Merchandising Missteps Lead to Willful Infringement and CMI Removal Claims

Music merchandising company Live Nation admitted to copyright infringement by using photographer Glen Friedman’s photographs of the hip-hop group Run-DMC on t-shirts and a calendar without Friedman’s authorization.  On appeal to the Ninth Circuit, the issues in Friedman’s lawsuit against Live Nation involved whether the evidence was sufficient to establish that Live Nation willfully infringed Friedman’s copyrights and to establish that Live Nation violated §1202(b) by knowingly removing copyright management information (CMI) from Friedman’s photos.  There was also an issue of whether the number of retailers who purchased infringing merchandise from Live Nation could be used to calculate statutory damages.

The district court granted summary judgment to Live Nation on the willful infringement and CMI issues.  The district court ruled that Friedman could recover one statutory damages award per work infringed, rejecting Friedman’s damages calculation based on the number of retailers.  The Ninth Circuit reversed the district court’s rulings on the willful infringement and CMI issues, but upheld the district court’s ruling on the statutory damages issue.

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Alleged Infringer Bears the Burden of Proving Authorized Copying

Jesus Muhammad-Ali painted a portrait of Louis Farrakhan, the leader of the Nation of Islam, in 1984.  Ali sued The Final Call for copyright infringement in 2013.  The Final Call is a newspaper that considers itself the “propagation arm of the Nation of Islam.”  Although The Final Call admitted to selling over one hundred copies of Ali’s portrait of Farrakhan, the district court ruled in favor of The Final Call. 

On appeal to the Seventh Circuit, Ali argued that “the district court misstated the elements of a prima facie copyright infringement claim and erroneously shifted to him the burden of proving that the copies were unauthorized. Ali is correct, and The Final Call proved no defense. We therefore reverse. (Opinion pdf page 2).

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Don’t Drone On My Bean Picking!

I was picking green beans in our garden recently, carefully trying to avoid spiders and other insects hiding amongst the leaves.  Suddenly, I heard a buzzing noise.  It grew louder.  I jumped back from the bean trellis, wondering whether there was a yellow jacket nest hidden there.  After a few seconds, I realized that the noise came from a drone, not from insects.  I felt relieved that I was not about to be attacked by stinging insects, but annoyed that my neighbor chose to fly his drone over my property.  I don’t like my neighbor flying his drone over my property, but what are my rights to tell him to stop it?

The right to control airspace is one issue.  Another issue is the spying issue.  Most drones have cameras, allowing the operator to view what’s happening on the ground below.  The spying issue involves my neighbor’s ability to observe me and my property and gather from air information about me, and my other neighbors, that is otherwise unavailable to him.  My drone flying neighbor and I can’t see each other’s homes from the ground.  I’m more concerned about the spying issue than I am the air space issue.  Regardless of the right to control airspace, individuals still have privacy rights that must be protected.

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Different Work Made for Hire Test Under the Copyright Act of 1909

This case applies the Copyright Act of 1909 version of “work made for hire.”  Why are we still talking about the 1909 Act when the Copyright Act of 1976 became effective on January 1, 1978?  Since the 1909 Act applies to all copyrights secured before 1/1/1978 and the first term for pre-1/1/1978 copyrights is 28 years, followed by a second term of 67 years (28 + 67 = 95), some portions of the 1909 Act remain relevant until 2072.  (1977 + 95 = 2072).  Those portions of the Copyright Act of 1909 will remain relevant throughout the careers of Millennial attorneys, and then some.  I say some portions, because the 1976 Act did away with many of the 1909 Act’s draconian requirements.

Composer and music producer Jack Urbont wrote the Iron Man theme song in 1966.  Urbont wrote theme music for a variety of other Marvel television characters.  In 2000, without Urbont’s permission, Dennis Coles (aka Ghostface Killah), Sony and Razor Sharp Records produced and released Supreme Clientele, an album spotlighting the Iron Man theme song on two tracks.  Urbont became aware of the album around early 2010 and sued Sony, Coles and Razor Sharp Records for copyright infringement in 2011.  Sony and Razor Sharp argued that the Iron Man theme was a work made for hire for Marvel and that Urbont did not own the copyright.  The district court granted summary judgment in favor of Sony and Razor Sharp.  On appeal, the Second Circuit held that Urbont raised issues of material fact regarding his copyright ownership and vacated the district court’s summary judgment ruling.

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