Articles Posted in Copyright Litigation

Cool Gear filed a copyright infringement lawsuit against Spencer Gifts and Spirit Halloween Superstores for selling cups incorporating Cool Gear’s three-dimensional skull covered by its copyright registration. The skull qualifies as a three-dimensional work of visual art and is entitled to copyright protection and registration. Indeed, Cool Gear is the owner of U.S. Copyright Registration No. VA 1-876-232 for the work titled “Three Dimensional Representation of A Skull.” The complaint alleges:

Defendants, without the permission or consent of Plaintiff, have manufactured and sold, and continue to manufacture and sell, a plastic tumbler product with a three-dimensional skull insert that is substantially identical to the Copyrighted Work (the “Infringing Work”). . . In doing so, Defendants have violated Plaintiff’s exclusive rights of reproduction and distribution. Defendants’ actions constitute infringement of Plaintiff’s copyrights and exclusive rights under copyright law.

It seems like Halloween season scares up a new Halloween themed lawsuit every year, including 2011’s Power Rangers Halloween costume trademark and copyright infringement lawsuit. Plaintiff seeks preliminary and permanent injunctions preventing defendants’ sales of the accused cups, in addition to unspecified monetary damages, attorneys’ fees, and costs.

Defendants in questionable infringement cases should rejoice because another judge has dismissed – with prejudice – at the early stages of litigation a copyright infringement lawsuit filed against NBC’s Animal Practice television show. The litigation lasted longer than the seven weeks the show was on the air before being cancelled. Last year, Judge Real also dismissed with prejudice a questionable trademark infringement lawsuit filed by Spearmint Rhino against Chiappa guns for using a rhino logo on a gun, finding that there is no way consumers are likely to be confused by the respective rhino logos on disparate goods and services.

This time Judge O’Connell determined that Paul Andre’s seven-page treatment for PETS, a sitcom set in an after-hours veterinary clinic, could not maintain a copyright infringement claim despite despite an opportunity to file a First Amended Complaint. The Court took judicial notice of common elements of a veterinary hospital, including an operating room, examining room, a lobby, and pets, and also took judicial notice of the tone that is common to comedic television shows, such as the pace and romantic relationships. If “the copyrighted work and the alleged infringement are both before the court, capable of examination and comparison, non-infringement can be determined on a motion to dismiss.” Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945).

The Court found that the elements alleged by Andre were too generic to be protectable and are scenes a faire flowing from an animal hospital. Funky Films, v. Time Warner Ent., 462 F.3d 1072, 1081 (9th Cir. 2006) (holding that there was no protection for similar plots involving “the family-run funeral home, the father’s death, and the return of the ‘prodigal son,’ who assists his brother in maintaining the family business”). The Court found that Animal Practice and PETS had distinct plots without any similarity, “much less substantial similarity, between any expressive elements in the works.” In PETS, the characters worked in an after-hours clinic in L.A. that was always strapped for cash and had interwoven courtroom scenes describing how the pets were injured. In Animal Practice, the characters worked at a NY city hospital catering to the wealthy and focused more on the relationships of the staff and owners than the pets. Thus, the commonalities between the situations and incidents in the two works “flow naturally from [the] basic plot premise” of a television show about an animal hospital. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985). Even two similar story fragments of “a Halloween costume contest for pets at the clinic, and an issue about a pet eating chocolate,” did not provide a basis for substantial similarity because Animal Practice’s expressive details of the story idea was different.

Producers of the “Bullet” movie will attempt to dodge a lawsuit filed by Nicholas Lyon for copyright infringement, breach of contract, breach of covenant of good faith and fair dealing, promissory fraud, intentional interference with contractual relations, and unfair competition. Lyon contends that he entered into an agreement with American United Media and SC Films International to develop and produce the Bullet motion picture based on a script written by him, which script he intelligently registered with the U.S. Copyright Office. Writers, do not, I repeat, DO NOT, file your script with the WGA instead of the Copyright Office. Click here for a detailed explanation. Venting aside, the complaint alleges that Lyon was to receive “A Nick Lyon Film” credit on all posters, DVD covers and advertisements for the motion picture, in addition to receiving 30% of net receipts.

Lyon alleges that merely two days after execution of his agreement, American United Media and FUNimation entered into a deal memo for AUM to “produce and deliver” the motion picture, without any mention of Lyon’s rights, and granting FUNimation 50% equity in the movie. After this purportedly secret agreement was signed, plaintiff alleges that he was falsely convinced to assign his script’s copyrights to Bullet Film Production LLC, which LLC is owned by AUM, FUNimation, and SC Films to the exclusion of Lyon. Lyon alleges that the LLC’s operating agreement violates his agreement which prohibited AUM from entering into any agreement which would impair, interfere, or conflict with the terms of his agreement.

Once shooting began, Lyon contends that he was provided an “Agreement for Directing Services” by the LLC and not afforded an opportunity to consult with an attorney before execution. Instead, he was informed that if he did not immediately sign the agreement, production would be terminated. Lyon also contends that he never received an explanation regarding why he was omitted from ownership of the LLC and was not compensated for his services. Further, Lyon has become aware that the motion picture is being edited by a third party and is being readied for distribution, despite assurances that it had been vaulted while the legal issues are pending. Lyon is seeking unspecified damages.

Photo agency BWP Media has recently filed over fifty copyright infringement lawsuits against numerous websites alleging posting of infringing photographs. In one case, its attorneys filed a copyright infringement complaint against Crowdgather, the owner of the www.iswintercoming.com website (actually more of a discussion board), where users generate topics and content relating to HBO’s “Game of Thrones” series and/or George R.R. Martin’s novels on which the series is based. The photograph at issue appears to be uploaded by a user to a forum discussing Emilia Clarke’s (Daenerys Targaryen, queen of dragons) love life with Seth MacFarlane, actor/creator of Family Guy and Ted. A screenshot of the discussion forum with the post of the allegedly infringing photograph is shown to the right.

BWP alleges that it is the copyright owner in the subject photograph, although a search of the Copyright Office database shows Pacific Coast News is the owner. Nevertheless, assuming BWP can establish standing to file suit, the complaint is devoid of any allegation that a DMCA takedown notice, pursuant to 17 U.S.C. § 512(c)(3), was sent to Crowdgather’s copyright agent. Under Section 512, a website operator is not liable for copyright infringement if (1) it did not have knowledge of the user-generated infringing content, and (2) as long as it designated a copyright agent to receive takedown notices on a form submitted to the Copyright Office. Even after the website operator receives a takedown notice identifying infringing content, it can avoid liability if it “acts expeditiously to remove, or disable access to, the material.” UMG Recordings, Inc. v. Veoh Networks, Inc., 718 F.3d 1006 (9th Cir. 2013).

Because BWP does not allege that it sent a takedown notice, it instead baldly contends that based on the “totality of circumstances, CROWDGATHER, INC. cannot claim that it is not aware of the widespread infringing activities, including the Infringement(s), on the Website. Such a claim would amount to willful blindness to the Infringement(s) on the part of CROWDGATHER, INC.” The complaint, however, does not appear to provide sufficient information to pass a Rule 12(b)(6) motion to dismiss by baldly claiming “widespread infringing activities” when it can only identify one allegedly infringing picture or accusing Crowdgather of direct infringement when the screen shot shows that a user generated the post bearing the picture. In 2007, the Supreme Court’s Twombly decision stated that under Rule 8(a)(2) a plaintiff’s obligation to provide the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In 2009, the Supreme Court’s Iqbal decision expanded the application of Twombly to all civil cases. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Thus, a complaint will be dismissed under Rule 12(b)(6) if it fails to meet the Twombly pleading standard. See e.g. Xcentric Ventures, LLC v. Mediolex Ltd., 2012 U.S. Dist. LEXIS 152781, *18-21 (D. Ariz. Oct. 24, 2012) (dismissing copyright infringement claim with leave to amend where defendants likely entitled to safe harbor protection).

Los Angeles, CA – Plaintiffs Brandon Hale, David Biagas, and Marcus Boyd filed a copyright infringement lawsuit against Atlantic Recording Corp. and singer Trey Songz, real name Tremaine Aldon Neverson, among others. Plaintiffs claim writing a musical composition entitled “Boomerang”, which was registered with the US Copyright Office. Thereafter, Plaintiff Boyd was hired as a writer for Defendant Atlantic, but he allegedly had to submit his entire music catalog to Atlantic for evaluation. Plaintiffs then contend that Boomerang was provided to Trey Songz and/or his co-authors, who then proceeded to make a derivative work “by changing the musical key of the song and remix[ing] the song to create the infringing work ‘Heart Attack.'”

Plaintiffs contend that infringement was willful and intentional because even though the Defendants attempted to “hide their obvious use of [Plaintiffs’] composition in the infringing work by making minor changes,” the “title of the infringing work was taken from the chorus of Plaintiffs’ composition.” Based on the estimated 500,000 copies sold, Plaintiffs are demanding an accounting of Defendants’ profits and/or Plaintiffs’ actual damages or statutory damages under Section 504 of the Copyright Act, which can be as high as $150,000 per registered work in cases of willful infringement.

https://www.youtube.com/watch?v=4r3MZNCGzVY