copyright – Page 4 – IP Law Watch

Unicolours v. H&M: Copyright Registration Validity

Jun 22 2021

On June 1, 2021, the Supreme Court granted certiorari in the ongoing case of Unicolors v. H&M Hennes & Mauritz, L.P., No. 20-915. With a nearly $1 million copyright verdict on the line, pattern manufacturer Unicolors, Inc.’s (“Unicolors”) fate is now at the Supreme Court to decide whether courts should refer copyright registration validity challenges to the Copyright Office where there is a known misrepresentation in the registration, but no evidence of intent to defraud.

A copyright registration certificate is not valid if obtained by offering false information and that information, if known, would have resulted in the registration being denied. Under 17 U.S.C. §411(b)(2), where knowingly inaccurate information is included in an application for copyright registration, “the court shall request the Register of Copyrights to advise the court whether the inaccurate information if known, would have caused the Register of Copyrights to refuse the registration.”

May 19 2021

A clear cut case of copyright infringement involving Twisted Sister’s hit song “We’re Not Gonna Take It” (WNGTI) has demonstrated the Court’s willingness to award significant financial penalties where intellectual property rights have been “flagrantly” infringed.

In Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434, Justice Katzmann of the Federal Court ordered Australian businessman and United Australia Party (UAP) founder Clive Palmer to pay AU$1.5 million in damages after finding that he had infringed copyright in WNGTI. Katzmann J notably awarded AU$1 million in additional damages, two-thirds of the total award, under section 115(4) of the Copyright Act 1968 (Cth) (Act).

The action was brought against Mr Palmer by joint applicants Universal Music Publishing Pty Ltd and Songs of Universal (collectively, Universal), which are the exclusive Australian licensee and copyright assignee respectively.

A Fair Use Tale, or All’s Well That Ends: the U.S. Supreme Court Holds Google’s Use of Java Code to Be a Fair Use under U.S. Copyright Law

Apr 13 2021

By: Mark H. Wittow, Paul J. Bruene, Trevor M. Gates

On 5 April 2021, the U.S. Supreme Court resolved a major copyright dispute that had wound through the federal courts for over a decade. In a 6-2 decision written by Justice Breyer, the Supreme Court held that Google’s copying of roughly 11,500 lines of declaring Java code for Google’s mobile Android platform was a fair use as a matter of law and thus not copyright infringement. The decision addresses the application of copyright law to software and updates and extends the Supreme Court’s copyright fair use jurisprudence. Read our recent client alert here.

Amendments to China’s Copyright Law

Apr 13 2021

The first substantial amendments to China’s Copyright Law in 20 years were passed in November 2020 and will come into effect on 1 June 2021 (the Amendments). The Amendments primarily focus on enhancing protections for copyright owners, better aligning China’s Copyright Law with international standards, and implementing the Beijing Treaty on Audiovisual Performances that entered into force in April 2020.

The heavy deterrence-related focus of the revised Copyright Law will strengthen protections for copyright owners, particularly relating to digital piracy.

When Is an Office Chair Design Famous? U.S. Supreme Court Won’t Hear Herman Miller’s Trade Dress Appeal Regarding the Eames Chair

Mar 10 2021

The U.S. Supreme Court decided not to take up Herman Miller, Inc.’s appeal from a Ninth Circuit holding that partially overturned a jury verdict and held that Herman Miller’s popular Eames office chair (average retail price US$1,200) is not “famous” enough to qualify for trade dress dilution protection.^[1] The Supreme Court’s denial of Herman Miller’s petition means the Ninth Circuit’s decision will stand.

U.S. Spending Bill Includes Sweeping New Copyright and Trademark Measures

Dec 28 2020

On Monday, 21 December, U.S. Congressional leaders passed a spending bill that included government funding and folded in several controversial intellectual property provisions that will expand the rights of intellectual property owners. These provisions include the Copyright Alternative in Small-Claims Enforce (CASE) Act, the Trademark Modernization Act (TMA), and a law to make certain illegal streaming a felony. The bill was signed into law by President Trump on 27 December 2020.

Neoprene Tote Bags: Watertight Not Copyright

Dec 24 2020

In the recent judgment State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606, Justice Davies of the Federal Court of Australia found a fashionable neoprene tote bag was not a “work of artistic craftsmanship” and therefore not an “artistic work” for the purposes of the Copyright Act 1968 (Cth) (the Act). Since the Court found that copyright did not subsist in the State of Escape bag (the Escape Bag), there was no finding of copyright infringement.

Air France restrained from using song that infringes “Love Is In The Air”

Nov 05 2020

In April, we wrote about the judgement Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 (Decision), in which Glass Candy and Air France were found to have infringed the copyright in the well-known 1970s hit song “Love is in the Air” (Love).

Now, in the recent judgement Boomerang Investments Pty Ltd v Padgett (Scope of Injunction) [2020] FCA 1413, the Federal Court of Australia has finalised the injunctive orders necessary to give effect to the Court’s earlier conclusions on the issue of liability in the Decision, amongst other matters.

Deep fakes, inventorship and ethics – WIPO revised issues paper on Artificial Intelligence

Sep 30 2020

One thing is clear about artificial intelligence (AI) and intellectual property (IP) at the moment: there are more questions than answers. Who should be author? Who is responsible for a work’s liability? What about moral rights? Is a computer programme capable of making an ‘inventive step’ or forming an ‘intellectual creation’ normally reserved for humans? And for those Matrix fans – should we let machines make decisions for us, lest we become seen as the planet’s true virus?

In September 2019, the World Intellectual Property Organisation (WIPO) launched a much-needed conversation on IP and AI, and consulted with member state representatives on the potential impact of AI on IP. Over the course of the consultation, WIPO received more than 250 responses from a wide range of global stakeholders.

Proposed copyright reform in Australia – Limited liability scheme for use of orphan works

Sep 28 2020

Reforms to the Copyright Act 1968 (Cth) (Act) are just around the corner, and after two years of extensive stakeholder consultation, the Government has finally proposed a limited liability scheme for use of orphan works. The proposed reforms were announced by Hon Paul Fletcher MP, Minister for Communications, Cyber Safety and the Arts, on 13 August 2020.

This proposed amendment will favour the cultural, educational and broadcasting sectors in Australia who will soon be able to use and display works for which a copyright owner cannot be identified or located without risk of copyright infringement, and will result in an important public interest benefit.

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