Copyright Law Developments
Robert W. Clarida, Cowan Liebowitz & Latman
Mr. Clarida began with a discussion on Viacom v. YouTube (currently on appeal to Second Circuit). YouTube argues the § 512(c) safe harbor protects it and unless Viacom gives a takedown notice, YouTube is protected. Viacom argues that § 512(c) doesn't apply because YouTube was "aware of facts or circumstances from which infringing activity is apparent." Judge Stanton (SDNY) says just knowing that there is some general infringement going on is not enough - a red flag is needed. The court based its decision on the "no monitoring rule" of the DMCA which says there's no obligation to monitor the site and check the content that's coming in (§ 512(m)). Mr. Clarida says the red flag standard by Judge Stanton is too high and hopefully the Second Circuit will clear it up on appeal.
Next, Mr. Clarida addressed the Supreme Court's decision in Reed Elsevier v. Muchnick, which involves the copyright registration requirement of § 411(a) of the Copyright Act. Section 411(a) states that a copyright owner needs to register registered the work before being able to sue for copyright infringement. The Supreme Court said the registration requirement is not jurisdictional, but is a claim-processing rule. The difference is that the argument can be waived if not raised. To be jurisdictional, the statute must clearly say it's jurisdictional, otherwise it's a claim-processing rule. This ruling was based on an employment discrimination case. The Supreme Court's decision in this case differed from about 200 lower court cases that were decided to the contrary. Mr. Clarida claims this has created a looser world for copyright.
Salinger v. Colting (2nd Circuit 2010) was a fair use case involving JD Salinger's classic book, Catcher in the Rye. The district court said there was no fair use and granted an injunction. The Second Circuit said no fair use, but reversed on granting of preliminary injunction because the district court presumed irreparable harm contrary to the Supreme Court's decision in eBay v. Mercexchange (a patent case).
Mr. Clarida said these cases suggest that copyright practitioners need to look beyond copyright law when advising their clients and arguing before the courts. They need to consider patent law and even employment discrimination concepts.
Soft Entertainment v. Dodger Productions (CD Cal. 2010) involves a 7 second clip from the Ed Sullivan Show. The question was fair use. The court said use of this clip constituted fair use because this clip was a historical reference point and that the introduction by Ed Sullivan was not the heart of the work, but merely an artery to the heart of the work.
Bouchat v. Baltimore Ravens (4th Circuit 2010). Mr. Bouchat designed a logo for the Ravens, which looked very similar to the logo eventually adopted by the Ravens. Ultimately, the Ravens subsequently changed their logo. The court found no fair use, because, in part, there's a market for throw-back merchandise. Comparing Bouchat and Soft Entertainment, Mr. Clarida said "fair use is absolutely a crapshoot. You're really just flipping a coin."
Next Mr. Clarida discussed Golan v. Holder, a case where the Supreme Court granted recently granted cert. The Copyright Act brings back into copyright works of foreign origin that had fallen into the public domain. It is argued that the portion of the Copyright Act that brought these works back under copyright law violates the 1st Amendment, because the traditional contours of copyright protection have been altered because we've never brought works out of the public domain.
Finally, Mr. Clarida covered a couple of VARA cases. In Mass. Museum of Contemporary Art v. Buchel (1st Cir. 2010), the court held that an unfinished work of art is a work of art protected by VARA. Kleinman v. City of San Marcos (5th Cir. 2010), involved a "car bash" that took place when a new store opened. The city ticketed the artist saying you can't have a junk car on your front yard. The artist claimed this violates VARA. The 5th Circuit said these bashed cars didn't count as a work of visual art because this is a merchandising/promotional item.