Ninth Circuit Reaffirms Copyright Estoppel Doctrine

Jersey Boys, the hit musical based on the meteoric career of the rock group The Four Seasons, was the target of a lawsuit brought in 2007 by Donna Corbello, widow of Rex Woodard, who ghost-wrote a biography of Tommy DeVito, founder and lead guitarist of the Four Seasons during their golden years, 1960-71. When Jersey Boys opened on Broadway in 2005, the DeVito bio was still unpublished. Following Woodward’s death in 1991, Corbello and Woodward’s sister, and later DeVito himself, worked to find a publisher for the book. In the course of these efforts, DeVito registered the copyright in the unpublished book in his own name, and shared a copy of the manuscript with the writers of Jersey Boys. Corbello subsequently won recognition for her husband as author of the book, and pursued her claim that Jersey Boys infringed her husband’s copyright in the unpublished book.

You’d expect this to be a fair-use case, since nonfiction works—such as news stories and historical and biographical books—enjoy less protection against third-party use than do fictional and imaginative works. In fact, copyright law is quite clear that it does not protect facts, only the specific original expression of those facts. So you can freely use a fact already reported by someone else, but you cannot reuse the exact words of the previous writer—except of course in short quotations. Thus the case might have turned on how much of Woodard’s original expression found its way into Jersey Boys and whether that constituted fair use. But no. Continue Reading

Trademark Infringement Risk for U.S. Goods Manufactured Abroad

Given the favorable environment in China and in some other foreign countries, many U.S.-based companies elect to have products manufactured abroad for eventual sale in the United States. If, however, the products are branded with a trademark during the manufacturing process, the U.S.-based company may wish to take additional steps to ensure they are not inadvertently infringing trademark rights in the foreign country. Continue Reading

Cross-Border Data Transfers Just Became More Complicated: EU Court of Justice Strikes Down EU-U.S. Privacy Shield

In an action with major ramifications for data transfers from the European Union (EU) to the United States (U.S.) the Court of Justice of the European Union (CJEU) on July 16 invalidated the EU-U.S. Privacy Shield framework (Privacy Shield), which provided a critical, lawful method for transferring personal data from the EU to the U.S. Entities relying on the Privacy Shield need to act quickly to rework the legal basis for those transfers. The CJEU somewhat limited the impact by finding that the Standard Contractual Clauses (SCCs) remain valid. As a result, transfers based on the SCCs may continue, subject to some additional guidance and caveats from the CJEU.

The CJEU’s finding resolved an appeal from the Irish High Court regarding a case known as Schrems II, initiated by Austrian privacy advocate, Max Schrems. The Irish High Court asked the CJEU for a preliminary ruling on the validity of the SCCs and Privacy Shield. Continue Reading

NCAA’s Name, Image and Likeness Modernization Presses Forward

On June 12, Florida Governor Ron DeSantis signed a name, image and likeness (“NIL”) bill into law, moving up the deadline for the NCAA to complete ongoing efforts to modernize its NIL rules. Unlike California’s Fair Pay to Play Act and Colorado’s NIL bill, which have both been previously signed with effective dates in 2023, the Florida NIL bill would allow student-athletes to profit off their NIL in Florida beginning July 1, 2021. More than 30 additional states have pending NIL legislation moving through the legislative process.

While the NCAA has dealt with a myriad of issues in 2020, NIL modernization efforts continue to press forward, and the Florida law sets a tighter timeline for either the NCAA or the federal government to put forward a national standard to avoid a state-by-state approach to NIL issues. While the specific form the NIL rule changes will take is not yet clear, it seems near certain that student-athletes will be allowed to profit off their NIL rights in the very near future.

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California Is at It Again: The California Privacy Rights Act Makes November Ballot

The Californians for Consumer Privacy group is continuing to push for increased rights regarding consumer data through the California Privacy Rights Act (CPRA), a measure that would expand the rights granted under the existing California Consumer Privacy Act (CCPA), which was effective on January 1 of this year. On June 24, the California Secretary of State confirmed that the CPRA initiative collected 900,000 signatures, which was enough to qualify for the November ballot.

The proposed CPRA would expand the privacy rights granted to California residents under the CCPA by:

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