Robert J Bernstein

November 18, 2021 | New York Law Journal

A Ninth Circuit opinion resolves an eight-year, multi-Circuit class action brought by owners of pre-1972 recordings against satellite radio provider Sirius XM, with plaintiffs asserting—ultimately without success—a right to be paid royalties for defendant's past digital transmissions of their pre-1972 recordings.

By Robert W. Clarida and Robert J. Bernstein

7 minute read

October 13, 2021 | New York Law Journal

The court held that the oft-cited concept of de minimis copying is not a separate defense to copyright infringement, but instead is subsumed within the determination of "substantial similarity."

By Robert J. Bernstein and Robert W. Clarida

8 minute read

July 21, 2021 | New York Law Journal

In this edition of their Copyright Law column, Robert W. Clarida and Robert J. Bernstein discuss 'Unicolors v. H&M Hennes & Mauritz', in which the Supreme Court will address whether the Ninth Circuit erred in holding "that 17 U.S.C. §411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration?" An affirmance could make the Copyright Office a more significant player in copyright infringement litigation, by requiring the Register to weigh in more often on the validity of registrations.

By Robert W. Clarida and Robert J. Bernstein

7 minute read

May 20, 2021 | New York Law Journal

The Second Circuit recently issued a decision on fair use in 'Warhol', which was followed shortly later by a U.S. Supreme Court decision in 'Google'. The plaintiff in the 'Warhol' decision now contends that the two decisions do not reconcile. In this edition of their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss the decisions and write that due to the strictly limited basis on which 'Google' was decided, they do not foresee that it would significantly impact the resolution of 'Warhol'.

By Robert J. Bernstein and Robert W. Clarida

11 minute read

March 18, 2021 | New York Law Journal

In this edition of their Copyright Law column, Robert W. Clarida and Robert J. Bernstein discuss two cases that demonstrate that proving the copyright owner's intent in the absence of a written agreement—and in the face of strenuous disagreement by the copyright owner—can present a difficult evidentiary challenge for defendants.

By Robert W. Clarida and Robert J. Bernstein

8 minute read

January 14, 2021 | New York Law Journal

Copyright Law columnists Robert J. Bernstein and Robert W. Clarida discuss the Ninth Circuit's recent decision in 'Dr. Seuss Enterprises, L.P. v. ComicMix', in which the court held that ComicMix's illustrated book combining elements of several Dr. Seuss children's books with characters, themes and other features of the popular sci-fi series Star Trek was not a fair use of the Seuss material from which it had admittedly been "slavishly" copied.

By Robert J. Bernstein and Robert W. Clarida

10 minute read

November 19, 2020 | New York Law Journal

Is a state law claim for unauthorized commercial use of an individual's name, voice or likeness—i.e., a right of publicity (ROP) claim—preempted by the federal Copyright Act, when the defendant violates the ROP by reproducing or otherwise exploiting a copyrighted work that embodies such name/voice/likeness? In this edition of their Copyright Law column, Robert W. Clarida and Robert J. Bernstein examine a recent case that addressed this issue.

By Robert W. Clarida and Robert J. Bernstein

9 minute read

September 17, 2020 | New York Law Journal

The U.S. Court of Appeals for the Ninth Circuit held that materials taken from an autobiography of Tommy DeVito (DeVito), an original member of the The Four Seasons (the band), and used in "Jersey Boys" (the musical), a Broadway musical depicting the band's history and hits, comprised facts and other noncopyrightable expression.

By Robert J. Bernstein and Robert W. Clarida

7 minute read

July 23, 2020 | New York Law Journal

Robert W. Clarida and Robert J. Bernstein discuss whether recording artists who transferred their rights to record labels through so called "loan-out" companies are entitled to any termination rights at all under Section 203 of the Copyright Act.

By Robert W. Clarida and Robert J. Bernstein

8 minute read

May 14, 2020 | New York Law Journal

In their Copyright Law column Robert J. Bernstein and Robert W. Clarida discuss 'Georgia v. Public.Resource.Org', in which the U.S. Supreme Court held that, under the "government edicts doctrine," the annotations contained in the Official Code of Georgia Annotated were not copyrightable.

By Robert J. Bernstein and Robert W. Clarida

9 minute read