Supreme Court October 2016 Term Reflections: Copyright-Related Decisions and Denied Cert

By Ms. Sarah Reis posted 06-28-2017 14:21

The Supreme Court ended its October 2016 term earlier this week. During this term, the Court issued Star Athletica, L.L.C. v. Varsity Brands, Inc. on March 22, 2017, holding that an artistic feature incorporated into the design of a useful article is eligible for copyright protection. You can read our issue brief on this decision here.

In late May, the Court also issued Impression Products, Inc. v. Lexmark International, Inc., which addressed the scope of the patent exhaustion doctrine. In its discussion on the question of international exhaustion, the Court heavily referred to and followed the logic of Kirtsaeng v. John Wiley & Sons, Inc., a case decided in 2013 about whether the first sale doctrine in copyright law applies to copies of copyrighted works lawfully made abroad. The AALL Copyright Committee will be posting an issue brief about both of these cases and IP exhaustion soon.

The Supreme Court also declined to hear Lenz v. Universal Music Corp., the “dancing baby” case involving a DMCA takedown notice sent by Universal Music to YouTube, claiming that Lenz’s home video posted on YouTube of her children dancing to Prince’s “Let’s Go Crazy” violated their copyright in the song. The question presented in the petition for certiorari was: “Whether the Ninth Circuit erred in concluding that the affirmation of good faith belief that a given use of material use is not authorized ‘by the copyright owner, its agent, or the law,’ required under Section 512(c) of the Digital Millennium Copyright Act (‘DMCA’), may be purely subjective and, therefore, that an unreasonable belief—such as a belief formed without consideration of the statutory fair use factors—will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA?” The Court declined to grant certiorari on June 19, 2017.