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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Not All Copyright Ownership Disputes Get Decided in Federal Court

It has long been established in this Circuit that a title dispute is a traditional state court property dispute which does not necessarily confer federal copyright jurisdiction.  If it were otherwise, then every copyright title dispute could be brought in federal court. That said, many copyright ownership disputes clearly do arise under the Copyright Act.  For example, a dispute that turns on whether a copyrighted work was created independently or as a ‘work made for hire’ is an ownership dispute that unquestionably arises under the Copyright Act.

(Opinion pdf page 4). 

Federal courts have exclusive jurisdiction (i.e., power to decide the case) over copyright cases.  State courts do not have jurisdiction to decide federal copyright issues.  What determines whether a copyright ownership dispute is simply a contractual issue to be decided in state court or whether it is a copyright issue to be decided in federal court?

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Actress’ “Innocence of Muslims” Copyright Claim Forces Google to Take it Down

The Ninth Circuit Court of Appeals ordered Google to take the inflammatory anti-Islamic film “Innocence of Muslims” down from You Tube and all platforms it controls and to take reasonable steps to prevent additional uploads.  The Ninth Circuit’s order results from actress Cindy Lee Garcia’s copyright infringement claim against Google.  Garcia prevailed in her appeal of the district court’s denial of her preliminary injunction motion to order Google to remove the film from You Tube.  The Ninth Circuit ruled that Garcia was likely to succeed on the merits of her copyright claim against Google, that Google’s ongoing infringement caused Garcia irreparable harm and that the balance of the equities and the public interest tipped in Garcia’s favor.

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Loan-Out Corporations Ambush Copyright Grant Termination Rights

I previously discussed the copyright termination of transfer provisions in my post, Termination of Transfer Provision Applies to All Authors, Not Just Musicians17 U.S.C. §203 provides for the termination of a copyright grant 35 years after the grant was made, if the grant was made after January 1, 1978.  Section 304(c) creates a similar right of termination for copyrights that were registered before January 1, 1978.  The law on copyright termination of transfers recognizes the unequal bargaining power between publishers and authors and is an attempt to allow authors and their families the opportunity to reclaim and benefit from the authors’ commercially successful works. 

The effect of loan-out corporations on the implementation of the §203 grant termination provision adds a potentially fatal wrinkle to an author’s ability to successfully terminate a copyright grant.  A loan-out corporation is corporation that is usually wholly owned by one person and is used to “loan-out” that person’s services to employers.  Actresses, musicians and professional athletes often provide their services through loan-out corporations.  Loan-out corporations generally limit the liability of the employee and provide tax benefits.  The use of loan-out corporations dates back to the 1930’s. 

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