Second Circuit

John Wiley & Sons, Inc. v. DRK Photo, No. 15-1134 (2d Cir. 2018)

DRK, a purported assignee of photographers’ rights to sue for infringement, filed suit seeking statutory damages from Wiley, a licensee, for exceeding its licensed use of certain photographs as to which DRK non‐exclusively represents the photographers. The Second Circuit invoked its precedent in Eden Toys v. Florelee Undergarment, Co., 697 7 F.2d 27 (2d Cir. 1982), and held that as a matter of law the Copyright Act did not permit prosecution of infringement suits by assignees of the bare right to sue that were not and have never been a legal or beneficial owner of an exclusive right under copyright. In this case, the court held that DRK was not and has never been the holder of an exclusive right in the photographs. Accordingly, the court affirmed the judgment of the district court.

Ninth Circuit

Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. 2018)

Court Description: Copyright. The panel affirmed the district court’s dismissal of a copyright infringement action brought by photographer Jacobus Rentmeester against Nike, Inc. Rentmeester alleged that Nike infringed his copyright in a photograph of Michael Jordan when it commissioned its own photograph of Jordan and then used that photo to create its “Jumpman” logo. The panel held that Rentmeester plausibly alleged the first element of his copyright claim—that he owned a valid copyright in his photo. He also plausibly alleged the “copying” component of the second element because Nike’s access to Rentmeester’s photo, combined with the obvious conceptual similarities between the two photos, was sufficient to create a presumption that the Nike photo was the product of copying rather than independent creation. Rentmeester did not, however, plausibly allege that Nike copied enough of the protected expression from his photo to establish unlawful appropriation. The panel held that Rentmeester could not copyright the pose in the photograph, and he was entitled to protection only for the way the pose was expressed, including the camera angle, timing, and shutter speed he chose. The panel explained that a photographer’s copyright is limited to the particular selection RENTMEESTER V. NIKE 3 and arrangement of the elements expressed in the copyrighted image. The panel held that Rentmeester’s photo was entitled to broad rather than thin protection because the range of creative choices open to him in producing the photo was exceptionally broad. Nonetheless, Rentmeester did not plausibly allege that his photo and the Nike photo were substantially similar under the extrinsic test because there were differences in selection and arrangement of elements, as reflected in the photos’ objective details. The panel concluded that, therefore, the Jumpman logo also was not substantially similar to Rentmeester’s photo. Concurring in part and dissenting in part, Judge Owens agreed with most of the majority’s analysis, and with its holding that Rentmeester could not prevail on his Jumpman logo copyright infringement claim. Judge Owens disagreed with the majority’s conclusion as to the Nike photo on the basis that questions of substantial similarity are inherently factual and should not have been resolved at the dismissal stage.

Second Circuit

Fox News Network, LLC v. TVEyes, Inc., No. 15-3885 (2d Cir. 2018)

Justia: Fox filed suit against TVEyes for copyright infringement after TVEyes, a media company that continuously records the audiovisual content of more than 1,400 television and radio channels, enabled its clients to watch Fox’s programming. The Second Circuit held that TVEyes’s actions were not protected by the fair use doctrine. The court explained that, although TVEyes’s re‐distribution of Fox’s content served a transformative purpose by enabling clients to isolate material and to access it in a conventional manner, such re‐distribution makes available to clients virtually all of Fox’s copyrighted content that clients wish to see and hear. Therefore, TVEyes deprived Fox of revenue that properly belongs to the copyright holder. The court reversed the district court’s order to the extent that it found fair use; affirmed the district court’s order to the extent that it denied TVEyes’s request for additional relief; and remanded for entry of a revised injunction.

Second Circuit

Kim v. Kimm, No. 16-2944 (2d Cir. 2018)

Justia: Plaintiff filed suit under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961, et seq., challenging the district court’s judgment in favor of defendants. In this case, plaintiff alleged that defendants were members of two enterprises that conspired to sue plaintiff for, inter alia, trademark infringement. The Second Circuit held that the alleged litigation activities did not constitute RICO predicate acts. The court also held that the district court did not abuse its discretion in denying plaintiff leave to amend, plaintiff’s motion to disqualify, and defendants’ motions for sanctions. Accordingly, the court affirmed the judgment.

D.C. Circuit

Spanski Enterprises, Inc. v. Telewizja Polska, S.A., No. 17-7051 (D.C. Cir. 2018)

SCOTUS

B&B Hardware SCOTUS page

Lucky Brands v Marcel Fashion SCOTUS Blog page

Sixth Circuit

D. Ohio

Buzz Seating, Inc. v. Encore Seating, Inc., No. 16-cv-1131 (S.D. Ohio Jun. 16, 2017)

Rebecca Tushnet on Buzz Seating v Encore Seating

Ninth Circuit

TTABlog on VVV v Menkashi, Ninth Circuit

State University of New York v Fox., 492 U.S. 469 (1989) (in determining whether speech is commercial or noncommercial under Bolger, is the noncommercial and commercial inextricably intertwined)

Link to Ninth Circuit decision