Breach of Contract

South Bend, IN – Copyright lawyers for Susan Lynch, of Indiana, Math-U-See Indiana, Inc. of Indiana, and Lisa and Jim Angle, of Idaho, filed a breach of contract and copyright infringement suit alleging Math-U-See, Inc. of Lancaster, Pennsylvania, and Steve and Ethan Demme infringed the works CALCULUS WORKS, RECORDED CALCULUS LESSONS, HONORS BOOKS, PRE-CALCULUS WORKS, ALGEBRA 2 AND QUIZ WORKS, and TEST BOOKLETS.

The complaint alleges that Steve Demme owns Math-U-See, Inc. and invented the Math-U-See curriculum for home schooling parents in the early 1990s. Steve Demme used a business model of having individual representatives and distributors to sell the Math-U-See curriculum. The plaintiffs were “Reps,” and Plaintiff Lisa Angle also wrote additional material for Math-U-See, which are the copyrighted works that the copyright infringement claim is based upon. The complaint alleges that Sue Lynch was the Rep for Indiana and Illinois beginning in 1996 and built sales to hundreds of thousands of dollars by 2009. Lisa and Jim Angle were Reps for Montana, North Dakota, Alabama, and Tennessee. The complaint alleges that in 2010 Steve Demme, with help of Ethan Demme, ended the representative business model and cut the plaintiffs out of selling the Math-U-See curriculum. Ms. Angle claims that the Defendants continued to use the copyrighted materials she created after the agreement was terminated and without Ms. Angle’s permission. The complaint makes claims of breach of contract, breach of good faith, breach of fiduciary duty, violation of Indiana Franchise Act, violation of Illinois Franchise Act, violation of the Idaho Unfair Trade Practices Act, violation of Illinois Unfair Trade Practices Act, violation of Tennessee Unfair Trade Practices Act, Violation of Law 75 of Puerto Rico, tortuous interference with contract, tortuous interference with prospective business relations, wrongful conversion of customer list, promissory estoppel, unjust enrichment/quantum meruit, accounting and six counts of copyright infringement. The plaintiffs seek actual and punitive damages, an injunction prohibiting further distribution of the copyrighted works, costs and attorney fees.

Practice Tip: In this case, Ms. Angle claims she is the author and rightful owner of the copyrights to the works described in the complaint. She claims the defendants violated 17 U.S.C. 106 of the Copyright Act. Ms. Angle has not formally registered her copyrights with the US Copyright Office, however, this is not a necessity for her infringement claims to succeed. Rather, the Copyright Act provides that “Copyright in a work protected under this title vests initially in the author or authors of the work.”

Indianapolis, IN – Copyright lawyers for Dion Designs of Quebec, Canada have filed an infringement suit against Allwin Powersports, Corporation, Inc., Arthur Liao, MHR Helmet Co., Ltd., Foshan Shunde Fengxing Helmets, Ltd., and Jiangmen Pengcheng Helmets, Ltd. Plaintiff Dion claims he is a famous designer of helmets, who signed an agreement in 2005 with the Defendants to receive $0.50 for each helmet sold using Dion’s deigns. Defendants paid Dion for some helmets, but terminated the agreement around 2010. However, Dion claims that Defendants used some of Dion’s latest designs to make several new helmets. While some of these designs have been marketed by the Defendants in Europe, Dion fears that they will be offered in the US at the Dealer Expo 2011 on February 18 – 20, 2011 in Indianapolis. Dion claims that he filed copyright applications and design patent applications on his designs, although none of those applications has resulted in a registration or issued patent.

The complaint asserts a veritable “kitchen sink” of claims, such as a Lanham Act claim based on a misrepresentation that Defendants have “authority to import and sell such products, without disclosing the absence of a valid license or agreement with the designer.” Claims are also alleged for copyright infringement, trade secret misappropriation, breach of contract, conversion, unfair competition, and for declaratory relief. Dion’s complaint is also accompanied by a Motion for Preliminary Injunction seeking to bar the “displaying or promoting” of the allegedly infringing helmets at the Dealer Expo on February 18-20, 2011, or on the Internet.

Practice Note: The Plaintiffs’ complaint appears to have several inconsistencies. The Lanham Act claim based on a “failure to disclose” is highly unusual; normally, a Lanham Act claim is predicated on an overt misrepresentation as to source. Although Dion states that the Defendants’ claim that the helmets were “designed in Europe” is false, even if this is the case, it is hard to see how the Plaintiff is harmed, especially since the complaint states that “Dion’s plans to make commercial use of those designs have been placed on hold.” The copyright infringement claim is suspect because, as discussed elsewhere on this site, the Plaintiffs did not obtain a copyright registration before filing a suit. Also, to support the trade secret misappropriation claim, the plaintiff claims that his designs “derive substantial commercial value from not being generally known.” However, even if the Plaintiffs’ designs were once “not generally known,” they certainly are now since the Plaintiff: (a) attached them to his complaint, (b) filed them with the US Copyright Office, and because (c) the designs are alleged to been sold in Europe for some time. Dion’s claim for “conversion” also appears to be preempted by the Copyright Act. Finally, it seems that Dion will have difficulty establishing the “irreparable harm” factor necessary to obtain preliminary injunctive relief, since his predominant complaint is that he has not received his $0.50 per royalty license fee.

Articles Posted in Breach of Contract

Lisa Angle Sues Math-U-See, Inc. et al. for Copyright Infringement of Home Schooling Curriculum Materials

Dion Designs sues Allwin Powersports, et.al. for Copyright, Trademark Infringement and Misappropriation of Trade Secrets