Articles Posted in Copyright Litigation

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judgment-pleadings-pixar-cars-disney.jpgThe race for Mandeville-Anthony was over before it even began. In March of this year, Plaintiff sued Disney and Pixar alleging that the Cars and Cars 2 animated motion pictures infringed his copyrights. Also, Plaintiff claimed that Disney and Pixar stole his idea for the motion pictures from his work that he submitted to Disney and Pixar employees.

Disney and Pixar quickly filed a motion for judgment on the pleadings under FRCP 12(c), which means after the complaint, answer, counterclaims and reply, if any, are filed, a defendant can seek early judgment that – based on the pleadings alone – a plaintiff cannot meet its burden of proof. In a short one page opinion, the Court dismissed the copyright infringement claim because the parties’ works are not substantially similar as a matter of law: “[a]mong other things, the protectable elements of the parties’ respective works are dissimilar in plot, sequence of events, pace, themes, dialogue, mood, setting, and characters.” As to the second cause of action for breach of implied contract (aka idea submission), the Court found that the claim was untimely because it was filed after the applicable two-year statute of limitations. Cal. Code Civ. Pro. 339(1).

Reviewing Defendants’ motion shed’s light on the flimsy nature of Plaintiff’s allegations: “How Plaintiff can contend these characters [pictured here] are similar is mystifying. . . In short, the parties’ expressions of the general idea of animated, anthropomorphic cars are extremely different. Any suggestion that the parties’ characters are similar – let alone, substantially similar – would defy the Ninth Circuit’s exhortation that copyright law protects only the specific details of an author’s rendering of an idea, and not the idea itself.”

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jewelry-patent-copyright-infringement-sonya-ooten.pngJewelry designer Sonya Frisina does business as Sonya Ooten and has a retail store in Los Angeles. Ooten owns U.S. Design Patent No. D544,389, titled “Metal Crochet Earring,” covering the ornamental jewelry design. There is often overlap with different forms of intellectual property and Ootent, to maximize protection, also registered the “Cosmos” earring design with the U.S. Copyright Office.

Ooten alleges that Soixante Neuf’s “Oval Woven Beaded Earrings” infringe both its design patent and copyright. To prove design patent infringement, Ooten must meet both the ordinary observer test and points of novelty test. The design as a whole is examined in the ordinary observer test and the individual elements of the design are examined in the points of novelty test. To prove copyright infringement, unlike design patent infringement, Ooten must show that Soixante Neuf had access to Ooten’s design and copied it. Also, unlike utility patents, a successful design patent plaintiff can recover the infringer’s profits, plaintiff’s lost profits, or a combination of lost profits and reasonable royalty.  Read a jewelry patent lawyer‘s more detailed article on how to protect jewelry through both design patents and utility patents.

The case is Sonya Frisina v. Soixane Neuf, Inc. et al., CV11-5705 VBF (C.D. Cal. 2011).

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copyright-preliminary-injunction-jewelry-rings-scott-kay-tacori.jpgTacori suffered another loss in its continuing copyright and trade dress infringement lawsuit against rival jewelry designer Scott Kay. The Court previously denied Tacori’s ex-parte application for a temporary restraining order, but that did not deter Tacori’s attempts to prevent Scott Kay’s sales of its Heaven’s Gate jewelry collection. Not surprisingly, the Court denied Tacori’s preliminary injunction bid, which was now focused solely on the copyright issue.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008). Although a plaintiff must make a showing on each factor, the Ninth Circuit employs a sliding scale approach where “a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). Thus, a preliminary injunction may still issue where there are “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff . . . , so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135 (internal quotation marks omitted).

The Court found that Tacori may be able to meet “its low burden of establishing copyright ownership” because the “requisite level of creativity is extremely low.” In order to show copying, Tacori had to establish Scott Kay’s access to its reverse crescent design and that the Heaven’s Gates rings were substantially similar. Scott Kay admitted that it was aware of Tacori’s design, but the Court found that the parties’ respective designs were not substantially similar.

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copyright-license-ultramarines-warhammer-40000-lawsuit-contract-breach-movie.jpgThe “Ultramarines: A Warhammer 40,000 Movie” is based on the popular “Warhammer 40,000” table-top war game. The movie is a science-fantasy action thriller set in the future where genetically enhanced super-warriors battle aliens to protect mankind. But in the present, a legal battle has commenced regarding distribution rights to the movie involving the production company and the distributor.

The scene opens with Anchor Bay Entertainment, Codex Pictures and BF1 Films entering into a series of agreements relating to the distribution of the movie. The picture was to be produced by Codex with financing from Aramid Entertainment. The agreements between Anchor Bay and BF1 allegedly granted Anchor Bay “the exclusive, irrevocable, worldwide home video and digital/electronic rights (among other rights) to eight” motion pictures. Anchor Bay selected Ultramarines as one of the pictures and advanced $495,000 to BF1.

Then, for a $200,000 advance, BF1 and Codex executed a North American distribution agreement (“NA Agreement”) for the exclusive right to exploit the movie in all home-video formats, which agreement is alleged to have been made expressly for Anchor Bay’s benefit and with Codex’s knowledge of the Anchor Bay and BF1 agreement. Later, Codex and BF1 also executed a rest of the world distribution agreement (“ROW Agreement”) for the same exclusive rights and referring specifically to Anchor Bay’s sub-licensee status. Anchor Bay and the rest of the parties also signed a deed of undertaking that was allegedly required by Aramid in order for it to finance the film.

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copyright-infringement-video-game-sega-penders.jpgLos Angeles, CA – This “Sonic The Hedgehog” video game copyright infringement claim appears to arise from an independent contractor’s contributions that were not properly acquired by or assigned to Sega. If you don’t have a written agreement with an independent contractor, for example your website designer, the independent contractor owns the copyrights, not you. Comic book artist, writer and designer Kenneth Penders was an independent contractor for Sega’s licensee Archie Comic Publications from 1993 until 2005. Penders claims that he “was given the reins of a nascent fictional universe and dramatically expanded it, creating new, vibrant, and fully developed characters, settings, stories and themes that continue to run throughout the Sonic the Hedgehog comic book series and spin-offs.” Even though he produced the work, Penders alleges that Archie did not pay him for several projects that he submitted for Sonic The Hedgehog, even after Archie gave Penders approval for further development of the Works.

Penders claims that he owns the copyright in the works that “include the substantial and fleshed out characters he created, including their physical traits, personality traits and back stories,” in addition to the dialogue, plots, themes, and settings. When Penders filed to register the copyrights, the U.S. Copyright Office “sent Sega written notice on April 21, 2010 of Penders’ filings for his [Sonic the Hedgehog] registrations” stating that the copyrights would not register if Sega objected within 30 days, which it allegedly failed to do.

Penders accuses the 2008 “Sonic Chronicles: The Dark Brotherhood” video game of infringing several of his purported copyrights. The complaint states that “reviewers and players have stated their belief that the Infringing Game was adapted from or heavily influenced by the Archie comic book series, including the Works and other creative works that Penders developed and produced.” In addition to the copyright infringement claims, Penders asserts a cause of action for unfair competition under California law, which is preempted by the Copyright Act. Xerox Corp. v. Apple Computer, Inc., 734 F.Supp. 1542, 1550-51 (N.D.Cal.1990). He is seeking unspecified monetary damages and a permanent injunction.

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furniture-copyright-useful-article-attorney-marge-carson.jpgLos Angeles, CA – Marge Carson, Inc.’s furniture copyright infringement case, originally filed in North Carolina, has been transferred to the Central District of California via stipulation of the parties after a jurisdictional spat. Now that the procedural issues have been addressed, the focus can turn the substance of Marge’s purported copyrights in the furniture. Marge claims that as early as 2003, it has “offered furniture under one or more of its Bordeaux™, Les Marches™, Pacifica™, Palladian™, Perugia™, Segovia™, Umbria™ and Vouvray™ collections (the “Furniture Collections”).”

Defendant Philippe Langdon Furniture, Inc. is accused of selling “furniture collections that include items bearing designs substantially similar to the copyrighted designs existing upon Plaintiff’s Furniture Collections, which are the subject of currently pending federal copyright applications.” Unfortunately for Plaintiff, it waited until 2010 and after Defendant’s alleged infringement commenced to file copyright applications.

Despite its delay, Plaintiff seeks attorneys’ fees and costs that are only available – per 17 U.S.C. § 412 – if the copyright application was filed before the infringement began or within three months of first publication. As a further hurdle, which timely copyright registration would have avoided, Plaintiff is not entitled to prima facie evidence of copyright validity because its application was not filed within five years of first publication per 17 U.S.C. § 410(c). But even before getting to those hurdles, Plaintiff is going to have to establish that it is entitled to copyright protection because copyright protection does not extend to “useful articles”, such as furniture designs. Design patents, however, do protect furniture designs, but must be filed within one year from the date of public disclosure.

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copyright-sculptural-3d-smoking-device-bong-tobacco-inhale-starbuzz.jpgLos Angeles, CA – Inhale, Inc. filed a copyright infringement suit against Starbuzz Tobacco for allegedly copying Inhale’s hookah water pipe’s three-dimensional design. Smoking device designs are apparently a hotbed of intellectual property where, “as a result of its endeavors, Inhale has created and owns valuable intellectual property in the form of patents, trademarks, copyrights, and trade secrets. Inhale has grown to be known as a leading innovator of hookah designs.”

Inhale developed a three-dimensional design for a hookah water pipe and obtained a copyright registration for the sculptural work. Prior to the alleged infringing activity, Defendants were purchasing the subject design from Inhale for approximately one year. When the parties’ business relationship apparently went up in smoke in 2010, Defendants allegedly contracted a Chinese supplier to copy Inhale’s copyrighted design.

Luckily for Defendants, Inhale did not timely register its copyrights in order to recover statutory damages, attorneys’ fees, and costs, which requires that the copyright in the work to have been registered before the commencement of the infringement or within three months from the date of publication. 17 U.S.C. § 412. In this matter, however, it appears that the works were published many years before the copyright registration applications were filed in April of 2011, thereby preventing recovery of statutory damages and attorneys’ fees.

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idea-submission-attorney-implied-in-fact-contract-copyright-ea-sports-gillette-voss-knotts.jpgSan Diego, CA – Ron Voss is suing Gillette and EA Sports for copyright infringement and unfair competition, but judging from the facts of the case, he should have asserted an idea submission or an implied in fact contract claim. People mistakenly believe that a copyright registration protects the “idea” contained therein, instead of the particular expression. In fact, §102 of the Copyright Act specifically states that copyright protection does not 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.”

Voss alleges that he wrote and copyrighted a treatment entitled “Cyber Sports Championship Challenge,” which concept involves televising video game tournaments that pit gamers against celebrities and famous sports stars as contestants. Voss contends that co-defendant Jerry Knotts “misappropriated [the copyrighted work] and delivered it to EA. Afterward, EA and other defendants infringed Mr. Voss’ copyright by creating and distributing on commercial television (via the Spike Channel) and the World Wide Web “Gillette®-EA Sports™ Present Champions of Gaming powered by Xbox 360 LIVE” (the “program”).” The complaint, however, fails to specify how the expression of the copyrighted work was copied, separate and apart from the alleged “misappropriation” of the general idea. Plaintiff’s §17200 unfair competition claim is based on the copyright infringement facts and is preempted. Fractional Villas, Inc. v. Tahoe Clubhouse, 2009 U.S. Dist. Lexis 39522 (S.D. Cal. 2009)(dismissing § 17200 claim because it was preempted by the Copyright Act).

The 9th Circuit has yet to rule after the en banc rehearing of the “Ghost Hunters” case, Montz v. Pilgrim Films & Television, Inc. The three-judge panel affirmed the district court’s order that Montz’s implied in fact contract claim was preempted by the Copyright Act. Montz v. Pilgrim Films & Television, Inc., 606 F.3d 1153 (9th Cir. 2010) (non-citable). The Court sua sponte ordered an en banc rehearing of the case and withdrew the three-judge panel’s published opinion. Based on the en banc panel’s questioning, I – as a non-clairvoyant – predict a reversal of the district court’s ruling and a finding that Montz’s idea submission claim is not preempted by the Copyright Act, in line with Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir.2004) and Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956). Watch the video of the Ninth Circuit’s en banc rehearing:

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San Diego, CA – Brighton Collectibles designs and manufactures fashion accessories, including a watch sold under the Laguna trademark. Brighton registered the copyright in its Laguna watch design in March of 2000.

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Defendant Pedre Watch Company is accused of making a less expensive imitation. As a result, Brighton claims that “the Infringing Watch has been advertised, marketed and/or sold to a substantial number of consumers, thus lessening the uniqueness of Plaintiff’s Laguna Watch. The case is Brighton Collectibles, Inc. v. Pedre Watch Co., Inc., CV11-0637 BEN (S.D. Cal. 2011).

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copyright-bratz-mattel-trade-secret-jury-verdict-lose-win.pngSanta Ana, CA — The jury in the Mattel v. MGA battle over the Bratz dolls determined that MGA did not infringe any copyrights and did not steal the idea or concept from Mattel. Instead, the jury has awarded at least $88.5 million to MGA for Mattel’s misappropriation of MGA’s trade secrets. The verdict form is available here.

This second round is in stark contrast to the first trial where the jury found for Mattel, which was overturned on appeal. I wouldn’t be going out on a limb by predicting that Mattel will appeal the verdict, after it’s post trial motions to set it aside, of course.

The case is Bryant v. Mattel, SACV 04-09049 (C.D. Cal. 2004).