Weekly IP Buzz for the week ending May 31, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending May 31, 2019.

Copyright Woes are Over the Rainbow: Harold Arlen Estate Sues Tech Giants

The estate of famous composer Harold Arlen, composer of the classic “Over the Rainbow,” has sued multiple technology giants over alleged unauthorized recordings of Arlen’s compositions.  In the copyright infringement lawsuit, the Arlen estate claims that there are over 6,000 unauthorized recordings of Arlen’s compositions streaming or for sale on platforms provided by Apple, Amazon, Microsoft, and Google.

Arlen Estate Files Copyright Infringement Lawsuit in California

Filed in California’s Central District Court, the lawsuit alleges that the unauthorized streaming and sale of Arlen’s compositions amount to massive piracy and, as such, the estate of Arlen is entitled to millions of dollars in damages.  The Arlen estate is asking for maximum statutory damages under U.S. copyright law, claiming that the infringement has been willful.  

At the heart of the case, Arlen’s estate argues that the technology giants’ unauthorized distribution of the copyright works has cheated the Arlen estate out of royalties that should be paid whenever the copyrighted work is copied and distributed on sound recordings. Specifically, Arlen’s estate argues that the “distribution” of the work now also encompasses streaming and digital downloads, in addition to the traditional distribution of works on physical mediums like CDs or vinyl records.  

The Arlen Estate Focuses on Infringement Claimed to be Caused by Tech Giants

The rapid innovation of technology plays a particularly relevant role in this lawsuit as it has generally been the impetus behind such rapid unauthorized distribution of Arlen’s works.  For example, the Arlen estate points out that Apple’s iTunes store not only sells the official recording of one of Arlen’s compositions, which would rightfully compensate the estate, but also sells an undercutting illegal version of the song at a lower price, effectively deterring consumers from purchasing the authorized, official version that would rightfully compensate Arlen’s estate.

While the consumer that purchases the unauthorized recording is arguably also infringing upon Arlen’s works, the Arlen estate chose to go after the technology giants, because metadata on the works is generally difficult to find, making it hard for consumers to correctly determine whether they are purchasing an authorized version or an illegal copy.

Read the full article here.

A New Business Strategy for Copyright Owners: Filing Suit for Copyright Infringement

What the Supreme Court’s Fourth Estate v. Wall-Street Ruling Means for Businesses

On Monday March 4th, 2019, the Supreme Court ruled that a copyright owner cannot file suit for copyright infringement until the work in dispute has been granted a copyright registration by the U.S. Copyright Office.  This ruling is significant because in many areas of the country—including Texas and California—a copyright owner could bring suit for copyright infringement immediately upon filing an application for registration.  Now, a copyright owner must have a registration in hand before running to the courthouse.

What this means for copyright owners is that they need to be more proactive in seeking registrations for their works.  In the time it takes to get a registration—right now about seven months—an infringer could divert sales away from the legitimate owner of an otherwise protected work at the most critical time after entry into market.  And while the Copyright Office does have a mechanism in place to expedite registrations within weeks for an additional special handling fee of $800, that process may begin to take longer as a result of increased volume due to this ruling.  A copyright owner is still entitled to damages for past infringements but cannot file suit for copyright infringement or seek an injunction to stop infringing acts until it has the registration in hand.

Find the full article here.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.