Articles Posted in Copyright Litigation

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removal-federal-court-jurisdiction-preemption-starclipz-stargreetz.pngLos Angeles, CA – Starclipz sued Stargreetz and its principals in Los Angeles Superior Court for unfair competition, trade secrets misappropriation, interference with prospective advantage, conversion and other causes of action, none of which specifically included a federal cause of action. Starclipz alleges that it conceived and developed a business that allows consumers to personalize greeting messages by including celebrity clips from their favorite movies. Plaintiffs claim that they had numerous meetings with Eric Frankel, Lucy Hood, and Linda Abrams to fund and develop a business, but Defendants “misappropriated Plaintiffs’ ideas and creative materials for their own unauthorized use and pecuniary benefit” by developing www.stargreetz.com.

In removing the case to federal court, Defendants assert that the state causes of action are merely disguised claims for copyright infringement that are preempted by the Copyright Act. Thus, although Defendants concede that there’s no basis for removal under the “well-pleaded complaint rule,” they claim that removal is proper under the complete preemption doctrine, wherein the existence of a preemption defense to a state-law claim gives rise to federal question jurisdiction.

The case is Starclipz, LLC v. Stargreetz, et al., CV11-2779 CAS (C.D. Cal. 2011).

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childrens-music-copyright-lawsuit-dragon-tales-17-usc-410c.jpgLos Angeles, CA – Jose-Luis Orozco is accusing Sesame Workshop of using his copyrighted song in its Dragon Tales television program without authorization. According to the complaint, Orozco wrote the music and lyrics to the children’s song El Chocolate in 1971, which was based on his travels and experience to Sonora, Mexico in 1958. In 1981, Orozco recorded the song on an album, which song was also included in the companion song book. The song was not copyrighted, however, until 1996.

Orozco alleges that his El Chocolate song was performed in the “Super Snowy Day” episode of Dragon Tales. Orozco also claims that the song was also included on a Dragon Tales DVD. The song is very catchy, so don’t click play below if you don’t want an earworm.

https://www.youtube.com/watch?v=S12hoquBIFs

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fitness-dvd-copyright-trademark-attorney-ebay-zumba.jpgLos Angeles, CA – Zumba Fitness has filed several lawsuits accusing eBay sellers of counterfeiting its fitness DVDs and infringing its trademarks and copyrights. Zumba® Fitness is a Latin-inspired dance-fitness program that combines international music with dance steps to create an aerobic exercise regimen. Plaintiff alleges that over 10 million people take weekly Zumba classes worldwide. Plaintiff owns numerous copyright registrations and USPTO trademark registrations for Zumba related products and services.

Plaintiff alleges that in its ongoing investigation of counterfeit sales of Zumba products, its private investigator purchased an allegedly counterfeit “Zumba 4 DVD Box Set” from the Defendants. “The inspection of the purchased item confirmed that the item Defendants sold to the investigator was in fact a counterfeit and an unauthorized Zumba 4 DVD Box Set.” Plaintiff also asserts claims for unfair competition, trademark dilution, and unjust enrichment.

https://www.youtube.com/watch?v=A314kZAOCdw

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copyright-infringement-attorney-idea-submission-cars-movie.jpgLos Angeles, CA – Screenwriter Jake Mandeville-Anthony is suing Disney and Pixar for allegedly infringing his copyrights through their release of the animated motion picture “Cars”. Plaintiff claims that beginning in 1992, he drafted screenplays, treatments, synopses, and character lists documenting his cartoon car characters’ stories. His “Cookie & Co.” work was based on the true-life stories of two racers in the “London to Sydney vintage Car Endurance Rally.” And his second work, also titled “Cars”, included a treatment, sample screenplay, synopses, ten character sketches, and a marketing/merchandising plan.

Plaintiff claims that Disney had access to his works because he mailed copies to Disney in ’92, ’94, and ’96. He also claims that Pixar had access to the works because he personally presented them to employees of Lucasfilm, which employees later left to join Pixar.

The complaint alleges several similarities between Plaintiff and Defendants’ works: “Plaintiff’s oldest cartoon car character was named ‘Stanley.’ Defendants used the identical name, ‘Stanley,’ for one of their oldest car characters, with a visual appearance substantially similar to Plaintiff’s. Both characters are drawn as a Model T Ford.”

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Los Angeles, CA – The late Evel Knievel was a motorcycle daredevil whose crashes made him more famous than his successful jumps. Lawsuits continue regarding ownership of the copyrights in his pictures and film clips. In 2005, Gary Schreiber sued Knievel in Nevada District Court for a declaration of validity of a 1982 written transfer of copyrights to pictures and films made by Knievel (story about the suit is here). While the Nevada lawsuit is still pending, Schreiber has now filed a copyright infringement and right of publicity lawsuit against Madame Tussauds, the leisure/tourist attraction featuring wax sculptures and figurines of celebrities.

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Plaintiff Schrieber alleges that Evel was in need of capital to resurrect his career and Schrieber purchased the rights to Evel’s films and the films themselves via written agreement in 1982. Plaintiff then produced two compilation films entitled “Evel Knievel’s Specacular Jumps” and “The Last of the Gladiators.” Schreiber alleges that at some time, Knievel once again sold or licensed the same rights – previously granted to Schreiber – to Madame Tussauds without Schrieber’s knowledge. The case is Raymond Gary Schreiber v. Tussauds Attractions Ltd., et al., CV11–2115 DSF (C.D. Cal. 2011).

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copyright-license-photo-contract-oral-agreement-ben-hogan-image-lawsuit.jpgLos Angeles, CA – An oral agreement is usually not the greatest way to memorialize the parties’ duties and rights for copyrighted material, and this is certainly not the first or last such dispute. See here. Plaintiff JanKris Vineyards entered into an oral copyright license agreement with photographer Jules Alexander to use six photographs of golfer Ben Hogan on wine labels for six years. JanKris contends that the oral license did not limit the use of the photographs other than on wine labels and in marketing of such wines. Also, JanKris alleges that the parties agreed that JanKris could make a derivative work of one of the photographs by replacing a cigarette in Ben Hogan’s hand with a glass of wine.

JanKris then used the licensed photographs on its wines and marketing, which included agreements with PGA Magazine to run advertisements and a licensing agreement with Calloway for Ben Hogan’s publicity rights. JanKris alleges that in an attempt to renegotiate the terms of the license, Alexander asserted copyright infringement claims against PGA Magazine and Calloway, which included assertions that JanKris did not have the right to use the photograph of Hogan holding a wine glass. Based on Alexander’s alleged threats, JanKris claims that Calloway denied a license to use Ben Hogan’s name in the Far East, resulting in damages of more than $1 million a year.

In addition to monetary damages, JanKris seeks declaratory relief of copyright non-infringement because the works allegedly fell into the public domain. JanKris contends that because the photographs were taken in the 1950’s, the works fell into the public domain when they were first published without proper copyright notification prior to the 1976 Amendments to the Copyright Act. And, defendant did not seek a copyright registration until 1998. The case is Veris Management Co. v. Jules Alexander, CV11-01962 VBF (C.D. Cal. 2011).

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tacori-crescent-copyright-trade-dress-tro-jewelry-temporary-restraining-order.pngLos Angeles, CA – Tacori Enterprises sued Scott Kay for copyright and trade dress infringement over sales of jewelry incorporating a repeating crescent design. Tacori filed an ex parte application for a temporary restraining order to prevent further sales of Scott Kay’s Heaven’s Gate Collection that allegedly infringes Tacori’s purported copyrights and trade dress.

Although the Court found that Tacori is likely – because of the “extremely low burden” – to establish copyright ownership, Tacori had not shown that “it is likely to pass either the extrinsic or intrinsic test” to prove infringement. The extrinsic test “requires a court to examine the similarities between the copyrighted and challenged works and then determine whether the similar elements are protectable or unprotectable.” “The intrinsic test is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.”

The Court relied on Scott Kay’s submission of third-party evidence having similar elements of the crescent design at issue to find that many of the design elements were likely not protectable. As for the intrinsic test, the Court found it unlikely that a reasonable audience for the rings “would find them substantially similar in total concept and feel in light of their differences.”

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design-patent-trademark-copyright-apple-headset-eforcity-infringement.jpgLos Angeles, CA – eForCity Corporation has sued Apple, Inc. seeking the Court’s declaration that its sales of various earphones do not infringe Apple’s Patent Nos. D589,491, D469,753, D596,616, and D515,070. The lawsuit was filed after Apple’s attorneys sent a cease and desist letter accusing eForcity of also infringing Apple’s copyrights by using iPad images allegedly copied from Apple’s website. Further, the letter accused eForCity of infringing Apple’s iPad, iPhone, iPod and Mac trademarks in product descriptions with the ® or ™ symbols and without attribution to Apple. The case is eForCity Corp, et al. v. Apple, Inc., CV11-00808 SVW (C.D. Cal. 2011).

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domain-name-registration-trademark-cancel-toms-famous-family.gifSanta Ana, CA – This case should serve as a warning to all domain name owners: TIMELY RENEW YOUR DOMAIN NAME REGISTRATION AND DON’T LET IT LAPSE! The Valaskantjis family trust, owner of the Tom’s Famous Family Restaurants since 1968, unfortunately allowed its domain name registration to lapse without timely renewal. The domain name, www.tomsfamousfamilyrestaurants.com, was then allegedly registered by defendant Katz Global Media, LLC.

Katz is accused of establishing a website using Tom’s trademarks and copyrights to publish false reports regarding Tom’s use of illegal alien labor to operate its restaurants. The website also claims that plaintiffs don’t pay the required taxes or workers compensation insurance. Further, Defendant is accused of soliciting the public to report plaintiffs to the IRS and Customs and Immigration Enforcement. On top of the problems created by the new website, Plaintiffs have also allowed their trademark registration to lapse: see here.

It appears that the defendant has researched First Amendment and fair use defenses. Courts have previously found for plaintiffs in bad faith registrations of lapsed domain names where the subsequent registrant attempted to sell the domain back to the prior registrant. See BroadBridge Media, L.L.C. v. Hypercd.com, 106 F. Supp. 2d 505, 511-512 (S.D.N.Y. 2000). In this case, however, it appears that a sophisticated defendant is using the domain name for what appears to be protected speech. It will be interesting to see how this case unfolds.

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light-fixture-copyright-lighting-crystal-shade-infringement.jpgLos Angeles, CA – Bel Air Lighting is suing Schonbek over the sales of Bel Air’s Portfolio light fixture. Schonbek previously sued Lowe’s Home Centers for copyright infringement for selling the Portfolio light fixture. Bel Air claims that there is an actual case or controversy between the parties and it can seek declaratory relief of copyright invalidity and non-infringement. Bel Air alleges that Schonbeks are invalid because the light fixtures are outside the scope of subject matter entitled to copyright protection in that they merely include placement of preexisting elements around a fixture, are useful articles, lack artistic features aside from utilitarian functions, and/or lack originality. The case is Bel Air Lighting, Inc. v. Schonbek Worldwide Lighting, Inc., CV10-10069 MMM (C.D. Cal. 2010).