Category Archives: Copyrights

Is Warner Going to Have to Give up the Gravy Train that is “Happy Birthday”?

happy birthdayIt is my middle child’s birthday today and I thought I would post this in his honor. A suit was filed this week that will likely stop Warner Music from collecting millions of dollars annually as royalties for performance of the song “Happy Birthday.” According to the plaintiff in the case, the song is indisputably in the public domain and Warner knows that. It should be interesting to read Warner’s answer to the Complaint. Maybe the waiters and waitresses in your local fern bar can embarrass you with a rousing rendition of happy birthday in the future without having to pay for the privilege.

Update: Yep. The Court held that Warner Warner-Chappell lacked valid rights to the lyrics, whether or not they remained under copyright protection, even as it collected fees to the tune of $2 million a year.

After Nine-Year Legal Battle, Google Books Wins Fair Use Ruling Before District Court

Today was a good day for Google and was a long time in the making. A federal district court awarded Google summary judgment with respect to authors’ claims of copyright infringement arising out of the mass digitization of works related to its Google Books project.

Judge Chin of the Southern District of New York ruled today that Google’s use of digital copies for full-text searching of 20 million books is “highly” transformative and thus constitutes fair use that does not require authorization from copyright holders. According to the court, the use of the full text of tens of millions of books for its online search function is a transformative use and thus Google’s mass digitization of those books without authorization from copyright holders constitutes fair use ( Authors Guild, Inc. v. Google Inc., S.D.N.Y., No. 05 Civ. 8136 (DC), 11/14/13 ). Noting that the books at issue are largely non-fiction and that the project enabled researchers to locate previously lost books and perform “data mining,” the court was not dissuaded from a finding of fair use simply because Google’s use is largely commercial or that its use involved a copy of the entire work. The court found that Google Books did not destroy the market for the books (because you can only read small snippets of the book), but that it instead enhanced the market for the books as well as providing a substantial benefit for the public.

We will all be hearing a lot more about this ruling and what it means for rights holders and for businesses premised on using or synthesizing the intellectual property of others.

A NY Federal Judge Dismisses Velvet Underground’s Copyright Claims against the Estate of Andy Warhol

Here’s an update on the Andy Warhol “Peel and See” Banana case, where the trademark rights of one party collide with the copyright rights of another. Very briefly, the Velvet Underground rock group is suing the Estate of Andy Warhol over the Estate’s licensing of the famous banana image. Bottom line: The Velvet Underground is out of luck on their copyright claims because they had signed a release years earlier that promised that they would not sue over the Estate’s use of the iconic image. The Velvet Underground argued that the court still needed to determine whether the Estate had copyright rights in the image but the court was unmoved by their arguments, holding “None of them has merit.” The Velvet Underground’s  trademark claims are still alive so this saga will continue.

Google Announces That Copyright Infringement Lowers Search Results

Google announced today that they’re updating their search algorithms to account for sites that get a lot of copyright removal notices, moving them further down the list of results.

In an effort to move users toward more legitimate content—like Hulu, Spotify, and others—Google is now joining the anti-piracy brigade with a new algorithm. Starting next week, Google will count the number of valid copyright removal notices they receive for a site, and move that site down in the rankings if it receives a high count.

Lawsuit Filed Over “On the Good Ship Lollypop” in Nashville

Earlier this week, Deborah Bush Gervash, individually and on behalf of the Estate of Richard A. Whiting, sued Warner/Chappell Inc., a division of Warner Music Group, in federal court in Nashville, Tennessee. Her complaint alleges that the label breached a royalty agreement entered into back in 1936, when Shirley Temple was the Miley Cyrus of her day. That agreement was between Whiting and Music Holders Publishing Corp., a predecessor to Warner Music, and was signed only two years before Whiting died in 1938. Whiting, who also wrote “Hooray for Hollywood,” was posthumously inducted into the Songwriter’s Hall of Fame in 1970. It would be interesting to know how much in royalties these two songs are currently earning. Whatever the amount, Ms. Gervash says it isn’t enough and wants Warner Music to pony up some more. Warner hasn’t answered yet so we don’t know its side of the story. At any rate, its clear that–for the time being, at least–“The Good Ship Lollipop,” is no longer headed to the” sunny beach of Peppermint Bay.”

Artist’s Rendering of Alabama Football Players Was Protected By First Amendment And Does Not Amount to Trademark Infringement


The  Eleventh Circuit issued an important trademark decision yesterday, holding that the First Amendment protected an artist’s right to paint Alabama football scenes because the depiction of the Alabama uniform (which the University contends is a trademark) is necessary for the historical accuracy of the scene.  Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama .  The paintings feature realistic portrayals of the University’s uniforms, including helmets, jerseys, and Alabama’s crimson and white colors.  Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles.

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Village Person Wins Big in Suit to Reclaim His Interest in Village People’s Iconic Hits

A California district judge issued an important copyright decision yesterday, holding that Defendant Victor Willis, the original lead singer of the Village People, is entitled to terminate his post-1977 grants to two publishers, Can’t Stop the Music and  Scorpio Productions, of his copyright interests in 33 musical compositions , including the monster hits, “YMCA,” “In the Navy,” and “Go West.”

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An IP Address Is Not Sufficient Evidence to Identify a Person

A New York federal judge quashed and/or limited adult film industry plaintiffs’ requests for early discovery in a copyright infringement case stemming from numerous “John Doe”  defendants’ supposed illegal downloading of adult films. As a part of his analysis in this ruling,  U.S. Magistrate Gary R. Brown held last Tuesday that an IP address is not sufficient evidence to identify a specific person in a case alleging that pornographic copyrighted material was illegally downloaded. According Magistrate Brown, “It is no more likely that the subscriber to an IP address carried out a particular computer function — here the purported illegal downloading of a single pornographic film — than to say an individual who pays the telephone bill made a specific telephone call.”

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For Once, A Counterfeiter We Can All Get Behind (well, most of us anyway)…

Did you see the New York Times story on admitted counterfeiter Hyman Strachman, street name: “Big Hy?” Big Hy is not selling his bootleg DVD’s out of the trunk of his car in his hood or at Long Island flea markets.He’s sending them by the carton-load to US Troops overseas and he has been doing so for nearly ten years. Big Hy is not involved in an organized criminal enterprise–he’s a 92-yr old Jewish military veteran who spends his days and his disposable income making sure our soldiers get to see the movies that everyone at home is talking about–The Hangover, The King’s Speech, and Moneyball, just to name a few examples.

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EU Ruling Allows ISP’s to Provide User Data to Copyright Holders

The European Union’s highest court ruled Thursday that national data retention laws do not prevent Internet service providers from sharing customer information that copyright holders can use to identify individuals that they believe have engaged in illegal file-sharing.