US District Court Rules in Favour of Videogame Developer, School Lessons on Harry Potter in Britain, Kickstarter Campaign Infringes Nintendo’s Copyright, Supreme Court Upholds Sovereign Immunity of States and more.
US District Court Rules in Favour of Videogame Developer
In a recent judgment the US District Court for the Southern District of New York ruled that the unlicensed use or depiction of tattoos of the NBA (National Basketball Association) players in their videogame avatar did not amount to copyright infringement. A tattoo company called Solid Oak Sketches, which claims to hold an exclusive copyright licence for the tattoos of NBA players Eric Bledsoe, LeBron James, and Kenyon Martin, filed a copyright infringement lawsuit against the videogame developer and publisher, Take-Two. While Solid Oak holds an exclusive copyright licence to each of the tattoos granted by the respective tattoo artists, it is however, not licensed to apply the tattoos to a person’s skin, nor does it hold any publicity or trade mark rights to the aforementioned players’ likeness. The three NBA players had licensed the use of their likeness to NBA and had also granted Take-Two their consent to use such likeness in the videogame.
The court, in this matter, opined that Take-Two was able to prove their case, on several grounds, which included their defence under the De minimis rule, stating that their use of the players’ tattoos in the NBA2K video game was so minimal, that it fell below the threshold of substantial similarity, and therefore, could not be deemed as copyright infringement. Further, Take-Two successfully argued that there was an implied licence on the side of the tattoo artists, to feature the tattoos as part of the players’ likenesses. Lastly, Take-Two stated that its use of the tattoos came under the fair-use exception to copyright infringement. After reviewing the arguments put forth by Take-Two, the court ruled in favour of the videogame developer, and dismissed Solid Oak’s copyright infringement claims.
The order may be accessed here.
School Lessons on Harry Potter in Britain
Author J.K. Rowling has decided to provide some respite to the teachers and students in Britain, amid the ongoing COVID-19 pandemic. The author along with agents, The Blair Partnership have relaxed the copyright permissions required for the audio and video recordings of the Harry Potter series. Due to the open license issued by J.K. Rowling and the agents, teachers can now post videos reading the Harry Potter series aloud and the students are not required to purchase the audiobooks separately. This allows the teachers to incorporate the books into their lessons.
The videos are allowed to be posted only onto schools’ secure networks or closed educational platforms and will be available till the end of the current school year in Britain.
Kickstarter Campaign Infringes Nintendo’s Copyright
Gaming giant Nintendo has halted a Kickstarter campaign known as ‘New Adventures Passport Travel Holder’, that gives backers a passport holder, luggage tags and lanyard for their cash. The campaign was launched with a funding target of 1,000 pounds. The products being distributed in this campaign, contain a design pattern of animals, which is the selling point of the campaign. This animal pattern, however, displays images of Nintendo’s copyright protected Animal Crossing characters, and other unauthorised use of Nintendo’s copyrighted images.
It has been reported that the campaign has so far earned 34,000 pounds, but after the infringement suit filed by Nintendo, the Kickstarter campaign has been suspended and the campaign page now reads, “New Adventures Passport Travel Holder is the subject of an intellectual property dispute and is currently unavailable”.
US Supreme Court Upholds Sovereign Immunity of States
The US Supreme Court in a recent judgment upheld an old statute that provides the states with sovereign immunity against copyright infringement lawsuits. After a salvage company discovered the shipwreck of the Queen Anne’s Revenge, off the North Carolina Coast, it hired videographer Fredrick Allen to document the recovery of the shipwreck. It took Allen ten years to finish documenting the recovery, following which he acquired copyright protection for all his pictures and videos of the shipwreck. Almost twenty years after the discovery of the shipwreck, the State of North Carolina published some of Allen’s copyrighted images on its tourist promotion web site and social media pages after which Allen sued the state for copyright infringement. North Carolina moved to dismiss the lawsuit on the grounds of sovereign immunity given to the states. However, Allen identified the Copyright Remedy Clarification Act of 1990 (CRCA), which removed the states’ sovereign immunity in copyright infringement cases.
The North Carolina state legislature enacted a law that treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record,” thereby permitting the state to make use of Allen’s copyrighted material without having to obtain his permission or make any payments to him.
While the Supreme Court eventually decided in favour of the State of North Carolina, it observed that while passing the CRCA, 1990, Congress overstepped its authority by broadening the scope of the law, which gives sovereign immunity to the states against copyright infringement lawsuits. The Supreme Court recognised that copyrights are a form of property and stated that such legislations would allow Congress to recklessly infringe the copyright of artists. In order to protect these rights, the Supreme Court advised Congress to re-draft the CRCA with provisions that are more reasonable and proportional to the issue of copyright infringement by states.
The order can be accessed here.
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
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