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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

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