Ninth Circuit: Non-Exclusive Licensing Agent Has No Standing to Sue for Copyright Infringement

By Trisha Farmer Lau and David G. Barker In DRK Photo v. McGraw-Hill Global Education Holdings, LLC, the Ninth Circuit held that an Arizona stock photo agency could not sue McGraw-Hill under the Copyright Act for using images in textbooks without permission. The court recognized there was no bright line answer to this now oft-litigated issue, when it affirmed summary judgment in favor of the defendants, “because DRK is a nonexclusive licensing agent for the photographs at issue and has failed to demonstrate any adequate ownership interest in the copyrights to confer standing.” DRK Photo (“DRK”) licenses stock photos created   Read More »

Posted in Copyright Litigation | Tagged ,

Share this Article:

Ninth Circuit Construes Family Movie Act and Affirms Injunction Against Streaming Service

By Jacob C. Jones and David G. Barker In December 2016, a California federal court issued a preliminary injunction against VidAngel, Inc.’s custom-filtered video streaming service.  Thursday, in Hollywood Studios v. VidAngel, Inc., a Ninth Circuit panel affirmed the injunction, agreeing that Disney, Fox, and Warner were likely to prevail on their copyright infringement and technology circumvention claims and that VidAngel’s fair use defense would fail. VidAngel provided customizable filters that enabled users to skip scenes or silence objectionable content streamed to their devices.  The end-user purchased a newly-released DVD or Blu-ray disc from VidAngel, who would hold the physical media   Read More »

Posted in Copyright Litigation, IP and Technology Litigation | Tagged , , , , , , , , ,

Share this Article:

Octane Fitness and Highmark Apply to Ninth Circuit Attorney Fee Awards under the Lanham Act

On October 24, 2016, the Ninth Circuit Court of Appeals, sitting en banc, held that district courts analyzing a request for attorney fees under the Lanham Act should consider the totality of the circumstances, as set forth in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014).  Section 35(a) of the Lanham Act provides that “he court in exceptional cases may award reasonable attorney fees to the prevailing party.”  In determining whether a case is “exceptional,” courts in the Ninth Circuit are now required to apply a less “precise rule or formula,” and look to   Read More »

Posted in IP and Technology Litigation, Trademark Litigation | Tagged , ,

Share this Article:

Ninth Circuit Could Reconsider Attorneys’ Fees Standard for Federal Trademark Litigation

In Octane Fitness v. ICON Health & Fitness (2014), the Supreme Court changed the standard for recovering attorneys’ fees in patent litigation.  Rejecting a “rigid and mechanical formulation,” the Court adopted a looser “totality of the circumstances” test.  Earlier this year, a Ninth Circuit panel held that the Octane Fitness standard did not apply in trademark cases.  But now the Ninth Circuit has ordered an en banc rehearing of the panel’s decision. In SunEarth, Inc. v. Sun Earth Solar Power Co., the district court permanently enjoined Sun Earth Solar Power from using “Sun Earth” in the U.S. because that use   Read More »

Posted in Patent Litigation, Trademark Litigation | Tagged , ,

Share this Article:

Ninth Circuit: Copyright Holders Must Consider Fair Use Before Sending DMCA Takedown Notices

The Ninth Circuit held last week in Lenz v. Universal Music Corp. (the “dancing baby” case) that a copyright holder must consider fair use before sending a takedown notice under the Digital Millennium Copyright Act (DMCA). Without first considering fair use, the copyright holder cannot have formed the required subjective good faith belief that the use was infringing. Stephanie Lenz and the Electronic Frontier Foundation sued Universal Music Group in 2007 after Universal sent Lenz a takedown notice for a 29-second video she posted to YouTube of her son dancing to Prince’s “Let’s Go Crazy.” Lenz claimed the video was   Read More »

Posted in Copyright Litigation, IP and Technology Litigation | Tagged , ,

Share this Article: