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In an important copyright ruling today, Judge Rakoff ruled that “embedding” material online — in this case, a news organization embedding in an article a video of a polar bear that the plaintiff posted on Instagram — could violate the copyright laws. He rejected the “server rule” by which there could only be infringement in cases where the defendant makes a copy of the image or video to display from its own server.  Under the server rule, merely embedding the material (essentially, displaying the material via the original source) cannot be infringement.

Judge Rakoff found that the server rule was “contrary to the text and legislative history of the Copyright Act”:…
Continue Reading Judge Rakoff Finds that “Embedding” Photos and Videos Online Can Infringe Copyrights, Rejecting “Server Rule”

In an opinion today, Judge Swain concluded that it was “fair use” for to the makers of the NBA 2K video games to depict players’ tattoos (see our prior coverage here). Judge Swain had earlier concluded the fair use defense was not enough to dismiss the case on the pleadings, but, following discovery, today concluded that summary judgment was appropriate.  She found that the factors used in determining fair use all favored the video game maker.…
Continue Reading Judge Swain: Depicting NBA Players’ Tattoos in Video Game Is “Fair Use”

Last week, seven major publishers filed a lawsuit claiming that a new captioning service offered by audiobook company Audible, Inc. violates copyright law.  The “Audible Captions” feature transcribes the narration from the audiobook and displays the text on-screen, so that listeners-slash-readers can follow along in real time.  Although previous Audible offerings have allowed users to…

In an opinion Wednesday, Judge Engelmayer denied a motion by musician Kendrick Lamar (and other defendants) for partial summary judgment in a copyright case brought by an artist claiming that his work was displayed without authorization in the music video “All the Stars” from the Black Panther movie.

The plaintiff hadn’t registered his work and so wasn’t eligible for statutory damages.  The defendants argued that any actual damages — profits gained from the alleged wrongdoing — were inherently too speculative, and should be rejected even before discovery:…
Continue Reading Judge Engelmayer: Copyright Damages from Brief Display of Plaintiff’s Art in Kendrick Lamar Music Video Are Not Inherently Speculative

Last week, Judge Broderick denied a motion to dismiss a case brought by the copyright holders for the song “A New Day is Here at Last,” written by Perry Kibble in 1969 and performed by J.C. Davis.  The suit alleged that Justin Timberlake’s 2006 hit song “Damn Girl” sampled “A New Day is Here at Last” without seeking permission from the copyright holder, a company managed by Kibble’s sister.  Timberlake released the song in 2006 as part of an album and tour that received multiple Grammy and Emmy nominations.  Plaintiffs discovered that “Damn Girl” had sampled “A New Day is Here at Last” in August 2015 and filed the suit in February 2016.

Among other arguments, defendants claimed that the widespread availability of the album and concert DVD put plaintiffs on notice of any possible infringement well before 2015, and hence the case was untimely.  Judge Broderick rejected this argument:…
Continue Reading Judge Broderick: Copyright Case Against Justin Timberlake Is Timely; Plaintiff Had No Duty “Scour” All Songs Immediately After Album Was Released

In an opinion last week, Judge Stanton granted video game manufacturer Take-Two’s request for an injunction against the creator of two software programs that allowed users to cheat at Take-Two’s “Grand Theft Auto V” video game.  Among other functions, the computer programs allow users to use an unlimited amount of in-game currency that otherwise had to be purchased from Take-Two.  Take-Two alleged that the cheat software violated Take-Two’s copyright in “Grand Theft Auto V” and also violated the terms of the user agreement.

In granting the preliminary injunction, Judge Stanton focused on the harm to both the public as well as Take-Two:…
Continue Reading Judge Stanton Grants Preliminary Injunction Against Creator of “Grand Theft Auto V” Cheat Software

In an opinion yesterday, Judge Hellerstein dismissed a suit claiming that the popular novel The Art of Fielding unlawfully misappropriated elements of the story from an unpublished novel called Bucky’s 9th.  After reading both works, Judge Hellerstein found they were not substantially similar:

When read in context, the portions or features of TOAF that are alleged to be similar to Bucky’s are either abstract ideas, scenes a faire, or trivial details insignificant to the either of the two works. True, both works are about a struggling Division III baseball college team, and both works track the baseball team’s changed fortunes after the arrival of a new player. But that is the extent of the similarities.

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Continue Reading Judge Hellerstein Dismisses Copyright Suit Against Author of The Art of Fielding

This week, the owner of the copyright for Marvin Gaye’s hit song “Let’s Get It On” filed a complaint against English singer-songwriter Ed Sheeran.  The complaint alleges that Sheeran’s song “Thinking Out Loud” copies large parts of Gaye’s work, including its vocal melodies, bass lines, chord progression, and harmonic rhythm.  “Thinking Out Loud” was nominated…