Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: Copyright

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Federal Judge Finds Copyright Issues “Embedded” in Social Media Re-Posts

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 … Continue Reading

Second Circuit Revisits Transformative Use Test in “Fish Sticks n’ Tater Tots” Music Copyright Case

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 … Continue Reading

The “Truth Hurts”: Judge Rules Lizzo is 100% That [Copyright Owner]

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 … Continue Reading

Double Masking is Good, but Still Make Sure You Can Be Heard in a Deposition

As the legal profession continues to adjust to the COVID-19 pandemic, even something as normal and regular as a deposition has often become an adventure. Even after accounting for the immediately obvious questions (is in-person too dangerous or not allowed? If conducting a remote deposition, what vendor should I use?) and all-to-common glitches like connectivity … Continue Reading

Insurers Did Not Act As Advertised in “Advertising Injury” Suit

Does coverage for liability arising out of “advertising injury” include copyright infringement suits where the insured was not alleged to have engaged in advertisement? In Superior Integrated Solutions, Inc. v. Mercer Insurance Company of New Jersey, Inc., the New Jersey Appeals Court said “yes,” affirming the trial court’s granting summary judgment for an insured.… Continue Reading

“Hold Up, Wait A Minute”: D.C. Circuit Rejects Copyright Board’s Categorical Exclusion of Internet Transmissions from Grandfathered Royalty Rates

On August 18, the D.C. Circuit directed the Copyright Royalty Board (“CRB”) to reconsider what royalties are owed to artists by Music Choice for its streaming services, vacating the final determination of the Copyright Royalty Board.  In the Court’s view, the CRB wrongfully excluded internet transmissions from the grandfathered royalty rate paid by some music … Continue Reading

First Circuit Treads “Unchartered Waters”: Holds Copyright Sublicenses Can Be Implied

On March 13, 2020, the U.S. Court of Appeals for the First Circuit, in a case of first impression, held that a copyright licensee given the unrestricted right to grant sublicenses may do so without using express language. The case, Photographic Illustrators Corp. v. Orgill, Inc., stems from a license Photographic Illustrators Corp. (“PIC”), a … Continue Reading

Fifth Circuit Holds Failure to Mitigate is No Bar to Statutory Damages Under Copyright Act

Recently, copyright owners suing in the jurisdiction of the United States Court of Appeals for the Fifth Circuit were given a new reason to seek statutory damages instead of actual damages under the Copyright Act. Failure to mitigate damages is not an absolute defense to a claim for statutory damages, the Court ruled on Wednesday, … Continue Reading
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