The Supreme Court of the United States issued a unanimous decision invalidating the Copyright Remedy Clarification Act (CRCA), a 1990 statute intended to provide copyright owners with the power to sue a US state government for infringement, and held that states cannot be sued for copyright infringement. Allen v. Cooper, Case No. 18-877 (Supr. Ct. Mar. 23, 2020) (Kagan, Justice) (Thomas, Justice, concurring) (Breyer and Ginsburg, Justices, concurring).
The US Court of Appeals for the Ninth Circuit affirmed that “lightly sketched anthropomorphized characters representing human emotions” were not copyrightable. Daniels v. Walt Disney Co., Case No. 18-55635 (9th Cir. Mar. 16, 2020) (McKeown, J.).
Denise Daniels created The Moodsters Company. The Moodsters were five named characters, each color-coded to an emotion. The Moodsters Company developed a pitchbook in 2005, a pilot episode for television in 2007, and toys and books of a second generation of The Moodsters by 2013. Daniels and The Moodsters Company also pitched The Moodsters to Disney. In 2010, Disney began developing a movie about five anthropomorphized emotions called Inside Out.
Daniels brought a claim of copyright infringement against Disney. After the district court granted Disney’s motion to dismiss, Daniels appealed.
Addressing for the first time the issue of implied copyright sublicenses, the US Court of Appeals for the First Circuit held that where a copyright license provides an unrestricted right to grant sublicenses, a copyright licensee may do so impliedly and without express language. Photographic Illustrators Corp. v. Orgill, Case No. 19-1452 (1st Cir. Mar. 13, 2020) (Kayatta, J.).
Ruling en banc, the US Court of Appeals for the Ninth Circuit reinstated a 2016 jury verdict, finding that the rock band Led Zeppelin and the opening notes of its hit song “Stairway to Heaven” did not infringe the 1967 song “Taurus” by the band Spirit. Michael Skidmore v. Led Zeppelin et al., Case No. 16-56057 (9th Cir., March 9, 2020) (en banc) (McKeown, J.) (Bea and Ikuta, JJ., dissenting).
The en banc decision addressed a “litany of copyright issues”—the most critical being the interplay between the 1909 and 1976 Copyright Acts and the Court’s reversal of its own precedent in rejecting a doctrine occasionally referred to as the “inverse ratio rule”—when it concluded that, regardless of a copyrighted work’s fame, all plaintiffs must satisfy the same standard of proof in showing that an allegedly infringing work is substantially similar to the copyrighted work.
On an issue of first impression in a copyright infringement dispute out of the Southern District of Texas, the US Court of Appeals for the Fifth Circuit confirmed that failure to mitigate is not a complete defense to copyright or Digital Millennium Copyright Act (DMCA) claims for statutory damages. Energy Intelligence Grp., Inc. et. al., v. Kayne Anderson Capital Advisors, LP, et. al., Case No. 18-20350 (5th Cir., January 15, 2020) (Higginson, J.).
In 2014, energy industry publisher Energy Intelligence Group, Inc. and its affiliated entity in the United Kingdom (together, EIG) filed suit against energy securities investment firm Kayne Anderson Capital Advisers (KA), alleging copyright infringement and abuses of the DMCA based on a KA partner’s violation of US copyright law and violation of his subscription agreement for EIG’s Oil Daily newsletter, which provides news and analysis about the North America petroleum industry. The jury in the district court proceeding found that EIG could have reasonably avoided almost all of the alleged copyright and DMCA violations through real-time investigations and enforcement efforts, and thus awarded EIG just over $500,000 in statutory damages for the infringement of 39 works of authorship. The district court, however, still applied the Copyright Act’s fee shifting provisions and awarded EIG over $2.6 million in attorney’s fees and costs. The parties’ consolidated appeals to the Fifth Circuit thus presented an issue of first impression: namely, whether the failure to mitigate copyright infringement is a complete defense to liability for statutory damages under the Copyright Act and the DMCA.
Addressing issues of copyright and patent infringement, the US Court of Appeals for the Federal Circuit found that the Federal Insecticide, Fungicide, and Rodenticide Act did not preempt copyright protection and that patent infringement under 35 U.S.C. § 271(g) does not require that the claimed process be performed by a single entity. Syngenta Crop Protection, LLC v. Willowood, LLC, Case Nos.18-1614, -2044 (Fed. Cir., Dec. 18, 2019) (Reyna, J.).
The US Court of Appeals for the Second Circuit reversed a district court’s dismissal of a copyright infringement claim alleging copying of a photograph, finding that the defendant’s use of the photograph did not constitute fair use and that the district court erred in its substantive fair use analysis. Jana Romanova v. Amilus Inc., Case No. 23-828 (2d Cir. May 23, 2025) (Jacobs, Leval, Sullivan, JJ.) (Sullivan, J., concurring).
Jana Romanova, a professional photographer, sued Amilus for willful copyright infringement, alleging that the company unlawfully published her photograph, originally licensed to National Geographic, without authorization on its subscription-based website. Amilus failed to appear or respond in the district court proceedings, and Romanova sought entry of default judgment.
Instead of granting the motion, the district court sua sponte raised the affirmative defense of fair use. After considering Romanova’s show cause order response, the district court dismissed the complaint with prejudice, finding that the fair use defense was “clearly established on the face of the complaint.” Romanova appealed on substantive and procedural grounds.
Romanova argued that the district court erred in finding a basis for the fair use defense within the four corners of the complaint and erred by sua sponte raising a substantive, non-jurisdictional affirmative defense on behalf of a defendant that failed to appear or respond.
Citing the Supreme Court decisions in Campbell v. Acuff-Rose Music (1994) and Warhol v. Goldsmith (2023), the Second Circuit reversed. The Court explained that “the district court’s analysis depended on a misunderstanding of the fair use doctrine and of how the facts of the case relate to the doctrine. We see no basis in the facts alleged in the complaint for a finding of fair use.”
The Second Circuit explained that the district court misapplied the first fair use factor (“the purpose and character of the use”). The Court noted that a transformative use must do more than merely assert a different message; it must communicate a new meaning or purpose through the act of copying itself. Here, Amilus’ use of Romanova’s photograph did not alter or comment on the original work but merely republished it in a commercial context.
The Second Circuit also found no basis for the district court’s finding of justification for the copying, a factor that typically depends on the nature of the message communicated through the copying, such as parody or satire, and was mandated by the Supreme Court in Warhol. The Court rejected the notion that Amilus’ editorial framing – claiming to highlight a trend in pet photography – could justify the unauthorized use.
On the procedural issue, the majority noted that an “overly rigid refusal to consider an affirmative defense sua sponte can make a lawsuit an instrument of abuse. A defendant’s default does not necessarily mean that the defendant has insouciantly snubbed the legal process.” In this case, the Second Circuit explained that it “cannot fault the district court for considering a defense which it believed (albeit mistakenly) was valid and important. While district courts should [...]
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The US Court of Appeals for the Ninth Circuit affirmed a district court’s dismissal of a copyright action, finding that the plaintiff failed to plausibly allege either that the defendant had “access” to the work in question merely because it was posted on social media, or that the accused photos were substantially similar to any protectable elements of plaintiff’s photographs. Rodney Woodland v. Montero Lamar Hill, aka Lil Nas X, et al., Case No. 23-55418 (9th Cir. May 16, 2025) (Lee, Gould, Bennett, JJ.)
The dispute arose between Rodney Woodland, a freelance model and artist, and Montero Lamar Hill, also known as Lil Nas X, a well-known musical artist. Woodland alleged that Hill infringed on his copyright by posting photographs to his Instagram account that bore a striking resemblance to images Woodland had previously posted. Woodland claimed that the arrangement, styling, and overall visual composition of Hill’s photos closely mirrored his own, asserting that these similarities constituted unlawful copying of his original work.
Woodland’s original images had been publicly shared on his Instagram account, where he maintained a modest following. He did not allege any direct contact or interaction with Hill or his representatives, nor did he claim that Hill had acknowledged or referenced his work. Instead, Woodland’s claim rested on the contention that the similarities between the two sets of photographs were so substantial that copying could be inferred. In his complaint, Woodland asserted that Hill had access to his publicly posted images and that the degree of similarity supported a finding of unlawful copying. The district court dismissed the complaint, holding that Woodland failed to plausibly allege either access or substantial similarity. Woodland appealed.
The Ninth Circuit affirmed, agreeing with the district court that Woodland failed to satisfy the pleading standard necessary to survive a motion to dismiss. The Ninth Circuit explained that to state a viable claim for copyright infringement, a plaintiff must alleged both the fact of copying and the unlawful appropriation of protected expression. The Court found that Woodland failed to establish either element.
The Ninth Circuit considered two principal legal issues:
On the issue of access, the Ninth Circuit found that the merely alleging availability of Woodland’s photos on Instagram did not, by itself, plausibly demonstrate that Hill had seen them. The Court noted that in the era of online platforms, “the concept of ‘access’ is increasingly diluted.” And while that might make it easier for plaintiffs to show “access,” there must be a showing that the defendants had a reasonable chance of seeing that work under the platform’s policies. The mere fact that Hill used Instagram and Woodland’s photos were available on the same platform raised only a “bare possibility” that Hill viewed the photos. Woodland had not plausibly alleged that Hill “followed, liked, or otherwise interacted” with Woodland’s posts [...]
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The US Court of Appeals for the Eighth Circuit affirmed a district court’s ruling that a plaintiff failed to establish copyright protection for its software platforms, drawing a distinction between “literal” copying (direct duplication of source code) and “nonliteral” copying (reproduction of structure, sequence, or user interface). InfoDeli, LLC v. Western Robidoux, Inc., et al., Case No. 20-2146 (8th Cir. May 5, 2025) (Gruender, Kelly, Grasz, JJ.)
InfoDeli partnered with Western Robidoux, Inc. (WRI), a commercial printing and fulfillment firm co-owned by family members, in 2009 to form a joint venture. The agreement leveraged InfoDeli’s expertise in developing custom webstore platforms and WRI’s capacity for printing and fulfillment. Their collaboration served major clients such as Boehringer Ingelheim Vetmedica Inc. (BIVI) and CEVA Animal Health, LLC, both providers of animal health products. InfoDeli built webstores enabling the companies’ sales teams to order promotional materials, which WRI then fulfilled. InfoDeli developed the Vectra Rebate platform for CEVA, allowing marketing staff to issue customer coupons that were also fulfilled by WRI.
By early 2014, tensions emerged. Without informing InfoDeli, WRI hired a competitor, Engage Mobile Solutions, to replace InfoDeli’s platforms for CEVA and BIVI. Engage used open-source software, in contrast to InfoDeli’s proprietary systems. WRI also shared InfoDeli-developed content with Engage to aid the transition. Shortly thereafter, WRI abruptly terminated its joint venture with InfoDeli.
InfoDeli sued WRI, CEVA, BIVI, and Engage for copyright infringement, tortious interference, and violations of the Missouri Computer Tampering Act related to certain webstores. The defendants counterclaimed conversion and tortious interference. The district court ruled in favor of the defendants on the copyright claims and denied InfoDeli’s motion on the counterclaims. After a jury sided with the defendants, InfoDeli filed motions for judgment and a new trial, both of which were denied. InfoDeli appealed.
The Eighth Circuit found that InfoDeli failed to prove its platforms were protected by copyright. The Court distinguished between “literal” and “nonliteral” copying, explaining that literal copying referred to direct duplication of original source code while nonliteral copying involved reproducing the overall structure or user interface. The district court had already determined that the nonliteral elements of InfoDeli’s platforms were not copyrightable. On appeal, InfoDeli did not challenge this determination regarding the individual elements. Instead, InfoDeli argued that the platforms should be protected “as a whole,” claiming that the interrelationship of elements made them protectable. However, the Eighth Circuit found that InfoDeli did not explain how the elements’ arrangement exhibited the required creativity for copyright protection.
InfoDeli further argued that the district court erred in not considering the verbatim copying of its source code. However, since InfoDeli’s complaint only alleged infringement of nonliteral elements, the Eighth Circuit found that the district court properly focused on those claims.
InfoDeli also argued that the district court erred by relying on InfoDeli’s expert’s list of protectable elements for the BIVI platform. However, the Court rejected this claim, pointing to precedent holding that when a plaintiff identifies specific elements as protectable, it effectively concedes that the remaining elements [...]
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The US Court of Appeals for the Seventh Circuit affirmed a district court’s jury verdict that found trade dress infringement and liability under state deceptive practices law, and the court’s order entering a nationwide permanent injunction. The Seventh Circuit found the district court’s agreed jury instruction accurate and determined that there was no error in refusing to further clarify the instruction for the jury. Republic Techs. (NA), LLC v. BBK Tobacco & Foods, LLP, Case No. 23-2973 (7th Cir. Apr. 25, 2025) (Hamilton, Scudder, Lee, JJ.)
Republic Technologies and BBK Tobacco are competitors in the business of organic, hemp-based rolling papers for cigarettes. Republic manufactures and markets its own papers under the name OCB, and BBK markets papers manufactured by others, including its house brand, RAW. After BBK formally requested that Republic change its OCB trade dress to avoid potential confusion with the RAW trade dress, Republic sued for a declaratory judgment of noninfringement, unfair competition, and deceptive advertisement under the federal Lanham Act, Illinois common law, and the Illinois Uniform Deceptive Trade Practices Act (IUDTPA). BBK filed a counterclaim for trade dress infringement and copyright infringement.
At trial, the parties agreed on the jury instruction for the Lanham Act false advertising claim. However, during deliberations, the jury asked for clarification on the definition of “consumer.” Over Republic’s objection, the district court answered the jury’s question by stating that “the answers are contained in the instructions,” and directed the jury “to refer to and review all the instructions.” The jury returned a mixed verdict, finding against Republic on the federal false advertising claims but finding for Republic on its common law and IUDTPA claims. Republic then sought, and the district court granted, a permanent injunction that set limitations on the statements BBK was permitted to make in its advertisements.
On BBK’s counterclaim of trade dress infringement, the jury found that Republic’s trade dress for its OCB papers infringed BBK’s trade dress for its RAW papers. Republic moved for judgment as a matter of law of noninfringement and for a new trial on its false advertising claim based on the disputed answer to the jury’s question. The court denied both motions. Both parties appealed.
On appeal, the Seventh Circuit affirmed on all issues. First, the Seventh Circuit ruled that the district court did not abuse its discretion in its response to the jury’s question or in denying the request for a new trial because a trial judge’s responsibility is to strike “a balance between giving the jury all it needs but without unnecessary detail” and the judge’s answer in this case did not result in the prejudice necessary for a reversal.
Second, the Seventh Circuit reviewed the evidence presented to the jury concerning the trade dress infringement claim and determined that substantial evidence supported the jury’s verdict and the verdict was not irrational. Republic argued that it was not reasonable to confuse the OCB packaging with the RAW packaging “given the prominent display of the brand names in great big letters [...]
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