Internet personality Logan Paul, who has millions of subscribers on his YouTube channel, has been sued for copyright infringement. The Complaint, filed in the U.S. District Court for the Central District of California, alleges that his composition “No Handlebars” willfully infringes on an original composition by Flobots titled, “Handlebars.” The original was written and recorded in 2005. Paul released “No Handlebars” in November 2017.
What do you need in place prior to bringing an action for copyright infringement? That specific question was decided by the United States Supreme Court in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al.
Copyright infringement lawsuits must be brought in federal court. These cases are often filed by lawyers who not only think their clients can score a sizable judgment, but also have the opposition cover legal fees and costs. However, a new United States Supreme Court decision places a limit on what a prevailing party can actually collect.
Is it true that no one can own a dance step? That is what video game publisher Epic Games is arguing in a motion to dismiss that it filed on February 11 in a federal case that was brought by Terrence “2 Milly” Ferguson.
A Los Angeles jury found that rock band Led Zeppelin did not plagiarize the opening riff to the hit song Stairway to Heaven.
The estate of Randy Wolfe originally brought the copyright infringement suit against the rock legends on the grounds that they believed that Zeppelin stole the original riff from a 1968 song released by Wolfe’s band Spirit.
Stairway to Heaven has been voted the number three all time great Rock Songs by VH1 and has gone down in rock history as the most memorable compositions. If this case went in another direction, a chapter of rock n roll history would have to be rewritten.
Members of Led Zeppelin used their hazy memory to ultimately plea that they didn’t steal the riff. They also provided expert testimony that the two songs shared only a “common building block” that has been used for years.
The jury was not played the original version of Spirit’s song, but after a week of testimony they came to the conclusion that Led Zeppelin did not rip off the riff.
By this point everyone has seen the picture of Michael Jordan crying at his Hall of Fame induction, as it is being used on memes everywhere. Can use of this photo in a meme get you sued?
Copyright law grants exclusive rights of an original work to its creator, in this case the Associated Press. Of course there are exceptions that allow for use without permission from the copyright holder. We are going to evaluate if use of the Michael Jordan’s crying face in a meme constitutes as fair use, thus making it not subject to copyright laws.
To determine if use of a work is considered “fair use,” there is a four-part test that a court will implement. First, a court will look at the purpose and character of the original work. If the work is being used in a transformative, not for profit, educational, or personal way, then it favors fair use. If the work is used in a commercial, entertainment, or for profit way, then it favors the copyright owner and will require permission to use. Strong factors that weigh in favor of fair use are for criticism, commentary, and news reporting. Applying this the use of Michael Jordan’s crying face in a meme seems to fall between personal use and entertainment, but these memes are often transformative in context, tipping the first test in favor of fair use.
In the second test, a court will analyze the nature of the work. After the original work is published, the court does not protect the work as tightly. When the original work is unpublished, a court will enforce the copyright to ensure the creator has the right to first publish. The crying Michael Jordan face came from a published photo, thus favoring fair use.
The third factor looks at the amount of work used. If the amount of work being used is large or the heart of the original work, then a court is likely to protect it under copyright laws and would require permission to use. If the work being used is only a small amount or not the heart of the original work, a court is more likely to favor fair use. The crying Michael Jordan face seems to be the heart of the original work because the original picture is largely circulated based on Michael Jordan crying, not because he is speaking at his Hall of Fame induction. For this reason the third factor weighs in favor of requiring permission to use.
The fourth and final factor a court will weigh is the market effect on the original work. A court will look at if the original work is being harmed in any way by the use of the meme. A court is likely to say that the use of the meme does not interfere with the market that the original work is targeted at.
After applying the four factor test for fair use, it seems clear that the crying face of Michael Jordan falls within fair use. However, if the crying face was ever to be used in a profitable way, it could change multiple factors of the four step test and sway a court in favor of protecting the copyright, which would then force user to receive permission from the Associated Press.
Michael Jordan may also have a Right of Publicity claim against those using his image. Right of publicity and misappropriation claims arise from use of ones likeness or persona for commercial purposes. The elements that fulfill a right of publicity claim are: (1) Use of someone’s name, identity, likeness, or persona; (2) through use the defendant achieved a commercial advantage; (3) the use was made without the person’s consent; (4) there is injury to the plaintiff.
The use of Michael Jordan is not in question, fulfilling the first element for a claim against right of publicity. The second element depends on if the potential defendant used the image to gain a commercial advantage. If the defendant used the image in a profitable way it would constitute a commercial advantage and fulfill the second element. The third element is fulfilled if the defendant did not receive permission from Michael Jordan to create the meme. Finally, the fourth element would be injury to Michael Jordan. Michael Jordan would be able to show injury in the form of public perception or lost income.
A successful right of publicity claim by Michael Jordan will largely depend on if the use by a defendant constituted a commercial advantage. As long as the meme is not being used for a commercial purpose, Michael Jordan does not have a strong claim for a right of publicity violation.
Neither the Associated Press nor Michael Jordan currently have strong claims against those creating the memes. However, if someone were to use the meme in an advertisement, he/she can expect to be hearing from both the Associated Press and Michael Jordan’s lawyers.
Virtual private networks (“VPNs”) and other blocking proxies allow users to hide their IP address in order to make themselves appear to be in another country. People do this in order to access content not otherwise accessible in their country. For instance, Netflix provides different shows and movies depending on the country in which one resides in. The show Arrow is not available in England, but it is available in America. In order to binge watch Arrow, you can simply download a VPN which makes your IP address appear to be located in the United States. Viola, just like that you can access American content without physically moving.
Some have equated the use of VPNs to copyright infringement. In January, Netflix announced that it will stop the usage of its services to customers utilizing VPNs and blocking proxies to access content available outside of their own country. Although Netflix has not outright equated these acts to copyright infringement, people using such proxies have already been blocked from Netflix’s content.
Recently, Paypal followed suit and announced its initiative to discontinue services to those using VPNs. Unlike Netflix, Paypal has outright equated VPN use as a way to “circumvent copyright restrictions and violate intellectual property laws.”
In order to bring content to users, Netflix has to obtain content licenses to stream movies and TV shows. When users use VPNs to access content not available in their country, they technically do not have a license to watch that video, even though they pay a monthly subscription to Netflix. If no license exists, the idea is that users should not be able to watch the content.
So the question is, does a lack of the proper license equate to copyright infringement?
This past Monday, as the remaining NFL teams begin preparations for the next round of playoff football, BWP Media USA Inc. began an off-field battle with Bleacher Report, Inc. by filing a civil lawsuit against the sports and entertainment media company for copyright infringement. According to the lawsuit, the popular sports website run by Bleacher Report, Inc. “selected, copied, modified, stored and displayed Plaintiff’s copyright-protected photographs” without permission or authorization. This alleged infringement stems from the website’s reproduction of several photographs copyrighted by BWP Media of New England Patriots’ star tight end Rob Gronkowski.
BWP Media has been accused of being a “copyright troll” by several sources due to its propensity to file this type of copyright infringement claim and the belief that the company is interested only in obtaining settlements. However, BWP’s claims have not been wholly unsuccessful in court when defendants chose to fight back rather than settle.
“This site contains images and excerpts the use of which have not been pre-authorized. This material is made available for the purpose of analysis and critique, as well as to advance the understanding of baseball, statistics, and visual culture. The ‘fair use’ of such material is provided for under U.S. Copyright Law. In accordance with U.S. Code Title 17, Section 107, material on this site (along with credit links and attributions to original sources) is viewable for educational and intellectual purposes.”
The fair use doctrine is an affirmative defense to a charge of copyright infringement. This means that in court Bleacher Report would bear the burden of raising the defense and proving that their use of the images was “fair” and not in fact an infringement. Greenspan, at least, appeared confident that such a defense would protect Bleacher Report’s use of the images at issue.
It is interesting to note that one of Bleacher Report’s co-founders has previously indicated less confidence in the “fair use” defense. In a Bleacher Report Writers Blog post on May 5, 2008, Dave Nemetz, co-founder of Bleacher Report, advised authors that:
“When uploading your own photos, you should either own the image or have permission from the copyright holder. If there is an image you’re dying to use that is copyrighted, you can usually find the contact info for the photographer or publication it was originally printed in and send a request for usage. Or you can take your chances and post the photo if you feel that the image falls under the doctrine of ‘Fair use’. Fair use is an ambiguous concept, but generally if you’re writing about a subject and the photo you want to use adds to and/or is necessary for the commentary, then fair use generally applies.”
Bleacher Report may also attack the complaint on more technical grounds pursuant to the Digital Millennium Copyright Act (DMCA). BWP Media does not indicate that it provided a DMCA takedown notice as required by 17 U.S.C. § 512(c)(3), but instead only alleges that Bleacher Report had knowledge of the infringing activities of the posting authors. BWP Media goes on to argue that Bleacher Report’s activities are “not safe harbored by the DMCA, in that none of the Infringements were posted at the direction of a ‘user’ as that term is defined in 17 U.S.C. § 512(c).” Bleacher Report will certainly consider attacking these conclusory statements if the litigation proceedings move forward.
It will be interesting to see whether Bleacher Report attempts to dispose of this complaint quickly with a settlement agreement or engages in the litigation process. A settlement may be more attractive in the short term, but could attract more claims of copyright infringement from organizations similar to BWP Media. We will continue to update with any relevant proceedings.
For those in fear of violating Title 17 of the United States Code the next time they attend a friend’s birthday party, you are now in luck. This past Tuesday, United States District Judge George H. King ruled that Warner Music Group’s (“Warner/Chappell”) claim of copyright in the song “Happy Birthday” was legally ineffective, therefore freeing the popular song from the clutches of copyright protection and placing it within the public domain. Now all those wishing to sing the merry tune may do so as freely and joyously as they want, without fear of having to pay a royalty for doing such. Judge King’s holding stems from the reasoning that, because Clayton F. Summy – the alleged owner of the copyright in the song prior to being bought out by Warner Music Group in 1998 – failed to actually acquire the rights to the “Happy Birthday” lyrics, Warner/Chappell, as successors-in-interest, did not own a valid copyright in the lyrics to the song.
Copyright protection affords the owner of a copyright the exclusive right to do and/or authorize any of the following:
- Reproduce copies of the copyrighted work;
- Prepare derivative works based upon the copyright work (i.e. converting a novel into movie);
- Sell the copyrighted work to the public, or otherwise transfer ownership by way of rental, lease, or lending (i.e. through a licensing agreement);
- Perform the copyrighted work in a public setting (i.e. at a concert);
- Display the copyrighted work in a public setting (i.e. in restaurants or museums); and
- Perform the copyrighted work in a public setting by means of a digital audio transmission (i.e. through a jukebox)
While affirmative defenses that allow individuals to use an owner’s copyrighted work without permission do exist, based upon this list of exclusive rights, it appears that Warner/Chappell relied on the exclusive ability granted to copyright owners to perform and/or authorize the performance of “Happy Birthday” as a means to profit and capitalize on the popularity of the song, as the lawsuit claimed that Warner/Chappell earned more than $2 million a year on fees related to licensing of the song. However, after this ruling, such profit margins will no longer be the case.
Judge King’s ruling is not only important due to the fact that it places “Happy Birthday” in the public domain, thus allowing those wishing to incorporate it at their next birthday party to do so freely and without fear of liability; it is also important because it highlights the importance of carrying out due diligence and ensuring that the party claiming to have an exclusive right in and to a form of intellectual property (i.e. trademarks, copyright, and patents) actually possess such rights. Prior to the initiation of this case by Good Morning To You Productions – the plaintiffs who brought the lawsuit against Warner/Chappell – major Hollywood movie studios and filmmakers who wished to use the song in a film simply paid Warner/Chappell for the rights to do so as a way to avoid litigation. As always, those wishing to utilize other’s intellectual property should make sure they are paying for what they actually receive, and should seek assurances that the other party actually has the right and ability to provide what is expected.
 See 17 U.S.C. § 106