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In Focus

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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

Jim Burger September 21, 2017
Grinch

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
48larger

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?

Jim Burger August 4, 2017
Grinch

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
LibertyStamps

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
ForSaleByOwner

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
fair-use-ink-blog

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
ObamaOffice

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
jeremy-scott-katy-perry-copyright-graffiti_26494792711_o

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
drauglis-v-kappa-map-group-llc_25957945743_o

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