Copyright Law

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By Lisa Y. Wang

In March 2013, pop star Rihanna filed a lawsuit in the United Kingdom against TopShop, the enormously popular fast fashion chain, for using an "unflattering" image of her on one of their t-shirts without her permission (the offending t-shirt can be seen here). Rihanna is claiming £3.5 million in damages (U.S. $5 million). Rihanna alleges that TopShop used the image on the shirt without her permission, and that she is not making any royalties off of the product even though it features her face. She is also particularly upset because the image is very unflattering and the quality of the t-shirts is "poor" stating that "The base image of the first claimant [Rihanna] is of such an unflattering nature that it would not be approved." 

According to some reports, Rihanna has been trying to negotiate with TopShop for almost a year regarding the offending shirt, but they have dismissed complaints from her team and offered her a paltry US $5,000. It is interesting to note, and a smart legal move on TopShop’s part, that the shirt is only sold in TopShop’s United Kingdom locations. The reason TopShop can sell the shirts without paying Rihanna a dime is because of a loophole in the copyright laws in the United Kingdom. The loophole gives photographers ownership rights to an image. In other words, the subject of the image, in this case, Rihanna, does not own the image or its copyright. More important, England does not have strict right of publicity laws like the United States. Traditionally, there has been no protection of the commercial value of one’s persona in England.
Continue Reading A Celebrity’s Right of Publicity

By Anjani Mandavia

The question of what does or does not constitute “fair use” is probably one of the grayest areas of copyright law. But it is an area of heightened interest to those artists who practice what has come to be known as “appropriation art,” that is, art – mainly visual art – that incorporates and utilizes found images and photographs, which are often themselves the subject of copyright. Practitioners of “appropriation art” include sculptor Jeff Koons, graphic artist Barbara Kruger, and, of course, pop artist Andy Warhol. The grand daddy of them all was Marcel Duchamp, who, in the period following World War I, pioneered the concept of “readymades” or “found art.”  Koons, Kruger and Warhol all found themselves on the wrong end of copyright infringement lawsuits for their use of other artists’ copyrighted images in their art work. And if Leonardo Da Vinci had been born a few hundred years later, maybe Duchamp too would have found himself having to defend appropriating Da Vinci’s most famous work – the Mona Lisa – by drawing a mustache and a vulgarity on it, and calling it his own.

When bumping up against the strictures of the Copyright Act, appropriation artists turn to the doctrine of “fair use” as a defense, sometimes successfully, (see Blanch v. Koons 467 F.3d 249 (2d. Cir. 2006)), and other times not (see Rogers v. Koons 960 F.2d 301 (2d. Cir. 1992)). The defense itself is codified in the Copyright Act at Section 107, which sets forth four factors that courts should consider in determining if something is a “fair use” of a copyrighted work, and therefore not subject to an infringement claim: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the use; and (4) the effect on the potential market for the copyrighted work. Although the court’s inquiry is not required to be limited to these four factors, as a practical matter most fair use cases are analyzed within this structure.

In recent years the first statutory factor – the “purpose and character of the use” – has taken on increasing importance, and the inquiry on that topic has been described by the Supreme Court as

whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative. . .

Continue Reading Cariou v. Prince — Still No Real Clarity Regarding “Transformative Use” In Appropriation Art.

By Lisa Y. Wang

Back in the day when I used a VCR to record TV shows (one that forwarded through commercials by itself no less), it was impossible to imagine that something like TiVo and DVRs would be in over 50% of American homes. In May 2012, Dish Network took digital recording a step further. Its customers who subscribe to Hopper don’t even have to manually fast forward through the commercials using their remote control. The "Auto Hop" feature of the Hopper automatically skips through the commercials of the all the broadcast network’s prime time lineup by moving from segment to segment of the television show and skipping the ads. The AutoHop feature, coupled with Dish’s "PrimeTime Anytime" feature, essentially allows consumers to concurrently record all prime-time broadcasting programming on all four networks without watching a single commercial without having to move a finger. With Dish Networks’ $14 billion in annual revenue and 14 million subscribers, that’s a lot of commercial revenue going down the drain. As a result, Dish Network has been sued by all four major networks for copyright infringement, and its Chief Executive Officer Charles Ergen has been dubbed by The Hollywood Reporter as "The Most Hated Man in Hollywood." 

In November 2012, Fox Broadcasting filed for a preliminary injunction claiming that Dish Network committed contributory and direct copyright infringement. The judge did not issue the injunction because Fox could not show irreparable harm and sided with Dish. Dish claimed the defense of fair use, which allows for the limited use of copyrighted works without having to obtain permission. Dish argued that it is the customers, not Dish, who are copying the prime-time network broadcasts, and that copying constitutes fair use, and the court agreed. In finding that Dish was not secondarily liable for copyright infringement for their "PrimeTime Anytime" feature, the court cited the Supreme Court case Sony v. University City Studios, 464 U.S. 417 (1984).  Sony held that the copying of television programs by consumers for time shifting was fair use. Since the consumers were not liable for copyright infringement, it was not possible for Dish to be liable for secondary infringement.  Likewise, Dish was not liable for direct infringement by offering "PrimeTime Anytime" to its consumers because the consumer is the one who directs its Hopper to create copies of the broadcasts and Dish merely passively provides the technology used for copying. Continue Reading Hopping Into A Lawsuit

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