Copyrights and Trademarks

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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

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

Fortnite: Battle Royale (Fortnite), the highest-earning game in 2019 at $1.8 billion, continues to drive the world of esports.1 Epic Games, its development company, provided $100 million in cash winnings for its summer World Cup, the finals for which took place at Arthur Ashe Stadium in July. The Sunday finale of the event was, according to Epic, the most-watched competitive gaming event (excluding China) of all time. 2 Part of the Fortnite game’s success is due to its creative and memorable celebratory dances known as emotes. Many of these emotes, often inspired by real-world examples from movies, TV series, and social media, enjoy a life beyond the game, as celebrities perform them and athletes use them to celebrate goals and victories.

This high level of success and popularity has inevitably also made the game an inviting target for litigation. In the past eighteen months, several cases have been brought against the company regarding some of the game’s most popular emotes. These cases provide insight for gamers and game developers into potential claims they may face and how to appropriately clear rights and avoid claims.…

Continue Reading Gaming Emote Litigation: Battle Royale Ensues Over Fortnite Emotes with Plaintiffs Testing Different Causes of Action

On March 23, 2020, the United States Supreme Court held that the Copyright Remedy Clarification Act of 1990 (CRCA) is unconstitutional and therefore invalid. See Allen v. Cooper, No. 18-877, 589 U.S. ___ (2020). Prior to Allen, the CRCA provided a means for individuals to sue states for copyright infringement by expressly abrogating the states’ sovereign immunity in that realm. But as a result of the Court’s recent decision, states are once again totally immune from copyright infringement lawsuits.

The facts of Allen date back to 1718, when the infamous pirate Blackbeard ran his flagship vessel (the Queen Anne’s Revenge) aground on a sandbar off the coast of what is now North Carolina, causing the ship to sink. The shipwreck was discovered nearly 300 years later, and due to its location, the wreck itself is owned by North Carolina state. Upon learning of the discovery, the state of North Carolina hired a salvage company to excavate the wreck, which in turn hired Allen to document the numerous recovery missions. For over a decade, Allen photographed and filmed the underwater missions to salvage the shipwreck, and Allen registered copyrights in all of the works. This dispute arose from Allen’s claims that North Carolina had infringed some of those copyrights by using and reproducing Allen’s photographs and videos online without his permission. See Allen, No. 18-877, slip op. at 1–2.…

Continue Reading Fair Winds to Copyright Holders: States Have Sovereign Immunity from Infringement Suits

Critics of increasingly restrictive effects of copyright law in musical production can seek solace in the recent Southern District of New York copyright decision of Guity v. Santos, et al., No. 18-cv-10387 (SDNY Dec. 05, 2019) (“Order”).

The district court ultimately granted defendants’ motion to dismiss copyright infringement claims brought by musician Nazim Guity against Anthony (Romeo) Santos, Sony, Alcover, and We Loud. Guity claimed that defendants “recorded, released, and profited” from his copyrighted work. Order at 1. The accused song shares the name “Eres Mia” with the protected work, a 2011 song by Guity. Guity collaborated with Alcover and We Loud in creating “Eres Mia” and procured copyright protection in 2014. Santos worked with Alcover and We Loud as well in creating Santos’s “Eres Mia” and later with Sony for the song’s marketing and distribution.

Guity specifically alleged that defendants were guilty of 1) copyright infringement by failing to obtain a mechanical license and/or failure to pay a compulsory license fee; 2) copyright infringement by claiming to compose, author, record, and distribute a copyrightable song; and 3) civil conspiracy to commit copyright infringement; and further alleged 4) plaintiffs were entitled to the equitable remedies of accounting and constructive trust. Id. at 2. …
Continue Reading SDNY Helps Draw the Boundaries of Copyright Protection in Music Cases

On January 28, 2020, Paul Bernstein and Carly Trainor published “Inspiration to Infringement: Copyright Issues in Scripted Entertainment Inspired by Song Lyrics” in Music Connection Magazine. The following is an excerpt:

MGM Television is developing Scenes from an Italian Restaurant, a television series based on the lyrics of Billy Joel’s hits. This is the…

The complicated relationship between paparazzi, social media, and celebrities continues in the copyright space. We previously wrote about the cases that had emerged related to Gigi Hadid and Victoria Beckham as well as many other celebrities. Both Hadid and Beckham posted photos taken by paparazzi on their social media accounts and were subsequently sued for copyright infringement. These cases have raised interesting legal arguments at the intersection of copyright enforcement and a celebrity’s right of publicity in their own image, including whether a license could be implied when a celebrity poses for a photograph, or whether that pose creates a co-authorship interest.

Liam Hemsworth is the latest celebrity to make headlines for a related scenario. The photograph at issue in Hemsworth’s case was taken as part of a series of photos depicting him on location for production of a film released earlier this year, Isn’t It Romantic. See ECF No. 1, Splash News and Picture Agency, LLC v. Liam Hemsworth, No. 2:19-cv-10584 (C.D. Cal. Dec. 15, 2019). The photo was licensed exclusively to The Daily Mail. On July 15, 2018, the same day that it was posted to The Daily Mail, the photo of Hemsworth also appeared, without its copyright information as produced on The Daily Mail‘s website, on one of Hemsworth’s social media accounts. It also included a “tag” promoting the movie. On June 20, 2019, the photo again appeared on the same social media account, including a feature to encourage viewers to vote for Isn’t It Romantic at the Teen Choice Movie Awards.…

Continue Reading #CopyrightInfringement: The Sequel

On November 8, 2019, a federal judge denied a motion by Defendant Marc Jacobs International LLC and other Defendants to dismiss Plaintiff Nirvana LLC’s copyright and trademark infringement lawsuit regarding a “smiley face” design and logo Nirvana claims to own. Nirvana’s Complaint alleges that items in Marc Jacobs’ “Bootleg Redux Grunge” clothing collection infringed Nirvana’s…

On November 8, 2019, a federal judge denied a motion by Defendant Marc Jacobs International LLC and other defendants to dismiss Plaintiff Nirvana LLC’s copyright and trademark infringement lawsuit regarding a “smiley face” design and logo Nirvana claims to own. Nirvana’s complaint alleges that items in Marc Jacobs’ “Bootleg Redux Grunge” clothing collection infringed Nirvana’s rights to the smiley face design and logo, which its co-founder, Kurt Cobain, created in 1991 and which Nirvana has used continuously since 1992 to identify its music and licensed merchandise.

The clothing items in question – primarily a t-shirt included in the Bootleg Redux Grunge collection – feature what allegedly appears to be a version of Nirvana’s asymmetrical smiley face logo. Whereas Nirvana’s design features X’s for eyes, however, Marc Jacobs’ t-shirt has the letters M and J. Above the smiley face, Marc Jacobs’ t-shirt uses the word “Heaven,” whereas Nirvana’s original design uses the word “Nirvana.” The typeface used in the competing designs is similar, and both designs consist of a yellow smiley face against a black background. Nirvana brought suit against the Defendants in December 2018, accusing them of copyright and trademark infringement, false designation of origin, and unfair competition.…

Continue Reading Smells Like Infringement: Court’s Refusal to Dismiss Copyright and Trademark Claims Makes Nirvana Smile

The makers of popular Peloton stationary indoor cycling equipment successfully defeated trademark infringement claims brought against them because the plaintiff waited too long to file suit, bringing them one step closer to complete domination of the in-home fitness world. A recent ruling in the Central District of California ensures that they can continue to use the Peloton mark to sell their exercise equipment and the dream of the perfect workout solution.

The dispute arose when Move Press, the publisher of cycling publication Peloton Magazine, sued Peloton Interactive, the producer of Peloton cycling equipment and on-demand spin classes, for trademark infringement, federal Lanham Act and California state unfair competition, false advertising, and cancellation of trademark registrations over the use of the term “Peloton.” (“Peloton” refers to the main group or pack of cyclists in a race.) Peloton Interactive countersued for cancellation of Move Press’s trademark registrations and declaratory judgment regarding validity of Move Press’s trademarks, non-dilution, and non-infringing use.…

Continue Reading Peloton Is Here To Stay: Laches Bars Cycling Magazine’s Delayed Trademark Suit Against Peloton Cycling Equipment