Category Archives: Decisions

Supreme Court Holds Cheerleader Uniform Designs Are Copyrightable

On March 22, 2017, the Supreme Court held that decorative designs affixed to cheerleader uniforms may be entitled to copyright protection under the Copyright Act of 1976. The decision determined the proper approach to analyzing whether and how pictorial, graphic, or sculptural features can be identified separately from the utilitarian aspects of a useful article, potentially making such features eligible for copyright protection.

Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc. (together, “Varsity Brands”) design, manufacture, and sell cheerleading uniforms.  Varsity Brands holds numerous U.S. copyright registrations for uniform designs, including the following:  Continue reading

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E.D. VA. Agrees with Jury: Cox Contributory Liable For Infringing BMG’s Copyrights

In a case determining whether and under what circumstances internet service providers may be held liable for the uploading and downloading of infringing copyrighted musical works by their subscribers, the U.S. District Court for the Eastern District of Virginia held ISPs can be liable, if the ISP fails to properly follow the Digital Millennium Copyright Act (“DMCA”). See BMG Rights Mgmt. (US) LLC, v. Cox Commc’n, Inc., No 1:14-cv-1611, 119 USPQ2d 1165 (E.D.Va. August 8, 2016).

Following a two week trial, the jury found Cox Communications not liable for vicarious infringement, but liable for contributory infringement, and awarded BMG $25 million in statutory damages. Afterwards, both parties filed post-trial motions — Cox seeking judgment as a matter of law, and BMG seeking judgment as a matter of law on its vicarious infringement claim. The District Court denied all post-trial motions, reasoning the jury made an appropriate decision.

Cox, a service provider, provides approximately 4.5 million U.S. customers with internet service and requires users to abide by its Acceptable Use Policy, through which Cox reserves the right to suspend users who infringe others’ IP. BMG operates as a music publishing company. It co-owns musical composition copyrights, and facilitates the payment of royalties to artists by helping to commercially exploit their works.

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SCOTUS Finds “Objective Reasonableness” Pivotal, but Not Dispositive, in Determining Attorney Fees Under Copyright Act

On June 16, 2016, the Supreme Court of the United States unanimously held that, when determining whether to award attorney’s fees under § 505 of the Copyright Act, courts must give substantial—but not dispositive—weight to the “objective reasonableness” of the losing party’s position.

Supap Kirtsaeng, a citizen of Thailand, noticed publisher John Wiley & Sons sold textbooks abroad less than they cost in the United States. Kirtsaeng took advantage of his observation by enlisting family and friends still in Thailand to purchase the less expensive textbooks, ship them to the United States, where Kirtsaeng sold them for profit. Wiley sued Kirtsaeng, claiming he violated Wiley’s exclusive right to distribute the textbooks. In a case that went up to the Supreme Court, Kirtsaeng prevailed under the “first-sale doctrine” and returned to the district court victorious, seeking over $2 million in attorney’s fees under § 505 of the Copyright Act.

Section 505 of the Copyright Act allows attorney’s fees to be awarded to the prevailing party, and the Supreme Court, in Fogarty v. Fantasy, Inc., 510 U.S. 517 (1994), created a list of factors that should be considered when making a fee-shifting decision. Included amongst these factors are frivolousness, motivation, and reasonableness.

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