Copyright Law

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Scott-Hervey-10-webNorth Jersey Media Group Inc. is the copyright owner of the iconic photograph of three firefighters raising an American flag at the ruins of the World Trade Center on September 11, 2001. On September 11, 2013, a Fox News producer posted a photograph that juxtaposed the 9/11 photograph with a World War II photograph of four U.S. Marines raising an American flag on Iwo Jima on the Facebook page for the Fox News’ television program Justice with Judge Jeanine. North Jersey Media Group sued Fox, claiming that the posting of the combined image infringed its copyright. Fox news argued that the use was protected “fair use” and moved for summary judgment. The court denied Fox’s motion and Fox is now appealing to the 2nd Circuit.

Fox’s appeal centers around the lower court’s analysis of the first fair use factor: the purpose and character of the use. The purpose of this factor is to test whether the allegedly infringing work is “transformative.” A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc, “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”
Continue Reading Is Fox News Proposing a New Standard For Determining Fair Use?

transparentMany of you may be familiar with the pop hit “Blurred Lines” by Robin Thicke, Clifford Harris, more popularly known as T.I., and Pharrell Williams (the “Composers”).  If it does not sound familiar by title, perhaps you may recall it for its controversial nudity laden music video, or the fact that it was the song performed by Thicke and Miley Cyrus at the MTV Video Music Awards in 2013 when Miley’s scandalous conduct went viral and shocked the world—including Thicke’s spouse.  However, what you may be less familiar with is the fact that the heirs of Motown great Marvin Gaye (the “Heirs”) have been threatening to sue the Composers since at least early 2013.  The Heirs claim that “Blurred Lines” infringes their copyright in the Marvin Gaye song “Got to Give it Up.”  However, in August 2013, after months of discussion on the issue, the Composers opted to file an action for declaratory relief in the United States District Court for the Central District of California, seeking a judgment that “Blurred Lines” does not infringe “Got to Give it Up.”  The justification there was likely that sometimes the best defense is a strong offense.  The Heirs then filed a counterclaim for copyright infringement alleging that “Blurred” Lines” does in fact infringe “Got to Give it Up” and also that another song by Robin Thicke and Paula Patton—“Love After War”—infringes Marvin Gaye’s song “After the Dance.”  The trial on this matter began on February 24, 2015 and is currently ongoing.
Continue Reading The Blurred Lines of an Infringement Action

What do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? First the backstory.

The “Left Shark” in question is a Katy Perry backup dancer who was dressed in a shark costume for Perry’s beach-themed number “Teenage Dream” during the Super Bowl halftime show. The Left Shark (the dancer to Perry’s right) seemed to have forgotten his dance moves — how else could you explain the flailing of fins. The Internet took notice; so did 3D sculptor Fernando Soza.

Soza’s satirical barbs are usually reserved for the politico set, such as Governor Chris Christie wearing a traffic cone and carrying a sign that reads “traffic study”. However, this time he took aim at the Left Shark and created a 3D printed sculpture of one regular shark, one pink shark and one holding a beer bottle.

So what do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? You have the makings for a copyright dispute, of course. What else could there be?
Continue Reading The Left Shark, Katy Perry and Copyright Chum

Recently the 11th Circuit addressed on appeal the question of whether fair use insulates from copyright liability a University which offers to its students a digital repository of reading material culled from third party publications without the benefit of a license.   Three academic publishers filed suit against Georgia State University claiming that the University infringed their copyrights by maintaining a policy which allows GSU professors to make digital copies of excerpts of their books available to students without paying them a royalty.  Prior copyright cases known as the “course pack cases” – cases in which commercial copy shops were found to have infringed copyrights by printing course packs containing excerpts from third party publications without permission from the publishers – seemed to dictate a finding of infringement.  However, of the 74 instances of infringement alleged, the lower court found that the Plaintiffs failed to establish a prima facie case of infringement for 26 works and that fair use applied to all but 5 instances.

The fair use of a copyrighted work is not an infringement of copyright.   The four factors a court must consider in determining whether fair use applies are: (1) the purpose of the allegedly infringing use, (2) the nature of the original work, (3) the size and significance of the portion of the original work that was copied, and (4) the effect of the allegedly infringing use on the potential market for or value of the original.
Continue Reading Cambridge v. Becker – A Copyright Win For Publishers or an Enlargement of Fair Use?

On May 31, 2014, members of the band Led Zeppelin and its publishers were sued for copyright infringement by Randy California, the former guitarist and front man of the band Spirit.  The lawsuit, filed in the state of Pennsylvania, alleges that a significant portion of Led Zeppelin’s “Stairway to Heaven” was stolen from “Taurus,” a…