Naruto v. Slater

Affirming the district court’s dismissal of claims brought by a monkey, the panel held that the animal had constitutional standing but lacked statutory standing to claim copyright infringement of photographs known as the “MonkeySelfies.” The panel held that the complaint included facts sufficient to establish Article III standing because it alleged that the monkeywas the author and owner of the photographs and had suffered concrete and particularized economic harms. The panel concluded that the monkey’s Article III standing was not dependent on the sufficiency of People for the Ethical Treatment of Animals, Inc., as a guardian or “next friend.” The panel held that the monkey lacked statutory standing because the Copyright Act does not expressly authorize animals to file copyright infringement suits.

The panel granted appellees’ request for an award of attorneys’ fees on appeal. Concurring in part, Judge N.R. Smith wrote that the appeal should be dismissed and the district court’s judgment on the merits should be vacated because the federal courts lacked jurisdiction to hear the case. Disagreeing with the majority’s conclusion that next-friend standing is nonjurisdictional, Judge Smith wrote that PETA’s failure to meet the requirements for next-friend standing removed jurisdiction of the court.

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Oracle America, Inc. v. Google, Inc.

This copyright case returns to us after a second jury trial, this one focusing on the defense of fair use. Oracle America, Inc. (“Oracle”) filed suit against Google Inc. (“Google”)1 in the United States District Court for the Northern District of California, alleging that Google’s unauthorized use of 37 packages of Oracle’s Java application programming interface (“API packages”) in its Android operating system infringed Oracle’s patents and copyrights.

At the first trial, the jury found that Google infringed Oracle’s copyrights in the Java Standard Edition platform, but deadlocked on the question of whether Google’s copying was a fair use.2 After the verdict, however, the district court found that the API packages were not copyrightable as a matter of law and entered judgment for Google. Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D. Cal. 2012). Oracle appealed that determination to this court, and we reversed, finding that declaring code and the structure, sequence, and organization (“SSO”) of the Java API packages are entitled to copyright protection. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1348 (Fed. Cir. 2014). We remanded with instructions to reinstate the jury’s infringement verdict and for further proceedings on Google’s fair use defense and, if appropriate, on damages. Id. at 1381.

Google subsequently filed a petition for certiorari on the copyrightability determination. The Supreme Court called for the views of the Solicitor General, who expressed agreement with our determination and recommended denying review. The Supreme Court denied certiorari in 2015. Google Inc. v. Oracle Am., Inc., 135 S. Ct. 2887 (2015) (Mem.).

At the second jury trial, Google prevailed on its fair use defense. After the jury verdict, the district court denied Oracle’s motion for judgment as a matter of law (“JMOL”) and entered final judgment in favor of Google. Oracle Am., Inc. v. Google Inc., No. C 10-03561, 2016 WL 3181206 (N.D. Cal. June 8, 2016) (“Order Denying JMOL”); Final Judgment, Oracle Am., Inc. v. Google Inc., No. 3:10-cv-3561 (N.D. Cal. June 8, 2016), ECF No. 1989. Oracle filed a renewed motion for JMOL and separately moved for a new trial. The district court denied both motions in a single order. Oracle Am., Inc. v. Google Inc., No. C 10-03561, 2016 WL 5393938 (N.D. Cal. Sept. 27, 2016) (“Order Denying Renewed JMOL/New Trial”). Consistent with these determinations, no damages verdict was rendered.

Oracle now appeals from the district court’s final judgment and its decisions denying Oracle’s motions for JMOL and motion for a new trial. Google cross-appeals from the final judgment purportedly to “preserv[e] its claim that the declarations/SSO are not protected by copyright law,” but advances no argument for why this court can or should revisit our prior decision on copyrightability. Cross-Appellant Br. 83.

Because we conclude that Google’s use of the Java API packages was not fair as a matter of law, we reverse the district court’s decisions denying Oracle’s motions for JMOL and remand for a trial on damages. We also dismiss Google’s cross-appeal.

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Williams v. Gaye

The panel affirmed in part and reversed in part the district court’s judgment after a jury trial, ruling that plaintiffs’ song “Blurred Lines” infringed defendants’ copyright in Marvin Gaye’s song “Got To Give It Up.” The panel held that “Got To Give It Up” was entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression. The panel accepted, without deciding, the merits of the district court’s ruling that the scope of the defendants’ copyright was limited, under the Copyright Act of 1909, to the sheet music deposited with the Copyright Office, and did not extend to sound recordings.

The panel held that the district court’s order denying summary judgment was not reviewable after a full trial on the merits.

The panel held that the district court did not err in denying a new trial. The district court properly instructed the jury that there is no scienter requirement for copyright infringement and that it must find both access and substantial similarity. The district court did not erroneously instruct the jury to consider unprotectable elements of “Got To Give It Up.” The district court did not abuse its discretion in admitting expert testimony. In addition, the verdict was not against the clear weight of the evidence because there was not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs.

The panel held that the district court’s award of actual damages and infringers’ profits and its running royalty were proper.

Reversing in part, the panel held that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts. In addition, there was no duty to reconcile the verdicts. The district court erred in finding one party secondarily liable for vicarious infringement.

The panel held that the district court did not abuse its discretion in denying the defendants’ motion for attorneys’ fees under § 505 of the Copyright Act or in apportioning costs among the parties.

Dissenting, Judge Nguyen wrote that “Blurred Lines” and “Got To Give It Up” were not objectively similar as a matter of law under the extrinsic test because they differed in melody, harmony, and rhythm, and the majority’s refusal to compare the two works improperly allowed the defendants to copyright a musical style.

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Great Minds v. FedEx Office & Print Services, Inc.

Appeal from a judgment entered in the Eastern District of New York (Hurley, J.) dismissing this copyright infringement action filed by Plaintiff‐Appellant Great Minds against Defendant‐Appellee FedEx Office and Print Services, Inc. (“FedEx”). FedEx allegedly violated Great Minds’ copyright by reproducing Great Minds’ educational materials at the request of school districts, which sought to use the materials for noncommercial purposes under Great Minds’ non‐exclusive public license. The public license does not explicitly address whether licensees may engage third parties to provide commercial services that assist the licensees in furthering their own noncommercial uses. We hold that a copyright holder must state in its license any limitation it might wish to impose precluding such an engagement. We decline to infer any such limitation in Great Minds’ public license, and therefore AFFIRM the District Court’s judgment.   AFFIRMED.

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Ventura Content, Ltd. v. Motherless, Inc.

The panel affirmed the district court’s summary judgment in favor of the defendants and its order denying attorneys’ fees in a copyright case.

The plaintiff, a creator and distributor of pornographic movies, alleged that infringing clips were stored and displayed on defendants’ website.

The panel held that the defendants qualified for the safe harbor defense set forth in the Digital Millennium Copyright Act. The material on the website was stored at the direction of users, who decided what to post. The defendants did not have actual or apparent knowledge that the clips were infringing, and they expeditiously removed the infringing material once they received actual or red flag notice of the infringement. The defendants also did not receive a financial benefit directly attributable to infringing activity that they had the right and ability to control. In addition, the defendants had a policy of excluding repeat infringers from the website. The panel held that the district court did not abuse its discretion in not exercising supplemental jurisdiction over a California state law claim. The district court also did not abuse its discretion in denying an award of attorneys’ fees to defendants.

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Spanski Enterprises, Inc. v. Telewizja Polska, S.A.

When the owner of a foreign website, acting abroad, uploads video content in which another party holds exclusive United States public performance rights under the Copyright Act and then directs the uploaded content to United States viewers upon their request, does it commit an infringing “performance” under the Act? If so, is it protected from liability by the principle—unquestioned here—that the Act has no extraterritorial application? Answering these questions “yes” and “no,” the district court concluded that Polish broadcaster Telewizja Polska was, by transmitting fiftyone episodes of certain Polish-language television programs into the United States via its online video-on-demand system, liable for infringing copyrights held by a company, Spanski Enterprises, Inc., that enjoys exclusive North and South American performance rights in the episodes. Telewizja Polska appeals this determination, as well as the district court’s imposition of statutory damages of $60,000 per episode, for a total of $3,060,000. For the reasons that follow, we affirm as to both liability and damages.

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Rentmeester v. Nike, Inc.

The panel affirmed the district court’s dismissal of a copyright infringement action brought by photographer Jacobus Rentmeester against Nike, Inc. Rentmeester alleged that Nike infringed his copyright in a photograph of Michael Jordan when it commissioned its own photograph of Jordan and then used that photo to create its “Jumpman” logo.

The panel held that Rentmeester plausibly alleged the first element of his copyright claim—that he owned a valid copyright in his photo. He also plausibly alleged the “copying” component of the second element because Nike’s access to Rentmeester’s photo, combined with the obvious conceptual similarities between the two photos, was sufficient to create a presumption that the Nike photo was the product of copying rather than independent creation.

Rentmeester did not, however, plausibly allege that Nike copied enough of the protected expression from his photo to establish unlawful appropriation. The panel held that Rentmeester could not copyright the pose in the photograph, and he was entitled to protection only for the way the pose was expressed, including the camera angle, timing, and shutter speed he chose. The panel explained that a photographer’s copyright is limited to the particular selection and arrangement of the elements expressed in the copyrighted image. The panel held that Rentmeester’s photo was entitled to broad rather than thin protection because the range of creative choices open to him in producing the photo was exceptionally broad. Nonetheless, Rentmeester did not plausibly allege that his photo and the Nike photo were substantially similar under the extrinsic test because there were differences in selection and arrangement of elements, as reflected in the photos’ objective details. The panel concluded that, therefore, the Jumpman logo also was not substantially similar to Rentmeester’s photo.

Concurring in part and dissenting in part, Judge Owens agreed with most of the majority’s analysis, and with its holding that Rentmeester could not prevail on his Jumpman logo copyright infringement claim. Judge Owens disagreed with the majority’s conclusion as to the Nike photo on the basis that questions of substantial similarity are inherently factual and should not have been resolved at the dismissal stage.

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Fox News Network, LLC v. TVEyes, Inc.

Defendant TVEyes, Inc. (“TVEyes”) is a media company that continuously records the audiovisual content of more than 1,400 television and radio channels, imports that content into a database, and enables its clients, for $500 per month, to view, archive, download, and email to others ten‐minute clips.    TVEyes also copies the closed‐captioned text of the content it imports, allowing its clients to search for the clips that they want by keyword, as well as by date and time.

Plaintiff Fox News Network, LLC (“Fox”) sued TVEyes for copyright infringement in the United States District Court for the Southern District of New York.    The principal question on appeal is whether TVEyes’s enabling of its clients to watch Fox’s programming is protected by the fair use doctrine.    TVEyes’s re‐distribution of Fox’s content serves a transformative purpose insofar as it enables TVEyes’s clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner.    But because that re‐distribution makes available to TVEyes’s clients virtually all of Fox’s copyrighted content that the clients wish to see and hear, and because it deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use.

Accordingly, we reverse the order of the district court to the extent that it found fair use.    Our holding does not encompass the copying of Fox’s closed‐captioned text into a text‐searchable database, which Fox does not challenge on appeal.    We affirm the district court’s order to the extent that it denied TVEyes’s request for additional relief.    We also remand for entry of a revised injunction.

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John Wiley & Sons, Inc. v. DRK Photo

In this copyright case, DRK, a purported assignee of photographers’ rights to sue for infringement, seeks statutory damages from Wiley, a licensee, for exceeding its licensed use of certain photographs as to which DRK non‐exclusively represents the photographers. Invoking our precedent in Eden Toys v. Florelee Undergarment, Co., 697 F.2d 27 (2d Cir. 1982), the District Court granted summary judgment to Wiley, concluding in part that DRK lacked statutory standing to sue Wiley for copyright infringement. Consistent with Eden Toys, we too conclude as a matter of law that the Copyright Act does not permit prosecution of infringement suits by assignees of the bare right to sue that are not and have never been a legal or beneficial owner of an exclusive right under copyright. In addition, because we also conclude that DRK is not and has never been the holder of an exclusive right in the photographs, we AFFIRM the judgment of the District Court.

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Folkens v. Wyland Worldwide, LLC

The panel affirmed the district court’s summary judgment in favor of the defendant in an action under the Copyright Act.

The plaintiff alleged that the defendant infringed on his pen and ink depiction of two dolphins crossing underwater. Applying the objective extrinsic test for substantial similarity, the panel held that this depiction was an idea that was found first in nature and was not a protectable element. Because the only area of commonality between the parties’ works was an element first found in nature, expressing ideas that nature has already expressed for all, the district court properly granted summary judgment.

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