Tyrone Simmons is a hip-hop music writer and performer. In February 2006, Simmons bought an exclusive license to use a particular beat from hip-hop producer William C. Stanberry, Jr. Although Stanberry granted an exclusive license to Simmons, precluding everyone but Simmons from using the beat, Stanberry and rapper Curtis Jackson (aka 50 Cent) collaborated to release a song using the beat, “I Get Money,” in the summer of 2007. The Stanberry/Jackson song achieved immediate success. In the meantime, Stanberry attempted to repudiate Simmons’ license in a May 2007 email.
Simmons brought suit for copyright infringement against Stanberry, Jackson and others in December 2010. The district court dismissed Simmons’ suit as untimely. The Second Circuit Court of Appeals affirmed the district court’s decision to dismiss the suit as untimely.
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The creators of the dark comedy play Hand to God included in their play dialogue from Who’s on First?, the iconic comedy routine created by Abbott and Costello. Abbott and Costello’s heirs sued Kevin McCollum and others involved in creating Hand of God for copyright infringement. McCollum and the other defendants argued that the heirs failed to allege a continuous chain of title to the routine, that the routine passed into the public domain and that the Hand of God creators made fair use of the routine. The district court agreed that the plaintiffs did not sufficiently allege a copyright infringement claim and granted the defendants’ motion to dismiss for failure to state a claim.
Continue reading “Who’s on First? Copyright Infringement Question as Tangled as the Routine”
Adobe sued Joshua Christenson for copyright infringement when Christenson sold Adobe software on his website without Adobe’s authorization. Christenson lawfully purchased genuine copies of the Adobe software from a third party distributor.
The Ninth Circuit concisely stated the central issue and controlling law:
Who bears the burden of proving the first sale defense in a software licensing dispute?
While the copyright holder bears the ultimate burden of establishing copyright infringement, the party raising a first sale defense bears an initial burden with respect to the defense. At the summary judgment stage, this burden is discharged by producing evidence sufficient for a jury to find that the alleged infringer lawfully acquired ownership of genuine copies of the copyrighted software. Once this initial burden is satisfied, the burden shifts back to the copyright owner to establish the absence of a first sale, because of a licensing or other non-ownership-transferring arrangement when the copy first changed hands.
(Opinion pdf page 4).
The Ninth Circuit agreed with the district court that Christenson lawfully acquired genuine copies of Adobe’s copyrighted software, but that Adobe failed to produce licensing agreements or other evidence that Adobe retained title to the software when Adobe initially transferred to a third party the copies that Christenson ultimately acquired.
Continue reading “Proof of Specific Licenses Required to Rebut Successful First Sale Defense”