Film enthusiasts may be familiar with the silent film Safety Last! Starring Harold Lloyd, this film debuted in 1923. Even those who are not familiar with the movie may recognize the iconic scene where Lloyd is dangling from the hands of a giant clock. Cupecoy Home Fashion Inc. produces a 12” metal clock with a man dangling from the minute hand. This clock drew the ire of Harold Lloyd Entertainment, who filed a copyright infringement lawsuit on March 11, 2014.
Harold Lloyd Entertainment alleged the clock was a direct appropriation of the iconic clock scene. It also highlighted that it had previously licensed the rights to create a derivative version of the clock scene before. The movie Back to the Future obtained permission to film the scene of Doc Brown (Christopher Lloyd) hanging from the clock tower towards the end of the movie. Most recently, Harold Lloyd Entertainment granted a license to Martin Scorsese to create a similar scene in the movie Hugo. In fact, posters for the movie featured this scene.
It may seem like a movie 1923 is too old to still be protected by copyright. However, it is the edge of copyright protection. If it debuted in 1922, it would be in the public domain. 1923 is the first year where the 95 year term of copyright protection began as per the Digital Millennium Copyright Act. Therefore Safety Last! is protected until 2018.
Even though Cupecoy makes clocks, copyright protection still applies. Unlike patent law, copyright law does not protect physical objects but expressions. Thus Harold Lloyd Entertainment can sue not only movies with other clock scenes, but any media with a similar scene or even products with similar expression. Harold Lloyd Entertainment claims it tried to settle this dispute outside of court but also claims Cupecoy would not respond to its efforts to settle.
Youtube users started reporting this week that Nintendo has started claiming revenue for advertisement on user-created Youtube videos which feature content from Nintendo games. Nintendo confirmed this news stating they became a Youtube partner in February of 2013 and registered their copyright content in the Youtube database. Unlike most infringement cases, Nintendo is not asking Youtube to take down potentially infringing videos. Instead Nintendo is issuing content ID match claims to place its own advertising before, within, or at the end of the videos.
Nintendo is targeted videos featuring Nintendo-owned images or audio of a certain length. The most common videos affected are “Let’s Play” videos. These videos are show gamers playing through video games and can vary from a few seconds of gameplay to entire playthroughs of a game. People upload these videos for humor, to demonstrate how to clear a certain part of the game, or just to show off how good they are. “Let’s Play” channels can boast over 100,000 subscribers and individual videos can reach over 1,000,000 views.
As a copyright owner Nintendo has the exclusive right to reproduce their works and to create derivative works under Section 106 of the Copyright Code. Even though Youtube videos are not copies of the software code of video games a video showing gameplay is still a reproduction. Videos which reproduce clips of a game with commentary by a gamer would be considered a derivate work; even though the video may be original enough for its own copyright it is still based on Nintendo works.
Prominent “Let’s Play”ers have already expressed they believe they are protected by fair use. Fair use, defined in Section 107 of the Copyright Code protects reproductions for purposes such as criticism, comment, and more. Many people argue “Let’s Play” videos qualify for a fair use exception because they do often criticize games and have humorous commentary.
It is very likely at least one “Let’s Play”er will sue Youtube or Nintendo to reclaim future advertising revenues. To evaluate fair use courts will look at the purpose and character of the videos, the nature of the Nintendo games, the amount of the games used in the videos, and the effects “Let’s Play” videos will have on the potential market and value of Nintendo’s games. “Let’s Play” videos widely vary from channel to channel so while some videos could be held to be a fair use others may not.
If you host videos Nintendo claimed advertising revenue for you should seek advice from an attorney. Stone Law handles copyright matters ranging from litigation to registration. You can call our office at 732-444-6303 or leave us a message on our website.
On July 10, 2013 the United States District Court for the Southern District of New York ruled Apple was guilty of anti-trust violations for its role in conspiring with book publishers to raise prices for electronic books. The five publishers, Hachette Book Group, Inc., HarperCollins Publishers LLC, Holtzbrinck Publishers LLC d/b/a Macmillan, Penguin Group Inc., and Simon & Schuster Inc., had already settled with the Department of Justice. Apple moved to trial because it claimed it was innocent. The trial was conducted as a bench trial from June 3 to 20 to determine liability and injunctive relief.
At its heart, the court’s ruling determined Apple played a central role in facilitating and executing the conspiracy to raise e-book prices. In the court’s opinion, without Apple the conspiracy would not have been as successful. Amazon was charging $9.99 for e-book versions of New York Times bestsellers and other newly released hardcover books. Apple met with the five publishers in December of 2009 and January of 2010 and suggested prices of $12.99 to $14.99 for its planned iBookstore. Apple promised to set those prices only if it could get agreements from the publishers allowing Apple to offer e-books simultaneously with their hardcover releases.
At the iBookstore’s launch new release e-books were given price caps of $12.99 or $14.99. Apple gave the publishers control of their prices within those caps and also set a 30% commission, similar to the App Store. More importantly, Apple included in its agreements a price parity provision, also known as a Most-Favored-Nation clause, which would penalize a publisher if they did not force Amazon and other retailers to cede control of e-book pricing to the Publishers. This clause was the key piece of evidence which influenced the court’s decision. It essentially prevented Apple from having to compete with Amazon on e-book pricing. In fact, when Steve Jobs was asked why consumers would not just buy cheaper Amazon books he replied, “The price will be the same.”
As a result of these agreements Amazon’s stock fell 9% after the publishers collectively threatened to pull out from Amazon. After Amazon caved in, the prices for Kindle books rose up to Apple’s prices. Average per unit e-book retail prices rose 14.2% for new releases, 42.7% for New York Times bestsellers, and 18.6% across all books from the five publishers. Macmillan also turned down sales promotions to keep prices up. Eventually Random House, the last big publisher, moved towards the same pricing scheme.
Apple argued at court they were not guilty and showed data that e-book prices moved lower in the two years since. However the court was not persuaded and said Apple’s data did not account for other changes in the e-book market. The court also cited many excerpts from emails which show collusion between Apple and the publishers. The court ruled Apple participated and facilitated a horizontal price-fixing conspiracy, which is per se unlawful. Apple was not able to convince the court the agreements had any pro-competitive effects either.
Apple has already stated it will appeal the ruling. Appeals from the Southern District of New York go up to the 2nd Circuit of Appeals. If necessary, the next step after the 2nd Circuit is the Supreme Court. If Apple is still found liable the parties will move to a trial to determine damages.
If you have an issue related to publication or e-books please contact Stone Law at 732-444-6303 or send us a message on our website.
A federal district judge in New York ruled for the Associated Press in the case of AP v. Meltwater. The ruling, if upheld on appeal, can have large ramifications throughout the blogosphere and for content aggregators.
The Associated Press, or AP, is a not-for-profit group which creates news reports from all over the country. AP’s revenue comes from licensing fees it earns by licensing uses of its articles to newspapers, websites, and other subscribers.
Meltwater is an Internet media monitoring service. Their news service is a method for their clients to keep tabs on how they are portrayed in the press. AP alleged that Meltwater is infringing AP’s copyright by republishing AP articles without a license. Meltwater uses a computer program to scrape news articles on the web and provides excerpts of those stories daily to its subscribers. Meltwater did not dispute that it took content from AP stories that is protected by the Copyright Act. Instead, Meltwater claimed an affirmative defense of fair use. Meltwater argued it is a search engine, albeit one which is a closed system for subscribers only. This case revolves around thirty-three Registered Articles of the AP which Meltwater copied and then delivered excerpts of to its subscribers. Meltwater News employs automated computer programs known as “crawlers” to scan the Internet for news. This is the same method which most search engines will employ. Meltwater’s crawlers scan approximately 162,000 online news websites from over 190 countries each day to create an index of the websites’ content. It is of notes that Google, Yahoo, and other large search engines do have licenses from the AP.
Meltwater argues that they are not liable for their copyright infringement since it is “fair use” of the plaintiff’s copyrighted work.17 U.S.C. § 107 provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.” It is important to note that Meltwater did not claim it was ‘news reporting’ as stated in the fair use exception, but rather that it was a search engine. Courts look to four non-exclusive statutory factors to determine whether a defendant has made fair use of a copyrighted work: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. In this case, the first and fourth factors weighed heavily against Meltwater. For the first factor, the district court quote Harper & Row Publishers, Inc. v. Nation Enterp., 471 U.S. 539, 562 (1985), “the fact that a given use is profit-driven is not the focus of the commerciality inquiry. Instead, the “crux of the profit/nonprofit distinction is . . . whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price.” Given that Meltwater charges it subscribers thousands of dollars annually for their service, the purpose and character of the infringement is clearly for profit. For the fourth factor, the court quoted Castle Rock Entertainment, Inc v. Carol Publishing Group, 150 F.3d 132, 145 (2nd Cir. 1998), as the concern of this factor is not with “whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but [with] whether the secondary use usurps or substitutes for the market of the original.” Meltwater subscribers would have no use for an AP subscription when Meltwater can provide the same information. This constitutes suppressing the market for the original work.
Ultimately, the court decided that commercial Internet news clipping services do not provide enough of a public service to outweigh the enforcement of the copyright laws and therefore allowing Meltwater a free ride on AP’s reporting cannot be justified
If this ruling is upheld by the appellate court and/or the Supreme Court, then content aggregators and bloggers will need to take notice. The internet is often though of as the wild west when it comes to intellectual property law. There is a fine line between a blog linking to another website with a short description, and a blog wholly copying another website’s posts. For amateur bloggers, this is a small matter of poor etiquette, but for professionals, Meltwater may become a very noteworthy.
The Supreme Court decided this week the case of Kirtsaeng v. John Wiley & Sons. The opinion will undoubtedly have a large impact on intellectual property law.
This case deals with a Thai national who was subsidizing his college tuition in the U.S. by having his relatives in Thailand buy textbooks for cheap, shipping them to him in the US, and then selling the text books to Americans on sites such as eBay. He made about a $100,000 profit off this enterprise. Eventually, the publisher caught wind, and sued.
This enterprise is known as the “gray market”. Exploiting the price differential between the US and overseas can be quite profitable. The legality of this practice differs depending on the type of good being sold. Prior to this ruling, on copyrighted goods purchased overseas, most judges were ruling against the gray marketeers.
Kirtsaeng argued that the ‘first sale doctrine’ creates an exception that validates his actions. The “first sale doctrine” in copyright law permits the owner of a lawfully purchased copy of a copyrighted work to resell it. Once you buy a copy of something, you own that copy. You can do as you wish with it. This is codified at 17 U.S.C. § 109(a) of the Copyright Act of 1976. However, Congress also enacted 17 U.S.C. § 602(a)(1).That section provides that importing goods into the United States without the authority of the copyright holder is illegal. The Supreme Court has now decided that §109(a), does in fact, limit the scope of §602(a)(1), and ruled for Kirtsaeng.
Previously, the Supreme Court opinion which was most influential in ‘gray market’ dealings was Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135, (1998). In Quality King, L’anza Research International, a California shampoo company, sold to foreign distributors at rates which were 35% to 40% lower than the prices charged to its domestic distributors. Quality King Distributors, Inc. purchased shipments of L’anza’s products from one of L’anza’s foreign distributors and then reimported the products into the United States for resale. L’anza sued, alleging that Quality King’s actions violated its “exclusive rights under 17 U.S.C. §§ 602. The Supreme Court heard the case to decide the question of “whether the `first sale’ doctrine endorsed in § 109(a) is applicable to imported copies.” The Supreme Court held that § 109(a), limits the scope of § 602(a), and ruled for Quality King.
While this may seem like it is the exact same facts as Kirtsaeng, there was a key difference. In Quality King, the copyrighted items in question had all been manufactured in the United States. In Kirtsaeng, the books were printed overseas. Since these books were intended to be sold in Thailand, it was cheaper and easier for Wiley to print them over there.
With the opinion in Kirtsaeng, the Supreme Court has overruled Omega S.A. v. Costco Wholesale Corp, 541 F.3d 982 (9th Cir. 2008).That case involved the importation into the United States of Omega-brand watches. The watches were ultimately purchased and resold by Costco Wholesale Corporation. The Ninth Circuit had held that § 109(a) (First Sale Doctrine) does not apply to items manufactured outside of the United States. But, the Court’s ruling was 4-4 (with Justice Kagan recused), and therefore the opinion of the Ninth Circuit stood.
The ruling in Kirtsaeng will legitimize the ‘gray market’. Now, copyrighted materials which are sold overseas for cheap, can be purchased, imported into the U.S., and sold for close to market value. This could mean that American consumers can soon purchase high quality, copyrighted goods for the price of cheap foreign knock offs. It will also mean that until the market adjusts, quite a few entrepreneurs will follow in Kirtsaeng’s footsteps and start searching overseas markets for good value without the fear of copyright infringement lawsuits. Places such as Costco, Walmart, and other large retailers will also likely scour foreign markets for cheap sources of goods. Once these practices become widespread, either manufacturers will lower their prices, or pull out of foreign markets all together. Until this happens, the next time you are on vacation overseas, it might just be worth it to pop your head into the local bookstore and pick up a few copies of whatever English texts they have.
The Supreme Court has recently heard arguments in the case of Kirtsaeng v. John Wiley & Sons. The opinion is expected soon, and regardless of how the court rules, it will have a large impact on intellectual property law.
This case deals with a Thai national who was subsidizing his college tuition in the U.S. by having his relatives in Thailand buy textbooks for cheap, shipping them to him in the US, and then selling the text books to Americans on sites such as eBay. He made about a $100,000 profit off this enterprise. Eventually, the publisher caught wind, and sued.
This enterprise is known as the “grey market”. Exploiting the price differential between the US and overseas can be quite profitable. The legality of this practice differs depending on the type of good being sold.
At trial, and on appeal to the 2nd Circuit, John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210, (2d Cir. 2011), Kirtsaeng argued that the ‘first sale doctrine’ makes his actions legal. The “first sale doctrine” in copyright law permits the owner of a lawfully purchased copy of a copyrighted work to resell it. Once you buy a copy of something, you own that copy. You can do as you wish with it. This is codified at 17 U.S.C. § 109(a) of the Copyright Act of 1976. However, Congress also enacted 17 U.S.C. § 602(a)(1).That section provides that importing goods into the United States without the authority of the copyright holder is illegal. The Supreme Court will have to decide, as it often does, how these two contradictory laws interact.
The 2nd Circuit opinion in Kirtsaeng relied heavily on Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135, (1998). In Quality King, L’anza Research International, a California shampoo company, sold to foreign distributors at rates which were 35% to 40% lower than the prices charged to its domestic distributors. Quality King Distributors, Inc. purchased shipments of L’anza’s products from one of L’anza’s foreign distributors and then reimported the products into the United States for resale. L’anza sued, alleging that Quality King’s actions violated its “exclusive rights under 17 U.S.C. §§ 602. The Supreme Court heard the case to decide the question of “whether the `first sale’ doctrine endorsed in § 109(a) is applicable to imported copies.” The Supreme Court held that § 109(a), does in fact limit the scope of § 602(a), and ruled for Quality King.
While this may seem like it is the exact same facts as Kirtsaeng, there was a key difference. In Quality King, the copyrighted items in question had all been manufactured in the United States. In Kirtsaeng, the books were printed overseas. Since these books were intended to be sold in Thailand, it was cheaper and easier for Wiley to print them over there.
The Supreme Court intended to rule on this distinction when they heard the case of Omega S.A. v. Costco Wholesale Corp, 541 F.3d 982 (9th Cir. 2008).That case involved the importation into the United States of Omega-brand watches. The watches were ultimately purchased and resold by Costco Wholesale Corporation. The Ninth Circuit had held that § 109(a) (First Sale Doctrine) does not apply to items manufactured outside of the United States. But, the Court’s ruling was 4-4 (with Justice Kagan recused), and therefore the opinion of the Ninth Circuit stands.
What this case may come down to is what the phrase “lawfully made under this title” in §109(a) actually means. Does ‘made’ mean where the book is written? Or does this mean where the book was printed? Does ‘under’ mean in the territory that the Copyright Code reaches? Or does it apply to whatever works were copyrighted in the US? If that term is understood by the Court broadly, then §109(a) will subsume §602(a) and the ‘first sale doctrine’ should apply.
If the Court rules for Wiley, as expected, then copyright holders would be protected from their foreign manufacturing hurting business in the US. There could be effect on outsourcing, product manufacturing for copyright holders, if one does outsource the printing of foreign editions, they will enjoy protections that domestic goods do not, under Omega. For average consumers, this would mean that you might not be able to legally resell your property, if you purchased it from overseas. In the digital age of e-commerce, this is becoming more common. For sites such as eBay, they could see potentially significant decline in goods for sale. For import/export companies in the ‘grey market’ businesses, this would be devastating.
If you missed last night’s NASA landing and tried to check it out this morning, you may have had some trouble. NASA posted a 13 minute excerpt of the Curiosity Mars rover’s landing on their official YouTube channel. Within a matter of minutes, the video was taken down with a message explaining the video contained copyrighted material claimed by Scripps Local News. NASA’s video should not have been removed, since, not only did they create it, but it’s also public domain content.
The Digital Millennium Copyright Act allows YouTube to escape liability if they remove content when someone claims to hold a copyright to it. The DMCA then allows users to submit a counter claim if they believe their content does not infringe on an existing copyright and was wrongfully removed.
It’s unclear exactly how or why Scripps filed the complaint, or whether YouTube took it down automatically because their system believed it copied an existing video. Scripps Local News released an apology for the problem through a spokesperson for their parent company, E.W. Scripps Company. This is not the first NASA video that has been taken down on a claim by Scripps. Bob Jacobs, NASA’s Deputy Associate Administrator for Communications said that DMCA complaints routinely disrupt NASA’s online presence. The repeated invalid takedowns are probably a result of YouTube’s automated copyright system that can block wrongfully claimed material.
Video game publisher Electronic Arts (EA) has challenged video game creator Zynga in California Federal Court. It appears that Electronic Arts suspects Zynga has been borrowing a few too many elements from its game, The Sims Social, and incorporated those elements into the Zynga game, The Ville. From EA’s complaint it appears that various design elements of The Sims Social were copied directly into the Zynga game. A few months ago it would have seemed that EA had an uphill battle on their hands but a recent case may have shifted the verdict in EA’s favor. That recent case involved cloning the popular game Tetris (See Cloning Tetris). It would be wholly unsurprising if EA’s recent action was spurred by the verdict of the Tetris case, firstly because of the many common elements with EA’s case against Zynga and the Tetris case and secondly and more importantly, the connection that EA has with the owner of the rights to Tetris. It may be that EA’s actions against Zynga were started as a result of the Tetris case or it may be that the Tetris case was a result of some agreement that EA has with the owners of the rights to the Tetris game.
The Tetris case and the EA case may be the start of a new line of litigation targeting the makers of clone video games. Whatever the motivation for these recent litigation events was, or what entity was behind the suits, it now seems that those video game manufacturers copying substantial elements of other game manufacturers are no longer safe from infringement claims. Although it has always been the law that copyright can not and should not protect the underlying idea behind a work, the expression of that idea can be protected. The central issue in the Tetris, and most likely in the Sims Social case, was whether the underlying idea of a game can be separated from the expression of that idea; the idea of watching someone’s life and controlling it in a video game may not be protectable, but the interface for doing so seems as if it should be.
The commonality which is shared between The Sims Social and The Ville appears to go beyond the mere superficial, as shown on page 20 of the attached complaint, the skin tone choices in both games is identical. Somehow it appears that Zynga has independently picked the exact same eight skin pigmentation representations as EA, in addition to the fact that Zynga also appears to have chosen to allow the same number of skin pigmentation representations. Unless there is some universal skin color chart which is given to first year computer programmers it seems that these similarities can not be coincidental. There are numerous other design choices which carry over from the EA game into the Zynga game which appear to defeat any argument that the Zynga game is at least a partial copy of the EA game.
It cannot be said for sure that The Ville is a copy of The Sims Social, that is something which the court will have to decide. It will be interesting to see what Zynga’s response to the complaint is and whether they can explain some of the many similar choices which the developers of both games chose.
On July 27, Google Inc. asked U.S. Circuit Judge Denny Chin to dismiss a lawsuit from the Authors Guild over the company’s plan to digitize books and provide excerpts through their search engine service. Google filed a motion seeking dismissal and arguing their actions fall under fair use and also provide a benefit to the public and the authors themselves. The Authors Guild also filed for summary judgment. Both parties’ motions are set for oral argument on Oct. 9.
The case has been ongoing since The Authors Guild, along with The American Society of Media Photographers and other parties, sued Google in 2005 claiming the company’s plan to create an online literary database was carried out without permission from copyright holders. Google estimated it has already scanned more than 20 million books and posted excerpts from over 4 million. The process began when Google entered agreements with public and university libraries to digitize and upload information for their Google Books service. So far, Google says works have been scanned from Harvard University, Oxford University, Stanford University, the University of California, the University of Michigan, and the New York Public Library. Judge Denny Chin began hearing the case as a trial judge and has retained jurisdiction after being elevated to the Federal Appeals Court in 2010.
The Authors Guild believes that Google’s actions constitute massive copyright infringement. Google argues, however, that their Google Books service actually furthers the objectives of copyright law by providing significant public benefits. Google believes their service even provides a benefit to the authors themselves and argues the authors have failed to prove Google Books displaced any book sales whatsoever. Google Books, the company argues, actually makes the authors’ works more easily available and may have even increased sales. Additionally, Google argues that Google Books constitutes fair use since it creates significant benefits without diminishing the value of the copyrighted works in question.
Previously, in March 2011, Judge Chin rejected a $125 million settlement reached between the plaintiffs and Google. While this may seem unreasonable, the Judge believed the proposed settlement was far too broad. Judge Chin accused Google of using the settlement to implement a business plan that would leave them with a monopoly to copy works without permission. The settlement went beyond the bounds of the litigation and would strengthen Google’s control over the search engine market. The United States, Amazon.com, and Microsoft had raised antitrust concerns following the first proposed settlement. Further talks to reach an alternate settlement between the parties were unsuccessful. In May, the judge granted class-action status to the plaintiffs, allowing photographers and graphic artists to join the suit.
The Kirtsaeng case follows the Supreme Court’s December 2010 decision in Costco Wholesale Corp. v. Omega, which centered on the first-sale doctrine, which usually entitles the owner of a lawfully produced copyrighted work to resell it without permission from the copyright holder. The Supreme Court split 4-4, with Justice Elena Kagan not taking part. The court did not issue a written opinion, but held that the first-sale doctrine did not apply to foreign goods. The Second Circuit’s Kirtsaeng decision relied on the Supreme Court’s Costco ruling.
In the present case on appeal, Supap Kirtsaeng, a graduate student at the University of Southern California, sold John Wiley textbooks on eBay. The books were purchased in Asia by his family and friends and shipped into the U.S. to be sold on eBay. The Second Circuit upheld a verdict against Kirtsaeng and held that the first-sale doctrine only applied to goods manufactured in the U.S. The decision by the Second Circuit may have some strange implications that give foreign manufacturers greater control over their products than U.S. manufacturers. In particular, the Association of Art Museum Directors is concerned that museums may be barred from displaying foreign works of art.
According to the brief, the American museums believe they could lose their ability to acquire and display foreign-made, copyrighted pieces. Under the ruling, the museums argue, any gallery that displays a foreign work is potentially infringing on a copyright. The museums were long protected under Section 109, but would now have to rely on fair-use arguments with little precedent.
The museums also argue that any foreign works protected by copyright law should also be subject to the law’s limitations. Section 109 limits the protections under the Copyright Act by allowing owners to manage lawful copies of a copyrighted work without permission from the copyright holder. Normally, public performance without permission is a clear violation of copyright, but Section 109(C) provides an exception for owners of lawful copies:
(c) Notwithstanding the provisions of section 106 (5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
This exception allows museums to display works publically without obtaining a license from the copyright holder, a practice that could be prohibitively expensive. The museums may have no choice when it comes to foreign art, however, since the Second Circuit ruled that Section 109 applies only to American-made works. In addition to being wildly expensive, licensing could be impossible for museums when the copyright holder is unknown or unavailable.
One argument made in the amicus brief is that Section 104 of the Copyright Act makes all eligible works subject all protections and limitations of the act. There is no distinction for works based on origin in the act; therefore, Section 109 limits the rights of every copyrighted work, regardless of where it was produced. The court below, according to the brief, erred by finding that the text of Section 109 was ambiguous. Instead of finding ambiguity and selectively interpreting the text of the Copyright Act, the court should have read Section 104 as establishing that all protections, remedies, and limitations of the entire Copyright Act apply to all works and all copies by extension.
The brief also argues that the broad interpretation of Section 109 does not conflict with Quality King Distribs., Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 150 (1998). In that case, the Supreme Court left open the possibility that all copies that receive protection under U.S. law are subject to the limitations of Section 109. The exception for foreign works, the museums argue, is a result of unnecessary judicial interpretation. The brief argues that no foreign work should receive more or less than a domestic work since there is no clear grant in the statute, since, in the few times Congress has prescribed special treatment for foreign works, they have done so with explicit language. For example, the brief argues that Congress could have chosen the words “lawfully made in the United States,” rather than “lawfully made under this title,” for Section 109. Therefore, there is no reason to interpret the statute differently for foreign made works than for domestic ones.
In its conclusion, the brief pleads for the Supreme Court to reverse the decision below. The museums believe that the court should find that if the copyright owner authorized the first distribution abroad, then imported foreign copies can be distributed or publicly displayed within the U.S. without permission. Doing so would preserve the statutory exception that allows museums across the country to display works of art without fear of unnecessary copyright litigation.