Brammer v. Violent Hues: Fourth Circuit Gets it Right

Last June, one of the worst fair use decisions I’ve ever read came out of the Eastern District of Virginia, in Brammer v. Violent Hues Productions. The mere mention of this decision in a room full of copyright attorneys would elicit an audible groan (and maybe even a few explicit mumblings) … But in an opinion issued on April 26, the U.S. Court of Appeals for the Fourth Circuit reviewed the decision de novo, examining each factor anew, and reversed and remanded.

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Breaking Down Fourth Estate: What the Supreme Court Ruling Means for Creators

Last week, the U.S. Supreme Court issued an important copyright decision in Fourth Estate v. Wall-Street.com regarding the meaning of “registration” under section 411 of the Copyright Act. Section 411 states, in part:

“…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

In other words, before a copyright owner can file an infringement suit, the work at issue must first be registered with the U.S. Copyright Office. This is not a new requirement. In fact, this has been the case since the current copyright statute was enacted in 1976.

The issue before the court was whether the meaning of the phrase “registration … has been made” under section 411 means 1) that the copyright owner needs to have submitted a completed application, deposit, and fee, as adopted by the Fifth and Ninth Circuits OR 2) that the registration application has been “acted on”—i.e., the application has been approved or denied by the Copyright Office—as adopted by the Tenth and Eleventh Circuits.

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Drake Documentary Front and Center in Copyright Dispute

Shortly after the film’s release on Netflix, iTunes, and Amazon, Universal Music Group (UMG) issued DMCA takedown notices claiming that the documentary used unauthorized music and video clips, in violation of copyright law. Last week, Symettrica Entertainment—the UK company behind the documentary—filed a lawsuit in a California federal court claiming that UMG, under direction from Drake himself (although he is not a party in the suit), “intentionally misused the takedown process to silence and suppress viewpoints and speech in the [d]ocumentary with which Universal and/or Drake apparently disagree.” Symettrica stands firm in its assertion that the use of the clips at issue constitute fair use, further alleging that UMG failed to consider fair use at all before instructing the sites to remove the film.

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Fyre Festival Documentaries Highlight Importance of FTC Disclosures

Fyre festival: an appropriate name for an event that went up in flames the way this music festival did. Many of you may remember the tweets and memes that went viral in April 2017, as festival-goers arrived in Great Exuma, an island in the Bahamas, to find that the luxury villas and gourmet food accommodations they paid thousands to reserve turned out to be hurricane relief tents and a thin slice of cheese between two pieces of bread.

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Will ReDigi Ask the Supreme Court to Weigh in on the Resale of “Used” Digital Music Files?

Last month, the U.S. Court of Appeals for the Second Circuit decided one of the most highly anticipated copyright cases of the year—Capitol Records v. ReDigi—finding ReDigi liable for direct, contributory, and vicarious copyright infringement. The dispute centered around whether ReDigi Inc.’s online marketplace, which allowed users to buy and sell “used” mp3 music files for a fraction of the price set by iTunes, ran afoul of copyright law. ReDigi’s aim was to create a secondary market for digital music files where people (and of course ReDigi, which took 60% of the profits) could make money for music they no longer wanted.

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Fortnite and the Exploitation of Creative Capital

Over the last several weeks, a number of creatives—including 2 Milly, Alfonso Ribeiro, and Backpack Kid—have filed lawsuits alleging misappropriation of their signature dance moves by Epic Games, the company behind the video game Fortnite. It’s worth highlighting that these lawsuits aren’t about artists going after fans incorporating these dances socially at parties or in nightclubs (which would almost certainly qualify as fair use under copyright law anyway). Instead, the complaints allege that Epic Games is profiting directly from the use and popularity of these dances by allowing players to customize their avatar and gaming experience by accessing the moves (called emotes in the game) through in-game purchases.

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