We recently wrote about a case in the Southern District of New York against Mashable relating to the embedding of content from social media platforms like Instagram.  In that case, the court held that Instagram’s terms of use (which were accepted by the plaintiff, a photographer, when he created an Instagram account) were insufficiently clear

Finding Google’s copying a fair use, the Supreme Court ended Oracle’s decade-long attempt to recover copyright damages.  The battle began between these tech giants when Google designed its Android software platform for mobile devices, such as smartphones.  The platform allows “computer programmers to develop new programs and applications” for Android-based devices.  In designing the mobile platform, Google independently developed most of the code but copied what the parties referred to as “declaring code” for 37 application programming interfaces, or APIs.  The declaring code in APIs “enables a set of shortcuts for programmers.”  A programmer can select a particular task from the API’s task library without having to learn anything more than a simple command, thus allowing the programmer to use a library of prewritten code to carry out complex tasks without having to write the code from scratch.

At the time Google was developing the Android platform, many software developers were using Sun Microsystems’ Java programming language and its popular Java SE platform.  Oracle, shortly after acquiring Sun Microsystems in 2010, accused Google of taking critical portions of the APIs in the Java code for unauthorized use in its Android platform.  While Google independently developed the underlying code for the tasks, Google copied the declaring code for certain tasks “useful to programmers working on applications for mobile devices.”  “Without that copying, programmers would need to learn an entirely new system to call up the same tasks.”  With the “structure, sequence, and organization” of the APIs so similar, Oracle alleged Google infringed its copyrights.
Continue Reading Fair Use Shields Google in Its Copyright Battle with Oracle

We recently discussed a new trend in celebrity copyright litigation on our YouTube channel and podcast (The Briefing on YouTube). Specifically, we discussed celebrities taking a stand and defending copyright claims brought by photographers against celebrities who reposted photos on their social media accounts. Two specific celebs who have taken a stand are

A recent case in the Southern District of New York calls into serious question the ubiquitous practice of embedding photographs on a content creator’s website.

An embedded photo is one that is not hosted on the website’s own server, but instead is linked to a third-party server like a social media site.  Instead of the photo being permanently available on the website, the website pulls the photo from the third-party site live when the website is accessed by a user.  Platforms like Twitter, Instagram, and TikTok make it extremely easy for websites to embed user posts, and provide website designers with tools specifically meant to make embedding seamless for the user.

In a recent case (Sinclair v. Ziff Davis, LLC, 1:18-cv-00790, S.D.N.Y.), a professional photographer posted a photo to Instagram that was later embedded by Mashable in an article on its website.  In its original ruling, the court held that Instagram’s terms of service (which every user, including Sinclair, accepts when signing up) permitted the embedding on links on third party websites.  The court ruled that Instagram had the right to relicense Sinclair’s image to Mashable, and granted Mashable a dismissal of Sinclair’s claims.
Continue Reading Recent Case Demonstrates the Need for Caution When Embedding Links to Social Media Posts

Under the Copyright Act, an owner of a copyright suing for infringement may elect to seek statutory damages instead of actual damages.  The amount of statutory damages under the Copyright Act are limited to $30,000 for innocent infringement and up to $150,000 for willful infringement.  In Desire, LLC v. Manna Textiles, Inc., et al. (decided February 2, 2021), the Ninth Circuit was confronted with the issue of whether a plaintiff is entitled to multiple statutory damage awards where some of the defendants are found to be jointly and severally liable with each other.

Desire is a fabric supplier that had obtained and registered with the Copyright office “a two dimensional floral print textile design.”  Shortly thereafter, a woman’s clothing manufacturing, Top Fashion, purchased a couple of yards of the fabric from Desire in order to secure a clothing order with Ashley Stewart, Inc., a woman’s clothing retailer.  Unfortunately, Top Fashion and Desire had a dispute over the fabric’s price.  Top Fashion then showed the design to Manna, a fabric designer, who in turn used a Chinese textile design firm to modify the design.  That designer changed approximately 30-40% of the original design, and Manna subsequently registered the “new” design with the Copyright Office.
Continue Reading The Interplay Between Statutory Damages and Joint and Several Liability in a Copyright Infringement Action