First Sale Doctrine Not Limited by Geography, Rules U.S. Supreme Court

The question the U.S. Supreme Court addressed in Kirtsaeng v. John Wiley & Sons, Inc., is whether copies that were published abroad and distributed abroad by an American copyright owner are copies that are lawfully made under the U.S. Copyright Act.  If so, Kirtsaeng, the alleged infringer, could lawfully buy copies published and distributed abroad, then sell them in the U.S. without permission from the copyright owner.  If not, then Kirtsaeng was a copyright infringer.

Supap Kirtsaeng, a Thai citizen studying in the U.S., bought foreign edition English language textbooks published abroad by John Wiley’s wholly owned foreign subsidiary for foreign markets.  He then imported and sold those textbooks in the U.S. for a profit.  Wiley sued Kirtsaeng for copyright infringement, due to Kirtsaeng’s unauthorized importation of the text books.  At issue was the interplay between 17 U.S.C. §106(3) granting the copyright owner the exclusive right to distribute copies, §109(a) limiting the copyright owner’s exclusive right to distribute copies with the first sale doctrine and §602 deeming importation of copies without the consent of the copyright owner an infringement under §106.  Ultimately, the case came down to whether the language of §109(a) places a geographic restriction on the scope of the first sale doctrine.  The U.S. Supreme Court ruled that there is no geographical restriction and that Kirtsaeng did not infringe Wiley’s copyrights by selling books in the U.S. that were published abroad by Wiley.

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Veoh Protected Against UMG Copyright Infringement Claims by DMCA Safe Harbor

Veoh Networks operates a website that allows users to upload and share video content over the Internet.  Universal Music Group (UMG) is a major recorded music and publishing company and also produces music videos.  UMG sued Veoh for direct and secondary copyright infringement, alleging that Veoh’s service allows users to download unauthorized copies of songs for which UMG owns the copyright. 

I previously blogged about this case in Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit.  Last week, the Ninth Circuit withdrew its opinion filed December 20, 2011 and filed a superseding opinion.  The Ninth Circuit again upheld the district court ruling that Veoh’s services were protected by a Digital Millennium Copyright Act (DMCA) safe harbor.

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Jersey Boys’ Use of Seven Second Clip from The Ed Sullivan Show Fair Use

Dodger Productions, Inc. used a seven-second clip from The Ed Sullivan Show in its stage musical, Jersey BoysJersey Boys is a play recounting the history of the pop band, the Four Seasons, and its members.  SOFA Entertainment owns the copyrights for the entire series of The Ed Sullivan Show, from 1948 to 1971.  SOFA sued Dodger for copyright infringement for its unlicensed use of the clip.

Dodger asserted a fair use defense to SOFA’s lawsuit.  Both parties moved for summary judgment on the fair use issue.  The district court ruled in Dodger’s favor, agreeing that Dodger’s use in the Jersey Boys was a fair use.  The district court also granted Dodger’s request for attorney’s fees and costs of $155,000.  “The district court viewed SOFA’s infringement claim as objectively unreasonable and determined that awarding fees would deter future lawsuits that might chill the creative endeavors of others.”  (Opinion pdf page 6).  The Ninth Circuit affirmed the district court’s decision.

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“Phifty-50” and “50/50” Not the Same Trademark, No Confusion About Origin

Eastland Music Group owns the rights to Phifty-50, a rap duo.  Phifty-50 maintains a website and released a 2003 album and a t-shirt.  Eastland registered “PHIFTY-50” as a trademark and claims a trademark in “50/50.”  Lionsgate Entertainment and Summit Entertainment named their 2011 motion picture “50/50,” referring to the main character’s chance of surviving cancer. 

Eastland sued Lionsgate and Summit for trademark infringement.  The district court ruled that the movie’s title was descriptive and dismissed the complaint on a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim upon which relief can be granted.  The Seventh Circuit affirmed the district court’s ruling, holding that there was no confusion about origin.

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