Andy Warhol, Prince, and the First Amendment: U.S. Supreme Court Grants Review of Questions Concerning “Fair Use” Under Copyright Act

By Amanda Z. Weaver, Ph.D. and David G. Barker The U.S. Supreme Court recently granted a petition for writ of certiorari (docket, here) to review the extent to which a work of art is a “transformative” fair use under the Copyright Act. The Court will review a Second Circuit decision holding Andy Warhol’s set of silkscreened portraits of Prince (“Prince Series”), stemming from an original photograph, were not transformative. Lynn Goldsmith, who has photographed Michael Jackson, Bruce Springsteen, Bob Dylan, Madonna, James Brown, the Beatles, and the Rolling Stones, photographed Prince originally in 1981.  In 1984, Prince released Purple Rain   Read More »

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Supreme Court: Mistakes of Law Can Excuse Inaccurate Copyright Registration

By Daniel M. Staren and David G. Barker The Supreme Court held today that lack of knowledge of either fact or law can excuse inaccuracies in a copyright registration under Section 411(b)’s safe harbor provision of the Copyright Act. Unicolors created fabric designs but did not publish them at the same time.  Later, in February 2011, Unicolors filed a single application seeking copyright registration for thirty-one designs published at different times. In 2015, Unicolors sued H&M in the Central District of California for copyright infringement. A jury found that H&M willfully infringed Unicolors’s copyright in one of its designs. H&M   Read More »

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Supreme Court to Review Copyright Statute Relating to Inaccurate Information Provided to Copyright Office

By Zachary Schroeder and Jacob C. Jones On June 1, 2021, the U.S. Supreme Court granted certiorari in Unicolors, Inc. v. H&M Hennes & Mauritz, LP.  The Court agreed to resolve whether 17 U.S.C. § 411(b) requires a district court to refer a matter to the Copyright Office where there is a claim the copyright registration holder made a knowing misrepresentation to the Copyright office in obtaining the registration, but there is no indicia of fraud or material error by the copyright holder.  H&M has asked the Court to interpret the statute as requiring referral merely upon a showing of   Read More »

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If No One Owns the Law, Who Owns the Statutory Annotations?

By Mary Hallerman Last week, the Supreme Court held in Georgia v. Public.Resource.Org, Inc., that legislators cannot copyright any works that they created in the course of their official duties. Though the holding may appear straightforward and narrow, the Court unearthed the centuries-old government edicts doctrine to reach its decision and emphasized the importance of the circumstances of creation in determining copyright ownership. What led to the Supreme Court’s excavation of the government edicts doctrine? Oddly enough, alleged infringement on the Internet. A nonprofit, Public.Resource.Org, published the Official Code of Georgia Annotated (“OCGA”) online without Georgia’s permission. As the name suggests,   Read More »

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Supreme Court: Statute Exposing States to Claims of Copyright Infringement Must Walk the Plank

By Daniel M. Staren and David G. Barker Today a unanimous Supreme Court struck down the Copyright Remedy Clarification Act of 1990 (“CRCA”), which sought to expose States to copyright infringement suits. See 17 U.S.C. § 511(a). The Court’s decision in Allen v. Cooper affirmed a Fourth Circuit decision holding that neither Congress’s Article I powers nor Section 5 of the Fourteenth Amendment granted Congress constitutional authority to enact the CRCA. In 1996, North Carolina hired Frederick Allen to document the State’s efforts to recover the shipwrecked remains of Queen Ann’s Revenge, the flagship vessel of pirate Edward Teach—Blackbeard. Allen   Read More »

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