In an opinion Wednesday, Judge Kaplan awarded attorneys’ fees to news networks that broadcast brief excerpts of the plaintiff’s live-streaming on Facebook of his partner’s childbirth.  Alongside the broadcasts, the networks offered “social commentary about the phenomenon of someone publicly live-streaming a life event that traditionally is considered personal.”  Judge Kaplan dismissed the plaintiff’s copyright claims on fair use grounds, and in the ruling Wednesday, he found the case so meritless as to justify fee-shifting:
Continue Reading Judge Kaplan: Plaintiff Who Live-Streamed Childbirth Must Pay News Networks’ Attorneys’ Fees for Dismissed Copyright Suit

In an opinion last week, Judge Pauley granted Drake and his co-defendants summary judgment in a case accusing them of copyright infringement.  The case arose from the fact that Drake’s song “Pound Cake” opens with about 35 seconds of spoken words that are similar to a spoken word recording called “Jimmy Smith Rap,” by the jazz artist Jimmy Smith.

Judge Pauley found that Drake’s sampling was fair use because (among other reasons) it was “transformative” of the Smith track (referred to in the opinion as “JSR”):
Continue Reading Judge Pauley: Drake’s Sampling of Spoken Word Excerpt from Jazz Album is Fair Use

Yesterday, Judge Wood dismissed an attempt by internet service provider (ISP) Windstream to secure a declaratory judgment that its status as an ISP meant that it lacked the necessary knowledge and ability to secondarily infringe copyrights under the Digital Millennium Copyright Act.  The defendant, music publisher BMG, argued that the court lacked jurisdiction to issue what would amount to an advisory opinion preventing any future infringement claims against ISPs.
Continue Reading Judge Wood Dismisses Preemptive Copyright Action Brought By Internet Service Provider

Today, the New York Court of Appeals, in response to a question certified from the Second Circuit (after being certified for interlocutory review by Judge McMahon), held that New York common-law copyright law does not recognize a right of public performance for creators of sound recordings predating the 1972 federal Copyright Act.  The question was certified as part of a putative class action of artists of pre-1972 sound recordings (led by The Turtles, who wrote “Happy Together”) seeking royalties from Sirius XM Radio for allegedly playing recordings without permission.
Continue Reading New York Court of Appeals Answers Question First Raised by Judge McMahon: No Common Law Right of Public Performance For Pre-1972 Sound Recordings

In an opinion yesterday, Judge Cote granted in part and denied in part a motion to dismiss a case challenging the copyright to “We Shall Overcome,” the unofficial anthem of the U.S. civil rights movement.  (See our prior post on the case here.)

The defendant copyright owners argued that the copyrighted song was sufficiently different from songs in the public domain to merit copyright protection as a matter of law, but Judge Cote found that the question was not so clear that it could be resolved on a motion to dismiss.  She also found that there fact questions as to whether the original copyright was obtained by fraud:
Continue Reading Challenge to “We Shall Overcome” Copyright Survives Motion to Dismiss

Yesterday, Judge Rakoff dismissed claims that Beyoncé’s “Lemonade” infringed on the short film “Palinoia” through similarities in images, audio, and “total concept and feel.”  According to the plaintiff, elements such as a character with his or her head down near a wall with graffiti (elements that appear in scenes from both films, though with many other differences between the shots) are are protectable under the copyright laws.

Judge Rakoff disagreed, and found that the elements of “Palinoia” allegedly infringed upon were unprotectable ideas:
Continue Reading Judge Rakoff, with Nod to Taylor Swift, Dismisses Copyright Claims Against Beyoncé’s “Lemonade”

Today, Judge Castel dismissed RICO claims brought against Alibaba Group Holding by a group of luxury goods makers including Gucci and Yves Saint Laurent.  The complaint accused Alibaba of providing services and a market platform to merchants that Alibaba should have known were selling counterfeit goods.

Judge Castel specifically considered the plaintiffs’ claims that Alibaba’s online marketplace and the merchants that used it constituted a criminal enterprise under RICO.  Judge Castel rejected this argument, holding that lack the coordination necessary to create a RICO enterprise:
Continue Reading Judge Castel Dismisses RICO Claims in Case Over Alibaba Selling Counterfeit Goods

Yesterday, Judge Swain dismissed claims by Solid Oak Sketches, LLC alleging that Take-Two Interactive Software and other defendants infringed Solid Oak’s copyrights by prominently featuring eight tattoos of five NBA players (including LeBron James and Kobe Bryant) in Take-Two’s popular NBA 2K16 video game (see previous coverage here).

Judge Swain held that the plaintiffs could not recover under the Copyright Act because the first infringement occurred before the marks were registered: the tattoos were registered in 2015, and the alleged infringement first occurred when NBA 2k14 was released in 2013.  The parties also disputed whether the series of “2K” video games were a single work or separate works, and Judge Swain held that they were a single work:
Continue Reading Judge Swain Dismisses Infringement Claims Concerning Video Game Featuring LeBron and Kobe’s Tattoos