Second Circuit Vacates Google Books Class Certification

Judge using his gavelThe Second Circuit has vacated the district court’s class certification ruling in the Google Books case (Authors Guild v. Google), holding that Judge Chin must rule on Google’s fair use defense before considering class certification.  The panel, comprising Judges Leval, Cabranes and Parker, noted that Google’s objections to class certification “may carry some force,” but ruled that the fair use defense should be resolved first, and that such resolution “will necessarily inform and perhaps moot [the Second Circuit’s] analysis of many class certification issues.” [Read more…]

Second Circuit Rules Most Appropriation Art is Fair Use: Cariou v. Prince

A-773,Graduation, Richard Prince In Cariou v. Prince, the Second Circuit has arguably expanded the scope of fair use in the context of appropriation art.  In its decision, the majority not only reversed the district court’s summary judgment in favor of the plaintiff photographer, but entered its own summary judgment in favor of the defendant with respect to 25 of the 30 works at issue, and remanded for further proceedings with respect to the other five.  Crucially, the majority held that in analyzing the first fair use factor (the purpose and character of the use), the defendant’s work need not comment upon or criticize the plaintiff’s work in order to be deemed transformative.  [Read more…]

Lawyers Sue West and Lexis For Selling Lawyers’ Briefs Without Permission

Two lawyers have filed a class-action copyright infringement suit against West and Lexis/Nexis, the two largest legal research database providers, based upon both companies’ provision of paid access to copies of motion papers filed in federal and state courts without the permission of the lawyers who wrote the briefs. [Read more…]

Music Video Owner Takes One In The . . . : South Park Spoof Held Fair Use

Comedy Partners, and other entities behind the still-going-strong animated comedy show South Park, won big recently in the Eastern District of Wisconsin when they won a dismissal on fair use grounds. It is relatively rare for a copyright defendant to prevail on fair use at the motion to dismiss phase, before an answer is filed or discovery is taken.   In this case, however, the court was able to take judicial notice of the plaintiff’s music video and the allegedly infringing South Park episode and found fair use without recourse to any other external evidence necessary.

The case involves the music video for a song titled “What What (In the Butt).”  As described by the court, “[t]he heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: ‘I said, what what, in the butt’ and ‘you want to do it in my butt, in my butt.'”  Not every day you read something like that in a judicial opinion, but when you do it almost invariably is in a copyright case. . . [Read more…]

Third Circuit Issues Important DMCA and Fair Use Ruling

The Third Circuit issued important rulings on the issues of DMCA  Section 1202 copyright management information and fair use on June 14, in the appeal of Murphy v. Millenium Radio Group LLC, reversing the district court’s summary judgment in favor of the defendants on both defenses.  In Murphy, the plaintiff was a photographer who was hired by a local magazine to take a cover photo of two radio show hosts, Carton and Rossi.  In that issue, the two hosts were given the dubious honor of being named the “best shock jocks” in New Jersey.  Plaintiff Murphy retained copyright ownership of the cover photo.

An unknown employee of Carton and Rossi’s radio station scanned and cropped the cover photo in a way that removed Murphy’s photo credit, and placed the copy on various websites, including the station’s website, inviting the public to make digital alterations to the photos and submit the new versions to the station.  A number of fans submitted altered version of the photo and the radio station displayed 26 of the submissions on the station’s website. [Read more…]