Copyright Roundup

JOHN WIERZBICKI
Law Offices of John R. Wierzbicki

WELCOME TO THE LATEST EDITION OF THE Copyright Roundup, in which we encapsulate developments in copyright through to September, 2024. You are also invited to attend the meetings of the Copyright IG, which occur on the first Wednesday of each month, and at which these and other topics affecting copyright practice are discussed. To join the call, please contact the IG’s Chair, Marcus Peterson (marcus.peterson@oracle.com) or the Vice Chairs, Angus MacDonald (Angus.MacDonald@ucop.edu) or me, John Wierzbicki (jwierzbickilaw@gmail.com).

SERVER TEST FAILS TO IMPRESS IN STAR WARS PIX DISPUTE

The owner of the "the exclusive worldwide right to license, market, and promote" images taken by photographer Annie Leibovitz of the cast and crew of two Star Wars films brought an action against a science fiction website that had published articles containing some of those images. Those images resided on another server, however, and appeared in the articles on the website through the process of "embedding." In ruling on a motion for summary judgment, the court in Bowery v. Sites, 2024 WL 3416038 (D. Utah, July 15, 2024) the court discussed the Ninth Circuit’s "server" test, in which a defendant infringes only when the defendant owns the server on which the copy was stored. It declined to apply the test, calling it "unpersuasive:" "[T]his court finds no basis in the text for the stored image requirement. Indeed, the definitions of ‘display’ and ‘publicly’ confirm a broad reading of the statute, as both emphasize that any means—including both direct and indirect means—by which a copy is shown are covered by the exclusive rights of Section 106(5)." It further noted that no other circuit, including the Tenth, has adopted the test and that no district court, outside of the Ninth circuit, has adopted the test for purposes of the display right.