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Supreme Court Avoids Discovery Rule Fight in Copyright Lawsuit

Mike Nepple Matt Braunel May 13, 2024

The Copyright Act’s three-year limitation period doesn’t limit damages to the three years before suit is filed. And in parts of the country, it currently doesn’t require you to sue within three years of the infringement. That is where things stand after the Supreme Court’s latest copyright ruling, which left the question of the viability of the discovery rule in a copyright action in limbo. READ MORE

Judge Rules AI-Generated Art Is Not Copyrightable

In an August 18, 2023 decision, a judge ruled that works generated by artificial intelligence (AI)[1] are not copyrightable. This may have significant ramifications for protecting works created, in whole or in part, by AIs. READ MORE

Instagram's Embedding Tools and Copyright: Ninth Circuit's Ruling Explained

Mike Nepple August 22, 2023

Instagram isn’t liable for copyright infringement because it provides embedding tools that allow third-party websites to retrieve and display copyrighted photos, according to a recent appellate decision. The Ninth Circuit Court of Appeals based its decision in Hunley v. Instagram on the fact that the third-parties’ servers never make copies of the photos during the embedding process. This is known as the “server test” for intermediary infringer liability. READ MORE

Sign o’ the Times? Supreme Court decides Andy Warhol’s Prince silkscreen is not a fair use

Mike Nepple May 23, 2023
fair use copyright

In a 7-2 decision, the Supreme Court found that an Andy Warhol silkscreen of the singer Prince, sourced from an original Lynn Goldsmith photograph, did not qualify for the Copyright Act’s “fair use” defense because both the photograph and the silkscreen had the same use, which was to illustrate commercial magazine articles about the singer. READ MORE

News reporting use of insurrection photo held to be fair use

Mike Nepple Mark Sableman April 10, 2023

A Fox TV affiliate in Florida, reporting on the first anniversary of the January 6 insurrection, interviewed Kelly Meggs, one of the convicted insurrectionists from jail, and used a portion of a video in which he had been shown marching with other insurrectionists in stack formation up the Capitol steps. The photographer who took the video from which that photo was taken sued the station for copyright infringement. But in Brody v. Fox Broadcasting, Judge Denise Cote of the U.S. District Court for the Southern District of New York dismissed the action on fair use grounds. READ MORE

Mural copyrights: Yes, it’s a thing! Don’t end up with paint on your face

Matt Hafter Brendan Bement February 23, 2023

The recent decision in Petersen v. Diesel Power Gear highlights the risks to executives and owners of any business that engages in advertising. The plaintiff in Petersen is an artist who creates large and dramatic murals on building walls, including commissioned murals for his clients. One of his murals is called “Godlike.” The defendant, Diesel Power Gear, is in the business of promoting diesel trucks and related apparel through various social media outlets. Petersen also sued three individuals who were part owners of Diesel Power Gear. READ MORE

Supreme Court excuses copyright application mistake


Patent and trademark applicants need to be pretty careful in their registration applications, but the Supreme Court has made things a bit easier for copyright applicants. The Court ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. that legal inaccuracies in a copyright application do not invalidate the copyright if the applicant didn’t recognize them at the time of filing. READ MORE

Photo publisher’s checklist: Seven New Year’s legal resolutions for your website


Here are seven resolutions – not including the obligatory “get in shape” or “be more organized” – that you may want to consider for 2022. READ MORE

No more half measures: pleading infringer knowledge in contributory copyright infringement claims

Mike Nepple September 24, 2021

A California judge has dismissed the copyright infringement and Digital Millennium Copyright Act (DMCA) claims of a photographer who sued Pinterest after he found his photos on the popular social media website READ MORE

Too infringing to bear: NY court sides with photographer in suit over embedded image

Mike Nepple August 3, 2021

Social media platforms make it easy to embed photos or videos that appear on their sites. For example, Instagram and Facebook’s embedding tools connect a website visitor’s browser to the platform’s computers, retrieves the identified work, and shows it – all without copying the original work. But is embedding legal? According to Judge Jed Rakoff of the Southern District of New York, no: It’s likely a presumptive copyright infringement. READ MORE

Contributory copyright infringement: Can you ever know what you don’t know?

Mike Nepple May 18, 2021
A person looks at a collection of images on the Pinterest app on a tablet

Did social media site Pinterest indirectly infringe a photographer’s copyrighted images simply by maintaining a site where its users could possibly do just that? No, said a California federal judge, who dismissed the photographer’s suit. Even contributory infringement requires knowledge of specific acts of infringement. READ MORE

Hard-fought copyright case produces just $750 award

Mike Nepple March 18, 2021
An open coin purse full of quarters

A recent copyright case serves as an important reminder to be careful what you wish for, because you may get it. READ MORE

Substantial changes to trademark and copyright law tucked away in recent stimulus package

Matt Braunel David Jinkins December 29, 2020

The Consolidated Appropriations Act that Congress passed in the days before the holiday is largely touted as a government spending bill. Digging deeper into the bill reveals its potential impact on American intellectual property issues – specifically in the Trademark Modernization Act of 2020 and the Copyright Alternative in Small-Claims Enforcement Act of 2020. READ MORE

Game, set, match: Sometimes the photo is the story

Mike Nepple November 6, 2020
Tennis racket and ball

A news organization can fairly use a copyrighted photo from an Instagram post when the social media post is itself a key element of the news, according to a ruling in a case involving tennis star Caroline Wozniacki. READ MORE

Graffiti artists see victory under Visual Artists Rights Act claim

Mike Nepple October 14, 2020
A New York building covered in graffiti

A multi-million dollar verdict in favor of New York graffiti artists is now final after the U.S. Supreme Court rejected the real estate developer Gerald Wolkoff’s appeal. READ MORE

Not a bargain at twice the price: Court awards attorneys’ fees to victorious copyright defendant

Mike Nepple September 16, 2020
Someone holding opening an empty wallet

Richard Bell, an attorney-photographer who has filed and settled many infringement lawsuits, has learned that a loss at trial can be particularly expensive when a court ordered him to pay a defendant’s fees. READ MORE

Small photo credit removal may result in big damages

Mike Nepple September 14, 2020
A closeup of a smartphone held by a hand displaying news

Omitting a small print photo credit can get you in big trouble under the copyright laws. That’s what happened recently when a court affirmed an award of almost $74,000 against BuzzFeed, when a reporter copied a photo from the New York Post and removed the photographer’s name. READ MORE

Why potential claimants should take care with DMCA takedown demands

Justin Mulligan September 1, 2020

A recent decision shows why intellectual property owners need to verify the merit of their DMCA takedown notices before making them. Improper DMCA takedown notices can lead to costly litigation and potential liabilities. READ MORE

Photo embedding cases depend on social media company decisions

Mark Sableman August 3, 2020
A smart phone taking a picture of food

Copyright claims based on social media content will often depend on the technologies used and the applicable terms of service—both under the control of the social media companies. READ MORE

It’s not infringing if it’s an authorized embedding

Mark Sableman April 17, 2020
Taking a picture of a wedding bouquet with a smartphone

If you have been itching to use someone’s social media content – despite all the warnings you’ve heard from copyright lawyers – there’s finally a way to do it. At least as to Instagram, if you use one of Instagram’s tools to embed a public Instagram post within your own posting, you will not infringe the original user’s copyright. READ MORE

Air ball! Court rejects shot at copyright claim for NBA player tattoos

Mike Nepple April 3, 2020
A tattoo artist giving someone a tattoo on their arm

Is it a technical foul to show NBA players’ tattoos in a video game? A federal judge in New York answered with an emphatic “No,” and ruled in favor of Take Two, a video game developer, and against a company that purchased the tattoo copyrights from the original artists. READ MORE

A casual snapshot can make for a valuable copyright

Mark Sableman March 23, 2020
Smartphone on a tripod prepared to take a picture in a town sqare

You don’t need to be a professional photographer to take a valuable photograph. A recent case demonstrates that all you need is to be in the right place, and snap a photo at the right time and the right angle. And, of course, register it promptly. READ MORE

If they litigate, you can only try to mitigate statutory damages

Mike Nepple February 19, 2020
gavel with money

Because they allow recoveries of up to $150,000 per infringed work, statutory damages are a powerful copyright remedy. In a recent copyright infringement case, a defendant tried – and failed – to argue the copyright owner should not be entitled to statutory damages because of its “litigious business strategy.” READ MORE

CASE Act promises fast track for small copyright claims, but is it the right track?

Mike Nepple December 11, 2019
A formula one car racing on a track

The CASE Act, a law designed to help copyright holders expedite the resolution of small copyright infringement claims, would provide an alternative path to resolve copyright infringement claims. But whether the CASE Act will pass the Senate in its current form and fulfill its stated premise remains open to questions. READ MORE

Copyright licenses are as easy as a quick few words

Mark Sableman December 4, 2019

It doesn’t take any formalities to authorize someone to use your copyrighted work. A recent dispute between a writer and the Buffalo News newspaper illustrate how granting someone permission is often taken very informally. READ MORE

The bell tolls for alleged copyright claim to skyline photo

Mike Nepple October 31, 2019
Church bells hanging in a bell tower

A federal jury in Indianapolis found that retired attorney Richard Bell does not own the copyright to a photograph of the Indianapolis skyline — an image at the heart of dozens of infringement lawsuits Bell has filed over the years. READ MORE

Appellate Court leaves open question of good faith in copyright litigation

Mike Nepple June 24, 2019
Illustration of thief caught stealing books

In a recent decision, the Fourth Circuit Court of Appeals avoiding answering if good faith is a viable defense to a copyright infringement claim. Instead, the court found the defendant failed to prove its alleged good faith, reversing a lower court’s dismissal of a photographer’s claim. READ MORE

Montana court finds copyright lawsuit is all hat, no cattle

Mike Nepple April 25, 2019
An old wooden corral with mountains in the background

All is fair in love and war. Political campaigns seem to get a break too, based on a copyright infringement case involving the Republican National Committee’s copying of a photograph used in a political advertisement. READ MORE

Can an artist deem his own art worthy of protection?

Mike Nepple March 28, 2019
Abstract painting made of primary colors

The Visual Artists Rights Act protects works “of recognized stature,” but a Pittsburgh artist is pushing the limits of what that means after claiming his works are recognizable simply because he says they are. READ MORE

Supreme Court rules copyright claimants must begin later, get less

Mike Nepple March 5, 2019

In two unanimous rulings, the Supreme Court limited when a copyright claimant can file suit and how much a successful claimant can recover in litigation expenses. The decisions interpreted the Copyright Act’s requirements concerning “registration” before suit, and “full costs” recoverable by a successful plaintiff. READ MORE

Willie’s Creative Commons lesson: The essential attribution requirement

Mike Nepple March 1, 2019
A closeup of guitar strings

Take it from a recent case involving a free-to-use photograph of Willie Nelson: even Creative Commons-licensed photos can land you in court if you don’t follow the attribution requirements. READ MORE

Dentist’s failed suit demonstrates a copyright’s bite needs more than teeth

Mark Sableman February 18, 2019
Photo of chattering teeth toy

You can copyright just about any design, right? Not quite. According to the Copyright Office, designs still need some creativity, illustrated by a dentist’s attempts to copyright photos of teeth. READ MORE

Social media photos, once again, are not fair game

Mark Sableman January 29, 2019
Illustration of hand in a phone stopping a man

For those who missed the message five years ago that social media photos aren’t free to use, a new decision has renewed and reinforced that message. The circumstances of the case may make this decision hard to forget or ignore. READ MORE

Copyright Office identifies visual arts copyright problems, solutions

Mark Sableman January 24, 2019
An SLR camera sitting on a laptop computer

A new report from the Copyright Office has shed light on the deficiencies in their own processes: outdated and complicated resources are making it harder for visual artists to copyright their work, leaving them vulnerable to online infringement. READ MORE

Fair use isn’t arithmetic

Mark Sableman October 25, 2018
One plus one math equation

While determining copyright fair use may seem as easy as adding up the scores of the four fair use factors, the reality is not so simple. Fair use requires complex and nuanced judgments, not simplistic arithmetic. READ MORE

Mark Sableman speaks at Photography Hall of Fame

Mark Sableman August 14, 2018
In Focus_default blog

On the topic "Copyright and Photography: What you should know," Mark discussed notable photography copyright cases and their impact on copyright law. READ MORE

Two skyline photo cases, two different results

Mark Sableman August 9, 2018
Side by side comparison of a photo of Philadelphia skyline and a window sign

Two cases involving photographs of city skylines illustrate what is, and isn’t, copyright infringement. READ MORE

Circuit split alert: U.S. Supreme Court to decide key copyright lawsuit precondition

Mike Nepple July 3, 2018
U.S. Supreme Court

Do copyright owners need an issued copyright registration or only a pending application to enforce their copyright in federal court? The U.S. Supreme Court has agreed to decide this question. READ MORE

In infringement, sometimes the little things don’t mean a lot

Mike Nepple May 21, 2018
hand spraypainting a wall

A fleeting glimpse of graffiti in the background of an HBO series does not constitute copyright infringement, a federal judge has ruled. READ MORE

Copyright designs found weak when derived from common ideas

Mark Sableman March 26, 2018
buddakiss earings650x510

Copyright - intellectual property law, protects original works of authorship, but does this included an artistic concept or idea? Can copyright infringement included artistic concepts? READ MORE

Can embedding a tweet make you a copyright infringer?


A federal judge in New York recently held that online publishers who embed tweets that include copyrighted photographs violate the rights holder’s public display right, even if they do not copy or store the photo on their servers. That decision has received a lot of publicity. But other courts view the issue differently. READ MORE

Copyright Office issues new restrictions on group registration of photos

Justin Mulligan February 21, 2018
In Focus_default blog

Group registrations of photos will have new limitations beginning February 20, 2018. Photographers were previously able to register an unlimited number of photographs in a single registration application, for the regular $55 fee. The new rule limits registrations to 750 photographs, requires use of new electronic application forms, and streamlines registration by work-for-hire applicants. READ MORE

Enforce your repeat infringer policy

Mike Nepple February 13, 2018

The Digital Millennium Copyright Act (DMCA) sets up safe harbors so that service providers generally aren’t liable for their customers’ infringements, but the safe harbor provisions require providers to cut off repeat infringers. The responsibility falls on the Internet service providers to not only enact a repeat infringer policy but they must also enforce their policy. The Fourth Circuit Court of Appeals so held in a lawsuit brought by BMG Rights Management (US), LLC against Cox Communications, Inc. READ MORE

Grumpy Cat still grumpy despite big copyright verdict

Mike Nepple January 31, 2018
cat hiding in a paper bag

The Internet-famous feline known as Grumpy Cat won a substantial jury verdict in a copyright case that demonstrates the importance of securing a clear agreement from license owners before adding their likeness to additional products. READ MORE

Exclusive license stymies copyright owner's infringement suit

Mark Sableman January 24, 2018
magnifying glass rests on a stack of documents

Ownership is unique under the Copyright Act — that’s the argument a federal court made in throwing out an infringement action filed by a copyright owner who created the work in question but failed to retain a financial interest in it. READ MORE

You can transfer a copyright without saying ‘copyright’

Mark Sableman December 27, 2017

You may think there is one simple hard-and-fast rule of copyright law: You cannot transfer a copyright without a written instrument signed by the copyright owner. It’s right there in section 204 of the Copyright Act. But the “instrument” need not be a formal document that specifically addresses copyrights. READ MORE

‘Gotcha’ copyright claims can prompt ‘gotcha’ ownership defenses

Mark Sableman November 20, 2017
In Focus_default blog

As some photographers aggressively and regularly assert claims, defendants have concluded that in response they need to aggressively probe the bona fides of those claims. READ MORE

It’s no joke: Some copyrights are thin weaklings

Mark Sableman October 30, 2017
cartoon man with puny muscles

If copyrights are intangible, how can they also be “thin” or “broad,” “weak” or “strong” – words that are frequently used to describe the breadth of a copyright’s application in infringement cases? READ MORE

Fair use is never simple

Mike Nepple September 26, 2017
Dr. Phil McGraw

To secure evidence for an anticipated lawsuit against TV host Dr. Phil McGraw, a producer for the show, Leah Rothman, recorded nine seconds of the show’s unaired archive footage onto her cellphone. The employee probably felt she had a strong case for making the recording. But a decision entered against her shows that fair use is never simple and straightforward, and can be argued from many different angles. READ MORE

The Grinch loses and protection of parody wins

September 21, 2017

The Judge found it “virtually” impossible consumers would see the play rather than reading the original book or see the 2000 film based on the book. He found it more likely the play will increase interest in Grinch. READ MORE

Is 2 seconds of television time too much to be a fair use?

Mike Nepple August 22, 2017

In its motion to dismiss, CBS argued that the two-second on-screen display of Steven Hirsch’s photograph was a fair use, or, at most, a de minimus infringement. The district court denied the motion. READ MORE

Update: Court finds transformative nature of alleged infringing work can’t be decided by side-by-side comparison

Mike Nepple August 10, 2017
Comparison of Rastafarian images

In an update to our post on a case filed last year, a federal court in New York recently denied appropriation artist Richard’s Prince’s motion to dismiss Donald Graham’s copyright infringement lawsuit. READ MORE

The Grinch that stole fair use?

August 4, 2017

The Southern District of New York is now considering a case that centers on a play that presents a wicked spin on a classic childhood storybook. The case may test the boundaries of what is parody, what is transformative, and how much taking is “fair.” READ MORE

Sultry Lady Liberty leads Postal Service astray

Mark Sableman July 26, 2017

Beware sultry-looking ladies. That’s one of the lessons from the recent court decision sending a copyright case against the United States Postal Service to trial, but there are more. The decision can serve as a teaching tool and warning regarding use of photos and other images. READ MORE

Court holds that displaying photos requires more than making them available

Mike Nepple June 27, 2017

The court found that Zillow did not engage in any volitional (i.e. causative) conduct. Zillow’s website created the copies automatically in response to a Zillow user’s request to upload the photos to Zillow Digs. According to the court, “something more must be shown than mere ownership of a machine used by others to make illegal copies.” READ MORE

Two layers of photo ownership in conflict in street photography case

Mark Sableman June 13, 2017
In Focus_default blog

One person can own physical photographs, but not have the right to use them, because someone else owns the copyrights. That distinction is the heart of a case being fought in federal court in Chicago. READ MORE

All infringements aren’t equal

Mark Sableman June 6, 2017
In Focus_default blog

Results in two recent cases suggest that circumstances have significant effects on damages and attorneys’ fee awards. READ MORE

Fair use blocks out copyright claim over LeBron’s tattoo

Mike Nepple June 1, 2017

Solid Oak sued Take-Two Interactive Software for copyright infringement last year, claiming it is a technical foul to display the copyrighted tattoo on LeBron James’s arm in Take-Two’s popular NBA 2K line of video games READ MORE

Third verse same as the first - Will Richard Prince’s transformation defense work yet again?

Mike Nepple May 8, 2017
In Focus_default blog

Richard Prince used Eric McNatt’s 2014 photograph of Alex Gordon by cropping McNatt’s photograph, surrounding it with his Instagram frame, and adding three lines of text and emojis. READ MORE

Will a court recognize ‘aerosol artists’?

Mike Nepple April 28, 2017
former site of 5 Pointz graffiti

You may think of it as “graffiti,” but a court in New York must determine if “aerosol art” is “meritorious” and of “recognized stature” such that it gets special copyright protection. READ MORE

Creative Commons in Action – Applying non-commercial and derivative work provisions

Mark Sableman March 30, 2017

As Creative Commons licenses are more widely used, questions are developing about how to use them, and how they apply in particular situations. READ MORE

Photographer hits retailer over photo of player hitting Joey Bats

Mike Nepple March 20, 2017
Rougned Odor hitting Jose Bautista

A Texas-based photographer has sued a sports media website for allegedly selling copies of his copyrighted photo of an infamous scuffle at second base between pro baseball players Rougned Odor and Jose Bautista. READ MORE

When good copyright laws go bad: Indictment lays out porn ‘trolling’ scheme

Mark Sableman March 8, 2017
illustration of a man with money held over his mouth

What happens when you use legitimate means to achieve despicable ends? In the case of two attorneys at the center of a high-profile copyright enforcement scheme involving pornographic movies, you end up on the receiving end of a federal indictment. READ MORE

9th Circuit opens door to damages against retailers carrying infringing works

Justin Mulligan November 29, 2016
large boom box

Under copyright law, “statutory damages” are generally limited to a single award per infringed work, regardless of how many copies were made. Under a recent 9th Circuit decision, however, multiple damage awards per infringed work are permissible in some cases. READ MORE

Trump Skittles tweet illustrates photo copyright hazards

Mike Nepple October 31, 2016
Halloween candy

Even Halloween candy and political messages can implicate copyright law, as Donald Trump Jr.’s Skittles tweet illustrates. The actions taken by the photographer illustrate the two most common steps available to photographers whose works are infringed on the Internet. READ MORE

Beyoncé’s copyright case was destined for dismissal

Mark Sableman September 29, 2016
Beyonece 2016 Formation Tour

A famously learned federal judge sprinkled his high-profile dismissal of a copyright claim against Beyoncé with pop culture references to Taylor Swift, "Ghostbusters," and Oscar Wilde, along with some hard lessons for plaintiffs who overreach with their copyright claims. READ MORE

In Pegasus-related copyright suit, judge sidelines as art critic

Mark Sableman September 19, 2016
Pegasus by James Croak

The analysis in an art copyright case can sound like a class discussion in Art Appreciation 101. Take the case of Croak v. Saatchi & Saatchi, which could also be called Pegasus I v. Pegasus II. READ MORE

Street artist’s copyright infringement claims against Starbucks dismissed

In Focus_default blog

An artist’s copyright infringement suit alleging that a Starbucks Frappuccino advertising campaign infringed her copyrights has been dismissed, on the ground that the campaign didn’t appropriate the “total concept and feel” of the artist’s works. READ MORE

Fox News fair use claim for Facebook post of 9-11 image remains unresolved

Mike Nepple July 7, 2016
In Focus_default blog

Earlier this year, just hours before beginning jury selection, Fox News settled a copyright dispute regarding its use of Thomas Franklin’s iconic photograph, “Raising the Flag at Ground Zero,” thus leaving its fair use argument unresolved. READ MORE

Is appropriation art ‘fair use’?

In Focus_default blog

The artist Richard Prince, who is sometimes known as the #PrinceofAppropriation, claims that copyright law protects the artistic style he calls “appropriation art.” Photographer Donald Graham filed suit against Prince, alleging Prince infringed the copyright in Graham’s photograph. READ MORE

Signer with remorse seeks to avoid ‘unrestricted’ photography release

Mark Sableman June 2, 2016
In Focus_default blog

We’ve handled multiple cases of photographers who signed releases or licenses, but nonetheless later claimed that use of his or her photograph, by the licensee, constituted copyright infringement. READ MORE

Can you make an infringement claim over thumbnail images?

Mike Nepple May 12, 2016
In Focus_default blog

In an interesting twist, the publisher named the law firm that gave them a fair use opinion letter as a third-party defendant. Essentially, the publisher claims that if it is liable to the Times because the thumbnails weren’t fair use, then its law firm is liable for giving it bad fair use advice. READ MORE

Illegality doesn’t negate copyright protection

Mark Sableman April 21, 2016

Given the breadth of copyright protection, which was established more than a century ago in a Supreme Court case involving low-art circus posters, courts do not evaluate the merits of art or other creative content, so long as it meets a fairly low threshold of creativity. READ MORE

Tank-topped photos subjects don’t meet standard of ‘substantial similarity’

Mark Sableman April 21, 2016
In Focus_default blog

How much of a photo must be taken in order to meet the copyright standard of “substantial similarity”? According to a district court in New York, you need more than a man standing in front of a crowd, wearing a white tank top, with his arms stretched out to the side. READ MORE

Done properly, can a Creative Commons license make for an easy defense?

Mark Sableman April 21, 2016

An infringement claim can be easy to assert – the plaintiff just shows ownership of a valid copyright, and the copying of his or her work. But in some cases the defense can be even easier. READ MORE

Has Jeff Koons learned to play fair with copyright works?

Justin Mulligan April 21, 2016
In Focus_default blog

Koons is no stranger to allegations that his art infringes others’ copyrights. He often uses pre-existing images to comment on contemporary culture, and that kind of work carries inherent infringement risks. READ MORE