1.0 Law & Legal CLE Credit – A/V Approval #1071317 Recording Date – May 4, 2017 Recording Availability – May 21, 2018

Meeting Location Date Time Topic

King County Bar Association 1200 Fifth Avenue - Suite 700

Seattle, WA

Thursday, May 4, 2017

12:00 PM to 1:15 PM

From Pom-Poms to Rock Stars: The Latest and

Greatest Copyright Hits

AGENDA 12:00 PM Introductions/Lunch 12:10 PM Presentation: ‘From Pom-Poms to Rock Stars: The Latest and Greatest Copyright Hits’,

by J. Michael Keyes, Dorsey & Whitney LLP This enlightening and entertaining CLE will cover some of the most important developments in the world of copyright law over the last year. Topics will include fair use, use of music experts in copyright cases, and the protection of cheerleading uniforms, among many others. • Abbott and Costello Heirs Lose Appeal Over Broadway Play's Use of "Who's on

First" Routine • Sirius XM wins dismissal of Turtles copyright lawsuit in New York • TVEyes Infringes Copyright, Undercuts Licensing Market • Star Athletica, LLC v. Varsity Brands, Inc. • Led Zep lawyers want $800k for defending “Stairway to Heaven” lawsuit • And other recent notable Copyright chart-topping cases

1:15 PM Evaluations & Adjourn

SPEAKER BIOGRAPHY: J. Michael Keyes, Dorsey & Whitney LLP – Mike has extensive litigation and trial experience throughout the country in cases involving copyrights, trademarks, and advertising. He is known for his incessant focus on achieving the best possible outcome for his clients in a streamlined, cost-effective manner.

J. Michael Keyes is an intellectual property attorney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. He has tried several cases in federal courts across the United States. Recently, Mike and his team obtained a final judgment and permanent injunction in the U.S. District Court for the Southern District of Florida on behalf of Rovio Entertainment, Ltd., the creator of Angry Birds®. The Court entered findings that the Angry Birds® trademark was “widely recognized by the general consuming public of the United States” and that the Defendants’ use of the mark “Angry Clubs” on golf-related merchandise was likely to cause confusion and dilution in the marketplace. Mike previously served as trial counsel in Chicago federal court for Kraft Foods in a highly-publicized false advertising trial that was featured on ABC’s Good Morning America and also covered by the likes of The Chicago Tribune and The New York Times. He was also trial counsel for Abercrombie & Fitch in a high-profile case in California federal court brought by Levi Strauss & Co. involving claims of unfair competition, trademark infringement, and dilution. The jury returned a unanimous verdict in favor of Abercrombie & Fitch on all claims. The case was profiled in the Daily Journal —California’s largest legal publication—as one of the Top 10 “Defense Wins” in California that year.

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PRESENTATION TITLE (EDIT ON MASTER)

From Pom-Poms to Rock Stars: The Latest and

Greatest Copyright Hits

J. Michael Keyes

Partner

Dorsey & Whitney LLP

Co-editor of Dorsey’s IP Blog,

www.theTMCA.com

Copyright Protection for Useful

Articles

Useful Articles

A “useful article” is an article having an intrinsic utilitarian

function that is not merely to portray the appearance of the article

or to convey information. 17 U.S.C. § 101.

The design of a useful article “shall be considered a pictorial,

graphic, or sculptural work only if, and only to the extent that,

such design incorporates pictorial, graphic, and sculptural

features that can be identified separately from, and are capable of

existing independently of, the utilitarian aspects of the article.”

17 U.S.C § 101.

Mazer v. Stein, 347 U.S. 201 (1954)

Independent from Utilitarian Aspects

The design of a useful article “shall be considered a pictorial,

graphic, or sculptural work only if, and only to the extent that,

such design incorporates pictorial, graphic, and sculptural

features that can be identified separately from, and are capable

of existing independently of, the utilitarian aspects of the

article.” 17 U.S.C. § 101.

No. 10: Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468

(6th Cir. 2015)

Star Athletica, L.L.C. v. Varsity Brands, Inc. et

al., 580 U.S. ___ (2017)

The Supreme Court granted cert to answer the question:

What is the appropriate test to determine when a feature of the

design of a useful article is protectable under Section 101 of the

Copyright Act?

Amici included Intellectual Property Owners Association, Fashion Law

Institute, Council of Fashion Designers of America, and Chosun

International.

Star Athletica, L.L.C. v. Varsity Brands, Inc.

The Court held that a feature incorporated into the design of a useful article is eligible for

copyright protection only if the feature:

“(1) can be perceived as a two- or three-dimensional work of art separate from the useful

article, and

(2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own

or fixed in some other tangible medium of expression—if it were imagined separately

from the useful article into which it is incorporated.” Slip op. at 1-2.

The Court found that the surface decorations on the cheerleading uniforms satisfied this

test and affirmed the Sixth Circuit.

Star Athletica, L.L.C. v. Varsity Brands, Inc.

The Court wrote that applying the test to the surface decorations on the cheerleading

uniforms was “straightforward”:

First, “one can identify the decorations as features having pictorial, graphic, or sculptural

qualities.”

Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the

cheerleading uniforms were separated from the uniform and applied in another medium—for

example, on a painter’s canvas—they would qualify as ‘two-dimensional . . . works of . . . art,’

§101. And imaginatively removing the surface decorations from the uniforms and applying

them in another medium would not replicate the uniform itself.” Id. at 10.

Accordingly, the surface decorations were found to be separable from the uniforms and

eligible for copyright protection. Id. at 10-11. In a footnote, however, the Court was

explicit that it was not holding that the surface decorations were copyrightable.

“We express no opinion on whether these works are sufficiently original to qualify for

copyright protection, or on whether any other prerequisite of a valid copyright has been

satisfied.” Id. at 11 n.1 (citation omitted).

Copyright Protection in Languages

“In no case does copyright protection for an original

work of authorship extend to any idea, procedure,

process, or system…” 17 U.S.C. § 102(b).

No. 9: Paramount Pictures Corp. v. Axanar Prods., 2016 U.S.

Dist. LEXIS 71651 (C.D. Cal. May 9, 2016)

V.

Return to Axanar Trailer

Plaintiffs alleged copying of “characters, races, species, costumes, settings, logos, dialogue, mood and theme.”

Defendants moved to dismiss.

No. 9: Paramount Pictures Corp. v. Axanar Prods., 2016 U.S.

Dist. LEXIS 71651 (C.D. Cal. May 9, 2016)

• Paramount Pictures Corp. v. Axanar Prods.

• Paramount Pictures Corp. v. Axanar Prods.

• Paramount Pictures Corp. v. Axanar Prods.

Copyright and Languages

• Paramount Pictures Corp. v. Axanar Prods.,

Motion in Limine No. 4 – Dkt. No. 132

• Paramount Pictures Corp. v. Axanar Prods.

From The Language Creation Societyhttp://conlang.org/axanar/

Copyright Protection for Pre-

1972 Sound Recordings

• Federal copyright law provides that sound recordings fixed before February 15, 1972 are still protected under state common law regimes.

No. 8: Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2017 U.S.

App. LEXIS 2770 (2d Cir. Feb. 16, 2017)

Pre-1972 Sound Recordings

• Flo & Eddie, Inc. v. Sirius XM Radio, Inc.

NY - No Common Law Protectionfor Public Performance ofPre-1972 Sound Recordings

FL – Oral ArgumentsBefore FL Supreme CourtOn April 6, 2017

CA – Cal. Civ. Code980(a)(2) Provides Protection to the Ownerof Pre-1972 Sound Recording

Subject Matter Jurisdiction

No. 7: Windstream Servs. LLC, v. BMG Rights Mgmt., 2017 U.S. Dist.

Lexis 58204 (S.D.N.Y. Apr. 17, 2017)

• “[T]he infringement using Windstream’s

network is extensive. Since Rightscorp

began monitoring BMG’s copyrights, it

has identified millions of instances of

infringement involving thousands of

BMG copyrighted works using the

Windstream network.”

• Excerpt from BMG’s demand letter

Windstream Servs. LLC, v. BMG Rights Mgmt.

“Windstream seeks a blanket approval of its business model, without reference to any specific copyright held by BMG or any specific act of direct infringement by any Windstream subscriber. Windstream seeks the kind of hypothetical and advisory opinion, isolated from concrete facts, that cannot confer jurisdiction upon this Court.”

“[R]ather than seeking defined declarations of noninfringement regarding existing or foreseeable disputes about specific copyrights and instances of infringement, Windstream seeks broad declarations about every possible conflict that has occurred or could occur in the future. And Windstream seeks to obtain these declarations despite pleading that there is ‘no direct evidence that any Windstream subscriber engaged in direct copyright infringement.’….The fact that Windstream simultaneously argues that there is an actual case or controversy and also that there is no evidence of copyright infringement highlights the hypothetical nature of Windstream’s complaint.”

Third Party Assistance With

Licensed Activities

Great Minds v. Fedex Office & Print Servs.

License BY-NC-SA 4.0

Section 1 – Definitions.

l. Share means to provide material to the public by any means or process…such as reproduction[.]

Section 2 – Scope.

a. License grant. 1)…Licensor…grants You a worldwide, royalty-free…license …to:

a. reproduce and Share the Licensed Material…for NonCommercial purposes only; and

b. produce, reproduce, and Share Adapted Material for NonCommercial purposes only.

Licensee Not Prohibited From Using Third Parties In Exercising The Rights

Granted By The License

Substantial Similarity

No. 5: Croak v. Saatchi & Saatchi, North America, Inc.,

174 F. Supp. 3d 829 (S.D.N.Y. 2016)

James Croak’s

Sculpture:

“Pegasus, Some

Loves Hurt More

Than Others”

Croak v. Saatchi & Saatchi, North America, Inc.

Unicorn Pegasus Toyota Rav4 Commercial

Visual artist and sculptor sued Toyota and the advertising company it hired

alleging a Toyota advertisement infringed the copyright in the artist’s

sculpture.

Defendants moved to dismiss, which the court granted, because among other

things, the works presented very different expression of the idea of “a

Pegasus on a vehicle.”

Croak v. Saatchi & Saatchi, North America, Inc.

Court’s Idea Plaintiff’s Expression Defendant’s Expression

“A Pegasus on a

vehicle”

“Pegasus is strikingly realistic and

life-like”

“Pegasus is a pink, smiling, oversized

stuffed animal.”

Id. at 836.

Car is “a vintage lowrider, the back

half of which is bright red and the

front half of which is blue.”

Car is “ modern, family-friendly SUV in

a glossy blue.”

Id. at 836-37

A few months after Croak v. Saatchi & Saatchi, Judge Rakoff also dismissed a

copyright lawsuit involving the trailer for Beyonce’s hit “Lemonade.”

Filmmaker Matthew Fulks claimed that the 65-second trailer for the “Lemonade” film

that aired in April 2016 borrowed heavily from his seven-minute short film entitled

“Palinoia.”

The complaint contained 9 side-by-side still shots from the trailer and Palinoia.

The court determined that “[p]laintiff’s alleged similarities consist almost entirely of

clearly defined ideas not original to plaintiff and of stock elements with which even a

casual observer would be familiar.”

No. 4: Fulks v. Knowles-Carter, 207 F. Supp. 3d 274

(S.D.N.Y. Sep. 12, 2016)

Fulks v. Knowles-Carter

Fulks v. Knowles-Carter

Fulks v. Knowles-Carter

“Once stripped of unprotected elements

and scènes à faire, these scenes from Palinoia and

the Trailer and Film have very little in common.

The race, gender, wardrobe, and hairstyle of the

characters in the shots are different.” Id. at *11.

“Moreover, the differences in cinematography

between the scenes creates a vastly different

aesthetic.” Id. at *13.

Fulks v. Knowles-Carter

Substantial Similarity in Music

No. 3: Skidmore v. Led Zeppelin,

2016 U.S. Dist. LEXIS 51006 (C.D. Cal. Apr. 8, 2016)

“Taurus” by

Spirit

“Stairway to

Heaven” by

Led Zeppelin

• The jury may not have liked the “Raging

Bull” defense

on why it took so long to bring suit.

Petrella v. Metro-

Goldwyn Mayer,

Inc., 134 S. Ct. 1962 (2014)

• Skidmore v. Led Zeppelin

Giovanni Battista GranataItalian - 17th Century

Baroque Guitar Player

“Sonata di Chittarra, e Violino, con il suo Basso Continuo” by Granata

Fair Use

No. 2: TCA Television Corp. v. McCollum, 839 F.

3d 168 (2d Cir. 2016)

Abbott & Costello “Baseball Routine”

(Who’s on First)

Robert Askin’s Play Hand to God

TCA Television Corp. v. McCollum

Fair Use Analysis:

The Second Circuit

reversed and found that all

four statutory factors

weighed in favor of

plaintiffs and against a

defense of fair use.Scene from Hand of God

TCA Television Corp. v. McCollum

The Second Circuit responded to criticism of Cariou saying:

“Insofar as Cariou might be thought to represent the high-water mark of our court’s recognition of transformative works, it has drawn some criticism. See Kienitz v. SconnieNation LLC, 766 F.3d 756, 758 (7th Cir. 2014) (expressing skepticism as to Cariou’s approach and criticizing reliance on transformativenessas substitute for the statutory factors, which threatens to override the copyright owner’s exclusive right to prepare derivative works) . . . We need not defend Cariou here, however, because our point is that even scrupulous adherence to that decision does not permit defendants’ use of ‘Who’s on First?’ in ‘Hand to God’ to be held transformative.”

Attorneys’ Fees

No. 1: Kirtsaeng v. John Wiley & Sons, 136 S. Ct.

1979 (2016) Plaintiff Supap Kirtsaeng purchased

textbooks in Thailand and sold them in the

United States.

In 2013, the Supreme Court held that the

first sale doctrine applied to such activity.

Following this decision, Kirtsaeng sought

$2 million in attorneys’ fees.

The district court denied the request, finding

that the plaintiff’s claim was “objectively

reasonable,” and no circumstances overrode

that reasonableness.

The Second Circuit affirmed and the

Supreme Court granted cert.

Kirtsaeng v. John Wiley & Sons

The Supreme Court held that “objective reasonableness can be only an

important factor in assessing fee applications—not the controlling one.”

Id. at 1988.

“[Courts] must take into account a range of considerations beyond the

reasonableness of litigating positions. That means in any given case a court

may award fees even though the losing party offered reasonable arguments

(or, conversely, deny fees even though the losing party made unreasonable

ones).” Id.

A court must also give “due consideration to all other circumstances

relevant to granting fees; and it retains discretion, in light of those factors,

to make an award even when the losing party advanced a reasonable claim

or defense.” Id. at 1983.

Circumstances could include a party’s “litigation misconduct,” or the need

to “deter repeated instances of copyright infringement or overaggressive

assertions of copyright claims.” Id. at 1989.

Kirtsaeng v. John Wiley & Sons

• On remand, the district court ruled that when “looked at holistically

and in light of the Copyright Act’s goals,” Kirtsaeng was not entitled

to fees because Wiley’s position was objectively reasonable and not

frivolous, and Wiley acted in good faith. No. 08CV7834, 2016 WL

7392210 (S.D.N.Y. Dec. 21, 2016).

Takeaway: Attorneys’ fees may be awarded even where a litigant’s

position is reasonable, but reasonableness still plays an important role in

the evaluation.

First One Hundred Days Bonus

Kittos v. Trump, No. 1:16-cv-9818 (N.D. Ill. Oct. 18, 2016)

Photographer David Kittos created and

registered “White Bowl of Candy”

photograph

Defendants used unauthorized copy in

online advertising campaign

Kittos brought claims for direct and

secondary copyright infringement (inciting

infringement)

Notice of Voluntary Dismissal filed 12/8/16