Copyright Developments

The retransmitter of unlicensed copyrighted programming could not escape infringement liability when its charges to users exceeded its costs, despite its effort to characterize its charges as “recommended donations.”  Following motion practice, the retransmitter service is no longer operational.

Update:  This article was republished in the October 2021 issue of The Licensing Journal published by Wolters Kluwer.

Biz Markie (born Marcel Theo Hall), popularly known as hip-hop’s clown prince, passed away on July 16, 2021 at the age of 57. Biz’s innovative beats and lovably goofy lyrics left their mark on the music industry in more ways than one.

In Google LLC v. Oracle America, Inc., Case No. 18–956, 593 U. S. ____ (2021), the U.S. Supreme Court held that Google’s unauthorized copying of around 11,500 lines of Oracle’s computer code was a fair use and therefore not an infringement.

Oh, the Mashups You’ll Stop!

In Dr. Seuss Enterprises, LP v. ComicMix LLC, Case No. 19-55348 (9^th Cir. December 18, 2020), the Ninth Circuit held that Oh, the Places You’ll Boldly Go! (“Boldly”)—ComicMix’s Star Trek-themed sendup of Dr. Seuss’s iconic Oh, the Places You’ll Go! (“Go!”)—was an infringement rather than a parody. In finding that all four fair use factors weighed in Dr. Seuss’s favor, the Ninth Circuit decisively reversed the lower court’s decision, which had held that Boldly was a fair use, that is, a permissible albeit unauthorized use of Go!

The Supreme Court recently denied a petition for a writ of certiorari in a much-watched copyright case, leaving in place a March 2020 Ninth Circuit en banc opinion that cleared Led Zeppelin of allegations that the beginning of “Stairway to Heaven” infringed “Taurus,” written by Randy Wolfe and performed by the band Spirit.  The Court’s denial leaves undisturbed the Ninth Circuit’s decision concerning the scope of the relevant copyright under the 1909 Copyright Act and the status of the inverse ratio rule in the Ninth Circuit.

The U.S. Copyright Office announced a Final Rule setting forth a new registration procedure  allowing copyright applicants the option to register groups of short online literary works with a single application and single filing fee. This option, which is expected to be available in August 2020, should offer substantial cost savings to prolific authors, bloggers and other online content creators seeking to protect their creative output. Group Registration of Short Online Literary Works, 85 Fed. Reg. 37,341 (June 22, 2020) (revising 37 C.F.R. § 202.4).

In Georgia v. Public.Resource.Org, Inc., 590 U.S. ____ (2020), the U.S. Supreme Court held (5-4) that any works (including non-binding annotations to a State code) authored by or for the State’s legislature in the course of its legislative duties are ineligible for copyright protection. 

In Allen v. Cooper, No. 18-877, 589 U.S. ____ (2020), the U.S. Supreme Court affirmed that the Copyright Remedy Clarification Act of 1990, known as CRCA, did not abrogate the sovereign immunity of States because Congress lacked the authority to abrogate sovereign immunity.

In its recent decision in Southern Credentialing Support Services, L.L.C. v. Hammond Surgical Hospital, L.L.C., No. 18-31160, 2020 U.S. App. LEXIS 624 (5th Cir. Jan. 9, 2020), the Fifth Circuit held that a court may not award statutory damages in a copyright infringement matter for post-registration infringement even if the post-registration infringement was different from the pre-registration infringement.  

In a recent decision, the Ninth Circuit reversed a district court’s finding, as a matter of law and notwithstanding the jury’s verdict, that a defendant’s copyright infringement was not willful, but affirmed the district court’s refusal to award attorneys’ fees to the prevailing plaintiff (without prejudice to the plaintiff seeking reconsideration of this refusal on remand).