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Copyrightability Clarified for Designs of “Useful” Articles

On March 22, 2017, the U.S. Supreme Court decided Star Athletica, L.L.C. v. Varsity Brands, Inc., ruling that decorative designs of cheerleading uniforms may be eligible for copyright protection.[1]  In so deciding, the Court clarified the application of the copyright laws to designs of “useful” articles. Previously, as has been my experience in the registration and enforcement of designs of “useful” articles, the “useful” nature of an item has been broadly cited as excluding, or severely limiting, the protection of copyright laws to the design/ornamentation of such an item.  However, the Supreme Court has now clarified that the shadow of utility does not limit the otherwise available statutory scope of protectable expression. By the example of the Star Athletica case, while the overall “cut” of a uniform is utilitarian (useful as clothing) and not protectable expression, protection is available to decorative works on that uniform, even if bounded by that…

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Volitional Conduct: an Element of Copyright Infringement

The Ninth Circuit Court of Appeals recently held in Perfect 10 v. Giganews, No 15-5550 (Jan 23, 2017), that an alleged copyright infringer can only be found directly liable if its “volitional conduct” actually causes the infringing activity to happen. Notably, the Court rejected Appellant’s argument that the Supreme Court’s ruling in American Broadcasting v. Aereo, Inc. removed this “volitional conduct” requirement. Appellant Perfect 10, Inc. owns copyrights to several images. Appellee Giganews, Inc. owns and operates several Usenet servers and provides subscribers to user-stored content to other Usenet providers. Perfect 10’s images have been distributed by users over Giganews’s servers, and Perfect 10 sued Giganews for direct and indirect copyright infringement claims. The district court granted Giganews’s motions for summary judgment as to the direct and indirect copyright infringement claims. The Court reviewed the grant of summary judgment de novo. To show a prima facie case of direct copyright…

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DMCA Safe Harbor Covers Content from Independent Contractors

The Tenth Circuit recently held that a website provider could not be held liable for copyright infringement for the unauthorized use of copyrighted photographs in content created by its contractors. BWP Media, USA v. Clarity Digital Group, 2016 U.S. App. LEXIS 7406 (10th Cir. Apr. 25, 2016). Defendant AXS owns and operates Examiner.com, a “dynamic entertainment, news and lifestyle network that serves more than 20 million monthly readers across the U.S. and around the world.” BWP Media at *4. Rather than retain dedicated staff writers, AXS hires “Examiners,” independent contractors who create content for the website. Plaintiff BWP owns the copyright for 75 photographs used in content posted on Examiner.com. BWP did not grant permission to use the photographs. Upon BWP’s request, AXS removed the photographs and notified BWP. Still, BWP sued AXS for copyright infringement. AXS won summary judgment at the district court, successfully arguing that AXS qualified for…

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Cert. Denied in Google Books Copyright Case: Big Win for Fair Use Doctrine

The U.S. Supreme Court recently denied review of the Second Circuit decision in The Authors Guild et al. v. Google Inc., 804 F.3d 202 (2d Cir. 2015), finalizing a decision allowing Google to continue its mass digitization projects as fair use. This decision is a major victory for fair use – and for Google’s preservation efforts for university libraries. The ten year litigation battle is a bit complicated, so here’s a brief primer on the main issues. In short, Google works with several university libraries to digitize their collections and monetize the digital copies through searches through Google Books and Google’s Library Project. The works are mostly non-fiction, out-of-print books, many of which are deteriorating. The Google Books search function allows a searcher to view a limited amount of text, which Google describes as a “snippet,” or about three lines of text. Google also provides a digital copy of each…

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A Reminder That Website Agreements Are Usually Enforceable

Long before the Internet, courts were not reluctant to enforce adhesion contracts. This willingness is one thing the Internet age has not changed.  A good reminder – and lessons for parties seeking to enforce, as well as users wary of, website agreements – comes in a recent case in which a U.S. district court enforced a rather draconian transfer of copyright in a browsewrap agreement. Small Justice LLC v. Xcentric Ventures LLC, No. 13-cv-11701, (D. Mass March 27, 2015). The court here granted summary judgment for the defendant, enforcing its browsewrap agreement that gave the defendant an exclusive license to the copyright in material that a user posted to its site. Christian DuPont posted negative comments about attorney Richard Goren on ripoffreport.com. (“ROR”), a website operated by Xcentric. The website included terms and conditions including the following, which would only have been seen by a user who scrolled through a…

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