IP UPDATE
Exploring the latest in intellectual property law
IP UPDATE
Exploring the latest in intellectual property law
Results for "Copyright appeals"
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Ninth Circuit Gleefully Rejects Copyright Claims against California High School

by | Apr 9, 2020 |

Affirming a district court’s summary judgment in favor of various defendants, including the vocal music director and parent volunteers at Burbank High School (whose competitive show choirs reportedly inspired the television series “Glee”), the US Court of Appeals for the Ninth Circuit examined issues of standing via copyright ownership and the copyright infringement defense of fair use. The Court, however, reversed the lower court’s denial of defendants’ attorneys’ fees and remanded for the calculation of an appropriate award in view of plaintiff’s “objectively unreasonable” arguments in the lawsuit. Tresóna Multimedia, LLC, v. Burbank High School Vocal Music Association, et. al., Case No. 17-56006 (9th Cir., Mar. 24, 2020) (Wardlaw, J.).

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SCOTUS Sinks the CRCA, Confirms States are Immune from Copyright Suits

by | Apr 2, 2020 |

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).

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“Lightly Sketched” Characters Not Copyrightable

by | Apr 2, 2020 |

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.

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Lightbulb Moment: It’s Possible to Grant an Implied Copyright Sublicense

by | Apr 2, 2020 |

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.).

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Ninth Circuit Shows Led Zeppelin a Whole Lotta Love in ‘Stairway’ Copyright Win

by | Mar 25, 2020 |

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.

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Failure to Mitigate Not a Complete Defense to Statutory Damages Under Copyright or DMCA

by | Jan 29, 2020 |

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.

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A Mixed Bag on New Rules – Juggling Copyright Preclusion and Patent Infringement

by | Jan 15, 2020 | ,

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.).

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Floored: Rule 41(a)(2) dismissal supports appellate jurisdiction

by | Sep 3, 2026 |

The US Court of Appeals for the Fifth Circuit affirmed dismissal of a plaintiff’s Digital Millennium Copyright Act (DMCA) claims while vacating dismissal of its copyright infringement claims involving architectural floorplans, concluding that the Court had appellate jurisdiction despite the plaintiff’s voluntary dismissal under Fed. R. Civ. P. 41(a)(2). Kipp Flores Architects, LLC v. AMH Creekside Development, LLC, Case No. 23-50750 (5th Cir. Aug. 21, 2026) (Willett, J.) (Haynes, J., concurring) (Oldham, J., dissenting).

Kipp Flores Architects (KFA) owned copyrights in architectural building plans and technical drawings that it licensed to defendants for use in constructing buildings. The licenses required defendants to include specified copyright management information (CMI) when displaying the copyrighted works. KFA and defendant American Housing Ventures (AHV) later worked with other companies to develop floorplans and technical documents for AHV’s construction projects. Those documents did not contain the required CMI. AHV subsequently provided the floorplans to the remaining defendants for use in developing another building, and those defendants used the floorplans, still without CMI, in online marketing materials.

KFA asserted claims for DMCA violations, copyright infringement, conversion, and specific performance. The district court dismissed all of KFA’s DMCA and conversion claims, along with some of its remaining claims against certain defendants. Seeking to appeal the dismissals, KFA moved under Rule 41(a)(2) to voluntarily dismiss its remaining claims, and the district court granted the motion. KFA then appealed.

The Fifth Circuit first considered whether the Rule 41(a)(2) dismissal created an appealable final judgment. Rule 41(a) permits dismissal of an action, not individual claims. The Court nevertheless concluded that the district court’s error in permitting dismissal of KFA’s remaining claims did not deprive the Fifth Circuit of appellate jurisdiction. The error was a “reversible error, not an unappealable nullity.”

The Fifth Circuit also distinguished its precedent involving Rule 41(a)(1). Unlike a Rule 41(a)(1) dismissal, which is self-effectuating, a Rule 41(a)(2) dismissal requires a court order. The district court’s order granting KFA’s motion therefore constituted a “legally operative act of dismissal” sufficient to create appellate jurisdiction.

Turning to the merits, the Fifth Circuit addressed KFA’s copyright infringement and DMCA claims. The Architectural Works Copyright Protection Act (AWCPA) protects architectural works while earlier copyright law separately protected architectural plans as pictorial, graphic, or sculptural (PGS) works. Section 120(a) of the Copyright Act creates a safe harbor for pictures or other pictorial representations of architectural works embodied in buildings located in or ordinarily visible from a public place. Although § 120(a) does not apply to rights arising solely from PGS works, the Court concluded that KFA’s floorplans could fall within the safe harbor as far as they depicted copyrighted architectural works. The Court also concluded that § 120(a) can apply to representations created before a building becomes publicly visible but distributed or displayed afterward.

The Fifth Circuit nevertheless determined that the district court erred in dismissing KFA’s infringement claim under § 120(a). KFA was not required to plead facts negating the safe harbor because § 120(a) operates as an affirmative defense. KFA’s [...]

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Book of wisdom has limits: Can’t impute knowledge of later-arising facts to hypothetical negotiation

by | Jul 30, 2026 |

The US Court of Appeals for the Federal Circuit vacated in part a US Court of Federal Claims damages award, finding that the court erred in applying the book of wisdom in its damages analysis and assessing noncompensatory damages against the government. 4DD Holdings, LLC, et al. v. United States, Case No. 2024-1996 (Fed. Cir. July 16, 2026) (Hughes, Prost, Stark, JJ.)

4DD licensed TETRA software to the US Department of Defense and the US Department of Veterans Affairs to improve interoperability among existing military healthcare databases. Under the license, the government was permitted to make only a single backup copy of TETRA. 4DD later discovered that the government had made thousands of unauthorized copies of the software and sued for copyright infringement. During discovery, 4DD learned that the government had deleted TETRA copies from its development and test center and had destroyed evidence related to those copies. 4DD moved for sanctions.

The Court of Federal Claims imposed about $1.1 million in sanctions, found that the government had exceeded the scope of the licenses by hundreds of thousands of Federator cores and Studio seats, and awarded about $12.7 million in damages based on a hypothetical negotiation rather than the parties’ license agreement. In assessing the parties’ bargaining positions, the claims court relied in part on the fact that TETRA was never implemented, had no established profitability, and faced competition from a less expensive software product. 4DD appealed.

4DD argued that the claims court should have calculated damages using the royalty rates established in the parties’ license agreement, which it contended would have resulted in an award amount between $3 billion and $5 billion. The Federal Circuit disagreed, explaining that 28 U.S.C. § 1498(b), which provides for “reasonable and entire compensation,” does not require a particular methodology for calculating copyright damages. Although a reasonable royalty may be based on an established royalty rate, it may also be determined through a hypothetical negotiation. The Court explained that the relevance of prior license agreements depends on the extent to which they are economically comparable to the infringing use. Because the government’s licensed use differed materially from the scope of its infringing use, the Federal Circuit concluded that the claims court did not abuse its discretion in determining damages through a hypothetical negotiation rather than by simply applying the parties’ license rates.

4DD also argued that the claims court misapplied the book of wisdom doctrine by imputing to the government (at the time of the hypothetical negotiation) knowledge of its later decision to abandon the TETRA project. The Federal Circuit agreed. The Court explained that although later-occurring facts may be considered to reduce uncertainty and illuminate the value that existed at the time of the hypothetical negotiation, they may not be used to impute knowledge of unforeseeable future events that affect the value of the license. Here, the court’s claims improperly relied on the government’s subsequent change in leadership and resulting decision to discontinue the project before TETRA was implemented to diminish 4DD’s bargaining [...]

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La vida loca: First Circuit vacates summary judgment entered before meaningful discovery

by | Jul 1, 2026 |

The US Court of Appeals for the First Circuit vacated summary judgment in favor of singer Ricky Martin in a copyright infringement action, concluding that the district court improperly resolved key factual issues without allowing the plaintiff to obtain discovery. The Court also vacated the district court’s order invalidating the plaintiff’s copyright registration because that ruling depended on the same prematurely decided issues. Luis Adrián Cortés-Ramos v. Enrique Martin-Morales, a/k/a Ricky Martin, Case No. 24-1805 (1st Cir. June 12, 2026) (Thompson, Aframe, JJ.) (Barron, J., dissenting in part).

The dispute stems from Cortés-Ramos’s submission of a song and music video to a contest sponsored by a recording studio and Ricky Martin for inclusion on the 2014 FIFA World Cup official album. After Martin released the song “Vida,” Cortés-Ramos alleged that it infringed his copyrighted work. Martin defended on the ground that Cortés-Ramos had assigned his copyright to the recording studio by agreeing to the contest rules. Cortés-Ramos contended that he never received those rules despite signing documents acknowledging compliance with them.

The district court rejected Cortés-Ramos’s argument that the dispute belonged in arbitration because Martin was not a party to the arbitration agreement between Cortés-Ramos and the recording studio. The court then adopted an expedited summary judgment schedule that foreclosed discovery, concluding that Cortés-Ramos had assigned his rights to the recording studio and, as a result, that his copyright registration was invalid. Cortés-Ramos appealed.

The First Circuit agreed that the district court properly exercised jurisdiction because Martin could not be compelled to arbitrate under an agreement to which he was not a party. The Court cautioned, however, that factual findings in the litigation could have preclusive effect in the parallel arbitration between Cortés-Ramos and the recording studio.

The First Circuit nevertheless vacated the summary judgment ruling, explaining that Cortés-Ramos had repeatedly sought discovery regarding evidence uniquely within the possession of the recording studio and Martin. Although Cortés-Ramos had not formally moved under Federal Rule of Civil Procedure 56(d), the Court treated his repeated requests for discovery as functionally seeking Rule 56(d) relief. The Court found it fundamentally unfair to resolve dispositive issues while denying Cortés-Ramos access to evidence necessary to challenge Martin’s assertion that the contest documents assigned ownership of the work.

Because the district court entered summary judgment without permitting discovery on issues central to ownership of the copyright, the First Circuit vacated both the summary judgment order and the ruling invalidating Cortés-Ramos’ copyright registration and remanded for further proceedings.



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