Copyright Law

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By  James Kachmar

The fair use doctrine is a defense that a defendant may raise in a copyright infringement action when an otherwise copyrighted work is used for purposes “such as criticism, comment, news reporting, teaching …, scholarship or research.”  (17 U.S.C. §107.)  Although Congress has listed four factors to guide courts in their analysis of the fair use doctrine, the Ninth Circuit has recognized that: “Many fair use cases still manage to approach `the metaphysics of the law, where the distinctions are or at least may be very subtle and refined and sometimes almost evanescent.’”  It is with that background that the Ninth Circuit recently considered the fair use doctrine as a defense to copyright infringement in the case, SOFA Entertainment, Inc. v. Dodger Productions, Inc.

SOFA owns the copyrights in a vast library of films and television shows which it allows others to use for a licensing fee.  SOFA’s library includes all of The Ed Sullivan Show episodes.

Dodger is the producer of the musical, Jersey Boys, which is about the history of The Four Seasons and its members.  At the end of the first act, the audience is shown a clip from the January 2, 1966 episode of The Ed Sullivan Show wherein Mr. Sullivan introduces the band The Four Seasons.  The clip lasts for approximately seven second and shows Mr. Sullivan in his “signature pose” as he introduces the band to his studio and television audiences.  Continue Reading Jersey Boys, The Ed Sullivan Show and The Fair Use Doctrine

By Anji Mandavia

The big news in copyright jurisprudence is, of course, last week’s landmark ruling in Kirtsaeng v. John Wiley & Sons, in which the Supreme Court, in a 6-3 decision, definitively ruled that the “first sale” doctrine — which allows the owner of a copyrighted good to sell or dispose of that particular item without the permission of the copyright proprietor — applies to all goods legitimately manufactured with the permission of the copyright owner, whether made in the United States or abroad. 

By this decision, the Supreme Court resolved a split in the Circuits: The Third Circuit had adopted a similar position, that the first sale doctrine applies to lawful foreign-made copyrighted works; the Second Circuit had adopted the contrary position, that the first sale doctrine applies only to copyrighted goods made in the United States, and does not apply to foreign-made goods even if they were lawfully made; and the Ninth Circuit had adopted a hybrid position, that the first sale doctrine applies to lawful foreign-made goods if they have first been imported into or sold in the United States with the permission of the copyright proprietor.

While the Court’s decision will have broad ramifications across a number of business sectors regarding the foreign manufacture, sale, and potential importation of copyrighted goods (over 20 amicus briefs were filed, most on behalf of multiple parties and business organizations), the majority opinion itself had a very narrow, semantic focus — namely, what do the words “lawfully made under this title,” as used in section 109(a) of the Copyright Act, mean.Continue Reading The Supreme Court Clarifies the Application of the “First Sale” Doctrine to Copyrighted Works Manufactured Abroad

By Nathan Geronimo

In order to establish a claim for copyright infringement, a party must establish two essential elements: (1) ownership of a valid copyright; and (2) copying of original elements of the work.  Additionally, registration of a copyright is a prerequisite for filing a claim for copyright infringement.  To register a copyright, the owner of a copyright must submit to the Copyright Office an application for registration, and the registration fee.  Once the application is processed, the Copyright Office will issue a Certificate of Registration. 

What is evidence of registration for purposes of bringing an infringement claim?  There is a split in case law regarding whether one must simply apply for registration, or whether one must actually receive the certificate of registration from the Copyright Office.  In some cases, proof of application to register a copyright, plus proof of payment of the required fee will suffice.  In others, a certificate of registration may be required.  (If a copyright claim is registered within five years of the first publication of the work, the certificate of registration is also preliminary evidence of ownership of the copyright, the first element to an infringement claim.)  Despite this split in authority, there is some clarity regarding proof of registration.  A recent federal case reiterates and discusses the rule that a certificate of recordation alone will not suffice to demonstrate registration.  Continue Reading Copyright Infringement Considerations: Proof of Registration

By James Kachmar

Personal jurisdiction is an issue that a court must typically decide in determining whether it can hear a case brought against a nonresident defendant, for instance, when a resident of Nevada is sued in a California court. Unless a defendant has “continuous and systematic” contacts with a forum state, personal jurisdiction is generally limited to specific jurisdiction, that is, when the defendant has done some act or made some contact with the forum state that gives rise to the claims against it. Last month, the Ninth Circuit considered the issue of personal jurisdiction in the context of a willful copyright infringement claim. 

Washington Shoe Company has done business in the state of Washington for more than 100 years. A-Z Sporting Goods, Inc. is an Arkansas company that operates a single retail store in Alma, Arkansas. It does not sell products over the internet and apparently conducts no business in Washington, or even outside of Arkansas for that matter. 

Between 2007 and 2009, a Washington Shoe salesman regularly visited A-Z in Arkansas and A-Z would purchase a number of items from Washington Shoe. Washington Shoe later discovered that A-Z was selling two boots that appeared to infringe on Washington Shoe’s copyrights. Washington Shoe’s attorney sent a cease and desist letter to A-Z and in response A-Z sold the offending boots to a thrift store. Washington Shoe then sued A-Z for copyright infringement in a federal district court in Washington. A-Z moved to dismiss the complaint on the grounds that the court lacked personal jurisdiction over it since it did not have any contacts with the state of Washington.

Continue Reading Copyright Infringement and Personal Jurisdiction

Imagine you just finished reading your favorite book series about vampires and werewolves, which you purchased at Costco at a significant discount.  Or perhaps you bought your favorite Dracula knockoff on eBay from an overseas retailer.  Finding no need to re-read the books, or re-watch the movies, you decide to recoup some of your hard-earned money by selling the books and movies on Craigslist.  Have you committed copyright infringement?  Possibly.

The answer to this question may soon be understood when the United States Supreme Court rules on the matter of Supap Kirtsaeng d/b/a Blue Christine99 v. John Wiley & Sons, Inc. (”Kirtsaeng”).  In the Kirtsaeng case, the United States Supreme Court has been asked to define the limits of the First Sale Doctrine under United States Copyright Law.  The decision may have a far-reaching impact on the ability of so-called “gray market” retailers such as Costco and eBay to sell copyrighted goods at discount prices.Continue Reading Is it the Twilight of a New Era for the First Sale Doctrine?