This post was originally published on GSB's website as a GSB Client Update on July 9, 2018.
Although Section 411(a) of the U.S. Copyright Act states clearly that “Although Section 411(a) of civil action for infringement of the copyright in any United States work shall be instituted until . . . registration [or refusal of registration] of the copyright claim has been made,” not every judicial circuit in the United States has agreed how to interpret this requirement. The U.S. Supreme Court’s recent grant of a petition for writ of certiorari in the case, Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, may resolve the current federal circuit split, deciding for the country whether a copyright must be fully registered or just applied-for before a copyright infringement lawsuit can be filed.
Kristyn Fields is a former Garvey Schubert Barer legal extern who worked out of the firm's New York office. She was a law student at Brooklyn Law School.
Since the Aereo case, the debate over whether online television services should be regulated in the same way that cable providers are rages on in California federal court, with the recent case against the streaming service FilmOn X (“FilmOn”). FilmOn is facing copyright infringement claims from television networks and countering those claims by asserting that it is eligible for the same compulsory license as other broadcast providers. On July 16, 2015, Judge George Wu agreed with FilmOn’s defense, ruling that the company should be treated as a traditional cable provider and is entitled to a Section 111 compulsory license.
A New York federal judge recently ruled in Adjmi v. DLT Entertainment Ltd., 1:14-cv-00568 (United States District Court, S.D. New York, 2015) that the off-Broadway play “3C” was a permissible parody of the classic 1970s TV comedy “Three’s Company.”
On October 1, 2014, a new law came into effect that excepts parody, caricature and pastiche from the scope of copyright protection in the United Kingdom. Under the previous law, parodists bore the risk of being sued for breach of copyright if they used clips from television shows, films or songs without the copyright holder’s permission. The new law allows the use of such content as long as the use is “fair” (meaning it does not commercially compete with the original work) and is not discriminatory in nature.
The Alliance of Artists and Recording Companies (AARC), an organization representing featured recording artists and sound recording copyright owners in the areas of hometaping/private copy royalties and rental/lending royalties, recently filed a federal class action lawsuit against automakers General Motors and Ford, as well as electronics manufacturers Denso and Clarion, seeking to collect royalties allegedly owed to artists, songwriters, record labels and music publishers under the Audio Home Recording Act (AHRA).
Website owners are battling or quietly settling an increasing number of copyright infringement claims for images posted without permission. To avoid such claims, webmasters should be careful to make sure they have the proper permission from the copyright owner. Just because an image is on the Internet and easy to cut and paste from another website, Facebook, Twitter, or other social media sites does not mean it can be re-used without permission. Images are protected even if they do not display the symbol ©. Save yourself headaches and legal fees by first going through the proper channels to obtain the clearances you need to use others’ images. This article focuses on copyright issues but depending on how a photograph is used on your website, other permissions may be needed. For example, publicity rights laws may require that you obtain permission from the people in the photograph, and trademark laws may require permission from the owner of any logo or branding appearing in the photo.
In a case titled Garcia v. Google, Inc., 12-57302, the recent ruling of the 9th Circuit Court of Appeals (which covers nine states, including California) suggests that an actor has a protectable copyright in the recording of his or her performance. In this case, Cindy Lee Garcia was hired and paid to act in a film entitled “Desert Warrior.” Ms. Garcia’s role was minimal. She was given only 4 pages of script and filmed for 3 ½ days. While “Desert Warrior” was never released, the film’s writer and producer dubbed over Ms. Garcia’s performance and included it in a different film called “Innocence of Muslims.” “Innocence of Muslims” was posted on YouTube. The context in which Ms. Garcia’s performance appeared in the film was interpreted as anti-Muslim by the Muslim community. Following the film’s release and posting on YouTube, Ms. Garcia received death threats. Despite Ms. Garcia’s numerous requests to Google that it remove “Innocence of Muslims” from YouTube, Google refused.
The Sports, Arts and Entertainment Group at Garvey Schubert Barer provides full service legal representation on sports, entertainment and business matters, including handling transactions related to brand management, licensing, joint ventures, venture capital, private equity, technology, the Internet and new media.