Here are some important copyright cases and administrative activity for 2015:
The director of a film does not create a separately copyrightable contribution. A film director hired by a production company to direct a documentary sought to separately register his contribution to the film. The second Circuit held that the production company owned the copyright and that the director’s contribution was inseparable from the work and therefore it was not separately registrable. (16 Casa Duse, LLC v. Merkin, __ F.3d. __ (2d Cir. 2015).)
Weak copyright claim cannot justify censorship. An actress who unwittingly appeared in anti-Muslim film sought to claim that her appearance constituted authorship (a claim rejected by the Copyright Office) and on that basis seek to prevent distribution of the film based on copyright infringement. The Ninth Circuit ruled en banc that the copyright claim was weak and did not justify the prior restraint against the film. Garcia v. Google, Inc ____ F.3d ______ (9th Cir 2015).
Importation is not infringement after an authorized first sale in a foreign jurisdiction. A watchmaker sued for infringement after its watches were imported into the U.S. without permission. The Ninth Circuit barred the watchmaker’s claim because the right to control importation expired after a “first sale” of the watches occurred prior to importation. Omega S.A. v. Costco Wholesale Corporation, ___ F.3d ______ (9th Cir 2015).
Failure to exploit a market may effect fair use determination. A group of publishers claimed that Georgia State University infringed their rights by using digital excerpts in their course packs. On appeal, the Eleventh Circuit held that the GSU use could not have negatively affected the potential market for digital excerpts because the publishers had not fully exploited digital licensing. The Appeals Court also held that the district court erred when it ruled that copying less than a chapter or 10 percent of a book is a safe harbor from copyright infringement. Cambridge University v. Patton, 769 F.3d 1232 (11th Cir. 2014).
Providing a resume to a court is fair use. An expert witness in a fee dispute claimed that the defendant’s use of the expert’s resume as a court exhibit constituted copyright infringement. The district court held that the use of the resume was a fair use. Devil’s Advocate, LLC v. Zurich American Ins. Co. 2014 U.S. Dist. LEXIS 174309 (E.D. Va. Dec. 16, 2014).
Posting on social media is not transformative. In an anniversary tribute on Facebook, a Fox news producer posted an iconic unmodified photo of firefighters hoisting a flag after the 9/11 bombings ("Raising the Flag at Ground Zero”). The photo was juxtaposed with an image of soldiers raising the flag at Iwo Jima and the addition of the caption #neverforget. After the photographer sued, Fox claimed fair use for the posting, arguing that posting on social media is by its nature transformative because such postings promote comment and criticism. The district court rejected the argument and held that the posting was not a fair use. North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC. No. 13 Civ. 7153 (ER) (S.D. N.Y. 2015).
Contract to assign copyright in YELP reviews is invalid. A New York dentist had her patients sign an agreement to assign copyright in anything the patient wrote negatively about the dentist’s services. The contract also provided that the patient must pay $100 a day for every day a negative review was online. The court ruled for the patient and awarded damages on a separate claim. Robert Allen Lee v. Stacy Makhnevich and Aster Dental, Civ. Action 11-civ-8665, (S.D.N.Y. 2015).
New Compendium. The U.S. Copyright Office released the third edition of the Compendium of U.S. Copyright Office Practices. It is available on the Copyright Office’s website (http://copyright.gov/comp3/).