Sports Tape Competitor Can’t Make Invalid Copyright Claim Stick

Lumos designed, developed and distributes KT Tape, its brand of kinesiology tape.  Lumos created and published a general instructional video describing the use of its tape in 2009.  Lumos published its collection of short instructional videos showing how to apply the tape for various conditions, such as finger jams and inner knee pain, in January 2012.  Lumos registered its copyrights in the videos with the U.S. Copyright Office on October 24, 2012.  Lumos filed a single work application for the collection of videos.  Lumos later filed a supplemental registration to remove the general instructional video from the copyright registration.  The Copyright Office granted both Lumos’ original and supplemental registration applications.

Lumos filed a copyright infringement suit against LifeStrength, the manufacturer of a competing kinesiology tape, for infringing Lumos’ instructional videos.  Lumos alleged that twenty of LifeStrength’s videos infringe by coping the organizational structure of Lumos’ videos; making identical use of non-essential and unique wording throughout the videos; listing nearly verbatim potential causes of injury found in the same order at the beginning of each video; using nearly identical disclaimer language; and suggesting nearly identical complementary treatments.  In response to Lumos’ motion for partial summary judgment, LifeStrength argued that Lumos’ copyright registration is invalid for failure to meet the single work registration requirements.  The district court agreed with Lumos that LifeStrength is an infringer and granted Lumos’ motion for partial summary judgment.

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Copyright Owner Receives the Pointy End of the Fair Use Sharp Stick

The theme of the Madison, Wisconsin, Mifflin Street Block Party when it began in 1969 was “take a sharp stick and poke it in the eye of authority.”  It’s not clear whether that is still the theme of the block party, but now long time Madison Mayor Paul Soglin, who attended the first Mifflin Street Block Party when he was a student at the University of Wisconsin, wants to shut down the annual party.  Sconnie Nation is a company that creates “in-house, unique, masterpieces” “with the goal of spreading Sconnie pride across the country.” Sconnie Nation created t-shirts with an image of Soglin’s face and the phrase “Sorry for Partying” emblazoned on the shirts.

Photographer Michael Kienitz sued Sconnie Nation for copyright infringement.  Sconnie Nation admitted that it created its image of Soglin by starting with a photo Kienitz took of Soglin at Soglin’s 2011 inauguration.  Sconnie Nation then posterized the image, removed the photo’s background, turned Soglin’s face lime green and surrounded the face with multi-colored writing.  The district court granted Sconnie Nation’s motion for summary judgment, ruling that Sconnie Nation’s use was a fair use.  The Seventh Circuit Court of Appeals affirmed.  Significantly, the Seventh Circuit chose not to address whether Sconnie Nation’s use was transformative.

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TVEyes’ Use of Fox News Content Transformative and Fair Use

Some people find what television commentators say about the news as relevant as the news itself.  TVEyes is for them.  TVEyes records the broadcast content of over 1,400 television and radio stations.  TVEyes’ subscribers can use the TVEyes database to monitor and track search terms and get transcripts and video clips of portions of the TV shows that came up as search hits.  Video clips are limited to ten minutes and most are less than two minutes.  Content is available on the TVEyes website for only 32 days.  TVEyes is not available to the general public.  Subscribers are contractually prohibited from reproducing, publishing, rebroadcasting, publicly showing or publicly displaying the video clips.  Subscribers can also watch live streaming of everything TVEyes is recording.  TVEyes subscribers include the White House, the U.S. Army, members of Congress, news agencies, businesses and law enforcement agencies. 

Fox News Network filed suit against TVEyes for copyright infringement.  Fox News sought to enjoin TVEyes from copying and distributing clips of Fox News programs.  Fox News is concerned that TVEyes will divert viewers, and thus revenue streams, away from Fox News’ cable programs and websites.  TVEyes claimed fair use.  Fox and TVEyes both moved for summary judgment.  The district court ruled that TVEyes’ use of Fox News’ content is fair use, except that the district court ruled that more evidence was necessary on the TVEyes features that allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs.  The district court denied Fox News’ request for an injunction.

9/12/2014 9:40 am PDT update from a FOX News spokesperson:  

“The Court only ruled that a specific portion of TVEyes’ service — its keyword search function — was fair use. The Court expressly said that it required more information to decide whether TVEyes’ other features — including allowing video clips to be archived, downloaded, emailed, and shared via social media — were fair use. The Court has called for another hearing on October 3, 2014.”

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Copyright Infringement Judgment Debt Not Discharged in Bankruptcy

The managing member of a saloon had a $41,231.90 default judgment for copyright infringement entered against him.  The saloon did not have a public performance license, but played music promoted and licensed by the American Society of Composers, Authors and Publishers (ASCAP) anyway.  ASCAP sued the managing member and received a default judgment when the managing member failed to defend himself in the lawsuit.

The managing member filed for bankruptcy after the default judgment was entered against him.  The bankruptcy court held that “the debtor had willfully failed to obtain an ASCAP license and maliciously disregarded the rights of ASCAP’s members and Federal copyright law.” The bankruptcy court therefore excepted the copyright infringement judgment debt from discharge in bankruptcy. The Eight Circuit Bankruptcy Appellate Panel upheld the bankruptcy court’s ruling.  Before filing its lawsuit, ASCAP tried to contact the managing member 44 times in three years using a variety of means.  The Bankruptcy Appellate Panel found that the managing member was responsible for complying with the applicable laws and that he “blatantly failed to comply with Federal copyright law.”

This case is Sailor Music v. Walker, No. 14-6012, U.S. Bankruptcy Appellate Panel for the Eighth Circuit.