Copyright Developments

On Sept. 11, 2024, Senior Judge Thomas Thrash Jr. of the Northern District of Georgia granted plaintiffs' motion for a preliminary injunction in Isaac Hayes Enterprises v. Trump, No. 24-cv-3639 (N.D. Ga. Sept. 11, 2024).

For copyright infringement cases involving musical compositions, courts and juries are often tasked with determining whether two songs are “substantially similar,” the legal standard required to show infringement. 

On February 19, 2024, the Fifth Circuit affirmed the dismissal of a copyright infringement suit in the Western District of Texas, in which the plaintiff alleged that the band Nickelback had copied his musical composition.  The plaintiff, songwriter and member of the band Snowblind, alleged that Nickelback’s hit 2005 song Rockstar infringed the plaintiff’s 2000 song Rock Star.  The plaintiff, asserting that he had not heard Nickelback’s song until 2018—“an odd contention,” according to the Fifth Circuit, given the ubiquity of the Nickelback song—brought suit in 2020.  The district court dismissed the claim on summary judgment, finding that there was no genuine dispute of fact concerning factual copying.  The plaintiff appealed, and the Fifth Circuit agreed.

On January 26, 2024, a unanimous jury held that a tattoo of Miles Davis inked by celebrity artist Katherine Von Drachenberg (better known as Kat Von D) was not substantially similar to the reference photo on which it was based.  The jury also found that the Instagram posts showing the photo in the background were protected under the fair use doctrine. 

The Copyright Act lists “choreographic works” as one of the eight types of creative works that are protectable under federal copyright law (17 U.S.C. Section 102(a)(4)).  However, the Act itself does not define “choreographic works” and thus far, there has been surprisingly little case law discussing the scope of what can or cannot be protected.  A recent Ninth Circuit case, Hanagami v. Epic Games, Inc., took a stab at addressing this question and ultimately provided some helpful guidance.  

On August 18, 2023 D.C. District Court Judge Beryl A. Howell upheld a final refusal by the U.S. Copyright Office (“USCO”) to register a visual work entitled “A Recent Entrance to Paradise,” shown here:

Finch v. Casey, 2023 U.S. Dist. LEXIS 20635 (S.D. Fla. Feb. 7, 2023), concerned 99 songs co-written by Richard Finch and Harry Wayne Casey – aka KC – while they were members of KC & The Sunshine Band in the 1970s.  Between the mid-1970s and early-1980s Casey and Finch entered into publishing agreements with a major music publisher, and formed Harrick Music Inc., which they co-owned on a 50/50 basis, as their publishing designee.  Casey and Finch formally severed all personal and financial ties in 1983 through the execution of a “Property Division Agreement” that divided between them various items of tangible and intangible property that they had previously owned together.

“ON THE BUBBLE: In a state of uncertainty between two possible outcomes. This phrase is often used in reference to sports teams.” www.idioms.thefreedictionary.com 

With the Stanley Cup just around the corner, this month’s column deals with a recent case from the Eastern District of Pennsylvania, Grondin v. Fanatics, Inc., 2023 U.S. Dist. LEXIS 65897 (E.D. Pa. Apr. 14. 2023), which involves an item of hockey memorabilia called “Slice of the Ice,” a “Lucite sculpture in the approximate shape of the Stanley Cup, with a hockey puck–shaped piece in the center filled with melted ice gathered from the rink used in a prominent hockey game.”  The plaintiff in Grondin alleged that defendant’s competing puck-shaped, water-filled hockey memento infringed his registered copyright in “Slice of the Ice.”  In January, the Court dismissed a first amended complaint with leave to replead, because plaintiff failed to identify a “non-utilitarian, non-commonplace feature of the puck-shaped cavity.”  Plaintiff filed a Second Amended Complaint, alleging in paragraph 22 that the cavity in defendant’s item contained the same amount of water as did his Lucite puck, “such that shifting the position of the puck yields the same wave motion of the water inside.”  Defendant again moved to dismiss, and on April 14 the Court granted that motion with prejudice.   

While the Supreme Court weighs a potentially momentous ruling on fair use, photography and fine art in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Ninth Circuit recently adjudicated a fair use claim involving photographs of hundreds of works by perhaps the only twentieth-century artist even more famous than Warhol: Pablo Picasso.  In De Fontbrune v. Wofsy, 39 F.4th 1214 (9th Cir. 2022) (“Wofsy”), the plaintiff sought to enforce a French judgment against defendant’s unauthorized duplication of over 1400 photographs of Picasso artworks in its so-called “Picasso Project.”  The photos had originally been made by or for plaintiff’s predecessor beginning in the 1930s for an authorized catalogue raisonné of Picasso’s work, the so-called “Zervos Catalogue,” and were held by the French courts to be protectable in their own right as photographs.  Defendant challenged the enforcement of the French judgment in the U.S. on a number of grounds, including the claim that the judgment violated U.S. public policy by imposing liability on activities that would be shielded by the fair use doctrine had they occurred in the U.S.  A California district court agreed, and granted summary judgment to defendant on that basis.

On August 24, 2022 the Central District of California granted defendant’s 12(b)(6) motion to dismiss in Hanagami v. Epic Games Inc., 2022 WL 4007874 (C.D. Cal. Aug. 24, 2022), in which plaintiff Kyle Hanagami claimed that Defendant Epic Games infringed his registered copyright in a choreographic work titled “How Long Choreography.”