Copyright Blog, December 14, 2023—Texas Trolls, French Furniture, and Sarah Silverman

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From our counsel Matthew Hersh: A mishmash of things today —

1. CTA9 handed down an unpublished decision on volitional conduct last week. It’s a familiar pattern: real estate photographers license photos for use in Zillow listings; agents keep the photos up even after the property has sold; photographers sue Zillow for direct infringement. In VHT v. Zillow, the CTA said that if there was any volitional conduct here, it was on the part of the agents and not Zillow. The plaintiff in this new case, a real estate photographer and well-known troll, tried to distinguish because Zillow was now a listed real estate broker in Texas. No dice. For one, Zillow didn’t become listed in Texas until after the property at issue was sold. Second, it didn’t matter anyway. Sure, Texas imposes trade rules that bar the display of photos of off-market properties. But that had nothing to do with whether its conduct was volitional. Zillow could be sued for secondary liability or not at all.

2. Yesterday for IP Law Daily I wrote about Jean Royère SAS v. Edition Modern, a case involving knockoffs of furniture designs from one of France’s most celebrated designers. You don’t see a lot of cases in the Ninth Circuit where a court grants summary judgment in plaintiff’s favor based not only on extrinsic but also on intrinsic factors, but the knockoffs were so obvious and deliberate here it was a foregone conclusion. The court also had no trouble finding that the furniture designs were not merely utilitarian articles. “If the sculptural features of each work were used in another non-utilitarian medium—if, for example, the Ours Polaire sofa were made of fine glass such that one could not sit on it—they could nonetheless exist as sculptural works of art,” the court noted. “That many of the works have, in fact, been displayed at art museums confirms this.”

3. Sarah Silverman is back. She and several other writers sued Meta and OpenAI for infringement over the summer. The lawsuit claimed infringement on the front end (copying and scraping their content) and on the back end (creating derivative works). Last month, the Northern District of California dismissed the derivative infringement claim as “nonsensical” because the authors failed to allege any actual similarity between their works and any particular program output. This Monday, Silverman came back with an amended complaint that joins a host of other authors to the cause, including Michael Chabon, Ta-Nehisi Coates, Junot Díaz, Andrew and Sean Greer. But it also appears that they have given up the ghost on the dismissed derivative works claims—the new complaint includes only a direct infringement claim. The new complaint is available on Pacer at this link)

Check out Mestaz Law’s copyright litigation page here and the rest of our copyright blog here.

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