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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Webcast Title Using Trademarks of Another Deemed Nominative Fair Use

By Robert A. Clarke and David G. Barker The Ninth Circuit Court of Appeals recently held that the title of a webcast, which included two trademarks belonging to another party, constituted nominative fair use, which protected the defendants from trademark infringement claims. The plaintiff in Applied Underwriters v. Lichtenegger offers workers’ compensation insurance to employers through its EquityComp program.  Applied Underwriters owns federally registered trademarks for “Applied Underwriters” and “EquityComp.”  Defendants published a webcast critiquing EquityComp’s services, entitled “Applied Underwriters’ EquityComp® Program: Like it, Leave it, or Let it be?”  Applied Underwriters sued defendants for trademark infringement for including the   Read More »

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Billions Once Again on the Line After Federal Circuit’s Reversal in Oracle v. Google

By Rachael Peters Pugel and David G. Barker The Federal Circuit has reversed, for the second time, the much-followed copyright infringement case, Oracle America, Inc. v. Google LLC, which has been ongoing since 2010.  Oracle filed suit alleging Google copied and used 37 packages of Oracle’s Java application programming interface (“API”), as well as the structure, sequence, and organization (“SSO”) of those API packages, in its Android smartphone platform. Google and Oracle’s predecessor, Sun, began discussing Google’s licensing of the Java platform for mobile devices in 2005.  But the parties were unable to come to an agreement.  Google then worked   Read More »

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Second Circuit Holds Google Library Project Is Fair Use

Since 2004, Google has scanned, converted to searchable text, and indexed over 20 million books for the Google Library Project.  In Authors Guild, Inc. v. Google, Inc., the Second Circuit held that such use is a fair use of the authors’ copyrights. The Google Library Project allows searchers to read short synopses about the books and to search for terms of interest within the books.  Even though Google stores copies of the complete books, Google displays only “snippets,” or very limited portions of the books, containing a user’s search terms.  Authors sued Google asserting copyright infringement.  The district court granted   Read More »

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