Enforcing Copyrights in the Social Media Era
This document should be reviewed carefully before a creator uses a social media platform to post creative content to assure that they do not cede intellectual property rights to their content.
What are the terms of use of a social media platform?
In Robert R. Jones Assocs., Inc. v. Nino Homes, the Court reversed a damages award because they found a double recovery between these two kinds of damages. 858 F.2d 274, 281 (6th Cir. 1988).
What are actual damages and infringer’s profits?
These are the main two groups protected by the DMCA and can respectively avoid filing a lawsuit or avoid being sued for infringement.
Who are copyright owners and service providers?
With limited exceptions, a copyright owner must meet this requirement before recovering attorneys’ fees in an infringement lawsuit.
What is the registration requirement?
This Andy Warhol portrait of the musician Prince, part of Warhol’s “Prince Series,” was derived from Lynn Goldsmith’s 1981 photograph of Prince and later licensed by the Andy Warhol Foundation for publication, prompting the copyright dispute.
What is “Orange Prince”?
This case established a three-factor test for determining the ownership of a social media account.
What is In re: Vital Pharmaceuticals Inc., No. 22-17842-PDR, 2023 WL 4048979, (Bankr. S.D. Fla. June 16, 2023).
In Davis v. The Gap, Inc., the court found that, although punitive damages are disallowed in copyright actions, a statutory damage award may still be increased based on a finding of this. 246 F.3d 152, 172 (2d Cir. 2001)
What is willfulness?
Alleged infringers file this if they do not believe their removed content was infringing.
What is a counter notice?
Under this rule, if a plaintiff rejects a defendant’s pre-trial offer and receives a less favorable judgment, the plaintiff may be required to pay the defendant’s post-offer costs, including attorneys’ fees.
What is Federal Rule of Civil Procedure 68 (FRCP 68)?
This factor of the fair use doctrine under U.S. copyright law is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” often asking if the use is transformative.
What is the RST fair-use factor?
Because an agreement defining the work as a work made for hire when engaging an employee or independent contractor to create social media content may not be effective, it is best to confirm ownership with this type of affirmative agreement.
What is an assignment? (17 U.S.C. § 201(a), (b)) (Iconix, Inc. v. Tokuda, 457 F. Supp. 2d 969, 994 (N.D. Cal. 2006)).
In Martinelli v. Hearst Newspapers, L.L.C., the 5th Circuit joined the majority of Circuits in holding that this rule applies to determine when a claim accrues under the Copyright Act’s three-year statute of limitations. 65 F.4th 231, 233(5th Cir. 2023)
What is the discovery rule?
This statement must be included in the takedown notice and is an attestation that the identified use of the work is unauthorized.
What is a statement of good faith belief?
In this case, the Supreme Court identified the following factors for courts to consider when assessing whether to award attorneys' fees.
What is Fogerty v. Fantasy, Inc.?
This Justice wrote the majority opinion in this case, stating that to preserve a copyright owner’s right to make derivatives, “the degree of transformation required must go beyond that required to qualify as a derivative.”
Who is Justice Sotomayor?
This act created a small-claims tribunal for copyright infringement cases where matters have a value of less than $30,000 to give copyright holders an ability to enforce their rights on a smaller scale.
What is the Copyright Alternative in Small-Claims Enforcement Act of 2020? (the CASE Act) (17 U.S.C.A. §§ 1501-1511).
In Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc., the 7th Circuit weighed in on a circuit split, finding that a plaintiff who refuses an offer of judgment and later recovers a smaller damages award than the offer is still this for purposes of awarding fees. 265 F.3d 638, 647 (7th Cir. 2001)
What is the prevailing party?
Title 1 of the DMCA incorporates these two 1996 WIPO treaties
What are the WIPO Copyright treaty and the WIPO Performances and Phonograms Treaty?
Under this federal law, courts have complete discretion to award costs limited to the following six categories: (1) marshall and clerk fees, (2) necessary transcript fees, (3) printing and witness fees, (4) necessary copying fees, (5) docket fees, and (6) fees for court appointed experts and interpreters.
What is the Copyright Act?
The overlap of this feature between Warhol’s licensed version and Goldsmith’s photograph was case-determinative.
What is the “commercial purpose”?
This is the minimum number of images that North American Nature Photography Association asserts were stolen daily on the internet in 2019.
What is 2.5 billion.
in Warner Chappell Music v. Nealy, the Supreme Court resolved a Circuit Split by deciding that in Circuits where the discovery rule applies, the time limitation on available monetary relief extends back this long?
What is indefinitely?
In addition to incorporating the WIPO treaties, the other main provision of Title 1 prohibits this behavior
What is circumventing technology designed to prevent copyright protected material?
Although not a Fogerty factor, the Supreme Court has stated that in this situation, fees may be appropriate against a party even when the parties present reasonable arguments.
What is litigation misconduct?
The dissent criticized the majority for failing to protect this type of work through the fair use doctrine.
What is “transformative.”