In Brief:   A Creative Commons license is enforceable just like any other license.

In Brief: Third party websites can imbed photos and avoid copyright infringement.

In Brief:   Hacks to cheat on popular video games results in massive damages.

In Brief:   Following up on this blog’s post of 3/7/23, the court ruled that a banana does not infringe a banana and an orange.

In Brief: The Digital Millennium Copyright Act’s safe harbor protects Pinterest from copyright infringement for photographs appearing next to ads.

In Brief:   A work that is created for commercial purposes is not protected by the Visual Artists’ Rights Act.

In Brief:  A plaintiff can’t get multiple statutory damages awards for the infringement of one work.

Hiller LLC provides plumbing, heating, cooling and electrical services to residential and commercial customers. Hiller was a member of Success Group International that offers management advice and customer service training. Success Group used licensed copyrighted training manuals owned by its predecessor, Clockwork IP LLC.

Hiller decided to create its own training materials and hired an independent contractor who conducted a series of workshops and researched Hiller’s business. The end product was an HVAC technicians Guide. The Guide had original illustrations, its own content and its own arrangement of the information. Small portions of the Guide incorporated information that had been contained the Success Group training manuals. The independent contractor assigned the copyright in the Guide to Hiller.

For almost four years, comics’ legend, Ty Templeton, and Star Trek’s “Trouble with Tribbles Episode” writer, David Gerrold and their company, ComicMix, have been in litigation with the Dr. Seuss Estate. ComicMix is trying to publish a graphic comic called “Oh, The Places You'll Boldly Go.” The comic mashed Dr. Seuss’ “Oh The Places You’ll Go” with Star Trek characters. ComicMix said it was fair use. The Dr. Seuss Estate said no.

The Jersey Boys is a Broadway musical (the “Play”) about the musical quartet, The Four Seasons (the “Band”). It debuted in 2005 and ran for over 10 years, toured the country repeatedly and was adapted into a movie in 2014.

In the late 1980s, Band member, Tommy DeVito wrote an autobiographical “tell all" book about the Band. The book was ghost-written by Rex Woodard (“the Work”).  The Work was completed before the Play had been written and produced.

DeVito’s widow, Donna Corbello, sued Frankie Valli (the Band’s lead singer) and a lot of other people for copyright infringement alleging that the Play was an unauthorized derivative of the Work.

Some of you may recall the argument you used with your parents that went something like “Everyone else gets to go” or “Everyone else’s parents let them [fill in the blank]”. Chances are that these arguments were unsuccessful.

Elie Tahari Ltd. learned that “Everybody does it” doesn’t work in a copyright infringement case either.

In 2017, I awarded the grand prize for IP criminals to the disgraced Prenda Law Firm. This stain on the legal profession had created honey pot porn websites and then sued people who downloaded their content for copyright infringement. The lesson of creating your own porn to entice illegal downloads seems to have resonated. But wholesale copyright infringement cases are still out there.

Embedding is a technical process that allows one website to link to and incorporate content from a second website. So when the user visits the first website, they see the content on the second website even though the content is actually still on the second’s website. 

In the past couple of years, there have been two decisions about whether or not embedding is copyright infringement.

Retired attorney, Richard Bell, had a cottage industry suing people for copyright infringement of a picture of the Indianapolis skyline. Richard alleged that he took the photo in March 2000 for his law firm’s website. He registered the copyright in 2011, after his former law firm stopped using the photo on its website.

Kfir Moyal is a pop artist who has created commissioned pieces for celebrities like the Kardashians, Paris Hilton, Gloria Estefan, Flo Rida and Lil’ Kim. His signature style is to take a photograph and add a glittery sheen to it.

Zazzle, Inc. is an on-line marketplace for imprinted merchandise. Zazzle will then imprint the image on things like coffee mugs, t-shirts and, these days, face masks. Zazzle uses stock images but it also allows someone to upload their artwork or a graphic.

In 2017, Rasta Imposta sued Kmart for copyright infringement because Kmart was selling a virtually identical banana costume (See Blawg Post dated 10/31/2017). The parties settled. Then Rasta Imposta’s competitor, Kangaroo Manufacturing Inc. started selling a substantially similar banana costume. The founder of Kangaroo had once worked for Rasta Imposta and knew that Rasta Imposta had registered the copyright in the banana costume. But Kangaroo manufactured and sold the banana costume anyway.

VidAngel Inc. removed nudity and violence from films and then sold the ‘redacted’ versions. Disney Enterprises, Inc. its subsidiary Lucasfilm Ltd. LLC, Twentieth Century Fox Film Corp. and Warner Bros. Entertainment Inc. sued VidAngel for copyright infringement.

In my blog post of August 1, 2017, I posed the copyright litigation dilemma: “To File or Not to File”. On March 4, 2019, the US Supreme Court resolved the dilemma once and for all.

The Copyright Act allows the recovery of actual damages; but not everything is included. %CUT% Rachel Ann Nunes wrote a novel called Bid for Love. Tiffanie Rushton admitted that she copied some of Bid for Love for her book, The Auction Deal. Rachel sued Tiffanie for copyright infringement. Rachel claimed that her actual damages were the lost sales of two books she didn’t write because of the emotional distress she suffered as a result of the infringement. The court held that the Copyright Act does not provide for the recovery of damages for emotional distress. So Rachel had no actual damages. However, she still is entitled to statutory damages.

Captain America, Thor and Iron Man can’t save your party guests without a license. %CUT% Characters for Hire, LLC (“CFH”) advertises premium entertainment for parties and private events by booking actors dressed like popular characters. CFH offers hero characters and famous characters from popular scifi/fantasy movies. Understanding that Disney, Marvel and LucasFilm own the rights to characters that fall into those categories, CFH used generic names like "Big Green Guy" (Hulk) and “The Dark Lord” (Darth Vader). Similarly, CFH advertised themed parties that referenced Plaintiffs’ movies, such as “Frozen Themed” (Frozen), “Avenging Team” (The Avengers), and “Star Battles” (Star Wars). But CFH used the original images of the characters in its ads (see picture). After CFH ignored several cease and desist letters, Disney, Marvel and LucasFilm sued. The court entered summary judgment against the plaintiffs on trademark infringement. The court appeared to put a lot of weight on the fact that the plaintiffs couldn’t show actual confusion and there was enough notice that CFH was not affiliated with the plaintiffs. But the court will proceed on the other counts of unfair competition, dilution and copyright infringement. So CFH can’t breathe a sigh of relief yet.

Great Minds don’t always think alike when it comes to copyright infringement. %CUT% Great Minds is a company that publishes school books, including a math book. Great Minds licenses use of the book to schools for free as long as it is for strictly non-commercial use. Great Minds uses the Creative Commons non-commercial license for these deals. A school district in New York had FedEx make copies of the book instead of using the school’s copiers and staff. Great Minds sued FedEx for copyright infringement arguing that it licensed the work to the school district and not FedEx. Great Minds tried to distinguish between the school staff making copies and the school ‘jobbing’ out the project to FedEx. In affirming a ruling against Great Minds, the Second Circuit held that there really was no difference between school employees making copies and having FedEx’s copy service making copies. The Court identified FedEx as an agent of the school district. Under pure agency principals, the school district’s license to copy would extend to FedEx.

The last word sometimes isn’t really the last word. Here’s what happened after some previous posts: %CUT%

Embedding a Twitter photo can be copyright infringement. %CUT% It all started when Justin Goldman took photos of Tom Brady and posted them on Snapchat. Content on Snapchat is supposed to disappear after a while. These photos didn’t. Instead, the photos ended up being reposted on various social media sites, including Twitter. Some media outlets then embedded the third party tweets with the photos in articles on their respective websites. Goldman filed suit against the media outlets for copyright infringement. The defendants brought a motion to dismiss arguing that they aren’t liable because they were protected under the “Server Test”. The Server Test says that images generated by a search engine, like Google, aren’t copyright infringement because search engines don’t store images. The court denied the motion. This wasn’t a case of linking to the origin of the photos. The defendants actively embedded the images which were immediately available upon opening the offending webpage.

Software can have lots of layers like an onion which can be trouble for an infringement lawsuit. %CUT% In CSS, Inc. v. Herrington, CSS complained that the defendants infringed on three of its copyrighted software programs. The programs were made up of a lot of different components, including third party software and abstract ideas. The court’s opinion peeled the layers of CSS’s software onions to get to the decision. First, the court peeled off the function that each program performed because they were "ideas" of the programs and not their expression. Then the court peeled away the client/server architecture used by each of the programs because that was non-copyrightable industry-standard. Next came the third party components because they didn’t belong to either party. Next came the arrangement of the third party components didn’t have enough creativity for copyright protection. Then the court peeled away the layer that was the name/address algorithm because it was unoriginal and not copyrightable. Once the court got to the small onion core of protectable software that was left, the court held that CSS didn’t prove substantially similarity between CSS’s onion core and the defendants’ onion core. CSS may have had something that was protectable, but after peeling away the uncopyrightable components of its software it couldn’t prove infringement.