Intellectual Property

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More than 250,000 Humvees have been built since the 1980s, making them a distinct feature of the nation’s military history over the past quarter-century. As a result, the vehicle has become a recognizable staple in military-themed movies, television shows, newscasts, and video games. According to a group of curious law professors, the Humvee has been featured in over 1,000 movies and shows. But the maker of Humvees thought the inclusion of its military vehicles in the wildly successful Call of Duty video games infringed on its trademark rights. The Southern District of New York disagreed, however, and reaffirmed that video games, such as movies and television shows, can feature real-life trademarks, such as Humvees, without infringing on the owner’s trademark. See AM Gen. LLC v. Activision Blizzard, Inc., 17 Civ. 8644 (GBD), 2020 U.S. Dist. LEXIS 57121 (S.D.N.Y. Mar. 31, 2020). Citing the First Amendment, the District Court determined the game developer could not be held liable for trademark infringement for featuring Humvees in its Call of Duty video games. Dismissing the lawsuit, the court found the video game maker had the right to use a real-life well-known military vehicle in an expressive work focused on realistically depicting modern combat and warfare.
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Continue Reading Freedom of Expression: Use of Humvees in Call of Duty Franchise Games Not Infringement

After the debut of hit show Empire, record label Empire Distribution asserted trademark infringement counterclaims against Twentieth Century Fox Television, who sought a declaratory judgment that its television show and associated music releases did not violate Empire Distribution’s trademark rights. In Twentieth Century Fox TV v. Empire Distribution, Inc., 875 F.3d 1192 (9th Cir. 2017), the Ninth Circuit affirmed the district court’s finding that the First Amendment protected Fox’s use of the name “Empire” for an expressive, creative work and ancillary works. In doing so, the appellate panel reaffirmed First Amendment protection for use of marks in creative works where the use of the mark bears some artistic relevance to the underlying work and does not explicitly mislead consumers.
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Continue Reading Battle of the Empires: Permissive Trademark Infringement in Creative Works

Balancing Individual John Doe Defendants’ Privacy Rights With Strike 3’s Right to Pursue Its Copyright Infringement Claims

Digital piracy on peer-to-peer networks can have severe financial consequences for copyright holders. As one member of Congress put it:

Under U.S. law, stealing intellectual property is just that—stealing. It hurts artists, the music industry, the movie industry, and others involved in creative work. And it is unfortunate that the software being used—called “file sharing,” as if it were simply enabling friends to share recipes, is helping create a generation of Americans who don’t see the harm. [1]

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Continue Reading Strike 3 Saga: Turning BitTorrent Downloads Into A Copyright Infringement Settlement Machine Part 3

Appellate Courts Recognize Strike 3’s Ability to Meet Standard for Early Discovery to Obtain John Doe Defendant’s Name and Address

While some bullheaded District Court judges have stopped Strike 3 in its tracks by denying its request for early discovery, most appellate courts to have considered the issue find that Strike 3’s allegations of copyright ownership and illegal downloading of their works by an identifiable IP address are enough to permit Strike 3 to discover the IP address owner’s name and address.

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Continue Reading Strike 3 Saga: Turning BitTorrent Downloads Into A Copyright Infringement Settlement Machine Part 2

D.C. Circuit Reverses District Court’s Denial of Strike 3’s Request for Early Discovery to Obtain Identity of Subscriber of IP Address Allegedly Used to Illegally Download Strike 3’s Adult Videos

The D.C. Circuit recently revived one of thousands of copyright lawsuits filed by an adult film studio, Strike 3 Holdings, overturning the lower District Court Judge who declined to allow Strike 3 to engage in early discovery sharply criticizing the film studio plaintiff for using the courts as an ATM. See Strike 3 Holdings, LLC v. Doe, No. 18-7188 (D.C. Cir. 2020). The three-judge appellate panel, however, ruled that the judge erred in refusing to grant Strike 3’s request to subpoena an internet service provider in order to identify the name and address of a John Doe subscriber of an IP address allegedly used to illegally download Strike 3’s films using BitTorrent.

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Continue Reading Strike 3 Saga: Turning BitTorrent Downloads Into A Copyright Infringement Settlement Machine Part 1

In a unanimous decision, the Supreme Court recently held that States cannot be held liable for monetary damages in copyright infringement lawsuits despite the Copyright Remedy Clarification Act of 1990 (CRCA). This act provides that a State “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. See Allen v. Cooper, 140 S. Ct. 994 (2020).
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Continue Reading Supreme Court Holds States Cannot Be Sued for Monetary Damages in Copyright Infringement Cases

In Solid Oak Sketches, LLC v. 2K Games, Inc. et al., No. 16-CV-724-LTS-SDA, 2020 U.S. Dist. LEXIS 53287 (S.D.N.Y. 2020), the Southern District of New York granted summary judgment dismissing Plaintiff’s copyright infringement claims based on the use of Plaintiff’s copyrighted tattoos on replica NBA players in Defendant’s popular NBA 2K video game. Concluding Defendants’ use was de minimis, the Court dismissed the copyright infringement claim finding a lack of substantial similarity between the works. The Court also found the existence of an implied license as well as determined that the use was fair use.
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Continue Reading Owners of Lebron James and Other Players’ Tattoo Designs Cannot Pursue Copyright Infringement Claims Against Developer of a Basketball Simulation Video Game for Replicating the Tattoos on the Virtual Players

Many people are either confused, do not know what to make of, or may even think it is a phishing expedition when a letter is received from their internet service provider (“ISP”) such as Comcast, Verizon, AT&T, CenturyLink, Spectrum, Frontier, Cox, Optimum, Earthlink, Viasat, Altice, etc., informing them of a lawsuit by STRIKE 3 HOLDINGS, LLC, which concerns the illegal downloading and uploading of copyrighted materials.
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Continue Reading What to Do If You Get a Letter from Your Internet Service Provider (ISP) About a Subpoena to Turn Over Your Name and Address

“The Second Circuit Court of Appeals affirmed a dismissal of untimely copyright infringement claims that an ex-partner brought against Jerry Seinfeld over the hit series “Comedians in Cars Getting Coffee”. Charles v. Seinfeld, 803 F. App’x 550 (2d Cir. 2020). Plaintiff Christian Charles brought suit claiming ownership over the pilot episode of the show “Comedians in Cars Getting Coffee” that he and his production company helped develop back in 2011.
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Continue Reading Jerry Seinfeld’s Ex-Partner Time Barred in Copyright Dispute Over “Comedians in Cars Getting Coffee”

Drake scored a big win as the Second Circuit affirmed his use of another work in one of his songs as “fair use.” Estate of Smith v. Graham, 799 F. App’x 36 (2d Cir. 2020). The original lawsuit alleged Drake violated a copyright by sampling a 1982 word recording, “Jimmy Smith Rap,” in his own song, “Pound Cake.”

In April 2014, the estate of Jimmy Smith filed suit against Drake, alleging infringement of the copyright of “Jimmy Smith Rap.” It is worthwhile to note that Drake had actually obtained a license to the sound recording, but not the composition. In 2017, the District Court ruled that the portion of “Jimmy Smith Rap” used in Drake’s song was fair use because Drake’s objective was “sharply different from the [original artist’s goals] in creating it.” Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737, 750 (S.D.N.Y. 2017).

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Continue Reading Drake Wins Big With Fair Use