House of Bryant, the administrators for the song “Rocky Top,” sued A&E Television Network for copyright infringement of the song based on an authorized clip of the song included in an episode of the television show “City Confidential” featuring a crime that took place in Knoxville, TN. 

The City Confidential episode aired on December 11, 2004 and included a 12-second clip of the song “Rocky Top.”  The song is included in a scene of a University of Tennessee football game as performed by the school’s marching band.  Defendant’s Memorandum in Support of its Motion to Dismiss states: “During this brief sequence, and as part of the actual noise occurring within the stadium, the UTK marching band can be heard playing an instrumental version of the musical composition “Rocky Top.” The song is audible for a total of approximately twelve seconds; however, the tremendous noise of the crowd and the narration of the documentary obscure the song for approximately six of the twelve seconds. Therefore, the song “Rocky Top” can be heard on its own for only six seconds of the Program.”

A&E, citing the 2008 court ruling regarding the use of the song “Imagine,” argues the usage was “fair use” which is a defense to copyright infringement. In the “Imagine” case, Yoko Ono -- the plaintiff, was denied an injunction for an unauthorized use of the song “Imagine” in the film Expelled, with the court holding the defendant/alleged infringer was likely to prevail on a fair use defense.  A&E, like the defendant in the “Imagine” case, is relying on the transformative nature of the use.  The Defendant’s Memorandum in Support of the Motion To Dismiss argues the use of “Rocky Top” is transformative in that it is used to portray the atmosphere around Knoxville and the lyrics, used in context with the subject matter of the murder mystery, are a commentary on what life should be like in Tennessee.

The first air date of December 11, 2004 does not seem to be contested by either party. The episode has continued to air.   The Complaint was filed June 3, 2009.  I am wondering why A&E has not raised the defense of statute of limitations because the three year statute of limitations found in 17 U.S.C. sec. 507(b) should apply.  The section states that “no civil cause of action may be brought later than three years from the date the claim accrued.”  It is possible the parties had a tolling agreement while they attempted to resolve the matter outside of the court house.

You can read the complaint here.  House of Bryant Publications, L.L.C. v. A&E Television Networks, Middle Dist. Tenn., Civil Cause No. 3:09-cv-00502.

You can read the Defendant’s Brief In Support of the Motion to Dismiss here.

I blogged here and here regarding the recent case brought by author J.D. Salinger for copyright infringement against the writer, publisher and distributor of a sequel to "Catcher In The Rye" entitled "60 Years Later: Coming Through the Rye."

Although Mr. Salinger won in the district court when the Judge held Mr. Salinger was likely to succeed on a claim of copyright infringement, an appeal has since been filed along with “Friends of the Court” Amicus Briefs.

The Amicus Briefs filed by the American Library Association (here),

The New York Times Company (here), and

Public Citizen, Inc. (here), all argue to the court that the district court erred in its decision. 

The briefs are worth the read for the depth of case law cited. 

The primary focus of the briefs filed by the American Library Association and The New York Times Company is the concern that First Amendment rights of authors/creators/readers are being narrowed and that an unduly restrictive fair use standard was applied.

In comparison, the Public Citizen brief’s primary focus is the concern the district court extended copyright to “ideas” and has blurred the line between the idea/expression dichotomy.

Agree or disagree, this case is one to watch and to read the court filings. 

On July 27th, in Capitol Records Inc. v. Alaujan, the U.S. District Court for the District of Massachusetts granted the plaintiff record companies’ motion for summary judgment by holding that the defendant Joel Tenenbaum, a Boston University student who was using the Kazaa peer-to-peer file-sharing system to upload infringing music files, may not present a fair use defense before a jury at trial. 

The court said that the proposed defense was “so broad that it would swallow the copyright protections that Congress has created” and that Tenenbaum had failed to set forth any argument based on the fair use doctrine.  The court added that “…fair use is not a referendum on fairness in the abstract, as the Defendant would have it, but an effort to measure the purpose and effects of his particular use against the incentives for artistic and literary creation that Congress established in the Copyright Act.” 

In this case Tenenbaum admitted to using Kazaa to illegally distribute the music files, but takes the position that the potential penalties under U.S. copyright law are unconstitutionally excessive.  Opening arguments in the case began on July 29 and then, on July 31st -- following Tennenbaum’s admission in court that he was liable for infringing the copyright of 30 songs he downloaded and distributed -- the court quickly concluded that there was no issue for the jury on the question of infringement and granted the record company’s motion for a directed verdict of infringement.  

With the only issues remaining being willfulness and damages, the jury came back with a verdict that found Tenenbaum liable for willful copyright infringement of 30 songs to a tune of $675,000 - which amounts to $22,500 for each song (the same as Jammie Thomas).  

As noted earlier in this blog, two weeks ago the Supreme Court denied cert in the case of Cable News Network, Inc. v. CSC Holdings, Inc. (“Cablevision”).  That order leaves in place Cablevision’s appellate victory, allowing it (for now) to continue offering its “remote DVR” service to cable customers, without payment of additional royalties for the storage and delivery of that programming.  The result was somewhat surprising to experts, and many had expected the Supreme Court to hear the case.  But more than anything else, the result signals a looming battle over secondary liability principles – principles that the plaintiffs chose not to put into play in the Cablevision case – and how the landmark Universal Pictures v. Sony (“Betamax”) case will be applied to similar digital services.

More...

I posted here on June 5 that author J.D. Salinger filed a lawsuit seeking damages for copyright infringement and an injunction against the writer, publisher and distributor of a sequel to "Catcher In The Rye" .... "60 Years Later: Coming Through the Rye."

On July 1, 2009, U.S. District Court judge Deborah Batts issued a preliminary injunction barring the defendant from manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating “60 Years Later, “  the unauthorized sequel to J.D. Salinger’s novel, “Catcher in the Rye” in the United States.  Her opinion is posted here.

The Judge held Mr. Salinger was likely to succeed on a claim of copyright infringement after weighing, in detail, the factors for a fair use defense.

In a 37 page decision, the Judge first determined Mr. Salinger held a valid copyright for the “Catcher” and moved to a discussion of the fair use defense (17 USC Sec. 107).  The decision is a great resource for the history and line of cases related to fair use.More...

Author J.D. Salinger, at 90 years-old, filed a lawsuit this week  seeking damages for copyright infringement and an injunction against the writer, publishers and distributor of a sequel to "Catcher In The Rye" .... "60 Years Later: Coming Through the Rye."

A character very much like an aged Holden Caulfield,  at 76 years old, an escapee from a retirement home and identified as ``Mr. C" takes on New York, like the young Holden in "Catcher In The Rye."  J.D. California, the author of the sequel never refers to the character as Holden Caulfield, only as "Mr. C." 

The complaint asserts the sequel infringes Salinger's copyright rights in both his novel and the character Holden Caufield.  The sequel and the original both begin with Holden leaving an institution and end with he and his sister at the carousel in Central Park.   The complaint goes on to allege the bulk of the book has Holden doing, seeing and talking to the same folks as in the original while he is in New York.

The sequel is currently available for purchase in the UK and is scheduled for a Fall 2009 release in the US.

Can J.D. California successfully defend an action for copyright infringement?  The Wall Street Journal blog has a great outline of the defense here.  I struggle with the thought that this sequel could be fair use.  It is really going to hinge on whether or not this new work is transformative of the original.  I posted earlier this year on the status of fair use and transformation in the Shepard Fairy case.

Fair Use is one of those concepts that gets thrown around a lot when talking about content in social media.  But how many of us really get what Fair Use is?  Judging from blog posts I've seen at a few sites recently, there are a lot of misconceptions.  Here are a couple of  statements I've read lately (they're paraphrased, but they convey the gist):

Content owners should allow Posters to use their content on YouTube under Fair Use.

Here's the good news.  If it's Fair Use, they are allowed!  If a use is determined to be Fair Use under the Copyright Law,  you don't need to get the permission of the copyright holder.  The question is, what constitutes Fair Use.

Giving your only copy of a DVD to a friend is Fair Use.

Nope.  If you legally possess a DVD,  giving that DVD to a friend is permitted under a provision in the Copyright Law commonly referred to as the First Sale Doctrine,  but it's not Fair Use.   Sometime people use the term Fair Use to mean anything that is not copyright infringement.  Fair Use, however, is a specific limitation on the reach of copyright, based solely on an analysis of four Fair Use factors written into the Copyright Law.  The four factors, as they appear in the Copyright Law, are:

            (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

            (ii) the nature of the copyrighted work;

            (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

            (iv) the effect of the use upon the potential market for or value of the copyrighted work.

 There are other limitations on copyright, but they're not Fair Use. More...

There has been a lot of chatter lately in social networking circles regarding 1) right of privacy; 2) copyright; and 3) libel.

Right of Privacy:
If I post something on FaceBook®, MySpace®, Twitter™ or any other social networking site, do I have a right of privacy, such that my comments cannot be re-published?  A California appellate court ruled last week that there is no right of privacy in our rants, praises, or anything else we post on social networking sites.

The Plaintiff, Moreno, posted comments on her MySpace page that were then picked up and re-published in the local newspaper.  The plaintiff sued for invasion of privacy and intentional inflection of emotional distress.

The Wall Street Journal reported: "'The facts contained in the article were not private,' 5th District Court of Appeal Justice Bert Levy wrote. 'Rather, once posted on myspace.com, this article was available to anyone with Internet access.' Added Levy: 'Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.' He noted that Moreno’s 'potential audience was vast.'”

Here is a twist on a fact pattern.  A lawsuit was recently filed for breach of the fair debt collection statute because a debt collector posted information on the debtors' MySpace. It is one thing for you to publish the information yourself, a different issue if someone else publishes the information.  Keep reading below regarding libel concerns. More...

Is Shepard Fairey in the business of infringing copyrights or creating new transformative works?

That is a hard question to answer and I am not sure it can be answered in this brief blog post.  It is a question a judge will be answering at some point in the future in the Fairey v. The Associated Press complaint for Declaratory Judgment Injunctive Relief filed in the Southern District of New York case number 09CIV01123. 

The general facts are this:  Visual artist Shepard Fairey created what has become known as the "Hope Obamacon." Fairy used a picture of President Obama and created an abstracted graphic rendition of President Obama gazing up and to the viewer’s right, colored in a palette of red, white, and blue with the word HOPE.  The photo that is the basis of Fairey's work was taken by an AP freelance photographer, Mannie Garcia.

AP claims they own the copyright in the photo, Mr. Garcia claims he owns the copyright in the photo, and Fairey is claiming there has been either 1) no infringement; or 2) there has been infringement but he has a valid defense based upon "fair use" ...  a transformation from the photo to the final product. More...

Back in December, WIRED magazine did a piece about Carl Malamud of Public.Resource.org and his mission to make federal court records freely available on line, rather than exclusively through the court system’s own proprietary PACER network.   For anyone who has used PACER, the idea of a free, easy-to-use alternative has great appeal. The PACER system is not word searchable, so the only way to find documents is by entering the docket number or case name, two pieces of information that many researchers do not have when approaching a general legal question.  Also, PACER charges eight cents a page for materials other than court decisions, which actually generates a surplus for the courts – reportedly $50 million in 2006.  And PACER is not available to all curious Web users with the click of a mouse, but requires a government-issued password and login number.  
 
Working with Mr. Malamud, a number of government-reform activists have begun copying large amounts of material from PACER and placing them online without restriction. The New York Times of February 13 reports that one such activist, Aaron Schwartz, downloaded over 19 million pages of documents through a free PACER connection at a public library, an amount of text representing about 20% of the content on PACER.  (The free public library access was suspended on September 29 because of a reported security breach; it is unclear whether the mass downloading by activists such as Mr. Schwartz was at issue.)  More...