3 Count: Extrinsic vs. Intrinsic

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1: Supreme Court Leaves in Place Circuit Split Regarding Approach for Assessing Substantial Similarity in Copyrighted Works

First off today, Massimo Capizza at the National Law Review reports that the Supreme Court of the United States has denied certiorari in a case over the 2003 Josh Groban song You Raise Me Up, leaving a circuit split in place over how to determine substantial similarity between two works.

The case looked at whether You Raise Me Up was similar to a 1977 Icelandic song Söknuður, which is owned by Johannsongs-Publishing, Ltd. Howsoever, the lower courts ruled that the song was not an infringement and did so by applying the “intrinsic test”, which compares the works from the perspective of an ordinary observer without any help from experts.

However, other circuits apply an “extrinsic test”, which looks at the objective elements that are alleged to be overlapping between the works. That circuit split will likely remain for some time, as the Supreme Court’s rejection of this case means that they will not rule on the issue this year.

2: Judge Says ‘Vape’ Musical Parody May Go On as ‘Grease’ Copyright Claim Flops

Next up today, Jonathan Stempel at Reuters reports that a judge has ruled that Vape: The Musical will be allowed to proceed despite a copyright infringement lawsuit filed by the rightsholders of the musical Grease.

Vape is intended as a parody of Grease and reuses and alters many elements of the original for the purpose of commentating on modern times and how well (or poorly) Grease has aged. The owners of Grease sent a cease and desist letter in August 2019 that resulted in performances of Vape being cancelled. This also prompted the creators of Vape to file a proactive lawsuit, seeking a declaration of non-infringement.

Now a judge has now ruled in favor of the parody, setting the stage (quite literally) for the show to reopen. According to the judge, Vape is a fair use as its goal is to be a parody of the source material and not meant to replace it in the marketplace.

3: ComicMix To Publish Lost Dr Seuss Stories, Out Of Copyright

Finally today, Rich Johnston at Bleeding Cool reports that ComicMix has announced it will release a series of “lost” Dr. Seuss stories, claiming that they are out of copyright and in the public domain.

ComicMix is best known for its Star Trek Dr. Seuss mashup named Oh the Places You’ll Boldly Go. That prompted a lawsuit from the Seuss estate, which eventually won in court.

However, in a recent announcement, ComicMix said they are getting back involved with Dr. Seuss works. They announced a plan to publish a series of stories that they claim to have discovered during the legal case that were though to be lost, but have had their copyright protection lapse. The effort is being funded by a crowdfunding campaign, which is scheduled to end May 31.

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