IP UPDATE
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Exploring the latest in intellectual property law
Results for "Copyright appeals"
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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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A costly discovery misstep: Untimely damages evidence excluded

by | Jun 18, 2026 |

The US Court of Appeals for the Fourth Circuit affirmed a district court’s exclusion of damages evidence under Federal Rule of Civil Procedure 37(c)(1) and the resulting grant of summary judgment against the plaintiff on all claims. Deque Sys. Inc. v. BrowserStack, Inc., Case No. 25-1534 (4th Cir. June 5, 2026) (Agee, Traxler, Floyd, JJ.)

Deque Systems develops software that helps businesses make websites accessible to users who have visual and hearing impairments. Deque sued competitor BrowserStack for copyright infringement, false advertising, breach of contract, and unjust enrichment, alleging that BrowserStack reverse-engineered Deque’s software to develop a competing product and falsely advertised it as “5x faster” than Deque’s flagship offering.

Under the district court’s scheduling order, initial disclosures were due on June 7, 2024; expert disclosures were due on August 9, 2024; and fact discovery closed on October 11, 2024. Although Deque timely served its Rule 26(a)(1) initial disclosures, it failed to provide a computation of damages as required by Rule 26(a)(1)(A)(iii). When BrowserStack later served an interrogatory seeking the categories and calculations of Deque’s claimed damages, Deque again declined to provide a damages computation, stating only that it intended to seek all available damages and that its calculations remained incomplete.

Deque also failed to serve a damages expert report by the August 2024 expert disclosure deadline. After retaining new counsel, Deque disclosed a $30 million damages calculation on October 8, 2024, just three days before the close of discovery. BrowserStack moved to exclude the damages evidence and sought summary judgment.

The district court excluded Deque’s damages evidence under Rule 37(c)(1), finding that Deque failed to comply with Rule 26’s disclosure requirements. Because Deque could no longer prove damages and failed to establish entitlement to injunctive relief, the district court granted summary judgment in BrowserStack’s favor on all claims. Deque appealed.

The Fourth Circuit affirmed. The Court explained that Rule 37(c)(1) “gives teeth” to Rule 26’s disclosure requirements by prohibiting a party from using information that was not properly disclosed during discovery. The Court found that Deque had “indisputably failed to comply” with Rule 26(a)’s damages disclosure requirements by failing to provide a damages computation in its initial disclosures, expert disclosures, or interrogatory responses. The Court rejected Deque’s argument that its disclosure of damages in a rebuttal expert report three days before the close of discovery constituted a timely disclosure.

Turning to the propriety of the sanction, the Fourth Circuit applied the five-factor test set forth in its 2003 Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co. decision:

  • Surprise to the opposing party
  • Ability to cure the surprise
  • Disruption of trial
  • Importance of the evidence
  • Explanation for the nondisclosure

The Fourth Circuit concluded that all five factors favored exclusion. BrowserStack was plainly surprised by Deque’s $30 million damages claim, which was disclosed only days before discovery closed. Curing that surprise would have required reopening discovery and significantly delaying the proceedings. Although the damages evidence was important, Deque failed to offer any meaningful justification for its repeated failure [...]

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One frame is enough: Second Circuit narrows de minimis use, limits fair use at pleading stage

by | May 14, 2026 |

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:

  • Its use of the Jordan video constituted fair use.
  • Its embedding of the Melle Mel video was authorized under YouTube’s terms of service.
  • The screenshots were de minimis.

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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Provider’s degree of control affects DMCA safe harbor

by | Feb 26, 2026 |

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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DMCA safe harbor is deep: Plaintiffs need to get specific

by | Jan 29, 2026 |

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.



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Federal question? You can’t hypothetically fair use your way into federal court

by | Jan 29, 2026 |

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:

  • It is created by the Copyright Act.
  • It is a state law claim that necessarily raises a disputed and substantial copyright issue.
  • It asserts rights equivalent to those protected by copyright and is therefore preempted.

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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Top Gun and all that jazz: “Substantial similarity” in the Ninth Circuit

by | Jan 15, 2026 |

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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Ain’t worried about local rules: Scope of sound recording protection is narrow

by | Oct 30, 2025 |

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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