Robert J Bernstein

July 26, 2018 | New York Law Journal

Now that a divided panel of the U.S. Court of Appeals for the Ninth Circuit has issued an amended opinion affirming the denial of a new trial motion and an order denying rehearing en banc in Williams v. Gaye.

By Robert J. Bernstein and Robert W. Clarida

1 minute read

May 18, 2018 | New York Law Journal

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein discuss 'Oracle America v. Google', writing: With a third jury trial ahead and the stakes for both parties high enough to justify further appeals, the case is far from over.

By Robert W. Clarida and Robert J. Bernstein

8 minute read

March 29, 2018 | New York Law Journal

In his Copyright Law column, Robert J. Bernstein writes: 'TVEyes' stands out as a notable reminder that “[t]he task [of fair use analysis] is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”

By Robert J. Bernstein

10 minute read

January 18, 2018 | New York Law Journal

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Although not providing guidance on fair use of musical quotations by or from jazz musicians, the decision in 'Estate of Smith v. Cash Money Records' is of interest for both its treatment of Drake's lengthy re-contextualization of Smith's commentary and its relatively rare, even if tangential, application to a jazz recording.

By Robert W. Clarida and Robert J. Bernstein

9 minute read

October 17, 2017 | New York Law Journal

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss a recent decision which upheld the fair use defense with regard to "How the Grinch Stole Christmas" and dismissed the copyright infringement and other counterclaims with prejudice.

By Robert J. Bernstein and Robert W. Clarida

9 minute read

August 15, 2017 | New York Law Journal

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Appropriation artist Richard Prince is back in court this summer for alleged copyright infringement, and the initial proceedings do not augur well for his current efforts to defend his "recontextualizing" of another's photograph as a fair use.

By Robert W. Clarida and Robert J. Bernstein

18 minute read

June 23, 2017 | New York Law Journal

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss the recent decision in 'Kaseberg v. Conaco', wherein plaintiff claimed that five jokes he wrote and published on his blog or Twitter feed were infringed by jokes told by Conan O'Brien. In denying defendants' motion for summary judgment on three of the five jokes at issue, the judge considered arguments on copying versus independent creation, protected expression, and scope of protection. Serious issues indeed!

By Robert J. Bernstein and Robert W. Clarida

17 minute read

April 18, 2017 | New York Law Journal

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Some eminent U.S. Supreme Court watchers have speculated that the court's temporary 4-4 ideological stalemate in 2016 led it to avoid cases involving hot-button issues. One case that arguably lends credence to this theory is 'Star Athletica v. Varsity Brands', which raised no contentious political issues, to put it mildly, but did give the court an opportunity to standardize an uncommonly chaotic body of case law surrounding the application of copyright law's "conceptual separability doctrine" to useful articles, including garments.

By Robert W. Clarida and Robert J. Bernstein

17 minute read

February 14, 2017 | New York Law Journal

Copyright Law columnists Robert J. Bernstein and Robert W. Clarida write: The treasure trove of pre-1972 hits has spawned a multitude of civil actions, appeals to the Second, Ninth and Eleventh Circuits, certifications to the highest courts of New York and Florida, and a complex class action settlement agreement with multiple contingencies depending primarily on whether the pending actions ultimately recognize a public performance right.

By Robert J. Bernstein and Robert W. Clarida

17 minute read

December 22, 2016 | New York Law Journal

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein examine litigation related to copyright in the song "We Shall Overcome." In a putative class-action suit against the copyright holder, plaintiffs claimed that the copyright was invalid because of defects in the registration for the song, fraudulent procurement of the registration, and publication of the song without proper copyright notice. Plaintiffs also asserted four claims under New York state law.

By Robert W. Clarida and Robert J. Bernstein

16 minute read