COPYRIGHT

Allen v. Cooper

Issues

Did Congress have the power under Article I of the Constitution or Section 5 of the Fourteenth Amendment to pass the Copyright Remedy Clarification Act, which abrogated State’s sovereign immunity from violating federal copyright law?

This case asks the Supreme Court to determine whether Congress has the power to revoke States’ sovereign immunity from federal copyright infringement under the Copyright Remedy Clarification Act (“CRCA”). Frederick Allen, a videographer, and his video production company argue that the CRCA is a valid exercise of Congress’s enforcement power under the Intellectual Property Clause (“Clause”) of the Constitution. Allen and his company also argue that the CRCA is valid because it enforces his due process rights under Section 5 of the Fourteenth Amendment. Roy Cooper, the governor of North Carolina, argues that the CRCA is unconstitutional and that Congress’s Section 5 power to abrogate state sovereign immunity does not apply in this case. The outcome of this case has important implications for copyright holders and copyright enforcement, as well as for determining the extent of Congress’ power to abrogate state sovereign immunity.

Questions as Framed for the Court by the Parties

Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.

The Queen Anne’s Revenge is a former French merchant vessel that was captured by the pirate Edward Teach, more commonly known as Blackbeard, in 1717. Allen v. Cooper at 343. Teach abandoned the Revenge in 1718 when it ran aground off the coast of Beaufort, North Carolina.  Id.

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American Broadcasting Companies, Inc. v. Aereo, Inc.

Issues

Does a company “publicly perform” a television program when it retransmits broadcasts of that program to thousands of paid subscribers over the Internet?

Aereo is a company that offers subscribers the ability to watch and record local broadcast television over the internet for a monthly fee. Aereo retransmits the programming without a license and without paying a fee to copyright holders. ABC and other television broadcasters sued Aereo for copyright infringement and moved for a preliminary injection. The district court and Second Circuit denied the plaintiffs’ motion because the plaintiffs failed to demonstrate a likelihood of prevailing on the merits in their infringement action. The Supreme Court will decide whether a company that retransmits programming to paid subscribers without obtaining the owner’s permission violates the Copyright Act. The Court’s decision could upend the traditional business model of broadcast television and will affect the relationship between technological innovation and content distribution.

Questions as Framed for the Court by the Parties

A copyright holder possesses the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. §106(4). In the Copyright Act of 1976, Congress defined the phrase “[t]o perform ... ‘publicly’” to include, among other things, “to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. §101. Congress enacted that provision with the express intent to bring within the scope of the public-performance right services that retransmit over-the-air television broadcasts to the public. Respondent Aereo offers just such a service. Aereo captures over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmits that programming to tens of thousands of members of the public over the Internet for a profit. According to the Second Circuit, because Aereo sends each of its subscribers an individualized transmission of a performance from a unique copy of each copyrighted program, it is not transmitting performances “to the public,” but rather is engaged in tens of thousands of "private" performances to paying strangers.

The question presented is:

Whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

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Facts

Respondent Aereo allows its subscribers to watch and record locally-broadcast television programs over the internet for a monthly fee. See WNET v. Aereo, Inc.,712 F.3d 676, 680. Aereo provides the functionality of a television, a Digital Video Recorder (“DVR”), and a slingbox.

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Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Issues

Does a work of art that visually resembles its copyrighted source material, but conveys a different meaning, constitute fair use? Is a court permitted to consider meaning when evaluating copyright infringement claims?

This case asks the Supreme Court to determine whether a work of art that visually resembles its source material but transforms its meaning constitutes fair use under copyright law. The Andy Warhol Foundation for the Visual Arts (AWF) argues that several screenprints created by Andy Warhol, which derive from an original photograph by Lynn Goldsmith, are transformative and constitute fair use because they portray a significantly different message than Goldsmith’s original photograph. Goldsmith argues that since her photograph is recognizable in Warhol’s prints and the works share the same purpose, the prints are not fair use but rather infringe her copyright in her photo. The outcome of this case carries implications for copyright holders’ economic incentives, marginalized artists’ commercial prospects, and creative expression.

Questions as Framed for the Court by the Parties

Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).

In 1981, Lynn Goldsmith, a prominent celebrity portrait photographer, took a photograph of the musician Prince. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith at 33. Goldsmith holds a copyright in the photo. Id.

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Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC

Issues

Has registration of a copyright claim “been made” under the Copyright Act when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, or is it made only after the Copyright Office acts on that application?

This case asks the Supreme Court to determine the prerequisites for suing to enforce copyright and asks whether a copyright owners can sue after submitting the registration application to the Copyright Office, or if they must wait until after the Copyright Office acts on the application. Fourth Estate Public Benefit Corporation argues that the language, structure, and history of the Copyright Act require only that the copyright owner submit a registration application, deposit, and fee before suing for copyright infringement. Wall-Street.com, however, maintains that the Copyright Act unambiguously requires that the Copyright Office act on the registration application before the copyright owner can sue, and that a change in this law should be made by Congress rather than the Court. The outcome of this case will affect the ability of authors, artists, and other creators to protect their original works against copying, the means by which Congress obtains works and makes them publicly accessible, and the methods used by courts and litigants to resolve copyright infringement disputes.

Questions as Framed for the Court by the Parties

Whether “registration of [a] copyright claim has been made” within the meaning of § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the Tenth Circuit and, in the decision below, the Eleventh Circuit have held.

Fourth Estate Public Benefit Corporation (“Fourth Estate”) is an organization that creates online news articles. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com at 2. Fourth Estate owns copyright in the articles it produces and licenses those articles to other websites. Id.

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Google LLC v. Oracle America, Inc.

Issues

Is a software company entitled to copyright protection for its unique programming platform; and, if so, under what conditions does a secondary use of that programming platform to create a new computer program constitute fair use?

This case asks the Supreme Court to determine whether, under the Copyright Act of 1976, software interfaces can receive copyright protections that convey exclusive rights to the software author and, if so, under what conditions a secondary use of that software constitutes fair use. Google argues that no copyright protections should extend to Oracle’s Java SE declaring code under copyright law’s merger doctrine. Even if copyright protection is warranted, Google contends that its use of the Java SE declaring code to create its Android platform constitutes fair use due to the transformative nature of and limited copying in the Android platform. Oracle counters that software interfaces deserve the same copyright protections as other works because of the expressive nature of the software. As such, Oracle asserts that Google’s use of Java SE is not fair use because it harmed Oracle’s market for licensing Java SE. The outcome of this case has heavy implications for the use of programming languages in future technology as well as the open-book industry standard for borrowing computer code to further technological advances.

Questions as Framed for the Court by the Parties

(1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

In 2010, Respondent Oracle America, Inc. (“Oracle”) purchased Sun Microsystems, Inc. (“Sun”), which transferred ownership of the Java programming language to Oracle. Oracle Am., Inc. v. Google LLC (Federal Circuit) at 5.

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patent

Overview

A patent grants the patent holder the exclusive right to exclude others from making, using, importing, and selling the patented innovation for a limited period of time.  The U.S. Patent Act, 35 U.S.C. §§ 1 et seq., was enacted by Congress under its Constitutional grant of authority to secure for limited times to inventors the exclusive right to their discoveries.

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Category: Intellectual Property

Rimini Street Inc. v. Oracle USA Inc.

Issues

Does the phrase “full cost” as used in the Copyright Act and codified at 17 U.S.C. § 505 encompass non-taxable litigation expenses, including expert witness expenses and e-discovery fees beyond the statutorily enumerated taxable costs and rate setting prescribed in 28 U.S.C. §§ 1920 and 1821?

This case asks the Supreme Court to interpret Section 505 of the Copyright Act and to decide whether it authorizes courts to award litigation costs that are non-taxable as specified in 28 U.S.C. § 1920. Specifically, Section 505 of the Copyright Act states that “the court in its discretion may allow the recovery of full costs,” and the dispute hinges on the meaning of “full costs.” The lower court determined that Rimini Street Inc. (“Rimini”) and its CEO, Seth Ravin (“Ravin”), infringed copyrights held by Oracle USA, Inc. (“Oracle”), and the court ordered Rimini and Ravin to recompense Oracle for certain litigation costs that are not taxable. The parties’ arguments draw on the structure of the statutes and historical practice. The Supreme Court’s decision could have a meaningful impact on future copyright infringement litigation because the available awards could alter parties’ incentives to sue.

Questions as Framed for the Court by the Parties

Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Court of Appeals for the Eighth and Eleventh Circuits have held, or whether the act also authorizes non-taxable costs, as the U.S. Court of Appeals for the Ninth Circuit holds.

In 2010, Oracle USA, Inc. et al. (“Oracle”) commenced suit against Rimini Street, Inc. (“Rimini”) and Rimini’s CEO, Seth Ravin (“Ravin”), in the United States District Court for the District of Nevada, alleging infringement of the Copyright Act and violation of certain state laws against computer-based fraud.

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Romag Fasteners, Inc. v. Fossil, Inc.

Issues

Does Section 35 of the Lanham Act require willful infringement to award a prevailing plaintiff profits of an infringer who violated Section 43(a)?

This case asks the Supreme Court to determine whether a plaintiff must show that an entity willfully infringed on a trademark in order to be awarded the infringer’s profits for violating the Lanham Act. Romag Fasteners, Inc. argues that the plain text of Section 1117(a) and the structure of the Lanham Act omits a willfulness requirement, and the phrase “subject to the principles of equity” in Section 1117(a) does not justify such a requirement. Fossil, Inc. counters that the textual analysis of Section 1117(a) should incorporate traditional principles of equity that require willfulness for profits awards because the text expressly allows for consideration of equitable principles. The outcome of this case has important implications for the rights of trademark holders and awards of damages.

Questions as Framed for the Court by the Parties

Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).

In 2002, Fossil, Inc., a company that designs and sells handbags, entered into a trade agreement  with Romag, a company that has trademarked and patented magnetic snap fasteners used in handbags. Romag Fasteners, Inc. v. Fossil, Inc. at 2.

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Star Athletica, LLC v. Varsity Brands, Inc., et al.

Issues

When should a feature of a useful article be protected under § 101 of the Copyright Act?

This case may have deep repercussions for the fashion industry, since it asks the Supreme Court to clarify garment design copyrightability by determining when a useful article’s design feature is protectable under § 101 of the Copyright Act. A useful article, such as garment design, cannot be copyrighted, but features of it may be copyrighted.  The case law is muddled as to when features are copyrightable.  Star Athletica, LLC advocates for a two-part test to determine copyrightability. First, a feature must be identified separately from the useful article’s utilitarian aspects. Second, the utilitarian aspects and the feature must be able to exist side-by-side, as fully realized, separate works—one as an artistic work and the other as a useful article. In opposition, Varsity Brands, Inc. et al. contends that Star Athletica mixes and matches various lower court approaches to create a confusing test without statutory support. Instead, Varsity argues that features of a useful article are copyrightable if they are “applied art,” or artwork that appears on a useful article.

Questions as Framed for the Court by the Parties

What is the appropriate test to determine when a feature of the design of a useful article is protectable under § 101 of the Copyright Act? 

Varsity Brands, Inc. et al. (“Varsity”) designs and manufactures cheerleading uniforms and accessories.  Star Athletica, LLC v. Varsity Brands, Inc., No. 14-5237 at *2 (6th Cir., filed Aug.

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