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Trends in Entertainment, Media, and IP Law #2

Litigation Trends in Social Media, Music, and Video Streaming:

  • The Most Litigious Firms in Copyright Law Are Boutiques. Small boutique firms (specializing in a certain area such as photojournalism, fashion, and the internet) filed the most copyright lawsuits during the second quarter of 2017. Between April 1 and June 30, Liebowitz Law Firm filed 113 new copyright cases, the most by a single firm. Doniger Burroughs came in second place with 83 new lawsuits this quarter. Doniger has filed at least 40 new copyright lawsuits each quarter for the last two and a half years. Lonstein Law Office came in sixth place with 14 new copyright lawsuits that all alleged bars had illegally shown UFC matches.
  • Paparazzi Plaintiffs Sue Celebrities for Instagram Posts. Celebrities and their social media accounts are being targeted by a string of paparazzi plaintiffs who are suing the celebs for posting photos of the themselves that were candidly taken by the paps. Diddy recently settled an infringement suit brought against him for posting a picture on his Instagram account. The paparazzi plaintiff took the photo of Diddy at the opening of a Harlem charter school. A paparazzi plaintiff also sued Khloe Kardashian after she posted a picture of herself on her Instagram account that the pap had captured of Khloe and Kourtney Kardashian eating out in Miami.
  • Artists Advised Not to Reveal Inspiration behind New Songs. After Pharrell Williams said he was “channeling … that late 70s feeling” of Marvin Gaye’s music which played a pivotal role in William’s younger years, Gaye’s estate was awarded $7.3 million for copyright infringement in Robin Thicke and Pharrell Williams’ “Blurred Lines.” Industry leaders and agents are cautioning artists not to publicly declare the inspirations behind their latest music, out of fear that “inspiration can [now be interpreted as] a catalyst for infringement.” Other artists are required to sign contracts that reveal their inspirations to the record labels, which use those lists to research potential infringement claims before they happen.
  • Beware of the Newest Way to Illegally Stream Content. Mobdro is the one of the latest streaming services that facilitates infringement by directing users to a trove of illegal live and on-demand television shows, movies, and sporting events. While the app isn’t available in the app store, in-the-know users are able to install the app for free online in order to play content directly on their TVs through Google’s Chromecast or Amazon’s Fire TV Stick. The new app has been frequently compared to Kodi, another streaming service that has been the subject of numerous lawsuits.

Policy Trends in Entertainment, Media, and Intellectual Property:

  • Google Influences Policy by Paying Professors for Research. Drawing on a list of IP academics, Google paid between $5,000 and $400,000 for hundreds of research papers that the tech giant then cited in its fight against regulations. Google made the payments either directly or through the think tanks it funds. Some professors gave Google a degree of editorial oversight, allowing the company to review the work and offer suggestions before publication. The professors argue that disclosing research to the company before publication ensures accuracy. Additionally, Google told professors that it appreciates attribution or acknowledgement of its financial support. However, many professors did not disclose their financial incentives. Google argues that it values the independence and integrity of universities, and simply supports IP and tech researchers in hopes of amplifying voices that argue for an open internet. Other tech giants have also paid professors for research. In fact, Microsoft, Qualcomm, Verizon, and AT&T have all paid for negative research on Google. Some have compared this new trend in the tech industry to Big Tobacco’s funding of questionable research into the dangers of smoking.
  • U.S. Tech Companies Unite in Support of Net Neutrality. On July 12, tens of thousands of tech companies and websites protested proposed changes to net neutrality rules in the United States during the Internet-Wide Day of Action to Save Net Neutrality. Sites including Facebook, Netflix, Twitter, Reddit, Amazon, and OkCupid participated by displaying banners or videos and by promoting hashtags or other media to incite their users to oppose the new administration’s attempts to overturn the Obama-era regulations on internet fast-lanes. Other companies including internet service providers like AT&T and Verizon voiced support for net neutrality while opposing the 2015 regulations.
  • “Right to Repair” Bills. Repair rights advocates argue that corporations are abusing copyright law to prevent third-party mechanics from fixing their products. Specifically, The Repair Association takes issue with companies that use the DMCA’s anti-circumvention provision to prevent mechanics from fixing smart machines, since doing so often constitutes a hack punishable by hefty fines and prison time. This leaves customers with only two options: return to the manufacturer for an expensive repair or buy a new device. The point of contention frequently comes down to whether users are owners or licensees of the products – usually, you own the hardware but license the smart software. Twelve states are currently considering “Right to Repair” bills which would require manufacturers to sell parts and manuals to be used by third-party mechanics. On the national stage, the You Own Devices Act, which was introduced to Congress in February, would extend the first sale doctrine to software, by restricting a company’s ability to prevent their customers from reselling or leasing their products. Customers would be able to transfer the licenses of any software on their devices to the new owner.
  • New Bills would have Major Impact on Music Industry if Passed. Congressional representatives have introduced or reintroduced multiple bills that seek to make copyright law apply more evenly and equally across the many different entities in the music industry. Here is a brief look at some of the most important aspects of these pending bills:
    • Fair Play Fair Pay Act of 2017. In an attempt to make copyright law apply to traditional broadcast radio stations as it does to digital streaming services, this bill would require terrestrial stations to pay royalties to copyright owners by giving copyright owners a new exclusive right to perform or authorize the performance of a sound recording by means of any audio transmission. The bill was previously introduced in 2015, but failed to pass after extensive lobbying by the radio industry.
    • Performance Royalty Owners Music Opportunity to Earn Act of 2017. In a different approach to a similar issue, this bill would require terrestrial radio stations to secure permission to use an Artist’s song. While the bill does not change the royalty landscape, Congressman Issa explained that the bill “calls the bluff of both sides in a debate over performance rights” by allowing artists to pull their songs from radio and miss out on the “exposure and promotional value” of radio air time.
    • Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act. Terrestrial radio isn’t the only free-riding target that Congress has its sights set on. This bill would require streaming services to pay a royalty for pre-1972 songs, by applying existing law to songs created before February 15, 1972 in the same way that it is applied to songs created after that date.
    • Allocation for Music Producers Act. This bill would amend Section 114 of the Copyright Act to grant music producers a new right to be compensated for their recordings through the letter of direction process.
    • Register of Copyrights Selection and Accountability Act of 2017. Under current law, the Librarian of Congress has the authority to appoint a Register of Copyrights. The bill seeks to make the position a presidential appointment subject to Senatorial confirmation and limited to a renewable ten-year term. While the position has no power to make law, anyone appointed plays a signification role in shaping copyright policy – a role that expands under this bill.
    • Copyright Office for the Digital Economy Act. Similarly, this bill would make the position of Register a presidential appointment, however the position would not be renewable. This bill also seeks to move the Copyright Office away from the Library of Congress to a more independent position.

About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby enrolled in the University of Florida Levin College of Law with hopes of pursuing an in-house legal career at an entertainment or media corporation. He has held legal internship positions at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He expects to graduate in May 2018.


 

Decisions in Entertainment, Media, and IP Law #1

SCOTUS declined to hear two Digital Millennium Copyright Act cases:

  • Lenz v. Universal Music Corp. After receiving a DMCA takedown request from Universal Music Group, YouTube removed a video of a baby dancing to Prince’s “Let’s Go Crazy” that fell within the fair use defense. The Ninth Circuit held that copyright owners must reach a “good faith belief” that the material is infringing before filing a takedown request. Advocates against DMCA abuse hoped the Supreme Court would raise the easy, subjective standard to a more rigorous “objectively reasonable” belief in order to prevent censorship, but the court passed on reviewing the case.
  • EMI Christian Music Grp., Inc. v. MP3tunes, LLC. Record companies and music publishers sued a digital music storage site for copyright infringement. The jury awarded $48 million to the plaintiffs, despite the district court finding that the site had a reasonably implemented repeat infringer policy as required for safe harbor protection under 17 U.S.C. § 512. The district court then partially granted the site’s post-trial motion for judgment as a matter of law, reducing the award to $12 million by reasoning that the site did not have red flag knowledge or willful blindness regarding two categories of pirated songs. Upon review, the Second Circuit reinstated the original verdict holding that a reasonable jury could find that the site did not have a reasonable repeat infringer policy, because the site did not connect takedown notices to users who repeatedly created links to that pirated content or to users who repeatedly copied that pirated content. Some copyright experts argued the Supreme Court should have taken the case, since the ruling directly conflicts with the DMCA’s “no duty to monitor” rule.

SCOTUS rules on the disparagement clause and copyright separability:

  • Matal v. Tam. The U.S. Patent and Trademark Office invoked §2(a) of the Lanham Act to deny “The Slants” trademark registration, since the band’s name was deemed to be disparaging to Asians. The disparagement clause prohibited registration of terms that bring persons, institutions, beliefs, or national symbols into contempt or disrepute. The band, which sought to end the disparaging connotation by reclaiming the racial slur and using it in a positive and empowering way, asserted a free speech defense. Justice Alito agreed that the disparagement clause violated the First Amendment, since “speech may not be banned on the ground that it expresses ideas that offend.” The case also ended decades of Native American activism to strip the Washington Redskins of trademark protection.
  • Star Athletica LLC v. Varsity Brands Inc. Venturing into fashion law to address the widespread disagreement among the circuits, SCOTUS reviewed the separability of unprotected useful items (such as clothing) from their protected expressive elements. The fashion industry hoped for a broad definition that would protect their products under copyright, while consumer advocates hoped a narrower approach would increase competition. Clarence Thomas wrote the new test: copyright protects expression that can “be perceived as a two- or three-dimensional work of art separate from the useful article” so long as it qualifies as protectable expression when “imagined separately from the useful article into which it is incorporated.” Some experts questioned whether this ruling would have the unintended consequence of expanding copyright protection to basic fashion tropes such as frequently used colors, stripes, and shapes.

Intellectual property and media law decisions from the lower courts:

  • Elliott v. Google, Inc. Google filed a cybersquatting complaint under the Uniform Domain Name Dispute Resolution Policy (UDRP) when Elliott registered 763 domain names inclusive of the word “google.” After the arbitrator sided with the tech giant, Elliott filed a claim to have the trademark cancelled, arguing that it had succumbed to genericide. Genericide occurs when a trademarked brand loses protection, because it has become the generic name for the product or services it protects (e.g. aspirin). This often occurs because the trademark owner has failed to police the mark and prevent others from using its mark to identify competitor’s products or services. Although “google” is used as a verb meaning “to search the internet,” the Ninth Circuit held that Google will not lose trademark protection, because the use of “google” as a verb did not necessarily constitute generic use. The brand passed the “who-are-you/what-are-you” test, since the use of “google” as a verb is used to describe searching the internet but not to describe all search engine services as a category of products or services.
  • Corbello v. Devito. The District Court for the District of Nevada overturned a jury verdict against the Broadway musical “Jersey Boys” for copyright infringement of an unpublished autobiography, since a fair use analysis of the copying showed that only a quarter of a percent was copied from the source content. Most similarities, the court explained, were due to the fact that both works were based on actual historical events, which are not copyrightable.
  • Jordan-Benel v. Universal City Studios, Inc. Douglas Jordan-Benel sued Universal City Studios for allegedly using substantial parts of his screenplay for the basis of “The Purge” film series. The implied-in-fact contract claim was based on Universal City Studios’ failure to pay Jordan-Benel. Universal City Studios filed an anti-SLAPP motion, which was denied by the district court because the contract claim did not arise from conduct in furtherance of the right of free speech. The Ninth Circuit affirmed, and the case is expected to continue at a lower court and potentially go to trial.
  • Virginia Citizens Def. League v. Katie Couric. Katie Couric was sued for defamation in relation to a nine second pause after the reporter asked gun rights advocates a question in a documentary. The gun rights advocates claimed the footage was manipulated to falsely inform viewers that the subjects had been stumped by the question and had no basis for their opinions. The district court granted Couric’s motion to dismiss, because the interview scene was not false, since the gun rights advocates did not answer the question and “the editing simply dramatizes the sophistry” of the gun rights advocates.

About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby enrolled in the University of Florida Levin College of Law with hopes of pursuing an in-house legal career at an entertainment or media corporation. He has held legal internship positions at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He expects to graduate in May 2018.