Most consumer products licensing programs are centered on trademarked intellectual property, but copyrighted IP is often involved as well. So it is interesting to look at a number of recent cases involving copyright infringement across a variety of creative industries. These types of situations occur regularly each year, but the frequency seems to be on the rise of late:
- Music. Mariah Carey was sued this month by songwriter Andy Stone, who says he wrote a song called “All I Want For Christmas Is You,” the name of Carey’s greatest hit, released in 1994. The copyright infringement case asks for $20 million. A similar case was brought against Ed Sheeran in the U.K. for “Shape of You,” released in 2017, in which Sheeran emerged victorious in April of this year. And Dua Lipa was accused of infringement on her song “Levitating,” in March 2022—twice in one week, in fact, by two different composers. The number of infringement cases in the music industry has been increasing since Robin Thicke and Pharrell Williams were ordered to pay $5.3 million and 50% of future royalties in a 2015 case in which it was ultimately found that their song “Blurred Lines” plagiarized Marvin Gaye’s 1977 hit “Got to Give It Up.”
- TV and film. Last week, Paramount was sued by the estate of Ehud Yonay, the author of the 1983 article that inspired the original Top Gun movie. The heirs alleged that the producers created the new sequel Top Gun: Maverick without permission from the estate, to which they say the movie rights reverted in 2020. On the small screen, Netflix has been involved in a number of cases. Author and teacher Kevin Wooten filed a suit against the producers of Outer Banks in 2020, which was dismissed in 2021, saying the the plot was stolen from his 2016 novel Pennywise: The Hunt for Blackbeard’s Treasure. And Stranger Things has been the subject of more than one suit. In 2020, a production company claimed the show was based on a screenplay called Totem, written by Aaron Sims, who also worked on the concept art for the early seasons of Stranger Things. In another suit in 2018, Charles Kessler alleged the series was taken from an idea he pitched during a party at the Tribeca Film Festival in 2014. Kessler dropped the suit before it went to trial.
- Fabric design. In February 2021, The U.S. Supreme Court overturned a lower-court win for H&M, which had been accused by manufacturer Unicolors of creating a jacket that infringed on one of its fabric designs. The previous courts ruled for H&M based on mistakes in Unicolors’ copyright registration. The Supreme Court majority believed such inaccuracies should not overrule copyright protection if the error was made in good faith. Unicolors had filed a previous suit against Urban Outfitters and Century 21, which went to trial in 2015, involving a pattern used in a dress sold through Urban Outfitters’ Free People chain and eventually through Century 21. The retailers lost that case on appeal in 2017.
- Art. In March of this year, the U.S. Supreme Court said it would hear a lawsuit brought by photographer Lynn Goldsmith in 2017 against the Andy Warhol Foundation, involving a 1984 painting of the late musician Prince. Goldsmith says Warhol’s piece was inspired by a 1981 photograph Goldsmith had taken on assignment for Newsweek, later allegedly used by Warhol without permission for a commission for Vanity Fair. The Foundation, which argues that the “fair use” doctrine applies, won the original case, while Goldsmith won the appeal in 2021. Separately, artist Hugh Hayden sued Jeff Koons in December 2021, alleging that a set he made was used without permission in Koons’ “Made in Heaven” series of artworks, consisting of a print, sculpture, and painting. Koons has been involved in other infringement cases over the years.
- Video games. In February 2022, artist Judy Juracek and Capcom settled a lawsuit brought by the former in 2021 alleging that the latter had used 80-plus photos from her book Surfaces, without permission, as the basis for locations in several Capcom titles, including Resident Evil 4 and Devil May Cry. And in 2021 photographer and writer Clayton Haugen sued Activision Publishing, Activision Blizzard, and Major League Gaming for copying his character Cade Janus, created in 2017 as part of a story treatment and concept art for a film pitch, in the creation of the Call of Duty character Mara.
These represent just a few recent examples. Infringement cases such as these, like trademark infringement lawsuits, cost a lot of money and other resources to defend. This is true no matter the result of the case. And, as some of these examples show, accusations can occur even years or decades after the debut of the property. It goes without saying that licensors should ensure, to the best of their ability, that they are not infringing. It is also important for them to be aware that they may be called on to prove the originality of their IP in court, especially if their property is well-known and lucrative.
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