Judge Cote: First Verse of “We Shall Overcome” Not an Original Work Subject to Copyright

Last week, Judge Cote granted a motion for summary judgment challenging the copyright for the civil rights anthem “We Shall Overcome.”  Plaintiffs, the We Shall Overcome Foundation, argued that the similarities between the copyrighted song and a 1948 version in the public domain meant that the first verse of the famous song was not sufficiently original to survive a copyright challenge.

Judge Cote agreed, noting the overwhelming evidence of the connection between the copyrighted version of “We Shall Overcome” and older, historical versions: Continue Reading

Judge Sweet: Lynyrd Skynyrd Movie Cannot Proceed

In an opinion this week, Judge Sweet granted a permanent injunction against a film depicting the band Lynyrd Skynyrd, finding that it violated a 1988 consent order limiting the use of the band’s name and songs.  The agreement, originally overseen by Judge Sweet, was entered into by surviving family and band members from a 1977 plane crash that killed the band’s lead singer, Ronnie Van Zant, and other band members.  The film was a collaboration between Cleopatra Records and former Lynyrd Skynyrd drummer Artimus Pyle.

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Judge Rakoff: Sarah Palin’s Allegations Against NY Times Do Not Amount to Necessary Showing of Maliciousness

In an opinion today, Judge Rakoff dismissed Sarah Palin’s defamation suit against the New York Times (see our prior coverage here) because the allegations (even taking into account additional facts from an evidentiary hearing) amounted to a showing of negligence, at best.  The opinion begins:

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Judge Pauley Approves Class Rep Whose Brother-in-Law is Class Counsel

In an opinion Wednesday, Judge Pauley ruled that a securities class action plaintiff, Benjamin Gross, could serve in that role notwithstanding that co-lead counsel for the class, Jack Zwick, is his brother-in-law, and notwithstanding that neither promptly disclosed the relationship: Continue Reading

Judge Failla Warns Against “Creative” Efforts to Evade Page Limits

At the end of an opinion today, Judge Failla issued the following warning:

Before concluding, the Court pauses to express its dissatisfaction with the blatant circumvention of its briefing-length restrictions . . .   The parties . . . are hereby warned that future attempts to evade the Court’s page limits, by relegating entire arguments to the footnotes, or by using other “creative” formatting devices, will not be taken kindly.  Going forward, the parties would do well to seek the Court’s leave to enlarge page limits, rather than attempting to hide their unauthorized enlargements in plain sight.

Similar conduct was the subject of a sanctions order from Judge Marrero in April (see our coverage here).

Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable

As part of the ongoing Uber antitrust litigation, the Second Circuit yesterday reversed Judge Rakoff’s earlier ruling that the arbitration clause in Uber’s terms of service was not enforceable (see our previous coverage of Judge Rakoff’s decision here, and the interlocutory appeal here).

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Judge Swain Awards Tiffany $19.35 Million in Trademark Case Against Costco

In an order yesterday, Judge Swain awarded $19.35 million in trebled profits and punitive damages to Tiffany & Co. for its trademark infringement claims against Costco.  The case stemmed from Costco’s use of the term “Tiffany” to describe generic rings sold in the jewelry section of its stores.  The award is an increase over the original amount awarded by the jury after a trial last year.

As part of the ruling, Judge Swain found that Tiffany was still entitled to punitive damages, even though it sought an accounting of profits rather than actual damages:

Costco also argues that, because Tiffany only sought an accounting of profits and not “actual damages,” it is precluded from seeking punitive damages. Although some courts in the Second Circuit have drawn a distinction between actual damages and profits for the purposes of the Lanham Act, others have characterized both as “actual damages” available under the Lanham Act.  Furthermore, the Lanham Act itself contemplates the possibility of an award of statutory damages (sought here), which permits consideration of both punitive and compensatory factors, without the need to establish profits or actual damages in the recognition that such measures of monetary relief may be difficult to prove in these cases.  The provision for statutory damages in the Lanham Act thus explicitly provides a mechanism to compensate plaintiffs even in the absence of proof of actual damages or profits.  Accordingly, the Court finds that punitive damages are not preluded in this case by Tiffany’s pursuit of an accounting of profits and statutory damages rather than “actual damages.”

Our full coverage of the case is here.

Judge Forrest: Fact That Complaint Exposes Book By Former Fox News Host as Ghostwritten Is Not Grounds For Sealing

In an opinion unsealed last week, Judge Forrest ruled that a suit by the alleged ghostwriter of former Fox News host Andrea Tantaros’ book Tied Up in Knots could not stay sealed, merely because the revelation that there was a ghostwriter could cause Tarantos “humiliation”:

Defendant argues that, as a well-known television journalist, her credibility is her trade, and if plaintiff’s role in helping defendant write the Book was revealed it would severely undermine her credibility in the eyes of her colleagues, fans, publisher, and the wider news-media world. Defendant contends that in view of the professional repercussions and personal humiliation she would suffer, the harm of disclosure justifies a continuation of the seal . . . .

The Court disagrees. A possibility of future adverse impact on employment or the celebrity status of a party is not a “higher value” sufficient to overcome the presumption of access to judicial documents. . . .

(Hat tip:  Volokh Conspiracy)

Video Game Maker Argues “Fair Use” of Images of NBA Player Tattoos

Take-Two, the maker of the video game NBA 2K, argues in a motion filed yesterday that its display of certain player tattoos in the game is transformative “fair use,” and therefore does not violate the rights of a licensee, plaintiff Solid Oak:

Take-Two is not a rival tattooist that has replicated a creative design and inked it on a new person. Rather, its use is completely different in a massive, highly creative video game featuring a virtual world that only uses player tattoos to realistically capture how the players actually look.

Take-Two also argues that it would set a dangerous precedent to grant copyright protection in this case: Continue Reading

Opposition Brief: Trump’s Emoluments Argument Has “No Support in Two Centuries of History”

Citizens for Responsibility and Ethics in Washington (CREW) and other plaintiffs responded Friday to President Trump’s motion to dismiss their case to enforce the Constitution’s Emoluments Clause.  President Trump argued that the clause, which prevents government officers from receiving gifts from foreign countries, was never intended to cover the president’s private business dealings unrelated to his office or service to a foreign power (see our previous coverage of the motion here).

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