Los Angeles Intellectual Property Trademark Attorney Blog

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).