Author Archives: Rachel Brooke

Judge Amy Coney Barrett’s Record on Copyright

Posted October 13, 2020
“President Trump Nominates Judge Amy Coney Barrett for Associate Justice of the U.S. Supreme Court” by The White House is marked with CC PDM 1.0

On October 12th, the Senate Judiciary committee began its discussion of the nomination of the Honorable Amy Coney Barrett to a seat on the U.S. Supreme Court. Prior to her nomination to the Court, Judge Barrett served as a judge in the 7th Circuit Court of Appeals after being nominated to that court by President Trump in 2017. While her three year tenure means there are few clues as to her views on intellectual property, three copyright decisions out of the 7th Circuit, for which Judge Barrett was one of three judges on a panel considering the cases, shed some light on how she might rule in copyright cases. With approximately 40 copyright petitions currently before the Supreme Court, the stakes are high for rights holders and policy makers. It should be noted that Judge Barrett did not write any of the below opinions herself, but participated in deliberations and joined each of them in full. While Judge Barrett’s nomination has been subject to controversy in some circles, there is reason to be optimistic about her views on copyright law.  

Rucker v. Fasano

Rucker v. Fasano was a case in which an author of an unpublished work alleged that an author of a similar published work had infringed her copyright. In 2010, author Kelly Rucker submitted a chapter and synopsis for a novel, The Promise of a Virgin, to a fiction contest sponsored by Harlequin Publishing, a popular trade publisher of romance novels. Then next year, Rucker learned she was not a finalist in the competition. Then, in 2013, Rucker found a book on Amazon entitled Reclaim My Heart written by defendant Donna Fasano. After purchasing a copy and reading the book, she discovered “several similarities between the plot of the novel and her work.” Both novels told “a tale of a wealthy teenage girl who falls in love with a boy of Native American heritage and becomes pregnant, before they are cruelly parted[,]” before “the lovers are reunited years later and . . . rekindle their fiery romance while their child explores his indigenous heritage with his father’s guidance.” Rucker believed that these similarities showed that Harlequin must have given her synopsis and sample chapter to Fasano, forming the basis for her copyright claim.

Ultimately, Rucker’s claim was found to be meritless. After a district court ruled in Fasano’s favor, finding that Reclaim My Heart did not infringe upon Rucker’s copyright in The Promise of a Virgin, Rucker appealed the ruling to the 7th Circuit. The district court had concluded that the novels “were not strikingly similar,” despite sharing some common themes, since “Rucker’s book was a ‘highly sexualized romance’ while Fasano’s was more of a ‘courtroom drama.'” The district court was also persuaded by the fact that Fasano finished a manuscript for a work that later became Reclaim My Heart in 2007—before Fasano began writing The Promise of a Virgin. Fasano also submitted a synopsis of the work to Harlequin in 2006, but her book was ultimately published by Amazon. 

In the 7th Circuit, a three judge panel including Judge Barett affirmed the district court’s holding, focusing on the impossibility of copying where Fasano’s book was written before Rucker’s and where there was not only no evidence of copying, but no possibility that Rucker could have copied Fasano’s work based on the timeline. The court stated summarily that given the factual record, “it is established that Fasano did not copy Rucker’s work,” without which “there can be no viable claim for copyright infringement.” Rucker’s claim that she “‘believe[d] upon reliable information’ that Fasano had access to the submissions to the Harlequin contest” was found to be insufficient to support an inference that this was the case. 

Vernon v. CBS Television Studios

In Vernon v. CBS Television Studios, writer Antonio Vernon sued several television networks for copyright infringement, alleging that they had stolen his idea for a television show called Cyber Police, for which Vernon had unsuccessfully submitted three scripts to a production company. Vernon alleged that a multitude of television shows on these networks including Intelligence, CSI: Cyber, and Cybergeddon infringed his copyright in Cyber Police based on the similarities between his work and these shows. After a district court dismissed his claims on grounds that his complaint was inadequate, Vernon appealed to the 7th Circuit. 

A three judge panel including Judge Barrett affirmed the district court’s dismissal of Vernon’s complaint. It found that the supposedly copied features of his work, such as “agents fighting cybercrime, ‘romantic strife,’ and ‘computer hijacking'” were “too common and standard to plausibly suggest that defendants’ shows were ‘substantially similar’ to his.” Such elements are known as scènes à faire—features standard to certain types of works, like marriages at the end of romantic comedies and shoot-outs in western films—and are as a rule not protected by copyright. In holding that there was no valid claim for infringement, the court underscored this principle and applied it to a relatively new type of work: technology-driven police television shows. This application of scènes à faire relaxes the threat of litigation for authors that seek to use familiar scenes and elements in their works, even when those scenes and elements involve new and emerging fields and technologies.

Sullivan v. Flora, Inc.

Sullivan v. Flora concerned the question of what constitutes a “work” for the purposes of a copyright infringement suit when the allegedly infringing materials consist of multiple images registered for copyright under a single application. While this may seem overly technical, there are wide-ranging implications for rights holders subject to meritless copyright claims.

In 2013, graphic artist Amy Sullivan entered into an agreement to produce original artwork for two informational videos for Flora, Inc., an herbal supplement company, though she retained the copyright in her work. Later that year, Sullivan discovered that Flora had used her artwork in promotional advertising, which the agreement between the parties did not authorize. Sullivan contacted Flora about the matter, and some of the images were removed from the promotional advertising materials. Sullivan proposed a licensing agreement whereby Flora could pay for the continued use of her artwork in the promotional materials. Flora refused, whereupon Sullivan filed suit. A jury ruled in Sullivan’s favor, finding Flora had infringed Sullivan’s copyright in 33 individual illustrations and awarding her $3.6 million in statutory damages. Flora then appealed the determination to the 7th Circuit.

One issue that loomed large in the litigation was the question of whether the 33 images used by Flora without proper authorization constituted a single work, or 33 separate works, for purposes of copyright. All the illustrations were registered on the same copyright application, but on the other hand they were separate, discrete illustrations. Because statutory damages in a copyright infringement lawsuit are calculated on the basis of the number of works infringed, the question had serious implications for Flora’s financial obligations but also for copyright claimants more broadly. This was the question before a three judge panel including Judge Barrett. The 7th Circuit considered, as a matter of first impression for that circuit, “what constitutes ‘one work’ in a fact pattern where a jury found infringement on multiple works registered in a single copyright application.”  The court held that this inquiry should ask whether the works have substantial independent economic value on an individual basis, or if the value lies in their compilation and relies on the presentation of all works in concert. This fact-sensitive analysis makes it more difficult for a copyright claimant to prevail on large damages awards based on infringement of multiple images where the images function as a compilation. After laying out this test, the court remanded the case to the district court for application of the proper analysis to Sullivan’s claim, vacating the $3.6 million damages award. 

Sullivan v. Flora is still ongoing—in early 2020, the parties submitted their briefs to the district court for the Western District of Wisconsin in support of their positions regarding damages.

Key Takeaways for Authors

While it is difficult to extrapolate a comprehensive view of copyright law from copyright decisions Judge Barrett participated in during her time in the 7th Circuit, a theme of skepticism of overbroad copyright claims and excessive damages emerges from these three decisions. In both Rucker v. Fasano and Vernon v. CBS, the court rejected copyright infringement claims based on tenuous similarities between two works, signaling that more is required than mere thematic similarity to prevail on a copyright infringement claim. Together, the cases make clear that a belief that a later work is simply too similar to the author’s own work alone cannot be the sole basis for a successful copyright claim in the 7th Circuit. 

Sullivan v. Flora also has important implications for authors, since the judges in the case demonstrated a concern about excessive damages in copyright actions. One of Authors Alliance’s founding principles is ensuring copyright’s remedies protect our members’ interests, and this decision serves as an obstacle for excessive damage awards in the 7th Circuit: a claimant must prevail on proving that each compiled work has independent economic value before being awarded damages based on multiple incidences of infringement: multi-million dollar awards like the plaintiff in that case received cannot be the default in such situations.

House Judiciary Committee Hears Testimony on Revisions to Section 512 of the Digital Millennium Copyright Act

Posted October 6, 2020
Photo by Louis Velazquez on Unsplash

On September 30th, the United States House of Representatives’ Judiciary Committee heard testimony from a variety of stakeholders regarding potential reforms to Section 512 of the Digital Millennium Copyright Act (“DMCA”), a law passed in 1998 which made reforms to U.S. Copyright Law. Section 512 provides for—among other things—a so-called “safe harbor” from copyright liability for online service providers (“OSPs”) that host user-generated content, provided those OSPs have a system in place that allows rights holders to request that infringing content be removed and follow other requirements outlined in the statute. This has given way to the current system of notice and takedown, whereby copyright holders formally request the removal of allegedly infringing content, and with which many who create, post, and access content online are all too familiar. 

Background

In May of this year, the Copyright Office released a report five years in the making, evaluating the effectiveness of Section 512. In the report, the Copyright Office concluded that the balance Congress sought to achieve in Section 512 is, in its view, “askew,” concluding that many creators are struggling to earn a livelihood in light of the pervasiveness of online infringement and the practical difficulties of having infringing content removed. 

Authors Alliance has written before about the issuance of the report, as well as the impact of Section 512 on non-infringing creators and universities and research libraries. While Authors Alliance embraces the underlying premise that Section 512—now more than 20 years old—is in need of updating to meet the demands of the modern information society, we believe reforms should focus on protecting creators’ interests in making their works available online. Last week, industry representatives, content creators, and policy advocates testified as to the advantages and challenges of Section 512 as it currently stands.

The Hearing

Six stakeholders testified at the hearing and provided additional written testimony: representatives from the Library Copyright Alliance, the Copyright Alliance, Public Knowledge, and the Computer & Communication Industry Association in addition to an individual singer-songwriter and a visual artist who is the leader of the PLUS Coalition. The hearing was polarizing, with two distinct ideological camps emerging, disagreeing both on whether reforms were needed to Section 512 as well as what reforms would address the various problems posed by the provision. On the one side, represented by the Library Copyright Alliance and Public Knowledge, witnesses expressed doubt about the Copyright Office’s conclusion that the “balance” Section 512 sought to achieve between facilitating free speech online and protecting copyrights is askew, tilting too far in favor of speech at copyright holders’ expense. Public Knowledge further proposed a need for reform in the opposite direction, i.e., making it more difficult to get allegedly infringing content removed, due to the current notice and takedown regime being over-broad as well as posing a threat to free speech online and the lawful fair use of others’ work. 

On the other side, the remaining witnesses argued that the current notice and takedown system hurts creators, who must vigilantly search for infringement online and request removal of infringing content through what they described as a highly burdensome “constant whack-a-mole” process which can require consulting legal counsel. They argued that this can result in less time for artistic endeavors and can compromise an already fragile income stream for creators. Both the visual musical artists testified that they had had such experiences. 

Members of the committee seemed similarly divided in their sympathies to the two camps. Some representatives expressed concern for the depressing effect that infringement could have on content creators’ income, and others focused on overzealous takedown notices and the negative impact that could have on add-on creators—such as YouTube personalities that rely on fair use to comment on culture—and internet users at large. 

Many of the stakeholders discussed whether technical solutions could go some of the way towards ameliorating the problems posed by Section 512, but disagreed over whether a technical solution was possible. Stakeholders and members of the committee emphasized the overwhelming amount of takedown notices the largest platforms like YouTube receive, as well as the imperfection of existing algorithms to correctly detect infringement on these platforms.  The representative from Public Knowledge echoed Authors Alliance’s concerns about the missing stakeholders at the hearing: internet users whose access to non-infringing content is disrupted when it is removed due to overzealous takedown notices as well as add-on creators whose speech is suppressed.

What’s Next?

Senate and House Committees are continuing to review the provisions of the Digital Millennium Copyright Act with an eye towards proposing reforms. We will keep readers informed about major developments. Recently, the Copyright Office also launched a new website on the DMCA and its key provisions, including Section 512. For more information, watch the full hearing and read written testimony on the House Judiciary Committee’s website.