November 20, 2015
YouTube To Protect "Fair Use" By Defending In Court And Keeping Posted Videos Subject To Unsupported DMCA Takedowns
"YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary," Google announced on November 19, 2015. The company will offer legal assistance "to a handful of videos" that Google believes "represent clear fair uses which have been subject to DMCA takedowns." Additionally, the company will keep the videos posted and feature them as examples of fair use. According to Google, this is a new piece of the company's "normal processes" to "resist legally unsupported DMCA takedowns."
November 13, 2015
Pro Se Plaintiff's Taylor Swift Case Dismissed At In Forma Pauperis Stage
Braham v. Sony/ATV Music Publishing et al., 15-cv-8422 (C.D. Cal. Nov. 10, 2015).
A magistrate judge denied the pro se plaintiff's request to proceed in forma pauperis on the basis that he failed to state a claim against Taylor Swift and her label/publisher for alleged copyright infringement. According to the Complaint, defendants used a 22 word phrase from Plaintiff's song "Haters gone hate". Without ident ifying the specific phrase, Plaintiff alleges that “92% of the lyrics” of “Shake It Off” come from his song, that his “song phrase string is used over 70+ times,” and that Taylor Swift would not have written “Shake It Off” had he not written “Haters gone hate.” The Court found that the plaintiff failed to adequately allege copying under Rule 8. The Court further noted that if the plaintiff chose to refile an amended complaint, it had significant concerns that he lacked a claim based solely on the lyrics. Moreover, the plaintiff would need to allege that his lyrics are original.
A magistrate judge denied the pro se plaintiff's request to proceed in forma pauperis on the basis that he failed to state a claim against Taylor Swift and her label/publisher for alleged copyright infringement. According to the Complaint, defendants used a 22 word phrase from Plaintiff's song "Haters gone hate". Without ident ifying the specific phrase, Plaintiff alleges that “92% of the lyrics” of “Shake It Off” come from his song, that his “song phrase string is used over 70+ times,” and that Taylor Swift would not have written “Shake It Off” had he not written “Haters gone hate.” The Court found that the plaintiff failed to adequately allege copying under Rule 8. The Court further noted that if the plaintiff chose to refile an amended complaint, it had significant concerns that he lacked a claim based solely on the lyrics. Moreover, the plaintiff would need to allege that his lyrics are original.
EMI Awarded $3 million + in legal fees in MP3 Tunes Case
Capitol Records, Inc. v. MP3Tunes, No. 07-cv-9931 (SDNY 11/12/2015) [Doc. 724].
In the MP3Tunes case, the Court awarded the plaintiff record labels and music publishers attorney's fees under the Copyright Act. Although slightly reduced (e.g., because of block billing), plaintiff were awarded just over $3 million in fees and costs.
In the MP3Tunes case, the Court awarded the plaintiff record labels and music publishers attorney's fees under the Copyright Act. Although slightly reduced (e.g., because of block billing), plaintiff were awarded just over $3 million in fees and costs.
November 3, 2015
BMI May Recover More Than Minimum Statutory Damages After Nightclub's Default
BMI v. Crocodile Rock Corp., No. 14-3891 (3d Cir. Oct. 30, 2015) (non-precedential opinion).
The Third Circuit held that performance rights organization BMI could recover a default judgment for more than the minimum statutory damages available under the Copyright Act. The Court found that so long as the award falls within the limits set by statute, the trial court's discretion and sense of justice were controlling in setting the amount of the award, even in the case of a default judgment and where the defendant's alleged profits are less than the amount awarded. Accordingly, the $35,000 award of statutory damages was affirmed.
The Third Circuit held that performance rights organization BMI could recover a default judgment for more than the minimum statutory damages available under the Copyright Act. The Court found that so long as the award falls within the limits set by statute, the trial court's discretion and sense of justice were controlling in setting the amount of the award, even in the case of a default judgment and where the defendant's alleged profits are less than the amount awarded. Accordingly, the $35,000 award of statutory damages was affirmed.
October 29, 2015
Stratotone Mark For Guitars Was Abandoned, Permitting Junior Use
Agler v. Westheimer Corp., No. 14-099 (N.D. Indiana 10/28/15).
In a trademark infringement action concerning the mark STRATOTONE for guitars, the Court held that an abandonment of the mark permitted a junior user's use of the mark. A period of non-use by one of the parties triggered a presumption of abandonment, which was not rebutted.
In a trademark infringement action concerning the mark STRATOTONE for guitars, the Court held that an abandonment of the mark permitted a junior user's use of the mark. A period of non-use by one of the parties triggered a presumption of abandonment, which was not rebutted.
October 28, 2015
Will.i.am Denied Registration of :I AM" Trademark For Sunglasses
In re i.am.symbolic, llc, Serial Nos. 85044495 (TTAB mailed Oct. 7, 2015).
Black Eyed Peas frontman, "will.i.am," was refused registration of the mark I AM for use on sungalsses, on the basis of an existing mark for sunglasses for which there was a finding of likelihood of confusion. However, the application was permitted to proceed for other goods identified in the application under Class 9.
Black Eyed Peas frontman, "will.i.am," was refused registration of the mark I AM for use on sungalsses, on the basis of an existing mark for sunglasses for which there was a finding of likelihood of confusion. However, the application was permitted to proceed for other goods identified in the application under Class 9.
Sir-Mix-A-Lot Awarded Attorney's Fees For Defeating Copyright Claim
Ford v. Ray, No. 15-0432 (W.D. Wash. Oct. 27, 2015).
After dismissing plaintiff's copyright claim and granting Sir-Mix-A-Lot attorneys fees under 17 USC 505, the Court awarded defendant $20,000 in fees. The amount awarded was a reduction from the approximately $58,000 sought, based on partially redacted and duplicative time-sheets and avoiding putting the plaintiff in financial ruin.
After dismissing plaintiff's copyright claim and granting Sir-Mix-A-Lot attorneys fees under 17 USC 505, the Court awarded defendant $20,000 in fees. The amount awarded was a reduction from the approximately $58,000 sought, based on partially redacted and duplicative time-sheets and avoiding putting the plaintiff in financial ruin.
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