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 affirmed in part and reversed in part a judgment on the pleadings, clarifying that the de minimis doctrine does not apply where the copyrighted work is identifiable in the secondary use – even if only a single frame is copied – and that fair use is unlikely to be resolved at the pleading stage when an entire copyrighted work is republished for commercial purposes. Richardson v. Townsquare Media, Inc., Case No. 25-291-CV (2d Cir. Apr. 23, 2026) (Lynch, Nardini, Menashi, JJ.)
Delray Richardson operates the YouTube channel “Straight Game TV.” In May 2015, he posted a 42 second video showing Michael Jordan intervening in a confrontation. The video gained widespread attention in July 2023 after the hip hop blog DailyLoud reposted it in full on X. Townsquare Media subsequently published an article reporting on the incident and embedded DailyLoud’s X post containing the entire video.
In a separate incident, Richardson recorded an interview with rapper Grandmaster Melle Mel in March 2023. Richardson posted a three-minute clip of the interview, in which Melle Mel made controversial statements about Eminem, to YouTube. The following day, Townsquare published an article discussing the interview and embedded the YouTube clip. The article’s header image included a screenshot taken from the Melle Mel video, depicting Melle Mel next to an image of Eminem. Two days later, Townsquare published a follow up article about rapper 50 Cent’s response and included a second screenshot from the same video, this time placed next to an image of 50 Cent.
Richardson sued Townsquare for copyright infringement based on Townsquare’s use of the Jordan video, the Melle Mel video, and the two screenshots. Townsquare moved for judgment on the pleadings, arguing that:
The district court accepted each argument and dismissed the case in full. Richardson appealed.
The Second Circuit reversed the district court’s fair use ruling as to the Jordan video. Applying the four factors under 17 U.S.C. § 107, the Second Circuit disagreed with the district court’s analysis of the first, third, and fourth factors.
As to the first factor (the purpose and character of the use), the Second Circuit concluded that it was “debatable” whether Townsquare’s article added meaningful commentary, and even if it did, any transformative character was substantially offset by the use’s commercial nature.
On the third factor (the amount and substantiality of the portion used), the Second Circuit emphasized that Townsquare republished the entire video, rather than linking to or embedding it in a manner consistent with the original platform. That full reproduction weighed heavily against fair use at the pleading stage.
With respect to the fourth factor (the effect on the potential market), the Second Circuit concluded that Townsquare failed to carry its burden of showing that its use did not usurp a market for the [...]
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The US Court of Appeals for the Second Circuit affirmed dismissal of a photographer’s Digital Millennium Copyright Act (DMCA) claims against a digital media platform for lack of scienter but vacated summary judgment on copyright claims. The Second Circuit remanded the case to the district court with instructions to assess whether the accused infringer can claim protection under the DMCA’s service provider safe harbor. McGucken v. Shutterstock Inc., Case No. 23-7652 (2nd. Cir. Feb. 10, 2026) (Lynch, Lee, Perez, JJ.)
Elliott McGucken, a professional photographer, discovered that several hundred of his copyrighted photographs were uploaded to Shutterstock by three user accounts that generated more than $2,000 in licensing revenue. Shutterstock removed the images within four days of receiving takedown notices and terminated the uploading accounts. McGucken nevertheless sued, alleging copyright infringement under 17 U.S.C. § 106 and false copyright management information (CMI) under 17 U.S.C. § 1202. The district court granted summary judgment for Shutterstock on all claims. McGucken appealed.
The Second Circuit agreed that McGucken failed to raise a triable issue on Shutterstock’s scienter regarding CMI under the DMCA. First, the Court found that Shutterstock’s practice of placing a watermark on all images on its site did not demonstrate that it knowingly affixed false CMI to McGucken’s works for the purpose of facilitating infringement. Second, the Court found that Shutterstock’s automated removal of CMI from all uploaded images, which is done to avoid malware and strip personally identifiable information, did not show that Shutterstock knew it was removing McGucken’s CMI without authorization or that Shutterstock intended to conceal infringement. On these grounds, the Court affirmed dismissal of the § 1202 claim.
As for the safe harbor provision regarding the copyright infringement claim, the Second Circuit agreed that Shutterstock qualified as a “service provider” with a repeat infringer policy and no interference with standard technical measures. The Court also affirmed that Shutterstock lacked actual or red flag knowledge of the infringement and acted expeditiously once notified.
The Second Circuit found triable issues of fact, however, on two critical safe harbor elements under § 512(c)(1). The first issue was whether the storage was “at the direction of the user.” The Court stated that the factfinder must determine whether Shutterstock’s review of uploaded material involved “substantive and discretionary control” over what appears on the platform, including the level of aesthetic or editorial judgment applied when deciding which images to accept.
The second issue assessed was whether Shutterstock had the “right and ability to control” the alleged infringing activity. The Second Circuit explained that safe harbor is unavailable where the provider exercises “substantial control” over users’ activities, such that decisions about what content is allowed on the site go beyond promoting or demoting material. The Court noted that control may also be inferred if the provider selectively reviews only a subset of uploaded content rather than reviewing all user submissions.
Since these issues remained unresolved, the Second Circuit vacated summary judgment on the copyright claim and remanded for further proceedings.
Practice note: The Second Circuit’s clarification of [...]
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The US Court of Appeals for the Eleventh Circuit affirmed summary judgment for YouTube, finding that the company was protected by Section 512(c) of the Digital Millennium Copyright Act (DMCA). In doing so, the Court joined the Second and Ninth Circuits in requiring knowledge of specific infringing material, not generalized awareness of infringement on a platform, to defeat safe-harbor protection. Athos Overseas Ltd. Corp. v. YouTube, Inc., et al., Case No. 23-13156 (11th Cir. Jan. 7, 2026) (Pryor, Jordan, Marcus, JJ.)
Athos owns copyrights in classic Mexican and Latin American films and sued YouTube for hosting unauthorized uploads of its works. YouTube invoked the DMCA Section 512(c) safe harbor, which shields service providers from liability for infringing material stored at the direction of users if certain statutory conditions are met. Athos did not dispute that YouTube expeditiously removed content identified in valid takedown notices. Instead, Athos argued that YouTube’s internal technologies provided it with actual or “red flag” knowledge of additional infringing copies beyond those specifically identified, and that YouTube’s content moderation and curation tools gave it the “right and ability to control” infringing activity.”
The Eleventh Circuit rejected both arguments. Echoing Viacom Int’l v. YouTube and UMG Recordings v. Shelter Cap. Partners, the Court explained that Section 512(c) requires knowledge of specific instances of infringement. A service provider’s duty to act arises only when it knows which particular material is infringing, because expeditious removal is possible only with such specificity. Since YouTube’s tools do not automatically identify legally infringing content, and because Athos provided no evidence that YouTube knew which specific videos were infringing, there was no triable issue on knowledge.
The Court rejected Athos’ argument that YouTube’s ability to recommend videos, remove content, or set platform policies constituted the type of control that strips safe-harbor protection. The DMCA requires “something more” than ordinary content moderation, such as substantial influence over or inducement of specific infringing activity. Because Athos failed to establish such control, the Eleventh Circuit did not reach the question of whether YouTube derived a direct financial benefit from infringement.
The Eleventh Circuit affirmed summary judgment for YouTube, concluding that it remained entitled to Section 512(c) safe-harbor protection.
Addressing the limits of federal jurisdiction, the US Court of Appeals for the Sixth Circuit affirmed the dismissal of an action seeking a declaratory judgment that the fair use exception in federal copyright law required disclosure of a student survey under Kentucky’s open records statute. The Court determined that neither the hypothetical presence of a federal fair use defense nor the possibility of future copyright litigation was sufficient to confer federal jurisdiction. Stovall v. Jefferson County Board of Education, Case No. 25-5357 (6th Cir. Jan. 14, 2026) (Sutton, Boggs, Bloomekatz, JJ.)
Miranda Stovall, a Kentucky resident, learned that Jefferson County Public Schools planned to administer a mental health survey to students. She requested a copy of the survey under the Kentucky Open Records Act. The school district denied the request, citing an exemption for records prohibited from disclosure by federal law and asserting that the survey was copyrighted intellectual property of its publisher, NCS Pearson.
Stovall sued in federal court seeking a declaratory judgment that that disclosure of the survey would be permitted under the Copyright Act’s fair use doctrine. NCS Pearson moved to dismiss for lack of subject matter jurisdiction, and the district court granted that motion. Stovall appealed.
The Sixth Circuit affirmed, applying the established “arising under” framework used to assess federal-question jurisdiction under 28 U.S.C. Sections 1331 and 1338. Under that framework, a claim may arise under federal copyright law only if:
The Court concluded that none of these categories applied.
First, the Copyright Act did not create Stovall’s cause of action; her asserted entitlement to inspect or copy the survey arose solely under the Kentucky Open Records Act.
Second, although copyright law was implicated, it entered the case only as a potential defense to the school district’s disclosure obligation. The Sixth Circuit emphasized that federal jurisdiction cannot be manufactured by anticipating a federal defense, even where the defense involves copyright fair use. Because federal copyright law was not an essential element of Stovall’s state law claim, the case did not “arise under” federal law.
Third, the Sixth Circuit rejected Stovall’s argument that her claim was effectively a copyright dispute because it might provoke an infringement action by NCS Pearson. The Kentucky Open Records Act claim did not resemble an infringement action and did not seek to vindicate rights equivalent to those protected by the Copyright Act. Accordingly, it was not preempted and did not fall within exclusive federal jurisdiction.
The Sixth Circuit concluded that Stovall also lacked Article III standing under the Declaratory Judgment Act. The Court explained that a speculative fear of future litigation does not create the “substantial controversy” required to establish a justiciable case or controversy. Stovall had not alleged any prior infringement claim, threat of suit, or concrete indication that NCS Pearson intended to sue [...]
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Two January 2026 decisions from the US Court of Appeals for the Ninth Circuit confirm that copyright infringement requires substantial similarity in protectable expression, proven through both extrinsic and intrinsic tests. Yonay v. Paramount Pictures Corp. demonstrates strict application of filtration principles and the constraints of selection-and-arrangement theories at summary judgment. Sedlik v. Von Drachenberg, by contrast, underscores the central and increasingly contested role of the intrinsic test at trial, even when extrinsic similarity evidence is substantial. Yonay v. Paramount Pictures Corp., Case No. 24-2897 (9th Cir. Jan. 2, 2026) (Hurwitz, Miller, Sung, JJ.); Sedlik v. Von Drachenberg, et al., Case No. 24-3367 (9th Cir. Jan. 2, 2026) (Wardlaw, Mendoza Jr., Johnstone, JJ.) (per curiam) (Wardlaw, Johnstone, JJ., concurring).
The extrinsic test examines objective similarities in protectable expression after excluding unprotectable elements while the intrinsic test asks whether an ordinary reasonable observer would perceive substantial similarity in expression without expert guidance.
Yonay v. Paramount Pictures – “Top Guns”
Ehud Yonay authored and owns a copyright in “Top Guns,” a 1983 magazine article about the US Navy Fighter Weapons School, popularly known as “Top Gun.” Yonay sued Paramount Pictures, alleging that its 2022 film Top Gun: Maverick infringed that copyright. The district court granted summary judgment for Paramount, and Yonay appealed.
The Ninth Circuit applied the extrinsic test and rigorously filtered out unprotectable elements, including factual material about the Top Gun program, stock scenes, and high-level themes. The Court concluded that the similarities identified by the plaintiffs existed only at an abstract level and did not involve protectable expression. Although “Top Guns” contains vivid prose and an innovative narrative structure that qualify as protectable expression, none of that expression appeared in the film. The Court explained that even under a selection-and-arrangement theory, courts must filter out unprotectable elements and determine whether the works share a protectable “pattern, synthesis, or design.” After doing so, the Court concluded that the similarities identified by the plaintiffs consisted of unprotectable facts and ideas rather than original expression.
Because the intrinsic test is reserved exclusively for the trier of fact, only the extrinsic test was relevant at the summary judgment stage. The Ninth Circuit also determined that the district court did not abuse its discretion in excluding the plaintiffs’ expert, whose analysis failed to adequately filter out unprotectable elements and therefore relied heavily on similarities in facts and abstract ideas, rendering his opinions unhelpful.
The Ninth Circuit affirmed summary judgment for Paramount, holding that Top Gun: Maverick was not substantially similar to the article “Top Guns.”
Sedlik v. Von Drachenberg, et al. – Miles Davis photograph
Jeffrey Sedlik owns a copyright in his photograph of Miles Davis. Sedlik sued Katherine Von Drachenberg and her tattoo parlor, High Voltage Tattoo, alleging copyright infringement based on Von Drachenberg’s use of the photograph as a reference to create a tattoo depicting Davis’s likeness, the creation of a preliminary sketch, and the posting of related images on social media. After a jury trial, the district court entered judgment in favor [...]
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Addressing for the first time what evidence is required to prove infringement of a sound recording copyright, the US Court of Appeals for the Seventh Circuit affirmed a district court’s decision to grant summary judgment to the defendant, finding that the plaintiff’s copyright registration of his work as a sound recording required proof of actual sampling to establish infringement. Richardson v. Kharbouch, Case No. 24-1119 (7th Cir. Oct. 16, 2025) (Brennan, Jackson-Akiwumi, Pryor, JJ.)
In 2012, then-16-year-old Eddie Richardson created a hip-hop beat titled “*Hood* Pushin Weight” (HPW). Months later, while listening to the hit song “Ain’t Worried About Nothin” (AWAN) by Karim Kharbouch, who is better known by his stage name French Montana, Richardson believed that he recognized his own HPW beat. The next day, Richardson registered a sound recording copyright with the US Copyright Office. Richardson did not obtain a copyright registration for his musical composition. After Richardson’s attempts to negotiate with French Montana and his representatives failed, Richardson filed a copyright infringement lawsuit.
The district court conducted two rounds of summary judgment briefing. In both rounds, neither party complied with a local rule that required each side to respond to the opposing party’s statement of material facts. The court, in its discretion, declined to deem the unopposed facts admitted. After French Montana’s reply brief in the first round included a “passing comment” on the nature of Richardson’s copyright, raising a potentially dispositive issue, the district court ordered supplemental briefing.
In the second round of briefing, the district court determined that because Richardson had registered his copyright as a sound recording rather than a musical composition, he was required to show duplication or sampling, not mere imitation. Finding no such evidence, the court granted summary judgment in favor of French Montana. The district court then awarded costs to French Montana but denied attorneys’ fees. Richardson appealed the grant of summary judgment and the court’s decision not to enforce the local rules against French Montana while French Montana cross-appealed the denial of attorneys’ fees.
Richardson argued that the district court abused its discretion by failing to deem his unopposed factual statements admitted under the local rules. The Seventh Circuit found no abuse of discretion by the district court, reasoning that because neither party complied with the local rules, the district court acted appropriately in declining to enforce them against only one side.
The Seventh Circuit also affirmed the district court’s grant of summary judgment in favor of French Montana, explaining that “sound recording copyrights only protect those sounds that directly or indirectly recapture the actual sounds fixed in the recording from infringement.” Mere imitation, even if indistinguishable to the listener, is not infringement, and Richardson failed to present evidence of actual duplication of the sound recording.
Finally, the Seventh Circuit affirmed the district court’s denial of attorneys’ fees to French Montana. Although there is a “strong presumption in favor of awarding fees in copyright infringement cases,” the Seventh Circuit held that the district court properly applied the four-factor Fogerty [...]
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