Articles Posted in Copyright Litigation

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Infringement & DMCA Takedown Notices on E-Commerce Platforms Like Amazon

Presented by Milord A. Keshishian, Esq.

Course Description:

Live Webcast – April 30, 2021  (also available on-demand)

  • 10:00-11:00am PT / 11:00-12:00pm MT / 12:00-1:00pm CT / 1:00-2:00pm ET

E-commerce’s rise to dominance has resulted in enforcement of patent, copyright, and trademark rights against sellers on different storefront platforms like amazon.com and walmart.com. To enforce these rights effectively and remove infringing content, an infringement analysis should be performed to avoid lawsuits by the accused.ProLawCLE-e1619636118888-300x82
In such competitive marketplaces, competitors have engaged in frivolous takedown notices to remove the competitors’ listings and effective measures should be instituted to have falsely accused listings and content restored.

 

Click HERE to register*

 

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Attorney Slade Neighbors filed a copyright infringement lawsuit against his former girlfriend Veronica Monger for posting his text messages and emails on her blog website.  Monger’s website

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claims that the text messages and emails were sent by Neighbors and evidence the alleged physical and mental abuse.  Monger adds commentary to the postings, including providing domestic abuse victims encouragement, resources and information for organizations offering assistance.  The complaint admits that Neighbors “created the emails and text messages,” which he registered with the Copyright Office obtaining two separate registration numbers.  The complaint appears to admit the authenticity of the communications by alleging that Neighbors “discovered that the Copyrighted Works were being used on the website(s) identified above without Plaintiff’s permission.”

The veracity of Monger’s abuse claims aside, if both parties were responding to text messages, an argument can be made that Monger is also a joint author of the text message string.  As a joint author, she is allowed to publish and exploit the work as she sees fit.

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Kendall Jenner’s copyright infringement lawsuit is the most recent in a growing list of celebrities being sued by paparazzi for copyright infringement for posting pictures and videos of themselves to Instagram and other social media sites.  Photographers who take photos of the celebrities in public are deemed the copyright owners and in turn license them to different outlets for publishing.  Celebs who publish these same pictures to their respective Instagram and other social media accounts are then sued by paparazzi photographers for copyright infringement under the Copyright Act (17 U.S.C. § 501).

In Gigi Hadid’s New York case, Hadid was sued a second time for posting a photograph on two of her Instagram accounts.  Her attorneys called the copyright infringement accusation copyright misuse and an attempt to extract money from Hadid.  Her attorneys also argued that Hadid had an implied license or joint authorship because she posed and smiled for the photograph, adding to its protectable elements.  Xclusive-Lee, Inc. v. Hadid, 1:19-cv-00520-PKC-CLP (E.D.N.Y. 2019).  The court dismissed this case and did not address these arguments because the Plaintiff had only applied for a copyright, but not received registration when it brought the suit.  In 2019, the U.S. Supreme Court issued its opinion, holding that a copyright registration is mandatory before bringing a copyright infringement lawsuit.

Another celebrity, Odell Beckham Jr., sued a photo agency arguing the photos and the agency’s later attempt to extort money from Beckham for posting the pictures of him on his social media violated his right to publicity.  Beckham V. Splash News and Picture Agency, LLC et al., 2:18-cv-01001-JTM-JCW (E.D. La. 2018).  This case settled before the court addressed these arguments.

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fortnite-copyright-orange-shirt-kid-trademark-lawsuit-300x229The Orange Shirt Kid sued Fortnite’s creator for copyright and trademark infringement for using his signature “Random” dance moves and catchphrase “It’s also a great exercise move!” in the wildly popular videogame.  The Kid shot to YouTube stardom in 2018 after posting his Random dance video and catchphrase.  Fortnite is a free-to-play video game that generates income from in-game purchases, including avatars performing dances.  The complaint alleges:

Like selling a cheap knockoff, Defendants sold the Random dance in-game and simply renamed it to “Orange Justice.”  However, the Orange Justice and the Random are one and the same.  Indeed, this is made plain by the caption text that accompanies the Orange Justice that is the same as the Orange Shirt Kid’s Catchphrase “It’s also a great exercise move” as well as the name of the emote—“Orange Justice” is an obvious reference to “Orange Shirt Kid.”  Defendants did not credit Orange Shirt Kid nor seek his consent to use, display, reproduce, sell, or create a derivative work based upon Orange Shirt Kid’s Random dance or likeness in Fortnite. Defendants also did not seek his consent to use the Catchphrase in Fortnite.

The Orange Shirt Kid’s lawsuit is the latest in a string of similar suits alleging Fortnite creators copied other people’s dance moves for sale in the videogame.  The complaint references Epic Games, Inc.’s alleged copying of “the Backpack Kid’s ‘Floss’ dance (which is known by the same name in-game)…Alfonso Ribeiro’s performance of his famous dance on The Fresh Prince of Bel-Air television show (named the “Fresh” emote)…and 2 Milly’s ‘Milly Rock’ dance (named the ‘Swipe It’ emote).”

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chair-design-patent-copyright-furnitureAmini designs and sells unique furniture at various tradeshows and through distributors and its furniture designs are featured in magazines and on popular websites.  Amini obtains intellectual property protection for its furniture designs, including three copyright registrations (Reg. Nos. VA 1-627-918; VA 1-627-828; VA 1-627-832) and three design patents (Design Patent Nos. D592,893 for a table; D644,852 for a China cabinet-buffet; and D576,409 for a chair).  These registrations are for various items such as china cabinets, arm chairs, and tables.

Amini is suing Cosmos Furniture, both its U.S. and Canadian companies, for copyright infringement, design patent infringement, and breach of settlement agreements.  In a prior litigation, Amini sued Cosmos Canada for copyright infringement and design patent infringement.  Before trial, Cosmos Canada settled by agreeing to cease sales of the accused furniture and removing the products from their website.  This 2009 agreement extended to all companies, affiliates, and employees related to Cosmos Canada, which includes Cosmos U.S.

In 2011, Amini allegedly learned that many of the items in the settlement agreement were reintroduced to the website and still sold.  Amini notified Cosmos and another settlement agreement was reached.  This second settlement agreement required Cosmos to exercise due diligence to avoid infringing Amini’s designs, and specifically itemized Amini’s intellectual property rights that could not be violated.

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On August 10, 2018, I have the pleasure of speaking at CLE-picture-300x105Bridgeport Continuing Education’s “What Makes Jurors Tick?” seminar at Hotel Indigo LA Downtown.  I will discuss how to successfully communicate complex and technical information to jurors.  Click here for more information and to register for the seminar.

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House of Lashes is a Southern California beauty company that sells eyelashes, beauty products, and accessories, and is well known in the beauty and eyelash industry.  House of Lashes owns the federally registered ICONIC trademark (Reg. No. 4.839,324) for false eyelashes, adhesives for affixing eyelashes, and artificial eyelashes.  Additionally, House of Lashes has a federal copyright registration for a photograph of its “Iconic” lashes (Copyright Reg. No. VA 1-996-524).  House of Lashes’ ICONIC brand of lashes is one of its most popular products and designs on the market and is sold online as well as in many stores nationwide.  Additionally, House of Lashes alleges that its product’s packaging is inherently distinctive because it is unique in the eyelash industry, and combines elements making it recognizable to consumers without accompanying words.Final-image-273x300

Kiss Nail Products is a competitor in the beauty industry that began selling “Iconic” brand eyelashes on websites and in stores.  On April 24, 2018, House of Lashes sent Kiss Nail Products a cease and desist letter, and the latter responded that it would not be complying with the cease and desist letter and would continue to make and sell “Iconic” branded eyelashes.  Thus, House of Lashes is suing Kiss Nail Products for (1) infringement of registered trademarks (15 U.S.C. § 1114), (2) unfair competition (15 U.S.C. § 1114), (3) false designation of origin (15 U.S.C. § 1125(a)), (4) trade dress infringement (15 U.S.C. § 1125(a)), (5) copyright infringement (17 U.S.C. § 501), (6) registered trademark infringement (Cal. Bus. & Prof. Code § 14335), (7) unfair competition and false designation of origin (Cal. Bus. & Prof. Code § 17200 et seq. and § 17500), and (8) declaratory judgment.

House of Lashes alleges money and time investment in building a loyal fan base and protecting its ICONIC trademark, including a strong social media presence with millions of followers, videos with 18 million views, and estimates over a billion impressions related to their ICONIC brand eyelashes.  House of Lashes argues that the defendant’s purpose in using the Iconic trademark and packaging trade dress is to cause confusion or to deceive customers.  Defendant is also accused of intentionally copying the design, layout, visual presentation, and arrangement in photographs displaying the eyelashes, thereby infringing House of Lashes’ copyright registrations for photographs.

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Star Fabrics, Inc. is suing Cost Plus, a well-known retailer, for copyright infringement of artwork on fabric.  Los Angeles based Star Fabrics owns a two-dimensional artwork print registered with the U.S. Copyright Office (Reg. No. VA 1-764-261).  Star Fabrics alleges that Cost Plus had access to their two-dimensional fabric design due to Star Fabrics’ widespread dissemination of the fabric to numerous parties in the fashion and apparel industries.  Star Fabrics alleges that Cost Plus and other defendants created garments with the same design protected by copyrights and sold them with a World Market label.

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Taken from the complaint.

To prove copyright infringement, proof of ownership of the allegedly copied work as well as copying of the protected elements of the design covered by copyright are required.  Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989).  Star Fabrics’ certificate of copyright registration is prima facie evidence of validity and ownership.  Next, because there is likely no direct evidence of copying, Star Fabrics must prove that the defendants had access to its design and that the two designs are substantially similar.  Star Fabrics lists many ways in which the defendants may have had access to their design, including their showroom, illegally distributed copies of the design by vendors, or access to materials in the marketplace lawfully using the pattern.

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From www.brettdaniels.com

Brett Daniels, a professional magician, collaborated and contracted with defendants Simon Painter and Timothy Lawson on a variety of live magic shows and a potential magic show for television.  Daniels performed in many live magic shows as one of the group’s largest attractions, using his method and choreography to make large vehicles appear out of thin air.  Daniels owns the proprietary rights to the concept, apparatus, and method of operation of his “Appearance Illusion,” for which he’s known throughout the magic community.  Daniels ceased performing in the live magic shows, but continued to contribute creatively to the business.  Daniels played a large part in scouting talent for the show, recruiting all but one of the initial performers in the show.  Additionally, Daniels used his TV connections to help further the prospects of a TV magic show.

The situation escalated when a Venezuela tour date was added by Painter and Lawson.  After arriving in Venezuela, the materials and equipment of the acts were seized. Daniels claims that this was a plan by Painter and Lawson and that they would not assist him in leaving the country.  While dealing with a serious illness for five days, Daniels had to threaten legal action before Painter and Lawson provided him with a ticket out of the country.  The relationship soured quickly after this trip.  Soon after, the defendants stopped paying Daniels the 10% of the act fee budget stated in their contract, and cut his contact off with talent he had recruited.

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Did you know the photographer owns the copyright in the picture she takes of you?  Famous photographer, Bruce W. Talamon, is suing the owners of bobmarley.com and many other Bob Marley related companies for copyright infringement over the alleged use of Talamon’s photographs he took of Bob Marley.  Talamon is a Los Angeles photographer who shot exclusive photos of many famous artist and musicians.  From 1978-1980, Talamon traveled with Bob Marley and his band during concerts in California and West Africa and created a book, Bob Marley Spirit Dancer, featuring the many photographs from his travels with Marley.

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Picture taken from the complaint (Subject Photograph 7).

The complaint identifies over twenty instances of copyright infringement, showing websites and Facebook pages allegedly using his photographs of Marley.  The named defendants span from music companies to producers of coffee and marijuana products, some of which Talamon previously sued in other cases.  The complaint lists the copyright registration numbers of all 22 photographs that Talamon claims have been infringed and provides screenshots of the photos on the companies’ various websites.  Despite the pictures featuring Bob Marley, a photographer is ALWAYS the copyright owner unless specifically agreed to specifically in writing prior to the shoot or assigned subsequently also in writing.

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