Global Media Sector Trends 2018

DLA Piper’s new Global Media Sector Trends 2018 report explores how new commercial opportunities are being created by disruption, specifically in relation to the rise of over-the-top (OTT) content, virtual / augmented reality (VR/AR) and the internet-of-things (IOT).

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Filing of a literary work in court proceedings constitutes a breach of the Swedish Copyright Act

The Swedish Patent and Market Court of Appeal have ruled that the act of electronically submitting a short novel to the court as evidence in a court case constitutes an unlawful reproduction of the work and in breach with the Swedish Copyright Act. However, the filing of the work was not considered as a communication to the public or that the work was otherwise distributed to the public.

A parent had submitted a private novel/letter written by her former partner in a custody dispute. The father who was the author of the novel/letter, and lost the custody case, then sued his former partner arguing that her submitting the novel/letter to the court was an unlawful communication to the public as well as an unlawful reproduction of his work.

Although infringing, the Swedish Patent and Market Court of Appeal found the reproduction being so insignificant that no remuneration was awarded the author.

The case might raise the question if an attorney can become jointly liable with his/her client for copyright infringement when filing a copyright protected work in a court proceeding.

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SCOTUS invites Solicitor General’s position on copyright registration pre-suit requirement

By Tamar Duvdevani and Matthew Ganas (with contributions from Michael Varrige)

The Copyright Act (the “Act”) permits copyright holders to bring civil infringement actions in federal district courts to enforce the exclusive rights provided under the Act, namely, the rights to reproduce, distribute, display, publicly perform, and create derivatives of an original work of authorship.  However, an infringement action cannot be brought for a “United States work” until preregistration or registration of the copyright “has been made in accordance with [the Act].”  17 U.S.C. § 411.  Due to differing interpretations of this provision, United States courts are currently split over whether a plaintiff in a copyright action is required to have an issued copyright registration before suing for infringement of a domestic work, or if all that is necessary in order to commence a federal litigation is the filing with the United States Copyright Office of a copyright application.

In particular, U.S. Circuit Courts of Appeal disagree on when a copyright registration “has been made” in order to the satisfy the Act’s pre-suit registration requirement.  The Fifth and Ninth Circuits interpret the Act to require only that an application be on file with the Copyright Office prior to commencement of litigation (“the application approach”).  The Tenth and Eleventh Circuits, in contrast, maintain that a copyright must first be registered (“the registration approach”).  The Seventh Circuit has expressed conflicting views on the applicable approach, and the First, Second, Third, Fourth, Sixth and Eighth Circuits have yet to directly address this issue.  Whether this provision requires a completed registration or merely an application before filing suit is directly at issue in Fourth Estate Public Benefit Corp. v. LLC (“Fourth Estate”), a case currently making its way up through the federal appeals process, most recently by a cert. petition that was filed with the U.S. Supreme Court.

The practical distinction between the differing approaches is the timing of the filing of a federal copyright action.  Unlike the submission of a copyright application which can be done quickly, registration requires the Copyright Office to examine an application and certify that the applied-for work qualifies for protection, a process that generally takes several months.  Thus, Fourth Estate raises statutory and procedural issues potentially critical to U.S. copyright holders seeking to enforce their exclusive rights expeditiously, in any available forum.

The Fourth Estate case involves copyright infringement claims for “United States works,” thereby triggering the Act’s registration requirement.[1]  Plaintiff Fourth Estate Public Benefit (FEPB) sued defendant, asserting infringement of copyrights in articles posted on defendant’s website after its license from FEPB allegedly lapsed.  Although FEPB had filed applications for registration for the allegedly infringed works with the U.S. Copyright Office, it did not receive certificates of registration before filing suit.  The Florida district court thus dismissed the action, reasoning that FEPB failed to comply with the Act’s registration requirement.  In May 2017, the Eleventh Circuit Court of Appeals affirmed the dismissal, holding that merely filing an application is insufficient to satisfy the Act’s registration requirement.

In October 2017, FEPB petitioned the U.S. Supreme Court for review of the Eleventh Circuit’s decision.  FEPB asks the Court resolve the current circuit split in favor of the more lenient, and plaintiff-friendly, application approach.  In response, advocates for the stricter registration approach, relying on the Act’s statutory text and contending that this approach better serves the Act’s underlying policy goal of encouraging registration.

Most recently, on January 8, 2018, the Supreme Court invited the U.S. Solicitor General (SG) to file a brief expressing the U.S. government’s views on this issue.  The SG was not given any deadline to file its brief, and thus there is currently no definitive timeline for when the Supreme Court may decide FEPB’s petition.  However, the Court’s request for the SG’s view is an indication of serious interest in the petition.  If the SG recommends granting FEPB’s petition, then there is a strong chance that the Court may weigh in to resolve the current discrepancy among the lower courts.

Should the Supreme Court grant cert., this is a case all content owners should be watching.  A holding in favor of the registration approach could create greater incentives for copyright owners to promptly register their works in order to guarantee that any subsequent litigation is filed within the Act’s three year statute of limitations.  Such a holding would also have the added effect of increasing the opportunity for plaintiffs to seek statutory damages, which are generally only available if a copyright registration is filed prior to an infringing act.  Alternately, a holding in favor of the application approach will eliminate a defense previously available in district courts around the country, and allow serial copyright litigants to relentlessly commence federal actions without waiting to see if the Copyright Office issues a registration in connection with the applied-for work.

[1] The Act’s pre-suit registration requirement only applies to “United States works.”  Generally, works first published outside of the U.S. are exempt, so that owners of non-U.S. works can sue for domestic acts of infringement without ever applying for copyright registration.  This exemption arises from the United States’ ratification and enactment of the Berne Convention, an international agreement that encourages uniform processes for the enforcement of copyrights in any party member jurisdiction.  To protect against infringing activities abroad, copyright holders from Berne Convention member states need not adhere to administrative formalities, like registration, specific to the jurisdiction where an infringement action is brought.  That being said, U.S. copyright registration can provide certain benefits for non-U.S. copyright owners in the litigation context.  Registered copyrights enjoy a presumption of validity, for example, and copyright registration is still required to recover statutory damages and attorney’s fees, when available, for successful infringement suits.

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First Swedish case against influencer regarding surreptitious advertising

A famous Swedish blogger and influencer in social media has been judged to have posted messages on her web-blog and Instagram account that were in breach of the Swedish Marketing Act. The posts have not been formulated and presented in a way that clearly states that it has been marketing. The posts have also been found to not clearly state who is responsible for the marketing. It was not considered enough to use the hashtag #samarbete (Sw. cooperation) in an Instagram post to identify the message as advertising and not the influencer’s private post.

One web-blog post that was cleared by the court had the information “sponsored post” immediately after the headline and the post ended with the sentence “in cooperation with”[the author’s translation]. This post was considered compliant with the requirement for advertising and sender identification.

None of the posts were considered advertorials (i.e. editorial content to promote a product where a trader has paid for the promotion without making that clear) or that the influencer falsely represented herself as a consumer.

The company that was responsible for the marketing was not summoned in the case. The company that had mediated the influencer’s assignment to advertise was not considered to have had enough influence over the form and content of the posts and the Public Office for Consuming’s claim was therefore not approved.

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DLA Piper Gaming event before the ICE. Come and join us!

DLA Piper gambling event will take place the day before the beginning of the ICE gaming conference in London.  Read the rest of this entry »

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Report on the potential impact of Brexit published

By Francis Keepfer and Patrick Mitchell

The House of Commons Digital, Culture, Media and Sport Committee has this week released a report on the potential impact of Brexit on the creative industries, tourism and the digital single market.

The report draws a number of conclusions and makes various recommendations to the UK Government in relation to three key areas: workforce; funding; and the regulatory environment.

Notably, the report explores the impact of Brexit on a number of recent regulatory updates including the country of origin broadcast rules and territorial licensing.

The full text of the report can be found here.

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Athletes’ Right of Publicity Claims Directed to Sports Video Games Not Preempted by Copyright Act

Authored By: Frank Ryan and Matt Ganas (with contribution from Michael Varrige)

The California federal district court, in Davis v. Electronic Arts Inc., recently issued the latest in a series of decisions involving athletes’ right of publicity (“ROP”) claims aimed at Electronic Arts’ (“EA”) popular sports videogame franchise. The plaintiffs in Davis are retired NFL players and allege that EA violated their publicity rights by using their likenesses in EA’s Madden videogame series without authorization. EA moved to dismiss the operative complaint, arguing that the plaintiffs’ state-based ROP claims were preempted by federal copyright law. On December 11, 2017, the district court denied EA’s motion.

The Davis case previously garnered considerable attention in 2015, when the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s denial of EA’s bid to dismiss the action under California’s statute prohibiting strategic lawsuits against public participation (or anti-SLAPP statute). Similar to other states, California’s anti-SLAPP statute permits early dismissal of actions that challenge speech or activities protected by the First Amendment. The Ninth Circuit in Davis, however, held that no theory of First Amendment protection proffered by EA necessarily immunizes it from alleged ROP violations related to the Madden videogame. When the U.S. Supreme Court subsequently declined to review the Ninth Circuit’s decision in 2016, First Amendment scholars and practitioners debated whether the Court squandered an ideal opportunity to impose a uniform standard for balancing ROP claims against First Amendment concerns.

On remand, EA again sought dismissal of the Davis plaintiffs’ common law ROP claims, turning to copyright preemption as its next line of defense. Indeed, sports-media producers have enjoyed some recent success invoking the copyright preemption doctrine to overcome athletes’ ROP claims. In Dryer v. Nat’l Football League, for example, retired NFL players asserted ROP claims directed to NFL Films productions that featured plaintiffs’ likenesses in historic game footage. Both the Minnesota district court and Eighth Circuit Court of Appeals held that Dryer’s ROP claims were preempted by the Copyright Act. But Davis represents the first significant attempt by ROP defendants to extend copyright preemption to the sports videogame setting.

The district court in Davis analyzed EA’s motion under the standard two-part test required to establish a copyright preemption defense. First, plaintiff’s state law claim must “fall[] within the subject matter of copyright as described in [the Copyright Act].” Among other things, this requires that the challenged publication be an “original work[] of authorship fixed in any tangible medium of expression.” Second, the plaintiff’s asserted state law rights must be “equivalent to the rights contained in [the Copyright Act],” e.g. to reproduce, distribute, display, or publicly perform the copyrighted work. The Davis court focused exclusively on the first copyright preemption factor.

As a threshold matter, the court recognized that videogames are generally copyright protectable works. The court acknowledged, however, that not every element of a videogame is copyrightable (and the same is true for most other original works of authorship). Specifically, the court reasoned that athletes’ likenesses depicted in Madden game play are not fixed in a tangible medium of expression, because such “game play is dynamic, interactive, variable, and in the hands of the consumer.” Accordingly, the court determined that the heart of plaintiffs’ ROP claims do not fall within the subject matter of copyright, and thus are not preempted by the Copyright Act.

The recent Davis decision reinforces that courts treat ROP claims directed to sports videogames differently from game footage, both from a First Amendment and copyright preemption perspective. In the aforementioned Dryer case, for example, free speech and copyright preemption principles shielded the NFL’s documentary-style films from ROP liability, where the challenged works reproduced plaintiffs’ likenesses in recorded and rebroadcasted game footage. But neither the First Amendment nor the Copyright Act have effectively insulated EA’s sports videogames from ROP claims brought by featured athletes. From a copyright preemption standpoint, the Davis court identified the Copyright Act’s “fixation” requirement as the key distinguishing factor between game footage and videogames. Specifically, in attempting to reconcile its decision with the outcome of Dryer, the Davis court reasoned that “[w]hile recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be ‘fixed’ in a tangible medium of expression,” in contrast to Madden’s user-dependent, interactive game play.

To request a copy of the sources used as background in the blog please contact

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Further changes to PIT exemption for gaming players in Poland

By Aleksandra Kozłowska


Starting from 2018 PIT exemptions for gambling winnings were changed. In particular, all types of gambling (therefore, online casino as well) organized and run by an eligible entity under the gambling legislation in force in a Member State of the European Union or in another country belonging to the European Economic Area are PIT exempt only if the one-time value of winnings does not exceed PLN 2280 (only winnings in a poker tournament are subject to exemption without limitation). Moreover, the new provisions define the one-off value of winnings, which in the case of winnings in a casino or slot machine game leads to the conclusion that the taxable amount should be equal to lost amounts (according to the definition the taxable basis is equal to the amount earned, being the difference between the sum of the paid bids and the sum of the winnings paid during a one-off stay in a casino or a one-off slot machine game).


Now the Ministry of Finance wants to withdraw from some changes, removing also the unfortunate definition of taxable amount. According to the draft of January 8, 2018 full PIT exemption will be restored starting from March 2018 (however effective from January 2018) for slot machine games, card games, dice games, cylindrical games, bingo games, cash bingo games. The link to the project may be found here.

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New Italian online gaming licenses now available!

The tender for the award of new Italian online gaming licenses has now been launched, but operators have to hurry up! Read the rest of this entry »

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UK Government criminalises the use of ticket tout bots

By Francis Keepfer

The UK Government has introduced new draft legislation which criminalises the use of ‘bots’ to bulk buy event tickets.

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