Copyrights and Trademarks

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A federal district court judge in the Central District of California recently dismissed a choreographer’s claims against Epic Games Inc. (“Epic Games”) arising out of Epic Games’ alleged use of his dance moves in its Fortnite video game. See Kyle Hanagami v. Epic Games Inc., No. 22-cv-02063-SVW-MRW (C.D. Cal. Aug. 24, 2022) (Dkt. 45) (“the Order”).

As the Order explains, Fortnite features a virtual reality world where players can choose an avatar to represent them as they explore, build, and destroy structures, and battle each other in player-to-player combat. Fortnite players can customize their avatars by utilizing a variety of features, including “emotes,” which are dances that avatars perform while attending concerts or to celebrate a victory in a battle royale game, among other things. Choreographer Kyle Hanagami brought copyright infringement and unfair competition claims against Epic Games based on his allegations that one of Fortnite‘s nearly 500emotes incorporated a handful of dance moves from a five-minute routine he posted to YouTube in 2017 and obtained a copyright for in 2021.…

Continue Reading California District Court Holds Dance Moves in Fortnite Did Not Infringe Copyright

A United Kingdom High Court recently ruled in favor of singer-songwriter Ed Sheeran (Sheeran) in a contentious copyright infringement case over his 2017 song, Shape of You (“Shape”). The Court granted Sheeran’s claim for declaratory relief, ruling that Shape did not infringe the copyrights of UK artist Sami Chokri’s (Chokri) song Oh Why.

Sheeran’s popularity extends far beyond the United Kingdom; he is an internationally known artist. Shape topped the charts worldwide and, with over 3 billion streams, is the most-streamed song on Spotify.…

Continue Reading STEMMING THE TIDE: Ed Sheeran’s Copyright Victory Brings Changes to Copyright Evidentiary Burden

There is more demand for content than ever, and media and entertainment companies face a wide variety of challenges that come along with the increase in production and distribution of content. In-house and outside counsel for media and entertainment companies need a working knowledge of how to deal with insurance issues that arise in their business, including the types of insurance policies that may cover the legal risks they face, and how to navigate the issues that arise when dealing with insurers, such as selection of counsel, allocation between covered and uncovered claims, and who controls the settlement of a claim.
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Continue Reading Join Us on July 14 for a Discussion on Entertainment and Media Liability Claims

In a case involving Andy Warhol’s works known as the “Prince Series,” the U.S. Court of Appeals for the Second Circuit reined in the fair-use defense for visual art that is based on copyrighted photos. The works consist of fourteen silkscreen prints and two pencil illustrations based on an unpublished photo of musical artist Prince taken by professional photographer Lynn Goldsmith. In its ruling, the Court clarified that a secondary work must convey a “‘new meaning or message’ entirely separate from its source material” when it does not “comment on or relate back to” the copyrighted material. Using that clarification in its fair-use analysis, the panel found that Warhol’s Prince Series was not fair use. The panel also found that the Prince Series works are substantially similar to Goldsmith’s original photograph.

In 1981, Goldsmith took twenty-three photos of Prince, held a copyright in each of those photos, and licensed one to Vanity Fair as an “artist reference.” Vanity Fair then commissioned Andy Warhol to use that unpublished photo to create an illustration for an article about Prince. But Warhol didn’t stop there. Without Goldsmith’s permission, Warhol used the photo to make fifteen more works, creating the Prince Series.…

Continue Reading Second Circuit Finds Andy Warhol’s Use of Prince Photograph Not Fair Use

A panel of the Ninth Circuit Court of Appeals recently affirmed the Nevada District Court’s ruling that the play Jersey Boys did not infringe plaintiff’s copyright in the autobiography of Tommy DeVito – a member of the Four Seasons – as the play did not copy any protectable aspects of the autobiography. See Corbello v. Valli, 974 F.3d 965 (9th Cir. 2020).

The Tony Award-winning Jersey Boys musical tracks the history of the chart-topping quartet the Four Seasons. The play follows band members Frankie Valli, Bob Gaudio, Nick Massi, and Tommy DeVito from their meager beginnings singing under streetlights in New Jersey through their meteoric rise to stardom with songs such as “Walk Like a Man,” “Big Girls Don’t Cry,” and of course “Sherry.”…

Continue Reading Ninth Circuit Panel Adopts “Asserted Truths” Doctrine in Holding Jersey Boys Musical Does Not Infringe Copyright

On October 27, 2020, the Eleventh Circuit affirmed a district court’s summary judgment ruling that scenes from the Netflix series Narcos did not infringe a Colombian journalist’s copyrighted memoir, agreeing that “no reasonable jury could find that the two works are substantially similar.” See Vallejo v Narcos Productions LLC, No. 19-14894, 2020 WL 6281501, at *9 (11th Cir. Oct. 27, 2020) (per curiam).

Virginia Vallejo, a Colombian journalist, authored the memoir Amando a Pablo, Odiando a Escobar (Loving Pablo, Hating Escobar). In the memoir, Ms. Vallejo recounted her romantic affair with infamous drug trafficker Pablo Escobar and described the rise of Colombian drug cartels. Two chapters of the memoir were considered in the case: “The Caress of a Revolver” and “That Palace in Flames.”…

Continue Reading Eleventh Circuit Says Netflix Series Does Not Infringe Copyrighted Memoir

With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations don’t land them in legal hot water. One of the most prevalent cross-industry issues is music licensing. Music is everywhere in online content and often plays an integral part in the overall experience. From video game players streaming music as they show off their skills on the largest video platforms to fitness instructors using popular music to pump up their workout classes, individuals and companies must ensure that they don’t run afoul of the copyright laws when they incorporate music into their online content.
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Continue Reading Legal Implications of Syncing Copyrighted Music with Other Content

Among the countless casualties of COVID-19, many much-anticipated events had to be canceled. Instead, some of the world’s largest entertainment industry events are becoming virtual experiences.

Comic Con, which boasts over 135,000 annual attendees, announced that its in-person convention will be replaced in 2020 by a virtual experience. Lollapalooza, an annual music festival in Chicago, will also be virtual this summer. Even the venerable Cannes Film Festival has moved online.

These virtual formats pose new legal challenges, however, including cybersecurity threats, consumer privacy policies, and music licensing.
Continue Reading Virtual Events Raise Real World Legal Issues

On April 13, 2020, a federal district court in the Southern District of New York[1] held in Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 180CV0790 (KMW) (Order), that an Instagram user who posted a photograph to a public account effectively gave Instagram the right to sublicense her photographs to a third party.  The Court held that the user therefore had no viable claim against the third party for copyright infringement.

The plaintiff user in this case was professional photographer Stephanie Sinclair (Plaintiff).  The co-defendant who licensed the photograph from Instagram was Mashable, Inc., a media and entertainment site (Mashable).  Plaintiff sued both Mashable and its parent company, Ziff Davis, LLC, for copyright infringement.…

Continue Reading Instagram Users: Post at Your Own Risk. Your Public Content May Be Legally Sublicensed

The perfect addition to any project is music. Whether you are making a video advertisement for your product; including music in your posts on your company website, TikTok, or YouTube; posting an at-home workout video for your clients; using music at corporate events; or playing music at your bar or restaurant – music is a vital part of society. Music is also the most common reason your content may be muted or taken down from social media, in addition to being exposed to potential liability for copyright infringement and related monetary damages. When you use someone’s music without their permission, absent a few extremely limited exceptions, you are infringing on their copyright.1

For the vast majority of music uses, you will first need to obtain permission. In this article, we lay out some fundamentals to assist in determining the type of license an average company would need and some potential alternatives. Bottom line: when you are planning and budgeting for music in a project, make sure you get the proper rights and permissions in place before pressing “Play.”…

Continue Reading Conducting Your Way Through Music Licensing: The Most Common Issues