On May 18, 2023, the United States Supreme Court ruled in favor of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF),[1] in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act. The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the “purpose and character” of AWF’s commercial use of Warhol’s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not ..read more

The U.S. Copyright Office (“Office”) has published guidance on its policy and practices for examining and registering works that contain material generated by the use of artificial intelligence technology. Some of the key points include the following: Copyright can protect only material that is the product of human creativity – the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or in ..read more

The harm caused to brands by counterfeiting goes far beyond loss of sales or profits.  Fake goods jeopardize public health and safety when a brand’s trademark is applied to a sub-standard and potentially harmful product.  This is especially hazardous for counterfeit medical items, mechanical parts, and food products, to name a few.  What is more, the reputational damage inflicted by low-quality products can be devastating. The Lanham Act defines ‘trademark counterfeiting’ as producing or selling a product bearing a false trademark that is an intentional copy of a genuine tradema ..read more

Starting this month, social media influencers and other authors of online content can take advantage of a new group copyright registration option for short online works such as blog entries, social media posts and web articles. Authors could even register their own comments to a social post as separate copyrightable works in certain situations. The U.S. Copyright Office announced that the new registration option allows applications covering groups of up to 50 literary works if those works meet the eligibility requirements. Most notably, each separate work must contain between 50 and 17,500 wor ..read more

PART 1: IP ISSUES CURRENTLY PENDING BEFORE THE SUPREME COURT In the first part of our series, we briefly summarize the intellectual property issues that the Supreme Court has already agreed to address in 2020. In particular, we provide a brief overview and key takeaways for the Supreme Court’s consideration of: Whether adding “.com” to a generic mark creates a protectable trademark; The scope of appeals from IPR proceedings; The ability to copyright software interfaces; Requirements for recovering an infringer’s profits in trademark cases; State sovereign immunity from copyright infringement ..read more

The Second Circuit issued a remarkable decision on termination rights under Sections 203 and 304(c) of the Copyright Act that seemingly, whether knowingly or otherwise, limits the Act’s extraterritorial reach. Ennio Morricone Music Inc. v. Bilio Music Group Ltd., Second Circuit, No 17-3595-cv, decided August 21, 2019 (“Morricone II”). The foregoing provisions of the Copyright Act allow authors to terminate grants after a certain stated period of years, generally after 35 years for grants made by an author. This termination right is unavailable to works-made-for-hire. Identifying the “auth ..read more

On March 4, 2019, the United States Supreme Court held unanimously that “a copyright claimant may commence an infringement suit … when the Copyright Office registers a copyright.” Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC. (Slip. Op. at p. 1 (syllabus)). The Court also held unanimously that, upon registration of the copyright, “a copyright owner can recover for infringement that occurred both before and after registration.” Id. This decision resolves a long-standing circuit split between the application approach, which allowed a copyright owner to sue for infringement upon subm ..read more

Growing frustration in the fashion community regarding weak or non-existent intellectual property laws has finally caught the attention of some nations. Nigeria is one nation that currently is trying to alleviate this frustration by reforming its intellectual property laws. This reform is driven, in part, because, Lagos, Nigeria has quickly risen as a fashion hub, and has been compared with such fashion centers as London, Paris, Milan, and New York. Nigerian designers have recently experienced great global success and visibility. For example, Amaka Osakwe has been pushing the limits of Nigeria ..read more

A few months ago, we brought to your attention a case initiated by The Turtles, seeking royalties in New York for the unauthorized performance of their pre-1972 sound recordings. In that decision, the Court of Appeals of New York decided, on a question certified to it by the Second Circuit, that New York state law did not recognize a public performance right in pre-1972 sound recordings. We observed that other courts considering this issue, most notably the Supreme Courts of California and Florida (likewise on certified questions respectively from the Ninth and 11th Circuits) may decide likewi ..read more

The U.S. Copyright Office is making changes to the Digital Millennium Copyright Act (DMCA) safe harbor agent registration process. The changes impact both new online service providers as well as existing online service providers who have already registered an agent. Read on for details about what you will need to do. What do I need to know about the new DMCA agent registration system? In order to qualify for DMCA safe harbor protections, you must designate an agent to receive notifications of claimed infringement under the DMCA using the Copyright Office’s new electronic system by December 31 ..read more