2H 2022 Quick Links, Part 3 (Copyrights and More)


* Wallster, Inc. v. Redbubble, Inc., 2022 U.S. Dist. LEXIS 198181 (C.D. Cal. Oct. 21, 2022):

this Court rejects Wallshoppe’s argument that recklessness is enough to meet the knowledge requirement for contributory copyright infringement…

Wallshoppe alleges Defendant has a “general awareness” that certain designs uploaded to its website may be copyrighted and that a “significant percentage of those that [Defendant] partners with to sell products are not ‘authentic sellers.'” However, Wallshoppe does not allege Defendant knew of the specific acts of infringement at issue here—Sienna Lewis selling products featuring the Palm Design on Defendant’s website. Allegations of “general awareness” are not enough.

* Whiddon v. Buzzfeed, Inc., 2022 WL 16555584 (S.D.N.Y. Oct. 31, 2022):

When an individual’s decision to disseminate an Instagram post is the “very thing the article [is] reporting on,” the use of the Instagram post and its copyrighted material in the reporting has been deemed sufficiently transformative to support a fair use defense.

Moreover, reproductions of a social media post are clearly used for the purposes of reporting on the post where, as here, the reproductions include the accompanying elements of the social media application, such as the frame of the Instagram application and standard Instagram hyperlinks. The focus of the article is Ms. Mitchell’s decision to disseminate the Photographs of her accident, and the resulting critique of that decision. Buzzfeed’s use of screenshots, which include all the elements of the Post, such as the Instagram branding and Ms. Mitchell’s caption, make absolutely clear that the focus of its reporting is on the Post and the controversy.

* UMG Recordings, Inc. v. Grande Communications Networks LLC (November 3, 2022). Jury awards nearly $50M in damages against Internet access provider for user-caused copyright infringement.

* Grumpy Cat Limited v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto:

Some of the accused products likely infringe plaintiff’s trademarks or copyrights, but the court is not persuaded that the accused products depicted in every submitted screenshot infringe. For example, [15] at 10 and [15] at 126 depict cartoon cats that are not the trademarked image and do not use the term Grumpy Cat. Plaintiff’s submission does not explain how such images could reasonably be considered derivative of any copyrighted work (which are merely listed and not described). Not every frowning cartoon cat infringes; or at least plaintiff has failed to persuade that its intellectual property reaches that far

* Evox Productions, LLC v. Verizon Media, Inc., 2022 WL 17430309 (9th Cir. Dec. 6, 2022). It could be copyright infringement to continue serving photos from servers after the license expired.

* Hayden v. 2K Games, Inc., No. 1:17CV2635 (N.D. Ohio. Sept. 20, 2022). Tattoos are “published” when completed.

* From the Copyright Office:

The Copyright Office “does not recommend adopting additional copyright-like rights for press publishers in the United States. We have concluded that ancillary copyright protections have not been shown to be necessary in light of publishers’ existing rights, and would likely be ineffective so long as publishers depend on news aggregators for discoverability. Moreover, to the extent that any ancillary copyright protections would lack traditional copyright limitations and exceptions, they would raise significant policy and Constitutional concerns….

Any change to U.S. copyright law that would meaningfully improve press publishers’ ability to block or seek remuneration for news aggregators’ use of their works would necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions. Additionally, we note that this Study revealed little demand for additional copyright-related rights for press publishers. Most commenters identified changes to competition (antitrust) policy as a more effective means to improve the position of press publishers in dealing with news aggregators”

* White v. UMG Recordings, Inc., 2022 WL 17744001 (SDNY Aug. 16, 2022). 512(f) plaintiff alleged claims sufficient to survive a motion to dismiss.

* Wright v. Edwards, 2022 WL 17820247 (E.D.N.Y. July 18, 2022). Even on a default judgment, a 512(f) plaintiff can’t win because it lacked “an allegation of such reliance by Etsy—or indeed that, after the takedown of the listing, the allegedly infringing listing was restored.”

* Melissa Eckhause, Fighting Image Piracy or Copyright Trolling? An Empirical Study of Photography Copyright Infringement Lawsuits

* Techdirt: Study Shows Anti-Piracy Ads Often Made People Pirate More.

* TorrentFreak: Pornhub reduced DMCA takedown notices 98% by requiring mandatory uploader verification.

* Hollywood Reporter: 12 Notorious Movies and TV Shows That Have Never Been Released.

And More

* Thaler v. Vidal, 2021-2347 (Fed. Cir. August 5, 2022): “the Patent Act requires an ‘inventor’ to be a natural person…only a natural person can be an inventor, so AI cannot be.”

* All Star Recruiting Locums, LLC v. Ivy Staffing Solutions, LLC, 2022 WL 2340997 (S.D. Fla. April 8, 2022)

Plaintiff also requests that this Court issue an ex parte order seizing Defendants’ computers, computer hard drives, cellular phones, and other memory devices that could contain its confidential information. As Plaintiff correctly argues, the DTSA authorizes this course of action in “exceptional circumstances.” However, I find that Plaintiff has failed to demonstrate that such exceptional circumstances are present here. Specifically, Plaintiff has failed to demonstrate that Defendants are unlikely to comply with this Court’s order, even considering what Plaintiff calls Defendants’ “deceptive behavior” Indeed, many of the allegations present in this case seem to be present in most trade secret cases and calling these circumstances “exceptional” would make the exception swallow the rule. Therefore, I find that ordering Defendants to return Plaintiff’s confidential information and requiring them to file an affidavit affirming their compliance thereafter will sufficiently secure compliance with this Court’s order.

For background on the “exceptional” requirement in the DTSA ex parte seizure provision, see this paper.

* “Rapper Cardi B didn’t violate a man’s right of publicity by transposing his back tattoo onto a model for the racy cover of her 2016 mixtape, a California federal jury said.”