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a suit claiming that the popular novel The Art of Fielding unlawfully misappropriated elements of the story from an unpublished novel called Bucky’s 9th.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.

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

In the copyright case over the use of images of real NBA players’ tattoos in the NBA 2K video game (see our prior coverage here), Judge Swain on Friday denied defendants’ motion for judgment on the pleadings. She concluded that more discovery was needed to determine whether the tattoos were such a “de minimis” part of the game as to fall outside the copyright laws, or whether the depiction of the tattoos was “fair use”:
Continue Reading Judge Swain: Discovery Necessary to Determine “Fair Use” of NBA Tattoos in Video Game

In an opinion today, the Second Circuit held that the “fair use” defense under copyright law did not apply to a service called “TVEyes” that allows users to search transcripts of cable news and other TV shows, and then watch clips up to 10 minutes long (called the “Watch” function).  The decision was a reversal of an earlier ruling by Judge Hellerstein (see our prior coverage here).

The Second Circuit first concluded that TVEyes’ Watch service was “transformative,” a key component of a fair use defense, insofar as it allows users to isolate clips based on their searches:
Continue Reading Second Circuit: Searchable Database of TV Clips Is Not “Fair Use”

Last week, Judge Hellerstein ruled that a parody of “How the Grinch Stole Christmas!” constituted fair use and did not infringe on the defendant’s copyright or related trademarks.  The plaintiff, New York playwright Matthew Lombardo, brought the suit against Dr. Seuss Enterprises over his “one actress 75-minute comedic play featuring a rather down-and-out 45 year-old

In an opinion last week, Judge Rakoff ruled that children’s illustrated versions of classic novels called “KinderGuides” infringed the copyrights associated with the original works.  He rejected the defendants’ arguments that the removal of adults themes and addition of commentary rendered the publishing of the Guides “fair use”:
Continue Reading Judge Rakoff: “KinderGuides” to Literature Infringe Copyrights of Original Works

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

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