Articles Posted in Copyright Litigation

Los Angeles, CA – Yolanda Buggs accused Dreamworks’ animated movie “Flushed Away” of infringing her copyrighted screen play “Critter Island.” Details blogged here. On summary judgment, the Court applied only the “extrinsic test,” an objective comparison of specific expressive elements, because the “intrinsic test” is within the province of the jury. The Court examined the protectable, specific expressive elements, focusing “on articulable similarities between the plot, themes, dialogue, mood, setting, pace, character and sequence of events in two works.”

The Court found that “the basic plot idea of pests with human attributes getting flushed and saving their communities is not protectable…Plaintiff must show similarities of expressions in more specific details rather than allege similarities of general plot ideas.” The Court also found that the male characters in the two works were substantially different, for example, “Roddy in ‘Flushed Away’ is an adult, dapper, clever, cautious, and lonely British rat living as a pet in the Kensington neighborhood of London. Roddy ultimately chooses to live with Rita in the sewer rather than to have a lonesome life of luxury above ground. In contrast, Mario in ‘Critter Island’ is an adolescent. He is not a loner, but rather, a leader of the Water Bugs, a son, and a prominent young member of the cockroach community at the retirement home.” The female characters, villains, and other characters were also found to be dissimilar.

The Court further found the themes were different, wherein Critter Island’s focus on racism and the importance of unity based on different species of cockroaches was absent in “Flushed Away.”

Los Angeles, CA – In yet another case that should have settled quickly (see here), Defendant Upper Playground – who admitted to unabashedly copying the illustrations from Plaintiff’s book – instead attempted to challenge the validity of the copyright registrations. Randy Stratton authored and illustrated the book “Build This Bong: Instructions and Diagrams for 40 Bongs, Pipes and Hookahs”, and obtained separate copyright registrations for the book itself and the underlying illustrations. (Details here.) The Court granted summary judgment finding that Upper Playground willfully infringed the copyrights by providing the book to its T-shirt designer with instructions to copy the illustrations.

The Court then quickly dispensed with Defendant’s perplexing copyright invalidity arguments. Defendant first argued that the illustrations lacked originality because the “diagrams demonstrate various ways to construct a common smoking device without adding anything original to the construction of a bong.” The Court found Defendant’s argument “unavailing as it seemingly conflates copyright protection with patent protection…Originality, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity…It is only the work that need be original, not necessarily the subject of the work.”

Defendant’s second argument disappeared like a puff of smoke, created by use for medicinal purposes only. Defendant’s argued that because a bong is a “useful article”, illustrations thereof are not protected by copyright law. Defendants’ argument, if accepted, would have eviscerated the fashion photography industry because pictures of clothing – defined by the Copyright Act as useful articles – would not be copyrightable. The Court rejected the argument because “even assuming that a bong is a ‘useful article’ (which likely depends on who one asks), Plaintiff’s illustrations are nothing but drawn portrayals of that ‘useful article,’ lacking ‘intrinsic utilitarian function[s]’ of their own.”

Los Angeles, CA – Writers Jonas Larsen and Anthony Ross are suing Lisa Ann Walter and NBC Universal over the “Dance Your Ass Off” television show. Plaintiffs claim their agents introduced them to Walter, who was the third lead in the movie “Shall We Dance,” to develop a reality television series around Walter. Plaintiffs assert that they are experienced in developing reality shows, having been involved in programs such as America’s Next Top Model, MTV’s Fear, Temptation Island-International, and I Can’t Believe You Said That!

After meeting with Walter in 2005, Plaintiffs assert that they promptly created and pitched the concept of a reality television series where contestants would dance to lose weight and suggested the name “Dance Your Ass Off”. Plaintiffs assert that they created the series format and wrote the treatment and had pitch meetings with Bravo, Oxygen, VH1, Fox, and E!, with E! showing the most interest. The E! executive assigned to the project left her post, effectively extinguishing the possibility of E! ordering the series.

In December of 2008, Plaintiffs discovered that Oxygen Network had developed a show called “Dance Your Ass Off”, with Walter associated with the project. Plaintiffs allege that they attempted to resolve the dispute with Walter and NBC, but Defendants denied that Plaintiffs were the creators of the series. As a result, the instant copyright infringement and breach of contract case was filed. The case is Larsen, et al. v. Walter, et al. CV10-9325 GAF (C.D. Cal. 2010).

Los Angeles, CA – Mavrix is a celebrity photography agency that licenses its photos to newspapers, television programs and magazines. Associated Newspapers Limited publishes the Daily Mail print newspaper and an online version at www.dailymail.co.uk. Mavrix alleges that it offered pictures of actress Kate Hudson by the pool in a bikini to the Daily Mail upon payment of a fee. Daily Mail, however, allegedly used the picture without payment or authorization both in print and online format. Further, Mavrix contends that its pictures of Pamela Anderson, Robbie Williams, Devon James, Roger Daltrey, and Halley Berry and Olivier Martinez were also used by the Daily Mail without payment or authorization. Daily Mail is accused of willfully infringing the copyrights and Mavrix is demanding statutory damages of $150,000 per image per infringement – distinguishing between print and online usage. The case is Mavrix Photo, Inc. v. Daily Mail of London, et al. CV10-9045 PSG (C.D. Cal. 2010).

David Guetta, the Black Eyed Peas, individual members of the band, their publishers and record companies were sued for copyright infringement, claiming that the band’s “I Gotta Feeling” hit-song was based on Bryan Pringle’s “Take a Dive” song.

Pringle alleges that he wrote “Take a Dive” in 1998, which song and different versions thereof were sent to Interscope Records, EMI and UMG Recordings. The complaint contends that “[t]he song ‘I Gotta Feeling’ is substantially similar to Plaintiff’s song ‘Take a Dive.’ Actually it is strikingly similar, and the main instrumental ‘hook line’ sequences in both songs – the distinct, memorable parts of both songs to the ear – are identical…There can be no reasonable, alternative explanation for these similarities other than the fact that the Black Eyed Peas, David Guetta and/or Frederick Riesterer directly copied Plaintiff’s song.”

Listen to the two songs and compare:

Plaintiff Figure Eight Holdings acquired by assignment the copyright in the “treacherous” design depicted below (left). Plaintiff alleges that defendants had access to the design and that defendant New Era Cap has sold caps bearing a substantially similar design to retailers, including defendant Hat World. “Defendants have been demanded to cease and desist from all sales and manufacturing of caps and apparel incorporating Plaintiff’s copyrighted Subject Design, and cease and desist from printing the copyrighted Subject Design without consent.” Plaintiff alleges that Defendants have refused to stop selling the accused product, thus necessitating the lawsuit.

The case is Figure Eight Holdings, LLC v. New Era Cap Co., Inc., et al., CV10-7815 AHM (C.D. Cal. 2010).

Santa Ana, CA – Electronic Arts’ 2009 release of its Sims 3 virtual reality game sequel was to be accompanied by a promotional PlumbBob USB flash drive, which design and prototype has resulted in a real world copyright lawsuit. Plaintiff Design Technologies (“DT”) alleges that Lithomania, a broker that specializes in promotional items called swag, was retained by EA to develop promotional materials for the Sims 3 release. Lithomania then engaged DT to turn the two dimensional PlumbBob – a green jewel that identifies the computer character being controlled – into a three-dimensional USB flash drive.

DT alleges that it spent hundreds of hours developing several designs and provided a prototype to EA. “What began as a project that would involve only a few thousand PlumbBob USB’s that would be given away for free to promote the new game morphed into a program under which EA would sell hundreds of thousands of the PlumbBob USB’s in the collector’s edition of the new Sims 3 game.” DT alleges that after its prototype had been approved, EA and Lithomania asked it to sign an assignment agreement, which it did not sign. Lithomania is accused of then passing DT’s prototype – with EA’s knowledge – to a third party to mass produce. DT seeks a declaration from the Court that it is a joint author of the copyrighted work and seeks an accounting from EA for its profits, alleged to be in the neighborhood of $6,000,000. The case is Direct Technologies, LLC v. Electronic Arts, Inc., SACV10-1336 MLG (C.D. Cal. 2010).

Oskar Systems sued Club Speed, Pole Position, P2R Karting, and individuals for allegedly infringing its copyright in source code for a computer program used in the operation of go-kart tracks. Details blogged here. In late 2001-early 2002, the software was initially developed and owned by Contemporary Systems, Inc. (“CSI”). In 2005, Defendants licensed the software from CSI for one year but then developed their own replacement software and did not renew the license. Oskar Systems is formed in December of 2006 and in October of 2007, CSI transfers “all of its business assets related to ‘Oskar’ business operations” to Oskar Systems. In February of 2009, seven years after the date of creation, Oskar Systems first registers a claim of copyright with the copyright office, but the source code submitted to the Copyright Office was the 2008 version – not the 2002 version.

The Court first found that Oskar Systems did not have standing to bring suit because the alleged infringement occurred before the CSI assets were assigned to Oskar and the assignment did not expressly include causes of action for infringement. “A grant of copyright, even if it purports to convey ‘all right, title and interest,’ is generally construed not to assign existing causes of action unless such causes of action are expressly included in the grant.” Lanard Toys Ltd. v. Novelty Inc., 511 F. Supp. 2d 1020, 1033 (C.D. Cal. 2007). A copy of the order is available here.

Additionally, the Court found that Oskar Systems lacked standing because it failed to deposit with the Copyright Office two copies of the original 2002 software, but instead submitted the software as it existed in the latter part of 2008. The day before filing its opposition, Oskar System attempted – fruitlessly – to correct the improper deposit by filing a supplemental registration and disclosing that the 2008 version is a derivative work of the 2002 software.

Los Angeles, CA – In 1977, Singer/Songwriter Lamont Dozier composed a song entitled “Peddlin’ Music on the Side” and registered the copyright therein. He further renewed the copyright registration in January of 2005.

In 2009, Derek Christoff (pka “D-Sisive”) recorded a rap song entitled “(I’m A) Nobody With a Notepad. Plaintiff accuses D-Sisive of copying substantial portion of On the Side, including a complete verse of Dozier’s singing taken directly from the original master recording. Dozier also claims that the rest of the son uses his lyrics and recording as a musical hook, “Notepad is simply a rap version of On the Side with lyrics spoken over it to a ‘rap beat’.” Urbnet Records, Fontana Distribution, and Universal Music Group are also accused of marketing, distributing, selling and licensing the Notepad song.

D-Sisive’s Video: