-regulation by websites. However, these proposals have ignored an already existing model for regulating unwanted conduct online: the Digital Millennium Copyright Act. The Digital Millennium Copyright Act imposes certain obligations on online service providers to remove copyright infringing content posted on their websites in exchange for a liability safe harbor. While copyright and fake news are different, ten distinct principles can be elucidated from the Digital Millennium Copyright Act. These principles provide insights into how online regulations could advance, whether through websites’ own self-regulation, or in codified law if the First Amendment and § 230 regime is relaxed in the future.

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DEATH OF A COPYRIGHT in Boston University Law Review by Paul R. Gugliuzza on 1/24/2020 URL: https://ssrn.com/abstract=3524899 A well-established feature of modern copyright law is that the term of a copyright extends beyond—far beyond—the author’s death. In his article, Death in Copyright: Remarks on Duration, Abraham Drassinower boldly challenges that settled rule, arguing that, because of the deeply personal link between an author’s creativity and the grant of a copyright, the term of that right should end when the author dies. Extending the argument of his recent book, What’s Wrong with Copying?, Drassinower draws on the thinking of Immanuel Kant to conceive of authorship not as a “thing” but as a “communicative act” connecting the author and the audience. This essay, prepared for a symposium celebrating the work of Wendy Gordon, responds to Drassinower’s engaging article by making two main points. First, it goes beyond Kantian theory and sketches how other justifications for copyright, including personhood theory and economic utilitarianism, could be used to critique (or to justify) the long, post-death duration of modern copyright. Second, it explores the implications of Drassinower’s theory of authorship for works-made-for-hire, where the personal link between author and copyright is more tenuous, and for works published only posthumously, which would not receive any copyright protection at all under Drassinower’s model. AUSTRALIAN COPYRIGHT LAW IMPEDES THE DEVELOPMENT OF ARTIFICIAL INTELLIGENCE: WHAT ARE THE OPTIONS? by Rita Matulionyte on 10/27/2020 URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720289 Artificial Intelligence (AI) is an emerging technology that has a huge potential in contributing to the Australian economy and addressing economic and social problems in society. However, Australian copyright laws are likely to impede the development of AI, and machine learning in particular, by requiring authorization every time when copyrighted content is used in machine learning processes. This puts Australian AI industries in competitive disadvantage, since other AI-focused jurisdictions, such as the US, EU, UK and Japan, allow such use under copyright exceptions. After analyzing the scope of copyright with relation to machine learning and licensing options, this paper examines different copyright exceptions (fair use, fair dealing and EU-style specific TDM exception) as potential solutions for Australia. THE USE OF TECHNICAL EXPERTS IN SOFTWARE COPYRIGHT CASES: RECTIFYING THE NINTH CIRCUIT’S 'NUTTY' RULE in Berkeley Technology Law Journal by Peter S. Menell on 7/21/2020 URL: https://ssrn.com/abstract=3632082

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Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Prods., Inc. v. McDonald’s Corp., ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. As the Second Circuit recognized in Computer Associates Int’l, Inc. v. Altai, Inc., the ordinary observer standard may well have served its purpose when the material under scrutiny was limited to art forms readily comprehensible and generally familiar to the average lay person,” but as to computer programs, district courts must have “discretion . . . to decide to what extent, if any, expert opinion, regarding the highly technical nature of computer programs, is warranted in a given case.” In a shocking departure from the decisions of every other circuit that has confronted software copyright infringement litigation, the Ninth Circuit reaffirmed and applied the bar on expert testimony originating in Krofft Television Prods. to all copyright disputes, including those involving highly technical computer software code. The court in Antonick v. Electronic Arts held that lay juries must decipher and analyze software code—distinct hexadecimal assembly code languages for different processors—without the assistance of expert witnesses, a rule that the authoring judge characterized at the oral argument as “nutty.” The Ninth Circuit’s rule overlooks the key distinction between the use of technical experts to analyze substantial similarity as opposed to enabling lay judges and jurors to perceive the underlying works. Just as it would be absurd to ask a lay jury with no familiarity with Kanji characters to assess whether a translation of HARRY POTTER AND THE PHILOSOPHER’S STONE into Japanese infringed the English original without the aid of a bilingual translator, it makes no sense to ask a non-technical jury to compare computer source codes written in different assembly languages to determine substantial similarity without expert assistance. We contend, consistent with the views of every court outside of the Ninth Circuit that has addressed the issue, that courts should permit the use of technical experts to enable lay judges and juries to perceive the meaning of computer languages and computer code. COPYRIGHT IN 1791: AN ESSAY CONCERNING THE FOUNDERS' VIEW OF THE COPYRIGHT POWER GRANTED TO CONGRESS IN ARTICLE I, SECTION 8, CLAUSE 8 OF THE US CONSTITUTION by Craig Joyce & L. Ray Patterson on 5/28/2020 URL: https://ssrn.com/abstract=559145 Copyright in 1791: An Essay explores the meaning of the Copyright Clause of the United States Constitution as the Founders understood it in their own time. In his examination of the history of copyright prior to the adoption of the Constitution, Professor Joyce and his co-author, L. Ray Patterson of Georgia, consider the language of the Founders' provision for copyright against the background of Anglo-American copyright history from the 16th Century to 1787. Among their

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principal findings is that, to the Founders, a relatively brief term of protection, followed by entry of the work into the public domain, was a crucial element of the copyright grant required to protect against the inherent dangers of the copyright monopoly. In addition, Copyright in 1791: An Essay uncovers for the first time the historical interrelationship between the Copyright Clause and the Free Press Clause of the First Amendment. Earlier scholars have sought to reconcile these two constitutional provisions primarily through an analysis of doctrinal considerations, such as the idea/expression dichotomy. The authors conclude that the Founders themselves saw no need for reconciliation: the two provisions already were complementary, both embodying anti-censorship, anti-monopoly values learned by the Founders from their English forebears. In short, the Copyright Clause and the Free Press Clause share a common origin. DISTINGUISHING DIFFERENT KINDS OF PROPERTY IN PATENTS AND COPYRIGHTS in George Mason Law Review by Sean M. O'Connor on 4/28/2020 URL: https://ssrn.com/abstract=3565272 Academic debates over intellectual property as “property” seem to assume only one kind of property. Based on original historical research, this Article shows that different kinds of property have accredited over time in at least patents and copyrights. A fundamental right to keep ideas, expressions, and inventions private established a natural law property-type right from Greco-Roman times. Statutory regimes akin to regulatory property designed to encourage creators and inventors to make their works available to the public emerged during the medieval and Renaissance periods. Copies embodying copyrighted expression or patented invention were considered part of those exclusive rights during much of the Enlightenment before being deemed to have their own individual chattel property title. And finally, contracts conveying copyright or patent rights have their own property attributes. This Article argues that understanding the different kinds of natural and regulatory property in intellectual property will help IP skeptics and proponents bridge the acrimonious gap between them. GUARDING THE GUARDIANS: CONTENT MODERATION BY ONLINE INTERMEDIARIES AND THE RULE OF LAW by Maayan Perel & Niva Elkin-Koren on 2/23/2020 URL: https://ssrn.com/abstract=3542992 Online intermediaries have become a focal point of content moderation. They may enable or disable access by removing or blocking controversial content, or by terminating users’ accounts altogether. Consequently, governments, rightholders and users around the world are pressing online intermediaries to hone their gatekeeping functions and censor content amounting to hate speech, inciting materials, or copyright infringement. The rising pressure on online platforms to block, remove, monitor, or filter illegitimate content is fostering the deployment of technological measures to identify potentially objectionable content, which may expose platforms to legal liability or raise a public outcry. As a result, online intermediaries are effectively performing

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three roles at the same time: they act like a legislature, in defining what constitute legitimate content on their platform, like judges who determine the legitimacy of content in particular instances, and like administrative agencies who act on these adjudications to block illegitimate content. Thus, in content moderation, public law enforcement power and adjudication power converge in the hands of a small number of private mega platforms. Existing platform-liability regimes have demonstrated that platforms often fail in weeding out legitimate content, and therefore holding them liable for users’ content may result in effectively silencing lawful speech.3 Yet, pervasive power must be restrained in order to ensure civil liberties and the rule of law. Hence, we argue that even if they are not liable for illegitimate content made available by their subscribers, online intermediaries must still be held accountable for content moderation. Traditional legal rights and processes, however, are ill equipped to oversee the robust, non-transparent, and relatively effective nature of algorithmic content moderation by online intermediaries. We currently lack sufficient safeguards against over-enforcement of protected speech as well as under-enforcement of illicit content. Allowing unchecked power to escape traditional schemes of constitutional restraints is potentially game-changing for democracy as it raises serious challenges to the rule of law as well as to notions of trust and accountability. This chapter describes three ways in which content moderation by online intermediaries challenges the rule of law: it blurs the distinction between private interests and public responsibilities; it delegates the power to make social choices about content legitimacy to opaque algorithms; and it circumvents the constitutional safeguard of the separation of powers. The chapter further discusses the barriers to accountability in online content moderation by intermediaries, including the dynamic nature of algorithmic content moderation using machine learning; barriers arising from the partialness of data and data floods; and trade secrecy which protects the algorithmic decision making process. Finally, the chapter proposes a strategy to overcome these barriers to accountability of online intermediaries, namely ‘black box tinkering’: a reverse engineering methodology that could be used by governmental agencies, as well as social activists, as a check on private content moderation. After describing the benefits of black box tinkering, the chapter explains what regulatory steps should be taken to promote the adoption of this oversight strategy. INTELLECTUAL PROPERTY IN STAND-UP COMEDY: WHEN #FUCKFUCKJERRY IS NOT ENOUGH in Harvard Journal of Law & Technology by Hannah Pham on 1/27/2020 URL: http://jolt.law.harvard.edu/digest/when-fuckfuckjerry-is-not-enough Joke theft on social media is seldom examined in the courts or in scholarly journals, despite its relevance in social discourse. Joke theft on social media refers to the taking or appropriating of a comedian’s joke and the publication of that joke in exact or transcribed form on social media. Recently, the issue has gained momentum due to the release of Netflix’s Fyre Festival documentary and the role of “FuckJerry” in promoting the infamous festival. Like “The Fat

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Jew”, “FuckJerry” is a joke aggregator whose success was built on stolen jokes.[1] Today, members outside the traditional stand-up comedy community equipped with an internet connection — joke aggregators and regular individual users alike — have the ability to disseminate jokes widely on social media. This presents a threat to the creation and dissemination of jokes, which in turn undermines the viability of the stand-up comedy industry. This harm can include harm to the comedian’s reputation, and loss of use of the affected joke. A joke is generally abandoned by the comedian as soon as joke theft occurs because in an industry where reputation and originality are key, a comedian cannot risk being perceived as a joke thief. The Internet makes intellectual property rights more valuable to comedians because “the harm from appropriation has gone up.”[2] As the effects of joke theft reach more people around the world in an ever-shorter timeframe, this harm is exponentially exacerbated. In an earlier article,[3] the author discusses the role copyright law should play in protecting against joke theft on social media. This article follows up with recent trends in the relevant case law to assess the level of court protection currently given to jokes and explores what the community can do to protect jokes in the social media age. Copyright law is capable of protecting jokes with textual originality; creates a greater awareness of intellectual property rights in jokes; strengthens norms against appropriation of jokes; and encourages more originality and innovation in jokes. While the judicial analysis in this area has shown little promise regarding the level of copyright protection given to “one liner” or “two liner” jokes, the author is optimistic about the future judicial application of copyright law to jokes typically told by stand-up comedians, but acknowledges that issues regarding practical barriers to court enforcement remain. Comedians are reluctant to formally invoke copyright law. From a practical perspective, we must look at all different tools to prevent joke theft on social media. Ultimately, the stand-up comedy industry requires the respect of others in the wider community to prevent joke theft on social media. This article examines what the physical institution of stand-up comedy and online institutions can do to increase this level of respect in that wider community. EXISTENTIAL COPYRIGHT AND PROFESSIONAL PHOTOGRAPHY in Notre Dame L. Rev. by Jessica M. Silbey et al. on 12/17/2019 URL: https://ssrn.com/abstract=3502816 Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data call for an expansion of the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in up-front negotiations with clients but not much benefit in anticopying protection afterwards. Beyond that, copyright also serves as part of

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photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Identifying these unrecognized and surprising functions of copyright in creators’ accounts is separate from evaluating their desirability. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the longstanding debate over intellectual property law’s purpose to a new and more informed place. RETHINKING SOFTWARE PROTECTION in Artificial Intelligence & Intellectual Property by Peter R. Slowinski on 6/1/2020 URL: https://ssrn.com/abstract=3708110 The core of artificial intelligence (AI) applications is software of one sort or another. Of course, if software were a mere ingredient, we may have had AI applications already decades ago. After all, it was Allen Touring who in the 1950s developed the first test for AI and concepts surrounding it. But while available data and computing power are important for the recent quantum leap in AI, there would not be any AI without computer programs or software. Therefore, the rise in importance of AI forces us to take — once again — a closer look at software protection through intellectual property (IP) rights, but it also offers us a chance to rethink this protection, and while perhaps not undoing the mistakes of the past, to at least adapt the protection so as not to increase the dysfunctionality that we have come to see in this area of law for the past decades. To be able to establish the best possible way to protect — or not to protect — the software in AI applications, this chapter starts with a short technical description of what AI is, and readers are referred to other chapters in this book for a deeper analysis (1). It continues by identifying those parts of AI applications that constitute software to which legal software protection regimes may be applicable (2), before outlining those protection regimes, namely copyright and patents (3). The core part of the chapter analyses potential issues regarding software protection with respect to AI using specific examples from the fields of evolutionary algorithms and of machine learning (4). Finally, the chapter draws some conclusions regarding the future development of IP regimes with respect to AI (5). POLITICAL FAIR USE in William & Mary Law Review by Cathay Smith on 4/4/2020 URL: https://ssrn.com/abstract=3568515 During election season, politicians and political campaigns often use pop culture or iconic works, such as viral memes or popular songs, to help convey their political messages — often without authorization from the copyright owners of these works. As politics and politicians become ever more divisive, these unauthorized political uses of copyrighted works can be particularly objectionable to copyright owners. In addition to offending their political or moral inclinations, artists and copyright owners frequently claim that these political uses infringe their copyrights. Politicians and campaigns argue that their right to use copyrighted works for political purposes is protected by the First Amendment, and that such political uses are presumptively fair use. This

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Article examines unauthorized political uses of copyrighted works under copyright law’s fair use doctrine to demonstrate that, in fact, both sides are correct. Through a series of case studies, this Article identifies a pattern in political fair use decisions: In disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under Section 107 of the Copyright Act in order to both accommodate the import of political speech and to respect copyright owners’ dignity and rights to control use of their expressive works. Under the courts’ political fair use analysis, one determination — the nature of the original copyrighted work — seems to exert an outsized influence on the determination of all four fair use factors, permitting certain unauthorized political uses of copyrighted works to appear presumptively fair. This contradicts the Supreme Court’s guidance to courts on not subjecting copyright to independent First Amendment review nor to expand copyright’s fair use doctrine in infringement cases involving political or public figures. It also disregards certain copyright owners’ right to control use of their work, but permits other copyright owners the right to curtail infringing behavior that causes no market harm. This Article highlights these concerns and explores the normative implications of political fair use on litigation certainty and predictability, incentives to create political expressive works, and the balance between respecting creators’ dignity and rights to control use of their expressive works with guaranteeing free and open discussion of politicians and political candidates. COPYRIGHT AND DISSENT in Texas Intellectual Property Law Journal by Tomer Stein on 7/9/2020 URL: https://ssrn.com/abstract=3647419 This Essay brings to the fore the hitherto unnoticed feature of copyright: Copyright incentivizes dissent and protects marginalized authors. Absent copyright protection that allows authors to recoup their risks and costs, producers of unpopular works that deviate from the mainstream would have no incentives to pursue their socially valuable endeavors, unlike authors who reap reputational gains from catering to popular opinion. This insight has the potential for changing the terms, as well as the conclusions, of the ongoing debate over the desirability of copyright protections. Specifically, I demonstrate that the dissent-protecting rationale both coherently explains and aligns with all justificatory accounts of copyright law. Furthermore, I uncover an important, yet underappreciated, alignment between copyright and the First Amendment protection of speech: both copyright and the First Amendment are engines of speech that would have otherwise been silenced. THE INQUISITORIAL INTERNET, IN COPYRIGHT CLASS STRUGGLE: CREATIVE ECONOMIES IN A SOCIAL MEDIA AGE (CAMBRIDGE UNIVERSITY PRESS, 2018) by Hannibal Travis on 12/31/2018 URL: https://ssrn.com/abstract=3671059

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This chapter is within Part II, entitled “IP Liberties,” in which the scope of copyright is the focus. The law generates or reflects a dialectic in which (1) those creating content without access to capital, who apply their labor to what has come before, argue for narrower rights; (2) those who have transitioned to owners of capital in the form of IP assets seek and enjoy broader rights, while strategically exploiting and denying the rights of the creators they imitate; and (3) an accommodation is reached between these ideal types, a peace which is threatened with unraveling due to licensing and royalty disputes, among others. At stake is literary freedom. What creative liberties may a writer or filmmaker take? Those most at risk of having their labor discounted and their products disqualified in the marketplace, it seems, are authors whose literary freedom is not backed by accumulated capital. This chapter explores whether, in their haste to punish piracy and save jobs, legislators and some judges may be doing away with the public trial and vigorous defense methods that have distinguished the adversarial system. Are Internet services becoming Inquisitors? The Inquisitorial Internet is a concept that borrows a distinction – used in the sociology of law – between Anglo–American systems of justice by “public trial,” which are known as “adversarial” because of the climactic contest of opposing counsel who put one another’s evidence and theories to the test, and European and other civil law systems known as “inquisitorial” because they are based on Roman models of an administrative, bureaucratic investigation by a judge (inquisitor) using an often scanty dossier of evidence. Inquisitiorialism is a method of organizing decision-making power, and the procedures this method uses. It vests a great deal of trust in the police, the prosecutors, and the judiciary, while seemingly distrusting the accused and defense counsel in matters of cross-examination of witness testimony, signed confessions, and negotiated verdicts. SHOVELING A PATH AFTER STAR ATHLETICA in UCLA Law Review by Rebecca Tushnet on 12/13/2019 URL: https://ssrn.com/abstract=3503167 Star Athletica purported to tell us the circumstances under which copyright will protect creative features of useful articles, such as items of clothing or cars. While a design carved into the back of a chair would be understood as separable under anyone’s test, disputes arose over things like the overall shape of a belt buckle or the pattern of lines on an outfit that made it clearly a cheerleading uniform. Star Athletica resolved the latter issue while telling us that it answered all questions about separability. This article tries to analyze the decision in a way that helps think about future cases. An object that has a noncommunicative function can be protected by copyright, but copyright should never extend to functional aspects: parts or designs that make the object work. Also, I’ll discuss why design patent law should have been more important to the Court as a way of separating copyrightable and uncopyrightable designs and speculate about art and authorship in the new millennium. One reason that Star Athletica is so confusing is because we lack a coherent account of what kinds of creation copyright should protect, even as the statute tells us that not everything that is creative should be copyrightable “authorship.” Even without a completely coherent theoretical account, however, there are doctrinal tools that courts could employ to make their job easier in deciding individual cases.

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UTILITY-EXPANDING FAIR USE in Minnesota Law Review by Jacob Victor on 5/17/2020 URL: https://ssrn.com/abstract=3603555 Copyright’s fair use doctrine is increasingly applied to large-scale uses of entire copyrighted works by new digital technologies, such as the Google Books Project. Such technologies — which the Second Circuit recently called “utility-expanding” — aid the public in more efficiently accessing and/or productively using existing copyrighted content. This is new terrain for the fair use doctrine, which has most commonly been applied to the use of a work in the service of new creative expression. This Article examines the relationship between utility-expanding technologies and fair use. Even though utility-expanding technologies often serve copyright’s policy agenda by enhancing public enjoyment of creative works, these uses sometimes fit uneasily into the requirements of fair use since they can provide a market substitute that harms the copyright owner financially. Providing free use for such technologies can undermine copyright’s overarching goal of providing creators with financial incentives to produce new works. Reflecting this tension, some recent cases have found that a utility-expanding technology was “transformative” and of benefit to the public but not fair use because of market harm to the copyright owner. The Article argues that fair use provides an increasingly unwieldy framework for making sense of the full range of utility-expanding technologies, both doctrinally and normatively. In fact, utility-expanding fair use cases have begun to venture into territory traditionally occupied by a different copyright limitation: compulsory licensing. Congress, in the past, developed compulsory licensing systems for certain technologies that benefit the public by increasing the availability and accessibility of copyrighted works but posed some risk of market substitution. In particular, the creation of the compulsory license for digital radio in the mid-1990s provides useful insight into the relationship between utility-expanding technologies and copyright’s policy agenda. Rather than providing no compensation to copyright owners (as fair use does) or a full market-based price (as is the norm in copyright licensing markets) this regime used policy-oriented price-setting criteria designed to identify royalty rates that would allow digital radio to flourish but still ensure that creators received a financial incentivize to produce works. This parallel suggests that a compulsory licensing regime, governed by policy-focused rate-setting standards, would be a useful middle-ground solution for utility-expanding technologies that do not warrant a fair use finding. The Article identifies some ways such a compulsory licensing approach could be implemented within copyright’s current remedies regime. Furthermore, even just the prospect of a compulsory license might galvanize private licensing between rights-holders and utility-expanding technology companies, mitigating some of the inefficiencies posed by judicial price setting. COPYRIGHT REFORM: IMAGINING MORE BALANCED COPYRIGHT LAWS in Copyright, Libraries, and the Public Interest by Michelle M. Wu on 6/10/2020

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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URL: https://ssrn.com/abstract=3624021 Earlier chapters of this book provide a history of copyright and libraries in the United States, a review of outdated language in the existing copyright code, and a discussion of actions by both copyright owners and the public to rebalance copyright outside of legislation. This chapter simply imagines what copyright could be if we disregard the known political and legal obstacles. It starts with no constraints, which one might argue is both impractical and foolish. Why spend time discussing what could be when treaties, self-interest, and powerful industry lobbies stand in the way? The answer is simply that environments can be changed. They have been changed throughout history, whether through legislation (e.g., copyright terms), case law (e.g., fair use in relation to technology), or ground roots movements (e.g., the initial movement to recognize authors’ rights). And if one hopes to change history, why not start first by exploring possibilities that we might not consider otherwise? Refusing to consider change out of fear of opposition translates to a voluntary surrender of power. Beginning with restraints also blinds one to possibilities of a much better construct than could be achieved with them. If everything has to fit in a box, people will often discard anything they think won’t fit at the outset. Only by removing the box can we imagine the full range of benefits of a given course of action. If the outcome is desired, then efforts can turn to whether or not there is a way to fit the outcome into the box. Or to decide if the benefits are so great that destruction of the box is in society’s best interest. A vision should start with where one thinks the world should be, and then reality can help to shape the path. Because this is the last chapter in the book, to fully understand how the guiding interests were chosen, one would need to read the preceding chapters. SELF-ACTUALIZATION AND THE NEED TO CREATE AS A LIMIT ON COPYRIGHT in Comparative Aspects of Limitations and Exceptions in Copyright Law by Christopher S. Yoo on 8/31/2018 URL: https://ssrn.com/abstract=3317782 Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts. This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight

Joshua L. Simmons joshua.simmons@kirkland.com

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creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination. The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.

ABA-IPL Copyright Division https://www.americanbar.org/groups/intellectual_property_law/committees/copyrights-division/

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Prepared by

Joshua L. Simmons Kirkland & Ellis LLP

joshua.simmons@kirkland.com http://www.joshualsimmons.com