2014 was a busy year for the federal courts and the U.S. Copyright Office, when it came to clarifying and making American copyright policy. Here is a collection of some interesting and important 2014 cases and administrative actions affecting copyright law.
18-year delay permitted in Raging Bull lawsuit. The U.S. Supreme Court permitted an author/screenwriter's heirs to wait 18 years before filing a copyright infringement lawsuit against the owners of the film, Raging Bull. U.S. copyright law provides that, when there are ongoing infringements, for example copies of Raging Bull continue to be sold, the copyright owner may bring suit within three years of any infringement (and can collect damages only for the preceding three years). Lower court decisions had prevented the heirs' lawsuit under a principle known as laches (an equitable principle that states that it is unfair to proceed with a lawsuit when one party has waited an unreasonable amount of time to bring the claim). In light of the federal statute of limitations, however, the Supreme Court ruled that it was inappropriate to apply laches. The court held, "This Court has never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations period." Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014).
University library can scan books to create searchable database. Many colleges, universities, and nonprofits had offered their book collections to The HathiTrust, a nonprofit that created a ten million book database. The U.S. Court of Appeals for the Second Circuit ruled that the Hathitrust was permitted under fair use principles to electronically scan their copyrighted books to create a full-text searchable database. They were also permitted to scan books to provide print-disabled people with access to the copyrighted works. The Court sent the case back for a determination as to whether HathiTrust's "preservation" copies were protected as fair use. Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2d Cir. 2014).
Sherlock Holmes is in the public domain. Sir Arthur Conan Doyle's characters appeared in approximately 50 stories published before 1923, and ten stories afterwards. In Klinger v. Conan Doyle Estate, Ltd, Doyle's estate argued that the "whole character" was not formed until the final post-1922 work was published. The U.S. Court of Appeals for the Seventh Circuit disagreed and held that the Holmes character who appeared before 1923 is now in the public domain. However the remaining ten works are still protected, and elements from these works, for example, the fact that Watson had a second wife, are not free to use. Klinger v. Conan Doyle Estate, Ltd., 755 F. 3d 496 (7th Cir. 2014).
Reproducing earnings report is a fair use. A news organization (Bloomberg) tapped into an earnings report phone call made by executives of a foreign corporation (Swatch) to 132 analysts, and posted a recording and transcript of the phone call. Important factors: Bloomberg’s publication of the call was analogous to news reporting (publication of such calls is mandatory for American corporations). Because of that newsworthy purpose, a transformative use was not required. Further, the posting of the entire recording was necessary to fulfill this newsworthy purpose. The U.S. Court of Appeals for the Second Circuit stated, “Bloomberg’s overriding purpose here was not to “scoop” Swatch or “supplant the copyright holder’s commercially valuable right of first publication,” but rather simply to deliver newsworthy financial information to American investors and analysts.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F. 3d 73 (2d Cir. 2014).
Is acting copyrightable? Judge revises opinion. In a case involving the controversial film Innocence of Muslims, the Ninth Circuit ruled that an actor's performance in a film could, in some circumstances, be separately copyrightable. ("An actor’s performance, when fixed, is copyrightable if it evinces some minimal degree of creativity.") The decision shocked Hollywood and YouTube, because it offered the potentially paralyzing possibility that an actor might be able to enjoin a film's release based on copyright law. Judge Kozinski of the U.S. Court of Appeals for the Ninth Circuit amended his opinion. Though he still maintained that an actor’s "fixed" performance is copyrightable, he left room for the district court, when reconsidering the case, to hold that the standard of creativity had not been met. He also ruled that the mere fact that the Copyright Office refuses to register an actor's performance doesn't mean that it's not copyrightable. Garcia v. Google, Inc., 766 F. 3d 929 (9th Cir. 2014).
Use of Mayor's photo is a fair use. A modified photo of a Wisconsin mayor was reproduced on a T-shirt and used to raise money for an event opposed by the mayor. Important factors: The Seventh Circuit was persuaded by the level of alteration; and the photo was posterized, background removed, text added, and a lime green outline featuring the mayor’s smile remained. The resulting image of the mayor, the court stated, “can’t be copyrighted.” Kienitz v. Sconnie Nation LLC, 766 F. 3d 756 (7th Cir. 2014).
TV clipping service not an infringement of Fox News. A TV-clipping database made it possible for users to search news broadcasts using keywords, then view a portion of the curated news clip containing those keywords. The court determined that the storage, indexing, excerpting, and reproduction of the clips was a fair use. The district court emphasized the purpose of the database, which was unique and transformative. The court also dismissed the “very small possible impact” of lost revenues. Fox News v. TVEYES, Inc., 43 F.Supp.3d 379 (S.D.N.Y., 2014).
Court-filed briefs can be reproduced in legal database. In White v. West Publishing, the district ruled that legal databases such as Westlaw and Lexis could incorporate legal briefs into their databases as such searchable use of court-filed documents was transformative (and therefore excusable as a fair use). The use was transformative because, whereas the lawyers created the briefs to assist their clients, the legal services were using the briefs as research tools. White v. West Publishing, 29 F. Supp. 3d 396 (S.D.N.Y. 2014).
Recreating three scenes from Deep Throat is not an infringement. The recreation of three scenes from the film Deep Throat was a fair use when made for a biographical film about actress Linda Lovelace. Important factors: The recreated scenes were used in a non-pornographic film biography (with no nudity) about an actress who ultimately railed against pornography. This use illustrated a strong transformative purpose and demonstrated that the copyright owner of Deep Throat would be unlikely to lose revenue from this non-pornographic use. Arrow Productions, LTD v. The Weinstein Company LLC, 44 F.Supp.3d 359 (S.D.N.Y., 2014).
The following changes were implemented at the U.S. Copyright Office in 2014: