Source Code Evidence Required to Establish Computer Game Copyright Infringement

Robin Antonick developed the computer code for the original John Madden Football game for Apple II (Apple II Madden), released by Electronic Arts (EA) in 1988. Antonick also developed Madden games for IBM-compatible computers. Antonick began work on Nintendo and Sega Genesis games, but EA told him to stop work on games for those platforms. EA then hired Park Place Productions to develop Madden games for the Sega Genesis and Super Nintendo platforms. EA agreed in its 1986 contract with Antonick to pay royalties on derivative works of the Apple II Madden game. EA did not pay Antonick royalties on the games Park Place developed and informed Antonick that those games were not derivative works.

Antonick sued EA for breach of contract in 2011 for EA’s refusal to pay Antonick royalties on the Madden games Park Place developed. At trial, neither the source code for the Apple II Madden game nor the source code for the allegedly infringing Park Place Madden games was introduced into evidence. Likewise, no images of the games were introduced into evidence. At the end of the jury trial, the district court granted judgment as a matter of law to EA. The district court determined that Antonick did not provide sufficient evidence of copyright infringement because Antonick did not introduce into evidence either the source code for the Apple II Madden game or the source code for the Sega Madden game developed by Park Place. The Ninth Circuit Court of Appeals affirmed. The jury found that the statute of limitations did not bar Antonick’s claims, but that issue was not appealed and therefore the Ninth Circuit did not discuss it.

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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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De Minimis Horn Hits Blow Away Copyright Infringement Claim

Pop star Madonna and Shep Pettibone recorded and released the mega-hit dance song Vogue in the early 1990s.  Pettibone recorded the song Love Break in the early 1980s.  VMG Salsoul LLC claims ownership of both the sound recording and musical composition copyrights for Love Break.  VMG sued Madonna, Pettibone, and others, for copyright infringement, claiming that Pettibone “sampled” (physically copied the actual sounds) of horn hits (horn chords) from Love Break in creating Vogue.

Ruling that the horn hits were not original under copyright law and, alternatively, that any horn hit sampling was de minimis, the district court granted summary judgment in favor of Madonna and Pettibone.  The Ninth Circuit held that the de minimis exception to copyright infringement actions applies to all copyright infringement actions, including sound recordings.  In a previous case, Newton v. Diamond, the Ninth Circuit held that the de minimis exception applied to musical composition infringement claims, but did not decide the sound recording question, since that question was not part of that case.  The Ninth Circuit reversed the district court’s award of attorney’s fees to the defendants for abuse of discretion.

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Discovery Rule Bars Website Display Claims, But Not Other Copying Claims

Design Basics (DB) publishes and licenses architectural designs.  Carhart sells home building products and provides blueprint drafting services.  On February 24, 2010, DB’s senior designer investigated Carhart’s website for infringing elevations and printed parts of Carhart’s website containing elevations he thought looked substantially similar to DB’s designs.

DB sued Carhart for copyright infringement on April 18, 2013, alleging that Carhart infringed DB’s copyrights on April 20, 2010.  Carhart filed a motion for summary judgement, arguing that DB’s copyright infringement claims were barred by the statute of limitations.  The district court granted Carhart’s motion with respect to some of DB’s copyright infringement claims, but not others.

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Hip-Hop Writer Didn’t Hop to Bringing Copyright Infringement Suit

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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Who’s on First? Copyright Infringement Question as Tangled as the Routine

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.

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Registration Approach Wins a Round in the Suit Filing Timing Debate

Can a copyright holder file a civil action for copyright infringement if it has filed a copyright registration application (Application Approach) or must the copyright holder wait until the Copyright Office has made a decision on the registration application (Registration Approach.)?

Music creator Asche & Spencer (Asche) discovered that the hosts of the web series “Reluctantly Healthy” used a number of Asche’s works without obtaining a license from Asche.  Asche filed a copyright registration application for the allegedly infringed works.  Asche sued Reluctantly Healthy’s hosts, Principato-Young Entertainment, Inc., Kids At Play, LLC, and Electus, LLC, for copyright infringement before receiving a response to its registration application from the Copyright Office.  The defendants brought a motion to dismiss. 

The district court noted that its circuit, the Eight Circuit, has not determined whether the Application Approach or the Registration Approach should apply.  The Fifth, Seventh, and Ninth Circuits have adopted the Application Approach, while the Tenth and Eleventh Circuits have adopted the Registration Approach.  The district court decided that the Registration Approach is more consistent with the relevant statutory language and dismissed Asche’s complaint.

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Joint Work Determination Does Not Exclude a Derivative Work Determination

Dr. Ross W. Greene developed the Collaborative Problem Solving Approach, a method for treating children with explosive behaviors.  Greene wrote The Explosive Child, a book describing his methods.  Greene and Dr. J. Stuart Ablon co-authored the book Treating Explosive Kids

A disagreement developed between Greene and Ablon, after which Greene sued Ablon for copyright infringement.  Greene alleged that slides in Ablon’s Power Point presentation infringed Green’s copyrights in both The Explosive Child and Treating Explosive Kids.  Greene also called for an accounting for Ablon’s use of Treating Explosive Kids.  Before the case went to a jury trial, the district court ruled that Treating Explosive Kids could not be both a joint work and a derivative work as a matter of law.  The district court ruled that Treating Explosive Kids was a joint work and that because Ablon co-owned that book, he could not infringe it as a matter of law.  The jury awarded Greene $19,000 against Ablon on Greene’s copyright claims.  Both Greene and Ablon appealed to the First Circuit Court of Appeals.  

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It’s All About the Chorus in Usher and Bieber Copyright Infringement Case

Musician Devin Copeland and his songwriting partner, Mareio Overton, wrote a song entitled “Somebody to Love” in 2008 and registered the copyright for the song later that year.  Usher Raymond IV and his manager, Jonetta Patton, listened to Copeland’s album, including “Somebody to Love,” in late 2009.  During a phone conversation with Copeland, Patton expressed interest in Copeland’s music and having him join Usher on tour.  Nothing came of that.  A few months later, Usher recorded and posted on YouTube a song entitled “Somebody to Love.”  Usher’s protégé, Justin Bieber, also recorded a song entitled “Somebody to Love,” releasing his version in the spring of 2010. 

Copeland sued Usher and Bieber for copyright infringement, alleging access to Copeland’s work and a striking resemblance to Copeland’s work.  Bieber and Usher filed a Rule 12(b)(6) motion to dismiss Copeland’s complaint, arguing that no reasonable jury could find that the Copeland song and the Usher and Bieber songs were substantially similar.  The district court agreed with Usher and Bieber and dismissed Copeland’s complaint.  The Fourth Circuit Court of Appeals vacated the district court’s ruling and remanded the case.

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