Judge Jeffrey White of the Northern District of California recently dismissed toy manufacturer Tangle’s copyright and trade dress suit against fashion retailer Aritzia. The suit was brought over Aritzia’s use of sculptures resembling Tangle’s toys in its window displays. Judge White’s decision serves as a reminder that copyright protection only extends to works that have been “fixed” in a tangible medium of expression; an artist’s “[s]tyle, no matter how creative, is an idea, and is not protectable by copyright.” Tangle Inc. v. Aritzia, Inc.
Anisha Shenai-Khatkhate is an associate in the Litigation Department. She is a commercial litigator with a particular emphasis on false advertising and consumer class actions, copyright disputes, and related intellectual property litigation. Anisha has experience representing and advising clients in a wide array of industries including consumer products, music and entertainment, publishing, telecommunications, fashion and sports.
Anisha is an editor of and a frequent author for Proskauer’s advertising law blog, Proskauer on Advertising.
Prior to joining Proskauer, Anisha earned a B.A. in Neurobiology from Harvard University, and J.D. from Columbia Law School. While at Columbia, Anisha interned at Volunteer Lawyers for the Arts, helping to provide pro bono legal services to New York artists and arts organizations. She also served as an articles editor of the Columbia Science and Technology Law Review, and was the recipient of Columbia Law School’s Emil Schlesinger Labor Law Prize, awarded annually to the student most proficient in the subject of labor law.
On May 18th, the Supreme Court handed down its much‑anticipated opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. We’ve tracked the progress of this case through the trial court, Second Circuit, and Supreme Court.
The case concerns whether the Andy Warhol Foundation violated a copyright held by photographer Lynn Goldsmith when it licensed a Warhol work called Orange Prince, based on Goldsmith’s photo, to Condé Nast for use on the cover of Vanity Fair magazine. Goldsmith’s photo of Prince was the basis of a series of silkscreen portraits and drawings by Warhol known as the Prince Series. The work at issue was created without Goldsmith’s knowledge or consent. She received none of the $10,000 licensing fee paid to the Warhol Foundation for use of the image.
On March 28th, the Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, a case involving the core issues around copyright fair use. The case involves a series of Warhol drawings and silkscreen prints adapted from an original photograph of Prince taken by Lynn Goldsmith. Likely to interplay with the recent fair use decision in Google v. Oracle, the Supreme Court’s decision in this case has the potential to reshape the contours of fair use and the fate of the transformative use test. The outcome of the decision will have a widespread impact on how artists, particularly appropriation artists and creators of “fan art,” draw from other works.
Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively rejected the Ninth Circuit’s “server rule,” under which the Ninth Circuit held that re-posting of online content does not constitute a separate act of infringement where the infringing copy is stored only on third party servers. Instead, Judge Rakoff held that by re-posting the copyrighted content online, defendants had implicated plaintiffs’ exclusive display right – regardless of whether they created and stored a copy on their own servers. The opinion states that to hold otherwise would be to “make the display right merely a subset of the reproduction right.” Nicklen v. Sinclair Broadcast Group, Inc., et al.
The Second Circuit recently upheld a ruling that streaming giants Apple, Amazon, and Netflix engaged in fair use, in a case concerning the use of plaintiff musicians’ song in a documentary film available for viewing on defendants’ streaming platforms. In doing so, the Court found the eight-second snippet of the song was performed in a way that was transformative, and reasonably necessary to convey the film’s message. Brown, et al. v. Netflix, Inc. et al.
Judge Dolly M. Gee of the Central District of California recently awarded singer Lizzo a major victory in a copyright dispute concerning the artist’s hit song “Truth Hurts.” In her ruling, Judge Gee dismissed with prejudice a claim that Lizzo must share copyright ownership of “Truth Hurts” with the plaintiffs in the case, because the co-ownership claim was based only on the plaintiffs’ contributions to a prior independent work. See Melissa Jefferson v. Justin Raisen et al.
Nearly eight months after a trial that culminated in an adverse jury verdict, pop singer Katy Perry recently achieved a “Dark Horse” victory, proving that the legal battle was “Never Really Over.”
Imagine producing a classic Western without cowboys, saloons, or standoffs. This seems almost inconceivable because these elements are deeply integral to the genre – so much so, in fact, that they are essentially necessary for the creation of such works. Copyright law recognizes and accounts for this, by denying copyright protection to such elements under the “scènes à faire” doctrine. “Scènes à faire” literally means “scenes that must be done.” This doctrine traditionally has been applied in the context of literature and film, to keep classic tropes free for use by artists looking to create works in such genres. The Federal Circuit will soon decide, in Cisco Systems v. Arista, whether the scènes à faire doctrine can also be applied in the context of computer programming, to deny copyright protection for software commands that have become commonplace within the field.