Articles Posted in Copyright Litigation

After months of shots across the bow, Craneballs Studios (an app and video game developer) has pulled the trigger on a copyright infringement lawsuit for alleged copying of its popular Overkill first-person shooter game. Craneballs accuses Feelingtouch’s Gun & Blood video game of being an Overkill knock-off and further accuses Feelingtouch of employing a game development strategy that “is based in whole or part on copying of successful games from other developers, sometimes ‘porting’ them to a different operating system before the original publisher.” Craneballs claims that its iOS version of the video game was extremely successful, but that its Android version did not reach the same number of downloads because Feelingtouch ported its copycat version to the Android platform and illicitly cut into Overkill’s success.

Not only did Feelingtouch’s Gun & Blood video game become a top twenty Android download, it was also awarded the $200,000 grand prize in Samsung’s Smart App Challenge, a competition intended to reward developers of “innovative apps” for Samsung’s Galaxy Note and Tab devices. The complaint cites an Appaddict.net article stating: “It is sickening to see Samsung Actively rewarding and promoting such behavior and calling it innovative…Instead you are just hurting a hard-working indie developer and sending the wrong message, saying that it’s alright to clone.” When Feelingtouch ignored Craneballs’ cease and desist letter and complaints to Samsung fell on deaf ears, Craneballs was left with no alternative but to file this copyright infringement lawsuit. Click here for a copy of the complaint.

To prevail on its copyright infringement claim, Craneballs must show that 1) it owns the copyright in the allegedly copied work; 2) defendants had access to the work; and 3) plaintiff’s and defendant’s works are substantially similar. Cooling Sys. and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 491 (9th Cir. 1985). Craneballs can probably establish the first two factors fairly easily, but with respect to substantial similarity, it must show that defendants copied protectable components of its Overkill video game as opposed to the general ideas of a first-person shooter game, e.g. camouflage outfits, selecting different weapons, an artillery depot setting, etc. 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”). Also, when an idea for a game can be expressed in only a limited number of ways, the “merger” doctrine provides that the idea merges with its expression and receives no protection absent identical copying. Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209 (9th Cir. 1998) (elements of karate video game including number of combatants, logistics of the match, common karate moves, and certain background scenes-not protectable because they resulted from “either constraints inherent in the sport of karate or computer restraints.”). Thus the court will need to filter out all of the non-protectable elements of the two games to determine substantial similarity and infringement. To that end, Craneballs has produced the accompanying side by side comparison of the two games illustrating what it believes are copied elements.

Mystique, a shoe and sandal manufacturing company, filed a copyright infringement and unfair competition claim against Ivanka Trump for allegedly copying two sandal designs. Mystique created and registered with the US Copyright Office its ornamental designs affixed to sandals titled “By the Sea – Style 3323” and “Starry Eyed – Style 4179.” Mystique contends that Trump’s “Pia” and “Pandra” sandals are substantially identical copies of Mystique’s shoe designs: “Defendants’ acts are willful, deliberate and committed with prior notice and knowledge of Plaintiff’s copyrights. At a minimum, Defendants were willfully blind and in reckless disregard of Plaintiff’s copyrights.”

This isn’t the first time Trump’s been accused of pilfering another company’s shoe design. Fashionista covered Derek Lam’s scandalous sandal copying allegations against Ivanka Trump, but it appears the response to Lam’s cease and desist letter was to go pound sand because Lam did not have proper intellectual property protection and the shoe design had been previously produced by numerous third parties. My loyal readers will say: “Wait a minute, you’ve told us that copyright law views fashion products, for example pursues and shoes, as useful articles that cannot be copyrighted. So how was Derek Lam supposed to protect his sandal design.”

Other loyal readers will – I hope – respond with DESIGN PATENTS! Unlike UGG shoes, however, many fashion designers are unaware that fashion designs can be protected through design patents, which must be filed within one year of the design’s public disclosure. Without a design patent, it appears that Derek Lam was attempting the tougher climb of proving trade dress infringement against Trump.

National Photo Group (“NPG”) owns the copyrights to numerous celebrity photographs that it licenses to websites and magazines. NPG asserts ownership of registered copyrights and pending applications, but only provides a registration number for photographs of Isla Fisher and does not attach the copyright registration certificates to the complaint. Although it might seem tempting to file a motion for a more definite statement under FRCP 12(e), a district court recently denied a similar request. See General Sci. Corp. v. SheerVision, Inc., 2011 U.S. Dist. LEXIS 100216, 18-19 ( E.D. Mich. Sept. 2, 2011) (“According to the Supreme Court, two elements are required to assert a copyright claim: ownership of a valid copyright and copying of original parts of the protected work. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991). Plaintiff’s proposed Second Amended Complaint sufficiently pleads both elements. As a result, Plaintiff’s copyright claim is not ‘so vague or ambiguous that [Defendants] cannot reasonably prepare a response.'”)

Defendant Emmis Communications operates numerous radio stations, including Power 106 KPWR in Los Angeles. Defendant also operates the radio stations’ respective websites, including the subject 1057thepoint.com website. NPG accuses Emmis of posting celebrity photographs on the website in a post entitled “More Celebrities with No Makeup”. The accused webpage appears to still be live, a partial screenshot of which is shown here. NPG alleges that Emmis received a financial benefit directly attributable to the infringement because “Emmis increased traffic to the Website and, in turns, its advertising revenues. In fact, Emmis saw a spike in traffic to the Website by over 10,000 unique visitors during the month it posted the Photographs.” The webpage at issue, however, only showed a single comment by visitors regarding the posted photographs, which stands to reason that other factors may have caused the spike in traffic. With the proliferation of celebrity gossip websites, copyright lawsuits featuring celebrity photographs are also becoming more common.

Website operators that allow users to post content on their website (e.g. pictures, videos, or comments) can avoid copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”), if the safe harbor provisions are followed, and are also protected against tort liability (e.g. defamation, slander, libel) by the Communications Decency Act. To enjoy the safe harbors of the DMCA, a website operator must designate a copyright agent on a form submitted to the Copyright Office along with the corresponding fee, provide terms of use that outline take down notice procedures to report allegedly infringing content, have no actual knowledge of the infringement, and expeditiously remove accused content.

Having received two copyright infringement cease-and-desist letters, ThinkBronze filed a copyright declaratory judgment lawsuit against Wise Unicorn entities, which also includes offensive causes of action for misrepresentation of copyright infringement under 17 U.S.C. § 512(f) and trade libel. ThinkBronze imports from China bronze statues that it sells to customers via its own website and also through an online eBay store.

On July 18, 2011, Wise Unicorn’s counsel sent a cease-and-desist letter identifying fifty six items sold by Plaintiff that allegedly infringed Unicorn’s registered copyrights. Unicorn demanded Plaintiff immediately cease distribution and sale of the allegedly infringing statues, immediately remove the photos from its website, and surrender of the inventory for destruction. Plaintiff’s counsel responded and challenged Unicorn’s ownership claims because many of the sculptures were in the public domain and not entitled to copyright protection.

Unicorn withdrew its claims of infringement relating to several of the works and the parties engaged in settlement discussions. On June 7, 2012, however, Unicorn sent several takedown notices to eBay to remove listings for ThinkBronze’s statues. Among the items listed in the takedown notice was the Michelangelo figurine for which allegations of infringement were previously withdrawn.

Ubisoft, the maker of the Assassin’s Creed videogame, is suing John L. Beiswenger for a court ruling that its Assassin’s Creed video game does not infringe Beiswenger’s alleged copyright in the “Link” novel. In April, Beiswenger sued Ubisoft for copyright infringement in Pennsylvania seeking $5 million in damages and tried to stop or enjoin Ubisoft from releasing Assassin’s Creed III in October of 2012. On May 29, 2012, Beiswenger voluntarily dismissed his copyright infringement claim “without prejudice,” which means that he could re-file the complaint at any time. Ubisoft filed its complaint on May 30, 2012 in California to have the Court rule — once and for all — that Beiswenger’s copyright infringement claims are “entirely meritless” and that there’s no infringement.

Ubisoft is very interested in keeping its Assassin’s Creed videogame franchise out of copyright infringement purgatory because since its first release in 2007, the game has been “a critical and financial success” and evolved into three more video games, including the upcoming October release of the fifth videogame in the series entitled Assassin’s Creed III. In the games, players “take on the role of Desmond Miles, a man who is imprisoned and forced to relive the experiences of one of his ancestors, Altair ibn La’Ahad.” Ubisoft claims that accessing the experiences of an ancestor is the tenuous copyright infringement claim, which access was accidently invented in the novel “Link.”

In the Prior Action, Beiswenger claimed that Ubisoft has infringed the copyright in Link because among other things: (i) both Assasin’s Creed and Link contain such archetypal elements as”‘spiritual and. biblical tones,” make use of the, age-old theme of “good vs. evil,” and contain references to such generic, stock terms as “ancestors,” “synchronize,”and “assassins;” (ii) both feature main, characters who talk in the first person;” and (iii) both concern a “device and process” by which characters are able to access and relive the memories of their ancestors.

Mavrix Photo is a celebrity photography agency that licenses the pictures to magazines and celebrity gossip websites. Mavrix alleges that it has licensed individual images of celebrities for over $100,000 to major content outlets. Mavrix is accusing the popular men’s website, Guyism.com, of infringing at least 21 copyright registrations for Katy Perry bikini pictures by posting them on its website. An exemplary picture taken from the complaint is shown to the right. “Defendants herein have driven massive traffic to Guyism.com-including millions of visitors monthly across the United States and California-in part due to the presence of the sought after and searched-for celebrity images that frame this dispute. All of this traffic translates into significant ill-gotten commercial advantage and revenue generation for Defendants as a direct consequence of their infringing actions.”

Mavrix is seeking statutory damage of $3,150,000 for the 21 images. In order to qualify for statutory damages under 17 U.S.C. §412, a plaintiff must show that the pictures were registered within three months from the date of first publication or that the registration occurred before the infringement began. Here, the Katy Perry photographs were taken in the Bahamas on July 18, 2010 and registered by September 7. Section 504(c) of the Copyright Act provides for damages of up to $150,000 per work wherein the infringement is shown to be willful. Here, Mavrix alleges that despite Guyism’s “economic resources and sophistication on intellectual property matters, Defendants have, on information and belief, violated federal law by willfully infringing Mavrix copyrights to at least 21 different photographs on Guyism.com.” In other words, Guyism is sophisticated enough to know that it willfully infringed Mavrix’s copyrights by posting the Katy Perry photos on its website. I was able to do the math – calculator unaided – and 21 multiplied by $150,000 does, in fact, equal plaintiff’s demand.

This isn’t Mavrix’s first bikini clad celebrity photo copyright infringement lawsuit. Mavrix previously sued the Daily Mail for for copyright infringement for posting Kate Hudson’s bikini pictures on its website and using the pictures in its print publication. The Daily Mail lawsuit ended with a confidential settlement payment.

Street artist Thierry Guetta (aka “Mr. Brainwash”), featured in the documentary Exit Through the Gift Shop, is not a newcomer to copyright infringement claims relating to photographs of musicians. Almost a year ago, the Court found Guetta infringed photographer Glen E. Friedman’s registered copyright in a photo of musicians Run DMC by using the picture as a base for pasting broken pieces of phonograph records thereto in creating his derivative work. In the process, the Court also found Mr. Brainwash was not entitled to a transformative fair use defense because it would eviscerate the intent of copyright law, i.e. the protection of original works.

Mr. Brainwash appears to be in hot water again. Photographer James J. Marshall’s estate is suing Guetta and Google for copyright infringement over several photographs of musicians Jimi Hendrix, John Coltrane, Sonny Rollins, Thelonious Monk, Dizzy Gillespie, Gerald Wilson, Brian Jones, and Stanley Turrentine. Mr. Brainwash is accused of directly copying the images and adapting them without Plaintiff’s permission and engaging in widespread self-promotion of the copies to the public, including selling the derivative works.

In addition, Thierry built or designed a backdrop in Los Angeles featuring huge blow-ups of the Coltrane and Hendrix images that Google used in an infringing manner to promote its “Google Music” service. Plaintiff also alleges that Google hosted a launch party and authorized others to photograph the infringing backdrop and to reproduce the images with Plaintiff’s authorization, including hosting them on www.gettyimages.com. Plaintiff is demanding an accounting of Defendants’ profits and/or Plaintiff’s actual damages or statutory damages under the Copyright Act, which can be as high as $150,000 per registered work in cases of willful infringement.