Between February and April 2022, a professional photographer from Cologne, Germany, filed nine copyright infringement lawsuits in U.S. federal courts. What makes the cases unique is that in each one, the defendant had a Creative Commons license to use the image for commercial purposes free of charge. Knowing the potential traps associated with these licenses and how they can arise may help your company avoid being the next defendant.
The Copyright Alternative in Small-Claims Enforcement Act (CASE Act), enacted in December 2020, established the new Copyright Claims Board (CCB) within the Copyright Office, which is intended to provide an alternative, cost-efficient, streamlined forum for copyright owners to enforce their rights without having to resort to federal court litigation, which can be lengthy and expensive. The CCB is currently scheduled to begin hearing cases by no later than June 2022. But will this forum achieve its intended goals? What are the potential pros and cons presented by the CCB process for the parties?
The U.S. Supreme Court’s recent decision vacating the Ninth Circuit’s ruling in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., was a win for authors who, during the copyright application process, unwittingly submit inaccurate information to the U.S. Copyright Office (e.g., because they did not understand the law, and/or were not assisted by competent copyright counsel). Nonetheless, in The Cost of Honest Mistakes: Even After Unicolors, Copyright Application Errors May Still Have Consequences, our colleagues Sam Eichner and Lori Panosyan explain why the decision does not do away with the risks associated with honest mistakes in U.S. Copyright Office filings (and why authors should take care to mitigate such risks).
Over the past few months, non-fungible tokens (NFTs) have exploded in popularity in the worlds of visual arts, sports memorabilia, bobbleheads, and now, music. We have recently seen multiple high-profile NFT releases from artists such as the Weeknd, the White Stripes, Kings of Leon, Linkin Park’s Mike Shinoda, and Steve Aoki, kickstarting a trend as musicians reeling from over a year without touring seek new ways to engage with fans.
Earlier this month, in what many consider the copyright case of the decade, the Supreme Court released its much-anticipated decision in Google v. Oracle. In it, the Court ruled that Google’s copying of 11,500 lines of declaring code from Java SE for use in Google’s Android platform, was fair use. Having recently reviewed the history of the fair use defense in copyright infringement cases, we now turn to the case itself.
Last month, the Supreme Court released its much-anticipated decision in Google v. Oracle. The Court ruled that Google’s copying of 11,500 lines of declaring code from Java SE, for use in Google’s Android platform, was fair use.
While we examine the Supreme Court’s decision in another post, let’s first take a look at the history of the fair use defense in the software industry.
Your company wants to use a picture taken outside of your office at an event you are hosting or sponsoring. Perhaps the image shows someone wearing your clothing or other product or using something showing your brand. Possibly you participated in a parade and want some images showing your company’s float or views from the float along the parade route. Maybe the image shows the outside of your building or the immediately surrounding area. You may have hired a photographer to take the pictures, they may have been taken by an employee, or someone may have found them on a third-party website or social media posts. The pictures may depict people who were on the street or present at the event, and they may include images of one or more buildings or local landmarks.
You’re in the midst of doomscrolling, when you decide to take a mental health break and post a photo to your socials from a happier (pre-pandemic) time. As you search through your photos, you find a great one of yourself that a friend-of-a-friend took. You’re about to post the photo when you remember a post that you read on this very blog about the potential copyright consequences of using a photo taken by someone else. You aren’t a celebrity—yet—but you decide that it’s best to use a photo that you took yourself. A couple of minutes later you post a throwback selfie in which you are smiling as you proudly show off your very first tattoo. It took you days to decide on the design and hours for the tattoo artist to bring to life. Even today you still get compliments on it, and some people have even recognized you solely based on the fact that you have a very big and very prominent tattoo of Pegasus riding a dragon while eating rainbow sherbet and shooting lasers from a cat. Your post starts racking up likes from your friends (and followers)—when all of the sudden you get a DM from the tattoo artist informing you that she never authorized you to display her copyrighted work on social media and demanding that you take the photo down. Unfortunately, now you’ll be spending the rest of your evening trying to figure out how any rights your tattoo artist has in works permanently inked upon your body may impact your own rights to use (and license) your own likeness.
In a recent social gathering, your friends took a number of photos and circulated it to the group. You see that one shot by a friend is a particularly great photo of you. You repost to your social media account to share with the world. It would generally be safe to assume that nothing will come of this, much less a copyright infringement lawsuit against you by your friend who took the shot. For celebrities, this is not always the case. In the past few years, there have been many lawsuits filed for copyright infringement by photographers and paparazzi against celebrities that reposted photos of themselves that they took off the internet.
Anyone who has spent time scouring the internet for free-to-use content has likely come across pictures, written materials and music permissively licensed under one or more of the Creative Commons licenses. These licenses tend to offer the public a broad range of options when using copyrighted material that is released under the Creative Commons scheme. However, like all licenses, the Creative Commons licenses can contain conditions and requirements that the licensee must adhere to in order to avoid liability. Two recent appellate court decisions shed light on one important condition in the Creative Commons NonCommercial ShareAlike license.