What's New in Copyright Law, 2018 to 2021

Major federal court decisions concerning copyright law over the last few years.

By , Attorney


Copyright law is federal, meaning that most of the legal changes come from either federal agencies or courts—and in many cases the Supreme Court. Here's what's new and important, from approximately 2018 to late 2021.

Congress cannot terminate states' sovereign immunity

The Constitution provides the states with sovereign immunity from copyright claims. Congress sought to end that sovereign immunity with the Copyright Remedy Clarification Act ("CRCA"). The Supreme Court held that under Article 1 of the Constitution, Congress could not limit the sovereign immunity of state governments. (Allen v. Cooper, 140 S. Ct. 994 (2020).)

Annotations in state laws are not protectible by copyright

The Supreme Court held that the "government edicts doctrine"—a principle that prevents judges and legislators from claiming authorship in judicial opinions or laws—also applies to the annotations prepared and adopted by a state legislature. (Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).)

Embedding an infringement of "display right"

A New York federal court held that embedding a polar bear video on social media violated the photographer's display right. The ruling opposes the Ninth's Circuit "server test," which held that embedding does not infringe unless copies are made and stored on a server. (Nicklen v. Sinclair Broad. Grp., No. 20-10300 (JSR) (S.D. NY 07/30/2021).)

Embedding celebrity photos is transformative and, therefore, fair use

A photographer's photo of Cardi B., posted without authorization by the celebrity on Instagram and later embedded in an article discussing Cardi B.'s cosmetic business, was held to be fair use. The court held that the use was transformative (the original use was to show the celebrity at a fashion show) and did not affect the market for the photograph. (Walsh v. Townsquare Media, Inc., No. 19-4958, 2020 WL 2837009 (S.D.N.Y., 2020).)

New York federal courts issue conflicting decisions on Instagram Terms of Use

In a surprising decision, a New York federal court ruled that once a photographer posted her picture as "public" to Instagram, she gave up exclusive licensing rights. The court reasoned that because Instagram's Terms of Use provide for nonexclusive sublicensing rights, the photographer could not halt embedding of the photo by a news website. (Sinclair v. Ziff Davis, 454 F. Supp. 3d 342 (S.D.N.Y.2020).)

Surprisingly, a New York district court reached the opposite conclusion when an Instagram photographer sued Newsweek for infringement. The court held that the Instagram Terms of Use did not grant a sublicense between Newsweek and Instagram. (McGucken v. NEWSWEEK LLC, 464 F. Supp. 3d 594 (S.D.N.Y. 2020).)

In light of the McGucken decision, the judge in Sinclair v. Ziff Davis granted the photographer's motion for reconsideration.

Embedding photo of tennis star is fair use

Tennis professional Caroline Wozniacki posted a photo of herself on Instagram when announcing her retirement. The Instagram post (featuring the plaintiff's photograph) was later embedded at a tennis website. The district court granted a motion to dismiss the photographer's copyright infringement claim, holding that the website's embedding constituted fair use. (Boesen v. United Sports Publications, Ltd., No. 20-1552 (E.D.N.Y. 2020).)

Cases where no substantial similarity was found between between original creation and allegedly infringing one

The Second Circuit determined there to be no substantial similarity between a video game developer's proposed game and the television program Star Trek: Discovery. (Abdin v. CBS Broadcasting. Abdin v. CBS Broadcasting Inc., 971 F. 3d 57 (2d Cir. 2020).)

An author and performance coach sued the makers of the TV show "Billions." The Second Circuit dismissed the case, using the "more discerning observer" test to find no substantial similarity. (Shull v. TBTF Productions, Inc. No. 20-3529 (2d Cir. 2021).)

A district court dismissed an infringement lawsuit brought by a comic book author who claimed that Nickelodeon copied elements of the comic in a children's TV show, "Rusty Rivets." Although some of the characters shared similar names, the court found no substantial similarities. (Knowles v. Spin Master, Inc., No. 18-5827 (C.D. Cal. 2019).

A New York district court found no substantial similarity between two short stories set in Paris and a remake of Rosemary's Baby. (Montgomery v. Holland, 408 F. Supp. 3d 353, (S.D.N.Y. 2019).)

Google's use of JAVA API is fair use

Like most software applications, Oracle's JAVA SE program contains coding tools (Application Programming Interface or API) that allow the program to connect to, or be accessed by, various platforms. The Supreme Court held that Google's copying of the Java SE API included only those lines of code that were needed to allow programmers to work in a new and transformative program. In other words, Google's limited API borrowing was fair use. (GOOGLE LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021).)

Using eight seconds of a three-minute children's song is fair use

A circuit court found that a documentary about burlesque didn't infringe when it used eight seconds of a 190-second children's song. The use was transformative and the amount used (although it represented the heart of the composition) was not more than required. According to the Second Circuit, fair use does not obligate a defendant to use the shortest possible snippet to convey its message. (Brown, et al. v. Netflix, Inc., et al., No. 20-2007 (2d Cir 2020).)

Use of Prince photograph for Warhol silkscreen not fair use

The Second Circuit held that Andy Warhol's use of a Prince photograph was derivative, not transformative, thus reversing a fair use decision by the district court. (Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, __ F.3d __ (2d Cir. Aug. 24, 2021).)

For more information on this ever-changing area of law, see the Copyright section of Nolo's website.