Archives: Copyright Cases

Spanski v. Telewizja

Post publish date: March 1, 2018

Spanski Enterprises, Inc., sued Polish broadcaster, Telewizja Polska (“TV Polska”), for infringing on Spanski’s exclusive North and South American performance rights in TV Polska’s programs. Despite licensing Spanski the exclusive North and South American public performance rights to these programs, TV Polska streamed them on its video-on-demand system and failed to properly geoblock, making them accessible to North and South American internet users.

In December 2016, the District Court of the District of Columbia held TV Polska liable for directly infringing Spanki’s exclusive United States performance rights and awarded Spanski around $3 million in damages for willful infringement. TV Polska subsequently appealed on both issues of liability and infringement.

In March 2018, the Court of Appeals for the District of Columbia upheld the district court’s rulings on both infringement and damages. The Court found that TV Polska’s actions clearly fell within the Copyright Act’s definition of performing a work publicly, and that “TV Polska played a more active role in performing infringing content than did Aereo,” as TV Polska “purposefully selected” the copyrighted content. The Court also concluded that even if an infringing performance originates abroad, it is still actionable if it “ultimately reaches viewers in the United States.”

Procedural History

Status: Court of Appeals for the District of Columbia affirmed. (March 2, 2018)

Court of Appeals for the District of Columbia (Mar. 2, 2018)

District Court for the District of Columbia (Dec. 2, 2016)

Amicus Briefs

U.S. Copyright Office

BMG v. Cox

Post publish date: February 1, 2018

BMG Rights Management sued Cox Communications for contributory and vicarious copyright infringement based on its subscribers’ peer-to-peer file-sharing. In August 2016, the United States District Court for the Eastern District of Virginia affirmed a previous ruling in favor of BMG, which found Cox liable for willful contributory infringement, and determined the ISP to be ineligible for safe harbor protection on the grounds that it failed to reasonably implement a repeat infringer policy. Cox appealed to the Fourth Circuit.

On February 14, 2017, the United States District Court for the Eastern District of Virginia granted BMG’s motion for attorney’s fees and costs in the amount of $8.4 million.

On February 1, 2018, the U.S. Court of Appeals for the Fourth Circuit issued a ruling affirming the lower court’s ruling that Cox was ineligible for safe harbor protection on the grounds that it failed to reasonably implement a repeat infringer policy, but reversed and remanded the case for a new trial due to errors in the jury instruction. The Court also vacated the $8.4 million award for fees and costs.

Procedural History

Fourth Circuit (Feb. 1, 2018)

Award of Attorney’s Fees EDVA (Feb. 14, 2017)

Eastern District of Virginia (Aug. 8, 2016)

Status: Fourth Circuit affirmed in part; reversed in part; vacated jury award; and remanded for new trial. (February 1, 2018)

Court: Fourth Circuit

Party Filings:

Amicus Briefs

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Fox News Network v. TVEyes

Post publish date:

Fox News Network sued TVEyes, Inc. for copyright infringement for its service which copies broadcasts from over 1,400 TV and radio stations 24/7 – including Fox networks – and distributes the content to subscribers, who may then download, watch, or share video clips. The District Court held that the function in TVEyes’ service that enabled subscribers to search for videos and clips using keywords (“Search Function”) and the functions that allowed subscribers to watch, archive, and share relevant clips with others (“Watch Function”) were both allowed under the fair use exception. The District Court held that the functions that allowed TVEyes subscribers to download and freely email clips or to watch clips obtained by using search functions other than by keywords were not fair use. Fox appealed part of the District Court ruling to the Second Circuit Court of Appeals.  Specifically, Fox appealed the Watch Function, arguing that it was not fair use. Fox did not appeal the Search Function part of the ruling.

The Second Circuit Court of Appeals reversed the finding of fair use on the Watch Functions and remanded the case to the District Court to revise the injunction in light of its fair use ruling. It weighed most of the fair use factors against TVEyes, and noted that the fourth fair use factor regarding potential market harm was the “single most important element of fair use.”

On December 3, 2018, the Supreme Court denied certiorari.

Procedural History

Southern District of New York (Aug. 25, 2016)

Second Circuit Court of Appeals (Feb. 27, 2018)

Status: Supreme Court denied certiorari. (December 3, 2018) The Second Circuit reversed the District Court for the Southern District of New York’s ruling. (February 27, 2018)

Party Filings:

Amicus Briefs

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Rentmeester v. Nike

Post publish date:

Photographer Rentmeester created an iconic photo of basketball player Michael Jordan mid-air making a seemingly gravity-defying dunk. Rentmeester alleged that Nike infringed his copyright in the photograph when it commissioned its own photograph of Jordan and then used that photo to create its “Jumpman” logo.

The Ninth Circuit affirmed the district court’s dismissal of the lawsuit, holding that the two photos were not substantially similar as a matter of law. Specifically, the court held that the pose was not a protectible element, only the way the pose was expressed, including the camera angle, timing, and shutter speed chosen. The two photos were not substantially similar because there were objective differences in selection and arrangement of elements between the two photos.

Rentmeester filed a cert petition seeking Supreme Court review of the Ninth Circuit decision, which was denied.

Ninth Circuit

Ninth Circuit decision (Feb. 27, 2018)

Supreme Court

Cert Stage

Rentmeester Reply Brief (Feb. 20, 2019)

Nike Brief in Opposition to Petition (Feb. 6, 2019)

Rentmeester Petition for Writ of Certiorari (Dec. 3, 2018)

Amicus Briefs in Support of Petitioner

American Society of Media Photographers, National Press Photographers Association, Amicus Brief in Support of Rentmeester (Jan. 2, 2019)

Professor Terry S. Kogan, Amicus Brief in Support of Rentmeester (Jan. 2, 2019)

Digital Justice Foundation, Amicus Brief in Support of Rentmeester (Jan. 2, 2019)

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