A few weeks ago, in writing about the Supreme Court’s ruling in Petrella v. MGM, in a post entitled “The Breyer Ascendancy Deferred,” I hazarded a fearless prediction:

I am wagering that Justice Breyer will, despite this setback, be voting with and perhaps writing for the majorities in the two most important IP cases coming down over the next six weeks, American Broadcasting v. Aereo and  Alice Corp. v. CLS Bank.

Even a broken clock is right twice a day. Justice Breyer did indeed vote with the majority in Alice Corp. last week, and now he has written for the six-justice majority in Aereo. Surprisingly to me though, Breyer, the leading intellectual property skeptic on the Supreme Court, has written an opinion that strikes down Aereo’s business model as directly infringing TV broadcasters’ exclusive right of public performance on the basis of what I think is a rather tendentious reading of the Copyright Act.



holmesWe have been following the rather swift progress through the courts of Klinger v. Conan Doyle Estate, a case which raises the fascinating question of when copyright protection on “franchise” literary characters who develop over a series of works, published over a period of many years, expires. Klinger, the editor of books containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories,  brought an action seeking a declaratory judgment that copyright protection had expired on a long list of Sherlock Holmes story elements which were now in the public domain, excusing him from any obligation to pay royalties to the estate. (See CEASE AND DESIST LETTERS FROM BEYOND THE GRAVE–CONAN DOYLE EDITION for a description of Klinger’s complaint and CONAN DOYLE ESTATE LOSES ROUND 1 for a summary of the district court opinion largely vindicating Klinger’s position.) This week the Seventh Circuit weighed in with an opinion affirming the district court, penned by Circuit Judge Richard Posner. As with any Posner opinion, even affirmances, this one adds original analysis well worth a closer look.



In some earlier posts (titled The Breyer Ascendancy and the The Breyer Ascendancy, Part IIBull1_L) I have suggested that we may have  reached an inflection point where Justice Breyer is no longer just the Supreme Court’s leading skeptic on intellectual property protection, but where he is primed to lead his colleagues in a major retrenchment of IP protections.  Though I think we will see more evidence of that in some of the decisions still to come down before the end of the current term, yesterday’s 6-3 ruling in Petrella v. MGM, a copyright case brought in 2009 involving Martin Scorsese’s film Raging Bull, which was first released in 1980, shows that there is still a strong constituency on the Court, led by Justice Ginsberg, that is far less hostile to strong copyright protections than is Justice Breyer. Why did a majority allow a copyright infringement case–brought 29 years after the allegedly infringing film was released–to go forward, when the statute of limitations on such cases is three years?



The American Society of Composers, Authors, and Publishers (ASCAP) is 100 years old today. I have a guest post on ASCAP’s profound influence on the course of American popular music over at the Oxford University Press blogvh0039.


holmesEarly this year, we reported on the filing of Klinger v. Conan Doyle Estate in the federal district court in Chicago. Leslie Klinger is the editor of a collection, called A Study in Sherlock, containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories. He has prepared a sequel entitled In the Company of Sherlock. The publisher of the first book acceded to demands of the Conan Doyle Estate that it take a license and pay a royalty, but the publisher of the sequel balked, and the book remains unpublished in legal limbo.

Klinger brought an action seeking a declaratory judgment that a long list of Sherlock Holmes story elements—including such characters as Professor Moriarity, Sherlock’s smarter brother Mycroft, his landlord Mrs. Hudson and the Baker Street Irregulars, Dr. Watson’s “thick neck and small moustache,” along with such Holmesian traits as his skills in chemistry, disguise, and maritial arts, his methods of reasoning, and his drug addiction—were in the public domain.

We can now report that on December 23 Klinger got his Christmas wish—a summary judgment declaring that virtually all important Sherlock Holmes story elements are free for public use—albeit with one proviso.



We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s literature under Google’s auspices, was rejected, primarily due to antitrust concerns, the case came to center on the Google Books search engine, which allows full-text searching of unlicensed copyrighted books, but displays only small “snippets” as search results.

Last time we checked in, the Second Circuit Court of Appeals had decertified the plaintiff class, and ordered Judge Denny Chin to  rule on Google’s fair use defense first. As we noted,  the appellate panel’s “comments at the oral argument and its suggestion that resolution of fair use could ‘moot’ class certification strongly telegraph[ed] acceptance of Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.” Not surprisingly, in a 30-page opinion issued November 14, Judge Chin so ruled.



cariouprinceIn a post here back in April, we reported on the Second Circuit’s ruling in a fascinating fair use case involving the use of copyrighted photographs by appropriation artist Richard Prince, Cariou v. Prince. We observed that in assessing the “purpose and character” of Prince’s use the court had taken an exceptionally broad and subjective approach to the question of whether the accused works were “transformative uses.” We asked whether there was “a judicial double standard favoring artists that judges and their acquaintances either ‘get,’ or think they ought to ‘get,’ over those who appeal strictly to the hoi polloi?”

Cariou has now filed a petition for certiorari with the U.S. Supreme Court presenting that very question without the snark:

Whether the first statutory fair use factor, “the purpose and character of the [secondary] use,” requires consideration of the secondary user’s purpose (i.e., his or her justification for appropriating particular copyrighted materials), and not just of the secondary work’s expressive character, as perceived by judges employing their own personal aesthetic sensibilities.

Prince’s response to the petition, which is available here, frames the issue in starkly different terms:

Whether the Second Circuit’s fact-specific, interlocutory decision that twenty-five colored collages depicting rock stars and erotic imagery in a post-apocalyptic alternative reality made fair use of altered portions of black-and-white portraits of Rastafarians and Jamaican landscapes . . . .

The Supreme Court has not seriously addressed fair use in the nearly twenty years since it adopted the “transformative use” standard in Campbell v. Acuff-Rose Music, the “Pretty Woman” parody case. The betting here is that the Court will deem Cariou v. Prince an appropriate vehicle for revisiting the issue and perhaps putting the genie at least partially back in the bottle.

UPDATE 11/13/13: I lose. The Supreme Court denied the petition for cert.


On a rain-soaked night in October 1913, an Irishman, a Scotsman, and a Romanian-born Jew walked into Lüchow’s Restaurant, the German sausage and schnitzel emporium on Manhattan’s East 14th Street. The punch line? The dinner those three European émigrés shared on that night 100 years ago set in motion a chain of events that has been shaping and reshaping the sound of American popular music ever since.vh0039

Victor Herbert was the English-speaking world’s preeminent composer of light opera.  George Maxwell was the American representative of the G. Ricordi music company of Milan, then as now publisher of the grand operas of Giacomo Puccini. Nathan Burkan was Herbert’s good friend and lawyer, and at age 35 America’s leading expert in copyright law. The half-dozen others who braved the elements to attend were composers of theatrical music little-remembered and only rarely heard today, along with their principal publisher, Jay Witmark. But the list of no-shows that evening (dinner had been catered and the tables set for 35 expected attendees) included Irving Berlin and Jerome Kern, who would be among the earliest and most conspicuous beneficiaries of the evening’s topic of conversation, the establishment of a means for collecting royalties for the public performance of musical compositions in the United States.



11WILLIS-articleLarge In one of the very first posts on this blog last year, we reported on Victor Willis’s “early victory” in his quest to recover valuable copyrights on songs he co-wrote for the Village People back in the 1970s.  (Willis, pictured here, was also their lead singer, dressed back in the day as the “cop.”) Willis was one of the first to invoke a provision of the 1976 Copyright Act that permits artists to “clawback” copyrights they may have improvidently assigned away after 35 years, upon giving two years written notice. The provision is intended to “safeguard[ ] authors against unremunerative transfers” and address “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited”

Willis had succeeded in blocking the publishing and recording companies that presently control those copyrights from opposing his termination notice on the ground that his co-writers had not joined in it. It was an important victory, but only a provisional one, as other issues remained to be litigated and an appeal of that ruling would seem to be inevitable in due course. Thus, I was surprised to see a story posted on the New York Times website today breathlessly reporting that Willis would indeed be regaining control of “Y-M-C-A,” this coming Friday, the 35th anniversary of his original copyright assignment and, what’s more, he’s not so sure he is going to let anyone else use it. Should bands booked for weddings and bar mitzvahs this weekend be revamping their set lists?




As readers of this blog and my book, Unfair to Genius, must know, I am fascinated by the ways in which developments in the law sometimes shape and are sometimes shaped by developments in the arts. They will also know that I have a weakness for a good story about the colorful luminaries and rapscallions that populated the arts and the copyright industries in the early 20th Century. Professor Robert Spoo’s Without Copyrights: Piracy, Publishing and the Public Domain, just published by Oxford University Press, offers a heaping helping of just the stuff I crave.


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