SCOTUS Show Judicial Restraint in Unanimous Ruling in Fourth Estate v. Wall Street.Com; Huge Impact for Copyright Law

Today the US Supreme Court handed down a 9-0 ruling in the case of Fourth Estate Public Benefit Corp. v. Wall Street.Com, LLC. The issue in this case was whether a plaintiff who had filed for a copyright but not yet received their registration certificate from the Copyright Office was entitled to file a lawsuit and have all the protections of the Copyright Act.

The Court held that a party must have a registration certificate from the US Copyright Office in order to be entitled to the statutory protections of the Copyright Act.

This then begs the question as to what about all those people who have filed a registration certificate but who have not yet received their Registration Certificate?

Justice Ginsburg, writing for the Court, noted:

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. See GAO, Improving Productivity in Copyright Registration 3 (GAO–AFMD–83–13 1982); Registration Processing Times. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. See 5 W. Patry, Copyright §17:83 (2019). Unfortunate as the current administrative lag may be, that factor does not allow us to revise §411(a)’s congressionally composed text.

This is an excellent example of judicial restraint. Congress may take action to address this issue, but the Court recognizes that it cannot legislate from the bench.

You can read the entire Court opinion here.

Copyright Law Update: Epic Games Sued by Rapper 2 Milly's for Turning one of his Dances into a Fortnite Emote

While the basics of Copyright Law are over a century old, the law evolves with the times. Unless you have been living in a cave for the few years, you have heard of Fortnite and its popularity, the gaming craze that has captured the imaginations of teens and older people alike. Consider this profile of the game in The New Yorker, one of the more genteel literary publications that has survived the internet age.

Epic Games, which is the company that produces Fortnite was sued yesterday in Federal Court in California by rapper 2 Milly for allegedly reproducing his likeness and dance moves in the game without a license.

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Bryan Tuk Appears on Building The Future

You can view Bryan’s recent appearance on Kevin Horek’s web series, Building the Future by clicking on the image below. This was a wide ranging conversation on the state of the legal practice, copyright and trademark law, startup issues and Bryan’s recent book: risk, create, change: a survival guide for startups & creators.

Building the Future also airs on terrestrial radio in Silicon Valley, Los Angeles, Atlanta, Virginia, Washington, D.C., Detroit, Philadelphia, New York, Kentucky, New Mexico, Minnesota, Colorado, North Carolina, San Diego, San Antonio, Australia, United Kingdom, and the Caribbean.

Morality Clauses, Part II: The Family Law Edition

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children. 

Previously in this space, we looked at employment contracts for executives and high visibility employees or representatives, and how a company can manage the risk of illegal or otherwise improper behavior of those key persons.  With some foresight, and smart contractual drafting, the company can protect itself from bad behavior through morality clauses.   

Surprisingly, this very same issue - guarding against the poor judgment of others - appears in many, many divorce cases, particularly when there are minor children and custody issues involved. These issues can have a profound impact on many people, regardless of social status, wealth, religion or any other demographic category.

Even the most amicable divorce matter can be psychologically and emotionally challenging at times.  More often than not, those challenges can become extreme when mixed with the financial pressures that divorcing couples also face.  Add to that the difficulty of navigating custody issues, and the parties’ differing perceptions of what is in the child’s best interest, and you have a powder keg waiting for ignition.  Eventually, more often than not, this issue explodes into conflict.

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Morality Clauses & Employment Agreements: What Employers Need to Know

Employers take risks every day with the people that the company hires - including top level managers and CEOs.  So do brands and sports teams when they hire spokespeople or athletes on multi-year, multi-million dollar contracts.  Anytime there are significant dollars committed to a single person over a long period of time, real risk exists.  

One of the most impactful traits of the people you hire is their moral character.  This is especially true when the person you hire is your spokesperson, or your chief executive, or otherwise is the face of your organization.  One of the most impactful tools you have to control your contractual relationships are called morality clauses.

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