By Gwen Wei
Earlier this year, three artists separately sued appropriation careerist Richard Prince for copyright infringement. The works in question? Photographs with valid and registered copyrights—each framed in an Instagram screenshot by Prince.
Sound familiar? The incidents seem to be an ugly throwback to 2015, when Prince took screenshots of multiple photographs from the Instagram account of pin-up brand Suicide Girls, printed them, and sold each print for $90,000. But none of this is new ground for Prince. Such incidents define his forty-year career: rephotographing the photos of others, reprinting J. D. Salinger’s The Catcher in the Rye with his own name substituted for the author’s, or writing out lines out of joke books for display at art galleries.
By Chike Eze
The Copyright Act balances granting exclusive rights to copyright owners on the one hand, and limiting those rights through several exceptions, including “fair use,” on the other. A creator of an unauthorized derivative work may escape a copyright infringement claim by successfully asserting a defense of “fair use.” However, the question is whether the creator may also claim copyright protection for the unauthorized derivative work.
The Second Circuit Court of Appeals answered this question in the affirmative. In Keeling v. Hars, the Second Circuit Court interpreted Section 103 of the Copyright Act to determine whether an unauthorized work, within the bounds of fair use, may itself be protected by copyright. The Keeling court held that copyright law provides that an unauthorized but lawful “fair use work may itself merit copyright protection.”
By Chike Eze
Generally, the author of a work owns the copyright in the work. However, an exception to the rule is that the employee or hiring party for whom the work was prepared is considered the owner of the work. The U.S. District Court for the Southern District of New York applied the “instance and expense” test in Urbont v. Sony Music Entertainment to determine whether the Iron Man Theme, created by Jack Urbont (“Urbont”) at Marvel’s request, was a work made for hire. Read More
By Kiran Jassal
Law students across the United States are familiar with “The Bluebook: A Uniform System of Citation,” prepared by the Harvard Law Review Association. Recently, the manual’s copyright and trademark protections have come into question. More specifically, the Engelberg Center on Innovation Law and Policy at New York University joined Public Resource to publish “Baby Blue,” a public domain version of The Bluebook. Publishers of Bluebook vehemently defend their work, claiming copyright and trademark infringement. Professor Christopher Sprigman, of NYU Law, explained Baby Blue’s open access objective in an interview with the NYU Journal of Intellectual Property and Entertainment Law. To show support for the project, Yale Law students have started a petition, stating Baby Blue “will ensure that no one…is denied access to these rules of legal citation”. The question remains, however, whether Baby Blue infringes on any of Bluebook’s publisher’s intellectual property rights. Read More
By Chike Eze
Gone are the days when only major studios had a monopoly on manufacturing “celebrities.” YouTube has ushered in a new category – the self-made “celebrity YouTuber.” Michelle Phan is an extremely popular YouTuber who is well known for her entertaining videos on how to put on different types of makeup. She currently has more than eight million subscribers, and her popular “Barbie Transformation Tutorial” video has over sixty million views. A far cry from Gangnam’s two billion views, but impressive nonetheless. Ms. Phan generates revenue by monetizing her videos and endorsing various products in her videos. And just like other famous YouTubers, she uses popular copyrighted songs as background music in her videos that are distributed to millions via YouTube.
In July 2014, Ultra Records, LLC (“Ultra”) brought a copyright infringement suit against Ms. Phan in the U.S. District Court, Central District of California. Ultra alleged that Ms. Phan had engaged in a “wholesale infringement” of Ultra’s musical compositions and recordings, citing 50 instances of Ms. Phan’s direct copyright infringement. Ultra further stated that Ms. Phan had profited from using its artists’ tracks and compilations. Consequently, Ultra sought $150,000 in statutory damages for each instance of copyright infringement, and demanded an injunction against Ms. Phan’s continued use of its copyrighted material. Read More