10th Circuit Finds "Let's Go Thunder" To Be Uncopyrightable

Official Oklahoma Thunder site

In Syrus v. Bennett, the court of appeals for the 10th Circuit considered the issue of whether a man who claimed copyright in the short phrases "Go Thunder" and "Let's Go Thunder" had stated a claim. Referring to the Feist requirement of originality and copyright's requirement that copyright protection extends only to works that "are the fruits of intellectual labor" the court found that the phrases plaintiff claimed were infringed were not copyrightable. Adding "Let's Go" or "Go" which are common cheers to the team name required no "intellectual labor".

The plaintiff claimed that he'd written a song with these phrases and distributed the song to the team in response to a team request for song submissions.  The plaintiff pro se did not allege any copying.  Plaintiff's suit was dismissed on a motion to dismiss pursuant to Rule 12(b)(6) of the federal rules of civil procedure. The decision is unpublished, embedded below.



Syrus v. Bennett - Copyright Infringement
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Copyright and Originality: Malevich and the American Legacy at Gagosian

Kazimir Malevich - Mystic Suprematism 1920-27

Arthur Danto wrote of  Kazimir Malevich's Black Square:  "We marvel at its originality, not its painterly brilliance."   A great video on the Gagosian website with curator Andrea Crane introducing the work of Malevich and its influence on American artists such as Richard Serra is found here.

The show at Gagosian called "Malevich and the American Legacy" is wonderful, I was fortunate to have a guided tour.   Andrea Crane quotes (I paraphrase) MoMA founder Alfred Barr as saying "Each generation needs recreate its own Black Square."

Copyright does not protect simple geometric shapes like squares.   That does not stop the art world from finding freshness, originality and tremendous value in works such as Black Square.   Which should give us all time to pause and reflect on the meaning of ownership, of originality, and of inspirational conversations had among past, present and future artists.   

Images from the show here.   The show closes April 30, 2011.

More on Suprematism here.

Some cases discussing copyright law's originality requirement here and here.   The US Supreme Court required originality and rejected the "sweat of the brow" doctrine in Feist v. Rural, a case involving litigation over telephone books.

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9th Circuit: Contract Battles Copyright in World of Warcraft's Killer 'Bots

World of Warcraft:  Contract Battles Copyright Over Killer 'Bots

In copyright cases it is often difficult to tell where copyright law ends and where contract law begins. This has a significant effect on how a case will be litigated and pleaded, it will also have an effect on how copyrighted works may and may not be used. Using contracts to extend the control of a copyright owner over the creativity and commercial freedom of users of the copyrightable works raises First Amendment and antitrust concerns, on the one hand. On the other, following the US Supreme Court’s decision in Feist which rejected the “sweat of the brow” doctrine and which deprived (in that case owners of telephone directories) databases lacking in originality of copyright protection if the databases lacked originality in selection and arrangements. By shrinking the traditional contours of copyright law, the Supreme Court left a greater task to contract law in protecting the rights of database owners or software owners.

Thus, copyright law can tell us that material is in the public domain and that we are free to use it. However, if you enter a contract permitting you access to a private database comprised of public domain materials, how many restrictions can be placed on a user? End User License Agreements (EULAs) or Terms of Use (TOU) are the agreements that most of us enter into daily by clicking “I accept”. Although almost no one reads or understands these agreements, courts engage in the legal fiction that we have all entered into contracts that are governed by these agreements. There was a rumor that an early Microsoft WORD EULA asserted Microsoft’s copyright in any document created on Microsoft WORD.

In these swampy precincts where copyright and contract intersect MDY Industries LLC v. Blizzard Entertainment Inc., 629 F.3d 928 (9th Cir. Dec. 14, 2010) emerges. This action was commenced by the plaintiff seeking a declaratory judgment that its software did not infringe Blizzard’s copyright. Blizzard creates and operates a popular multiplayer online game called “World of Warcraft”. This is a world where chubby geeks the world over assume avatars and go on sex, drug and violence-lace rampages from the safety of a home computer. The game has 70 levels and stores where you can buy goods to use in the online world and where you can sell goods that you’ve made online. The game consists of 70 levels.

One entrepreneur decided to make a software or “bot” that plays the first levels of the game, basically letting the player advance levels without having to spend the time, energy or skill to do so. Blizzard initially did not have any rules against this, but then amended the EULA and also started implementing technological anti circumvention measures to detect and eject bots. MDY responded by changing its software to avoid detection by the bots. In a year, MDY was making $3.5 million from the bot software.

The questions are: did MDY breach the contract? Did MDY violate the Copyright Act in some way?

The court found no copyright infringement. The reason is that when someone enters into a licence agreement exceeds the bounds of the agreed use, the court will look to whether the unauthorized use is a breach of a “covenant” of the contract or a “condition” of the contract. If it is a breach of a condition, a copyright infringement claim may be pursued. If the unauthorized use is a breach of a covenant, the copyright owner (licensor) is limited to a breach of contract claim. In this instance, MDY breached a covenant of the license, not a condition.

I cover the case law discussing the distinction between covenants and conditions in Copyright Litigation Handbook (West 5th Ed. 2010).

Additionally, the Copyright Act did not preempt Blizzard’s claims based on the EULA under contract law. Further, although the court did not grant summary on tortious interference with contract, holding that MDY’s improper motive had to be established at trial, that claim was permitted to proceed.

The Court did find a violation of the trafficking in anti-circumvention technology provisions of the Copyright Act. 17 U.S.C. Section 1201. Significantly, the Ninth Circuit declined to adopt the Federal Circuit’s “infringement nexus” test for finding a violation of Section 1201. Compare Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2004).

This opinion is big, dense, and will give you a headache but is required reading for DMCA mavens.


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Copyright Law: Analysts' Opinions Copyrightable, Not "Hot News"

Above - Tipstrader.com is no longer operating

Sometimes your case is a winner, but not for the reasons you thought.  That's why litigators, much to the frustration of judges, tend to toss the kitchen sink into a complaint.  Better to have a grouchy judge and have pleaded at least one winning alternative theory than to lose and have the court say you're too late and should have cooked up an alternative theory earlier.

Such was plaintiff's dilemma in Agora Financial LLC v. Samler, ---- F. Supp.2d ---- 2010 WL 2899036 (D. Md. June 17, 2010).

In Agora, a magistrate judge was called to report and recommend after a defendant had defaulted.  The facts: investment newsletter publisher sued website that culled all of its recommendations and published them on Tipstrader.com.   Claims?   "Hot news misappropriation" and Section 43(a) of the Lanham Act.

A nice, lean complaint, just like they tell us to file.  Right?  Wrong.

In an interesting decision that explained the "hot news" misappropriation claim, the court ruled that the defendants had not violated the "hot news" exception because the analyst recommendations were opinions, not facts, and thus were protectable under copyright law.  

"Hot news" misappropriation:

(i) the plaintiff generates or gathers information at some cost or expense ...; (ii) the value of the information is highly time-sensitive ...; (iii) the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it ...; (iv) the defendant's use of the information is in direct competition with a product or service offered by the plaintiff ...; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened....


Since copyright law preempts equivalent state law claims, the "hot news" misappropriation claim was not available.   The Lanham Act claim failed as well.

The court, discussing the U.S. Supreme Court's Feist opinion, which rejected the "sweat of the brow" doctrine and required a modicum of originality to qualify for copyright, found the analyst's opinions to satisfiy the originality test and thus be covered by copyright.  So the plaintiff lost the application for a default, but was granted the gift of learning that its activities are protected by copyright law.

In Copyright Litigation Handbook, Chapter 7 "Drafting the Infringement Complaint" gives some thoughts on framing copyright pleadings.   Chapter 10: "Removal from State Court and Preemption" reviews problems raised by the preemption doctrine and gives guidance in navigating the differences between state and federal claims in the copyright context.

The 2010 Copyright Litigation Handbook just shipped, so now is a good time to get your copy.  This year I greatly expanded my treatment of applications for default judgments, which seems to be a growing area of copyright law.

Westlaw users can access Copyright Litigation Handbook through the COPYLITIG database.

More on preemption here.

More on hot news here.

More on default judgments here.

More on Feist here.

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CAD Computer Software: No Artistic Sizzle, But After Filtration - Still Copyrightable Under Feist

Do you see anything copyrightable in the image that appears above?   This is the question that was faced by the Massachusetts court in Real View LLC v. 20-20 Technologies, Inc. 683 F.Supp.2d 147.   What do you think?

This image is a classic example of the merger doctrine and the scenes a faire doctrine in the computeer software context.  Here is how the court analyzed the image above under the merger doctrine, the scenes a faire doctrine and then as a compilation.

One kitchen modeling software maker ripped of another's software.  But was it copyrightable?