Copyright Developments

“Bananas are great, as I believe them to be the only known cure for existential dread.”  -- Anne Lamott

On July 7, 2022 the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, 2022 WL 2466775 (S.D. Fla. July 7, 2022), which began by posing the following question: “Can a banana taped to a wall be art?” At issue was a claim by artist Joe Morford that his sculptural diptych, “Banana & Orange,” allegedly created in 2000 and shown at left below, was infringed by a work entitled “Comedian” by internationally famous artist Maurizio Cattelan, shown at right below. Both works prominently feature a banana affixed to a wall with silver duct tape, though Plaintiff’s banana is plastic and Defendant’s is overripe:

In Acuti v. Authentic Brands Grp. LLC, 33 F.4th 131 (2d Cir. May 4, 2022), the Second Circuit considered an appeal regarding the rights to the musical composition “Can’t Help Falling in Love,” written in part by Hugo Peretti and made popular by Elvis Presley.  The song was created in 1961, under the 1909 Copyright Act, which provided for an initial copyright term of 28 years with a contingent right to renew the copyright for an additional 28-year renewal term.

On March 10, 2022 the Ninth Circuit affirmed a District Court’s vacatur of a jury verdict in Gray v. Hudson, 28 F.4^th 87 (9^th Cir. 2022)(“Gray”), to rule that a repeating eight-note instrumental pattern in Katy Perry’s 2013 hit “Dark Horse” did not infringe two similar patterns in Plaintiff’s 2008 composition entitled “Joyful Noise.”  The decision articulates the current state of Ninth Circuit law regarding the threshold of protectable originality in music infringement cases, and because so many music cases are brought in the Ninth Circuit the ruling will likely be significant to music litigators nationwide.  

In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., Case No. 20–915, 595 U. S. ____ (2022), the U.S. Supreme Court held that the safe harbor provision provided under § 411(b) of the Copyright Act does not distinguish between a mistake of law and a mistake of fact.  Lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration.

The Supreme Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit and remanded the case for further proceedings.

The Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). Courts have uniformly understood “authorship” to refer to a quality that is uniquely “human,” often alluding to the nexus between the human mind and creative expression.  For example, some of the earliest copyright cases defined copyright as “the exclusive right of man to the production of his own genius or intellect.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884). See also Trade-Mark Cases, 100 U.S 82, 94 (1879) (explaining that copyright law only protects “the fruits of intellectual labor” that are “founded in the creative powers of the mind”).

In dual lawsuits filed on February 7, 2022, the estates of Robin Williams and George Carlin accuse Pandora Media of willfully infringing the legendary comedians’ registered copyrights in their “spoken word compositions” – their standup routines – by streaming the sound recordings that embody those routines without a license for the spoken word works.  Robin Williams Trust v. Pandora Media, LLC, No. 22-cv-815 (C.D. Cal. Feb. 7, 2022); Main Sequence, Ltd. v. Pandora Media, LLC, No. 22-cv-810 (C.D. Cal. Feb. 7, 2022).

In July, we reported on the U.S. Supreme Court’s grant of certiorari in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194 (9^th Cir. 2020) (“Unicolors”) for the October 2021 term, docket no. 20-915.  Briefing was completed in mid-October (briefs can be found at www.scotusblog.com) and oral argument was held November 8 (recording available at www.c-span.org).  This column will describe some of the major issues the Court addressed in that argument, and will identify some questions that are likely to remain open no matter the outcome.   

The retransmitter of unlicensed copyrighted programming could not escape infringement liability when its charges to users exceeded its costs, despite its effort to characterize its charges as “recommended donations.”  Following motion practice, the retransmitter service is no longer operational.

Update:  This article was republished in the October 2021 issue of The Licensing Journal published by Wolters Kluwer.

Biz Markie (born Marcel Theo Hall), popularly known as hip-hop’s clown prince, passed away on July 16, 2021 at the age of 57. Biz’s innovative beats and lovably goofy lyrics left their mark on the music industry in more ways than one.

In Google LLC v. Oracle America, Inc., Case No. 18–956, 593 U. S. ____ (2021), the U.S. Supreme Court held that Google’s unauthorized copying of around 11,500 lines of Oracle’s computer code was a fair use and therefore not an infringement.