Los Angeles Intellectual Property Trademark Attorney Blog

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.

UPDATE: Court Denies Mgame’s Second Attempt For Temporary Restraining Order.

Mgame licensed K2 Network in 2003 to operate and distribute the “Knight Online 3D” multiplayer, role-playing game in return for payment of royalties. Mgame claims that it terminated the written license on February 23, 2012 due to K2’s failure to pay royalties. Despite the termination, K2 is allegedly continuing to operate and distribute the game without payment of royalties. Also, K2 is accused of illegally accessing Mgame’s secured servers without authorization and illegally copying user and billing databases and has refused to return Mgame’s servers. “K2, in short, has hijacked the Game to Mgame’s detriment and has continued to operate and distribute it using Mgame’s own computer hardware, software, and Game-related intellectual-property.”

Although the parties’ licensing agreement provides for Arbitration, Mgame sued K2 in Federal Court for a more expedited ruling since “it could easily take 60 days after Mgame files its Notice of Arbitration, and possibly much longer, before the arbitral tribunal is fully constituted and capable of entertaining a request for interim measures.” That delay, Mgame contends, will cause and is currently causing irreparable harm. Thus, Mgame asks the Court to issue a temporary restraining order and a preliminary injunction prohibiting K2’s conduct.

Artist David Flores is being sued for copyright infringement for using photographer Glen Friedman’s pictures of the Beastie Boys to make derivative artistic works, some of the photographs and accused infringing works are reproduced to the right. Friedman also alleges copyright ownership in a photograph of famous skateboarder, Jay Adams, which copyright was infringed by Flores’ derivative artistic work. Friedman contends that defendants engaged in widespread distribution of unauthorized copies of his copyrighted works. In addition to monetary damages, Friedman seeks his attorneys’ fees.

The current images remind me of Shepard Fairey’s “Obama Hope” posters, where Fairey was countersued for copyright infringement by the Associated Press for using one of its photographs to make his derivative work. After Fairey admitted to destroying evidence and was untruthful regarding which photo he used, Fairey settled the case for an undisclosed sum and his agreement to refrain from using AP photo’s without a prior license. Two weeks ago, in the criminal case against Fairey, he plead guilty for disobeying a judge’s order to not destroy evidence and lying to the court. He is to be sentenced on July 16, 2012.

On the other hand, the clothing company, One 3 Two, Inc., that used Fairey’s work on T-shirts and its website continued the litigation with AP claiming that its use of Fairey’s work did not infringe and was protected under the fair use defense. In a relatively short order, U.S. District Judge Alvin K. Hellerstein, denied One 3 Two’s fair use defense: “I hold, however, that should the AP establish copyright infringement, One 3 Two does not have a basis to rebut the finding on the ground of fair use. I therefore grant [AP’s] motion insofar as it seeks to pare the fair-use dense away from the case, but otherwise deny it.” The AP was also seeking a finding of copyright infringement and a violation of the DMCA, which were not decided on summary judgment and must now proceed to trial.