Copyright Law Rulings and Regulations

It's been a busy year for the courts and the Copyright Office

Here is a collection of 2014 cases and administrative actions affecting copyright law.

APIs are protected under copyright. In a decision that was characterized as disastrous by the Electronic Freedom Foundation, the Federal Circuit Court of Appeals ruled that 37 application programming interfaces (APIs) – packets of source code that enable communication between programs – were protected under copyright law. The decision overturned a lower court decision holding that APIs were not protected. Hwever, in sending the case back to the lower court, the Federal Circuit held out the possibility that use of APIs by Google may constitute fair use. Oracle America v. Google (750 F. 3d 1339 (Fed. Cir. 2014).

Pre-1972 sound recordings have performance right. Musicians Flo & Eddie who had a hit with the song "Happy Together," sued Sirius radio claiming that their pre-1972 recordings could not be performed on Sirius without permission. Sound recordings made after February 15, 1972 are protected by copyright but do not include public performance rights. Pre-1972 recordings are protected under state laws (as in the case of California's Civil Code §980(a)(2)) or by common law. In a decision that shocked the music industry, a federal court held that these pre-1972 sound recordings included a public performance right and that permission (payment) was needed to broadcast them. Flo & Eddie Inc. v. Sirius XM Radio (CV 13-5693 PSG (C.D. 2014).

18-year delay permitted in Raging Bull lawsuit. The 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. The copyright law provides that when there are ongoing infringements – for example, copies of Raging Bull continue to be sold – the copyright owner may bring the lawsuit within three years of any infringement (and can only collect damages for the preceding three years). Lower court decisions had prevented the heir's 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-Goldwn-Mayer, Inc., ____ U.S. ____ (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 10 million book database. 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 __ F.3d__ (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 10 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 Seventh Circuit court of Appeals disagreed and held that the Holmes character who appeared before 1923 is now in the public domain. However the remaining 10 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., __ F.3d __ (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 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. No. 12-2412-cv (2d Cir. Jan. 27, 2014) (“Swatch III”).

Is acting copyrightable? Judge revises opinion. In February, 2014, 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. In November, Judge Kozinski 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 just because the Copyright Office refuses to register an actor's performance doesn't mean that it's not copyrightable. Garcia v. Google, Inc., __ F. 3D __ (9TH Cir. 2014) amended opinion

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 – 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, No. 13-3004 (7th Cir. Sept. 15, 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., 13 Civ. 5315 (S.D. NY Sept. 9, 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, CV-01340-JSR (S.D.N.Y. 2014).

Recreating three scenes from Deep Throat is not an infringement. The re-creation 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 re-created 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, Case 1:13-cv-05488-TPG (D.C. S.D.N.Y. 8/25/14)

Changes at the Copyright Office. The following changes were implemented in 2014:

  • New Copyright Office fees became effective on May 1, 2014. Fees are up as follows: Single Application (single author, same claimant, one work, not for hire) $35. Standard Application (all other filings) $55. Registrations on paper filing on Form TX, Form VA, Form PA, Form SE, and Form SR $85
  • eCO filers will now be prompted to answer “yes” or “no” to three statements to determine the appropriate application (Single or Standard) for registering their work. Single Applications are for one work by one author (not made for hire) who is also the sole owner of all rights in the work. Standard Applications are for all other registrations. Filers will have the opportunity to change to the Standard Application if it becomes apparent that the Single Application is not appropriate for the work being registered. Using the Single Application when a work does not meet the requirements will result in processing delays, an additional fee, and a later effective date of registration.
  • If Copyright Office staff determine that a work does not meet the Single Application requirements, the filer will be contacted at the email address listed on the application with instructions on how to pay the additional fee and resubmit on the Standard Application.
  • The Third Copyright Compendium (the guide for copyright examiners) is now available: http://copyright.gov/comp3/docs/compendium-full.pdf