District Court Upholds Social Media Terms of Use, Selena Gomez files infringement lawsuit against FHL, NFL Quarterback Files Infringement Lawsuit Against Amazon, Pirate IPTV Service Faces Infringement Lawsuit, TikTok Threatened with Copyright Infringement Lawsuit, Apple Accused of Selling Pirated Music.

District Court Upholds Social Media Terms of Use

The United States District Court for the Southern District of New York, recently passed an order that upheld the terms of use of the social media website, Instagram, with regard to a copyright infringement lawsuit. This lawsuit was filed by a photographer named Sinclair, against Mashable, a digital media and entertainment platform, after the former accused the latter of embedding her photograph in an article that Mashable had published online. Sinclair claimed that Mashable had taken a photograph that she had previously posted on her Instagram account and had then used that picture in their article without her permission. Mashable however, stated that, prior to using Sinclair’s picture they had contacted her and offered USD 50, to license the picture from her, but Sinclair refused the offer. Following this, Mashable sub-licensed the photograph from Instagram and embedded the same in the article published on their website.
When Sinclair filed the lawsuit, after Mashable had refused to take down the photograph, the court favoured Mashable and stated that as per Instagram’s terms of use, if a user has a public account then, any other user can share a picture taken from a public account, without prior permission of the original account holder. This is possible because Instagram’s policy allows users to use API (application programming interface) to embed posts on their websites. The court held Mashable did not infringe upon Sinclair’s copyright since, the right to license the photo directly and Instagram’s right as a licensee to sublicense the photo to Mashable were independent from one another and dismissed Sinclair’s claims including her claims for damages.
The link to the order can be found here.

Selena Gomez files infringement lawsuit against FHL

Singer, Selena Gomez, has filed a lawsuit against Forgame Holdings Limited (FHL), a mobile game developer, and other related U.S. and Chinese-headquartered companies for infringing upon her privacy rights as well her rights as a celebrity. FHL developed and marketed a mobile game called, “Clothes Forever Styling Game,” which enables the users to design their very own fashion brand, and allows them to dress models and celebrities and interact with them as well. This game uses the images of several celebrities, like Kardashian, Gigi, Beyoncé and Taylor, including Selena Gomez.  FHL however, did not take the singer’s prior approval or authorization before blatantly ripping off a popular image of Gomez taken for the fashion publication Flare, and featuring it in the game. In addition to this, the game seems to be riddled with bugs and has received poor ratings from users on the Apple App store website. The game encourages players to make in game purchases worth upto USD 99.99.
The singer stated that, in the absence of an agreement permitting the mobile game developer to use the singer’s image and likeness in the game, FHL along with the other defendants have unjustly enriched themselves by continuing to illegally use her image and goodwill. This has resulted in the infringement and violation of Gomez’s law right of publicity. As a result, she is now seeking injunctive relief to bar the defendants from further misappropriating her likeness, and has also told the court that she intends to seek an array of damages in a sum to be established at trial.

NFL Quarterback Files Infringement Lawsuit Against Amazon

American football quarterback, Lamar Jackson, recently filed an infringement law suit against Amazon, for promoting and facilitating the sale of products featuring Jackson’s likeness and registered trademarks without his or the NFL’s (National Football League) permission. Jackson already has his own apparel company called Era 8 Apparel, which officially sells merchandise that is endorsed by him. Jackson accused Amazon of selling products with the lines “Lamarvelous,” “Action Jackson” and “Not bad for a running back,” and the lawsuit stated that he had asked Amazon to remove those items from their site. Since Jackson doesn’t yet have an endorsement deal with another sports apparel company, Era 8 Apparel, and places Jackson may authorize the selling of Era 8 Apparel products, is the extent of where people can buy his official merchandise.
Another concern expressed by the footballer, was that, due to his company’s infringing products being sold on Amazon, the consumers would now assume that he has signed a deal with e-commerce platform, which in fact is not true. Jackson has asked the court to ban Amazon from selling the infringing merchandise, along with seeking profits and damages from Amazon. An interesting fact about this case is that Amazon is already a media partner of the NFL. This could either benefit Amazon’s defence in the case or go against it.

Pirate IPTV Service Faces Infringement Lawsuit

A group of several entertainment companies, including Universal, Paramount, Columbia, Disney and Amazon have filed a copyright infringement lawsuit against ‘pirate’ IPTV service Nitro TV, in the United States District Court, in California. These entertainment companies have accused Nitro TV of failing to acquire the necessary licenses, to stream the copyrighted content. Nitro TV has instead, brazenly infringed upon their copyright by illegally streaming their content. Earlier pirated versions of television shows were available only on torrent and other direct download sites, which were relatively easier to shut down. However, such pirated content is now available for streaming on subscription-based IPTV services like Nitro TV / Nitro IPTV. These IPTV services, are available for a small monthly fee and can, not only replace licensed TV packages but also video-on-demand services such as Netflix and Amazon Prime Video. The Nitro TV service can also compete with physical blu-ray sales and even titles still in their theatrical windows, due to the volume of content held within its library.
The various networks involved in this lawsuit have stated that they have spent a lot of time and money to ensure that they create quality content for the consumers, and that Nitro TV essentially devalues their copyrighted content, by illegally streaming it. “Nitro TV subscribers and potential subscribers may mistakenly view Nitro TV as a legal and sanctioned alternative to authorized distribution outlets and licensees, when it is not. This harms the market for legitimate services by drawing users away from Plaintiffs’ legitimate licensees.” The entertainment companies are now demanding either damages and Nitro TV’s profits in amounts to be proven at trial or statutory damages up to USD 150,000 per infringed work. The lawsuit also includes third-party companies as co-defendants, and further demands preliminary and permanent injunctions against all infringing parties.

TikTok Threatened with Copyright Infringement Lawsuit

TikTok, the Chinese video-sharing and social networking platform, has become immensely popular in a very short span of time. This app allows millions of people to upload short clips of themselves on the app, often lip-syncing to music. However, recently, several music-rights holders and music publishers have claimed that, TikTok has not acquired the necessary licenses for the songs that are being used on the app. The National Music Publishers Association (NMPA), which is a trade association for the American music publishing industry, has stated that it is very likely that they would file a copyright infringement lawsuit against TikTok, since it was estimated that more than 50 per cent of the music publishing market was unlicensed with TikTok.
Universal Music Group, which is an American music company, has also stated that they have been negotiating a licensing deal with TikTok for the past year, as they intend to capitalize on the video-sharing app’s popularity. Inspite of the negotiations, Universal Music’s publishing arm still does not have any licensing agreement in place with TikTok. As a result of this, Universal’s songwriters, which includes Billie Eilish, Lady Gaga, Elton John and Taylor Swift, do not get paid royalties when their songs are inserted into TikTok videos. It is reported that TikTok’s parent company, ByteDance, has been valued at USD 75 billion and is reportedly planning to go public. Universal Music is now seeking damages for all lost royalties in any licensing deal and has given TikTok time till the end of the week to respond to the same. If TikTok does respond within the given timeline, then Universal Music will consider filing a lawsuit.

Apple Accused of Selling Pirated Music

Multiple music companies and a related Trust, have recently filed a suit against Apple and other entities, in the U.S. District Court for the Northern District of California, accusing them of selling pirated “recordings by “virtually every well-known recording artist from the 1920s through the 1960s.” It is alleged that, Apple, and Adasam Limited, which is s a UK-based music distribution company, have been profiting from pirated recordings of music pulled from physical copies, and sold on the iTunes Store. Adasam, apparently has no visible internet presence, and operates under imprint names like Blue Orchid, Six Week Smile and Atlantic Motion, on the iTunes Store.
The lawsuit claims that “Apple contracts with Adasam to distribute its bootlegged catalog on the iTunes Store. In many cases, the allegedly pirated copies are offered in addition to legitimate duplicates offered by record labels.” The lawsuit further states that, Adasam’s illegal practices should have made it obvious to Apple, that the UK based company was involved in a music piracy operation. But Apple’s inaction in this matter, might show that it had “actual knowledge of, or willfully chose to ignore, the evidence of piracy, and participated in the infringement on a massive scale.” The plaintiffs in this matter, are now seeking damages and legal fees, as well as a permanent injunction that would bar Apple and Adasam from allegedly infringing on the plaintiffs’ copyrighted material.
Authored and compiled by  Neharika Vhatkar (Associate, BananaIP Counsels) 
The Copyright Law News Bulletin is brought to you jointly by the Entertainment Law and Consulting/Strategy Divisions of BananaIP Counsels, a Top IP Firm in India. If you have any questions, or need any clarifications, please write to [email protected]  with the subject:  Copyright Law News
Disclaimer: Please note that the news bulletin has been put together from different sources, primary and secondary, and BananaIP’s reporters may not have verified all the news published in the bulletin. You may write to [email protected]  for corrections and take down.

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