Skidmore v. Led Zeppelin

The panel vacated in part the district court’s judgment after a jury trial in favor of the defendants and remanded for a new trial in a copyright infringement suit alleging that Led Zeppelin copied “Stairway to Heaven” from the song “Taurus,” written by Spirit band member Randy Wolfe.

The jury found that plaintiff Michael Skidmore owned the copyright to “Taurus,” that defendants had access to “Taurus,” and that the two songs were not substantially similar under the extrinsic test.

The panel held that certain of the district court’s jury instructions were erroneous and prejudicial. First, in connection with the extrinsic test for substantial similarity, the district court prejudicially erred by failing to instruct the jury that the selection and arrangement of unprotectable musical elements are protectable. Second, the district court prejudicially erred in its instructions on originality. The panel concluded that the district court did not err in failing to instruct the jury on the inverse ratio rule, but such an instruction might be appropriate on remand.

The panel further held that the scope of copyright protection for an unpublished musical work under the Copyright Act of 1909 is defined by the deposit copy because copyright protection under the 1909 Act did not attach until either publication or registration. Therefore, the district court correctly ruled that sound recordings of “Taurus” as performed by Spirit could not be used to prove substantial similarity.

Addressing evidentiary issues, the panel held that the district court abused its discretion by not allowing recordings of “Taurus” to be played for the purpose of demonstrating access. The district court did not abuse its discretion by failing to exclude expert testimony on the basis of a conflict of interest.

In light of its disposition, the panel vacated the district court’s denial of defendants’ motions for attorneys’ fees and costs and remanded those issues as well.

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SoundExchange, Inc. v. Copyright Royalty Board and Librarian of Congress

This case concerns the rates paid by webcasters to license copyrights in digital sound recordings. Webcasters stream digital sound recordings to listeners over the Internet. A so-called “noninteractive” webcasting service chooses the recordings to play for listeners, whereas an “interactive” service allows an individual listener to select music on demand.

Congress established a statutory copyright license for noninteractive webcasters in the Copyright Act. The statutory license enables noninteractive webcasters to transmit recordings by paying a standard royalty rate rather than negotiating licensing agreements with copyright holders. Every five years, the Copyright Royalty Board sets the standard rates noninteractive webcasters must pay to play recordings over the Internet under the statutory license.

This appeal raises challenges to the Board’s most recent rate determination on a number of grounds. We sustain the Board’s determination in all respects.

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Spinelli v. National Football League

Plaintiffs-Appellants are sports photographers who make a living taking and licensing photographs of National Football League events. They seek to recover damages on copyright, contract, and tort theories of liability after Defendants-Appellees allegedly exploited thousands of Plaintiffs’ photographs without a license and without compensating Plaintiffs in any way. Plaintiffs also bring an antitrust challenge, alleging that the NFL and Associated Press conspired to restrain trade in the market for commercial licenses of NFL event photographs. The United States District Court for the Southern District of New York (Robert W. Sweet, J.) dismissed all of the claims at issue here for failure to state a claim. We AFFIRM IN PART, VACATE IN PART, and REMAND for further proceeding.

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Tanksley v. Daniels

Clayton Prince Tanksley is an actor and producer who lives in Philadelphia. In 2005, he created a three-episode television pilot, Cream, for which he received a copyright. In 2015, Fox Television debuted a new series, Empire, from award-winning producer and director Lee Daniels. Shortly thereafter, Tanksley filed suit, claiming that Empire infringed on his copyright of Cream. The District Court found no substantial similarity between the two shows and dismissed Tanksley’s complaint. For the reasons stated below, we will affirm.

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Cobbler Nevada, LLC v. Gonzalez

The panel affirmed the district court’s dismissal of an action under the Copyright Act, alleging direct and contributory infringement of plaintiff’s copyrights in a film. 

Plaintiff alleged unauthorized downloading and distribution of the film through peer-to-peer BitTorrent networks. The panel held that the bare allegation that the defendant was the registered subscriber of an Internet Protocol address associated with infringing activity was insufficient to state a claim for direct or contributory infringement. The panel also held that the district court did not abuse its discretion in awarding attorney’s fees to the defendant under 17 U.S.C. § 505.

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ABS Entertainment, Inc. v. CBS Corp.

The panel reversed the district court’s grant of summary judgment in favor of the defendants on claims of violation of state law copyrights possessed by the plaintiffs in sound recordings originally fixed before 1972.

Under the Sound Recording Act, sound recordings fixed after February 15, 1972, are subject to a compulsory license regime for performance via digital transmission and are excused from infringement for performance via terrestrial radio. Congress reserved governance of sound recordings fixed before 1972 to state statutory and common law and excluded such sound recordings from federal copyright protection until 2067.

The plaintiffs owned sound recordings embodying musical performances initially fixed in analog format prior to February 15, 1972. They remastered these pre-1972 sound recordings onto digital formats.

The panel held that the district court erred in finding a lack of a genuine issue of material fact about the copyright eligibility of remastered sound recordings distributed by the defendants. The panel concluded that a derivative sound recording distinctly identifiable solely by the changes in medium generally does not exhibit the minimum level of originality to be copyrightable.

The panel held that the district court erred in concluding that plaintiffs’ state copyright interest in the pre-1972 sound recordings embodied in the remastered sound recordings was preempted by federal copyright law. The panel held that the creation of an authorized digital remastering of pre-1972 analog sound recordings that qualify as copyrightable derivative works does not bring the remastered sound recordings exclusively under the ambit of federal law. The panel held that the district court abused its discretion by excluding the testimony of plaintiffs’ expert, excluding certain reports as evidence of defendants’ performance of plaintiffs’ sound recordings in California, and granting partial summary judgment of no infringement with respect to the samples contained in those reports.

The panel concluded that the district court’s strict application of its local rules with respect to the timeliness of plaintiffs’ motion for class action certification was inconsistent with the Federal Rules of Civil Procedure and was thus an abuse of discretion.

The panel reversed the grant of summary judgment and the striking of class certification and remanded for further proceedings.

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Glacier Films (USA), Inc. v. Turchin

The panel reversed the district court’s order denying plaintiff’s motion for attorney’s fees in a copyright infringement suit.

A film production company sued a user of BitTorrent, a peer-to-peer network, who illegally downloaded and repeatedly distributed a movie. Per the parties’ agreement in a stipulated consent judgment, the defendant stipulated to liability and to statutory damages, and the district court entered a permanent injunction against him.

The panel held that the district court abused its discretion by focusing on its generally unfavorable view of other BitTorrent litigation and failing to faithfully apply the “Fogerty factors” in deciding whether to award attorney’s fees under 17 U.S.C. § 505. The panel remanded the case to the district court.

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American Society for Testing v. Public.Resource.Org, Inc.

Across a diverse array of commercial and industrial endeavors, from paving roads to building the Internet of Things, private organizations have developed written standards to resolve technical problems, ensure compatibility across products, and promote public safety. These technical works, which authoring organizations copyright upon publication, are typically distributed as voluntary guidelines for self-regulation. Federal, state, and local governments, however, have incorporated by reference thousands of these standards into law. The question in this case is whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works. Answering yes, the district court granted partial summary judgment in favor of the private organizations that brought this suit and issued injunctions prohibiting all unauthorized reproduction of their works. In doing so, the court held that, notwithstanding serious constitutional concerns, copyright persists in incorporated standards and that the Copyright Act’s “fair use” defense does not permit wholesale copying in such situations. The court also concluded that the use of the private organizations’ trademarks ran afoul of the Lanham Act and did not satisfy the judicial “nominative fair use” exception. Because the district court erred in its application of both fair use doctrines, we reverse and remand, leaving for another day the far thornier question of whether standards retain their copyright after they are incorporated by reference into law.

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Allen v. Cooper

Frederick Allen, a videographer, and Nautilus Productions, LLC, Allen’s video production company, commenced this action, which, at its core, alleges that North Carolina, its agencies, and its officials (collectively, “North Carolina”) violated Allen’s copyrights by publishing video footage and a still photograph that Allen took of the 18thcentury wreck of a pirate ship that sank off the North Carolina coast. Allen and Nautilus obtained the rights to create the footage and photograph through a permit issued by North Carolina to the ship’s salvors, and Allen subsequently registered his work with the U.S. Copyright Office. Allen and Nautilus also seek to declare unconstitutional a 2015 state law — N.C. Gen. Stat. § 121-25(b) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records) — which Allen and Nautilus claim was enacted in bad faith to provide the State with a defense to their federal copyright infringement action.

North Carolina filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting sovereign immunity under the Eleventh Amendment, qualified immunity, and legislative immunity. North Carolina’s claim of sovereign immunity prompted Allen and Nautilus to argue (1) that in a 2013 Settlement Agreement, North Carolina waived sovereign immunity; (2) that in any event the federal Copyright Remedy Clarification Act of 1990 had abrogated the State’s sovereign immunity; and (3) that as to their claims for injunctive relief, Ex parte Young provided an exception to sovereign immunity for ongoing violations of federal law. The district court rejected North Carolina’s claims of immunity, and North Carolina filed this interlocutory appeal. Allen and Nautilus filed a cross-appeal. For the reasons that follow, we reverse and remand with instructions to dismiss with prejudice the claims against the state officials in their individual capacities and to dismiss without prejudice the remaining claims.

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Close v. Sotheby's, Inc.

The panel affirmed in part and reversed in part the district court’s dismissal of claims for resale royalties under the California Resale Royalties Act, which grants artists an unwaivable right to 5% of the proceeds on any resale of their artwork under specified circumstances.

Affirming the dismissal in part, the panel held that plaintiffs’ CRRA claims concerning sales that postdated the 1976 Copyright Act’s effective date of January 1, 1978, and thus were covered by the 1976 Act, were expressly preempted by 17 U.S.C. § 301(a).

Reversing in part, the panel held that CRRA claims concerning sales that occurred between the CRRA’s effective date of January 1, 1977, and the 1976 Act’s effective date of January 1, 1978, were not expressly preempted, nor were they preempted by conflict preemption. The panel remanded those claims to the district court for further proceedings.

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