- Published Articles
- In the Press
- Press Releases
Sign Up for Alerts
Sign up to receive receive industry-specific emails from our legal team.
Sign Up for Alerts
We provide tailored, industry-specific legal updates to our clients and other friends of the firm.
Areas of Interest
March 18th, 2016
Ruling Maintains That Fair Use Must Be Considered Before Issuing Copyright Takedown Notices
The Ninth Circuit declined to review its earlier opinion in Lenz v. Universal Music Corp. that copyright holders must consider fair use before seeking to remove allegedly infringing content from websites such as YouTube and Facebook. The law in California and other Ninth Circuit states remains that, prior to issuing a DMCA takedown notice, a copyright holder must have a subjective, good faith belief that allegedly infringing content is not making fair use of the copyrighted work. Our prior discussion of that important decision is here.
The original September 14, 2015 opinion offered some guidance on what would satisfy the good faith belief requirement — including the use of computer algorithms that automatically identify when nearly the entirety of a copyrighted work is used. The amended March 17, 2016 decision, however, has stripped most of that guidance away. In particular, the court removed the discussion of computer algorithms and the notion that a copyright holder's consideration of fair use "need not be searching or intensive" to satisfy the good faith belief requirement. What remains instead are foreboding statements such as "a copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to . . . liability." The amended decision has thus made it more difficult for a copyright holder to know whether they have undertaken a proper fair use analysis. As a result, many media companies and other holders of copyright portfolios may need to change the way they deal with infringing content on the Internet, particularly if they are not performing a fair use analysis prior to issuing a takedown notice.
If you have any questions about fair use under the Copyright Act, please contact Craig Whitney at (212) 826 5583 or email@example.com, Jeremy Goldman at (212) 705 4843 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Litigation Group.
Other Entertainment Law Alerts
“Packaging Fees” Dispute: Court Permits Certain Writer Claims to Proceed
Film and television creatives and executives have been closely watching William Morris Endeavor Entertainment, LLC vs. Writers Guild of America, West, Inc., a battle between talent agencies and writers over agency “packaging fees.” Resolution of the dispute will have a large impact on how writers, creators, and agents get paid. Recently, a federal judge issued an important ruling on the WGA and individual writers’ claims -- allowing certain claims to proceed. Read more.
May 11 2020
The Show Must Go On: Production During the Pandemic
From pitch meetings to development and production, COVID-19 has changed the way creatives and their representatives do business. Read more.
May 4 2020
New York Adds New Tax Credit for Minority and Women TV Writers’ and Directors’ Fees/Salaries
Effective December 18, 2019, New York State has amended its Tax Law to provide a new franchise tax and personal income tax credit for minority and women television writers' and directors' fees and salaries. Read more.
December 27 2019