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 The works consist of fourteen silkscreen prints and two pencil illustrations based on an unpublished photo of musical artist Prince taken by professional photographer Lynn Goldsmith.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 Vanity Fair then commissioned Andy Warhol to use that unpublished photo to create an illustration for an article about Prince.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.

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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.”

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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.”

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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

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.”

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

In its second copyright opinion this term, the U.S. Supreme Court held 5–4 that the “government edicts doctrine” prevents states from owning copyrights in annotated codes.  See Georgia et al. v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020).  Chief Justice Roberts authored the majority opinion, and Justice Thomas and Justice Ginsburg penned dissents.

The Official Code of Georgia Annotated (OCGA) contains every current Georgia statute (i.e., all of Georgia’s laws), along with non-binding annotations explaining each statute (e.g., summaries of judicial opinions applying the statutes or references to relevant secondary sources).  The OCGA is created by Georgia’s Code Revision Commission, which is a part of the state’s legislative branch.  By virtue of the Commission’s work, the state of Georgia claimed a copyright in the annotations within the OCGA—i.e., the parts of the OCGA other than the statutes themselves.  Thus, when Public.Resource.Org (PRO) posted the OCGA online and distributed copies to others, Georgia sued PRO for copyright infringement.…
Continue Reading SCOTUS Says States Cannot Copyright Annotated Codes