Copyright Infringement

January 21, 2019

Indiana Copyright Litigation: Design Basics, LLC Sues Another Indiana-Based Company for Copyright Infringement

South Bend, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Blue Ribbon Builders, Inc., of South Bend, Indiana infringed on its copyrights of Architectural Works. Plaintiff is seeking judgment, actual damages, statutory damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Design Basics is a company that creates technical drawings and architectural works for home designs. After creation, it markets and licenses the use of these works for $700 to $6,000 each. While the Plaintiff has spent more than $410,000 on capital improvements, including building two websites, in the past ten years, they have seen a decrease in licensing revenue. Design Basics alleges that this decrease in licensing revenue is due to massive piracy of its copyrighted home designs by multiple builders, including Defendant in this case and defendants in many other cases in Indiana.

While researching infringing homes related to another lawsuit, Design Basics discovered Blue Ribbon Builders had constructed several homes that appeared to be copied from Design Basics’ copyrighted designs. These copyrighted designs included Pine Ridge, Mayberry, Lancaster, Stevens Woods, and Linden (the “Copyrighted Works”). Plaintiff has at all relevant times been the owner of the Copyrighted Works and never licensed nor gave permission to Defendant to utilize them. Design Basics claims Defendant had actual knowledge of the Copyrighted Works as they were mailed plan catalogs and had reasonable access to the Copyrighted Works online.

January 18, 2019

Indiana Copyright Litigation: Lifehouse Homes, LLC Allegedly Infringed Home Design Plans

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiffs, Design Basics, LLC, Inc. and Plan Pros, Inc. (“PPI”), both of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Lifehouse Homes, LLC, of Lowell, Indiana infringed on their copyrights of Architectural Works. Plaintiffs are seeking judgment, actual damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Plaintiffs design architectural works and technical drawings, approximately 350 of which they have registered with the United States Copyright Office since 2009. They offer single-build licenses for their home designs ranging from $700 to $6,000 per license. Plaintiffs have sold and issued more than 9,300 construction licenses for their home designs since 2009. Also listed among the services provided by Plaintiffs are marketing and advertising for other home design firms, and custom home designs.

Prior to the internet becoming a widely popular way to disseminate information and advertise businesses, Plaintiffs distributed catalogs and other publications to advertise their work. Plaintiffs now allege that after spending a large amount of money to build a user-friendly website to showcase their designs, profits have decreased instead of increased as expected because they designs are now being pirated at high rates. They have filed numerous lawsuits in the past few years against companies in Indiana, as it was previously a top-selling state for home plan licenses.

January 16, 2019

Indiana Copyright Litigation: Michigan City Magazine Sued for Use of Alleged Infringing Photograph

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Matthew Cunningham of Michigan City, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Montgomery & Associates, Inc. also of Michigan City, Indiana, infringed his rights in United States Copyright Registration No. VA 2-126-377 (the “Registered Photo”). Plaintiff is seeking actual damages, court costs, attorneys’ fees, pre and post judgment interest, and any other relief the Court deems just and proper.

Plaintiff is a professional photographer that licenses his photographs to online and print media companies in exchange for a fee. Defendant owns and operates a magazine entitled The Beacher. The Registered Photo at issue in this case is one that Cunningham took of Jessica and Nick Rosier. Plaintiff is the sole owner of all right, title, and interest to the Registered Photo.

Cunningham claims that Defendant ran an article in The Beacher on or about May 24, 2018 that prominently featured the Registered Photo. Neither the article, nor the Registered Photo, contained any attribution to the Plaintiff. Plaintiff claims he never licensed the Registered Photo to Defendant, did not give consent or permission for its use, and Defendant knew the Plaintiff was the author and owner of it. As such, Plaintiff is seeking judgment and damages for copyright infringement pursuant to 17 U.S.C. §§ 106 and 501, and relief for the Defendant’s actions of knowingly removing the copyright management information from the Registered Photo pursuant to 17 U.S.C. § 1202(b).

December 24, 2018

Indiana Copyright Litigation: Vintage Aviation Publications, LLC Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff Matthew Sager of Millsboro, Delaware filed suit in the Northern District of Indiana alleging that Defendant, Vintage Aviation Publications, LLC of Huntington, Indiana, infringed its rights to the US Copyright Office Registration No. VA 2-122-899 titled “10022017SeaHarrier-100” and “10022017SeaHarrier-209”. Plaintiff is seeking damages, costs, expenses, attorneys’ fees, pre-judgment interest, and any other relief as the Court deems just and proper.

Sager, a professional photographer, took photographs of fighter jets. He later published the photographs on his website and registered them with the US Copyright Office. Sager alleges that on or about August 1, 2018, the Defendant ran an article in its July/August issue of its digest on its website and in print, that prominently featuring Sager’s registered photographs. Both the online version and print version were available for sale on the Defendant’s website.

As the Defendant did not license, or otherwise gain authorization to use the photographs from Sager, he is claiming copyright infringement under the Copyright Act, 17 U.S.C. §§ 106 and 501. Sager is also claiming that the Defendant cropped the watermark off his photographs in violation of 17 U.S.C. § 1202(b). For the intentional removal of his copyright management information, Sager is seeking statutory damages in a sum of at least $2,500 up to $25,000 per violation pursuant to 17 U.S.C. § 1203(c)(3).

December 18, 2018

Indiana Copyright Litigation: VideoIndiana Sued Regarding Alleged Unauthorized Use of Protest Photograph

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Christopher Sadowski of Hawthorne, New Jersey, filed suit in the Northern District of Indiana alleging that Defendant, VideoIndiana Inc. of Indianapolis, Indiana, infringed its rights by publicly displaying a copy written photograph owned and registered by Plaintiff. Plaintiff is seeking damages, statutory damages, costs, expenses, attorneys’ fees, and pre-judgment interest and any other relief the court deem proper.

The photograph at issue in this case was taken by Sadowski at a protest outside of NBC Studios where Donald Trump was opening Saturday Night Live (the “Photograph”). On November 7, 2015, after licensing the Photograph from Sadowski, the New York Post ran an article that featured the Photograph and identified Sadowski as the photographer. The Photograph is registered with the United States Copryight Office and has the registration number VA 1-989-742.

Sadowski alleges that Defendant ran an article discussing Trump’s Saturday Night Live appearance using the Photograph without licensing the Photograph from him, constituting copyright infringement. The Plaintiff also claims that Defendant copied the Photograph from the New York Post article and removed the Plaintiff’s identifying information so as to conceal their infringement of the copyrighted photograph. For this claim, Plaintiff alleges they are entitled to costs, attorneys’ fees, gains and profits obtained by Defendant for the infringing use, or statutory damages ranging from $2,500.00 up to $25,000.00 per violation pursuant to 17 U.S.C. § 1203(c)(3)

December 5, 2018

Indiana Copyright Litigation: Dexas International, Ltd. Seeks Judgment in Cutting Board Case

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Dexas International, Ltd. of Coppell, Texas filed suit in the Southern District of Indiana alleging that Defendant, Menard, Inc. of Eau Claire, Wisconsin infringed its rights in United States Copyright Registration No. VA 2-118-094 (“Dexas Cutting Board Photo”). Plaintiff is seeking costs, reasonable attorneys’ fees, injunctive relief, and post judgment interest.

A Dexas employee created an original art piece entitled “Dexas Cutting Board Photo” within the scope of his employment in 2013 (the “Dexas Photo”). This art piece was for use in the product insert label for the Dexas cutting board. On April 4, 2018, Dexas applied for copyright registration for the Dexas Photo.

Dexas alleges that at least as of 2017, if not earlier, Menard began selling a “Collapsible Colander Cutting Board Set” with a label insert that includes the unauthorized copy of or derivative work based on the Dexas Photo. Further, Dexas believes Menard has manufactured, imported, published, sold, and/or distributed unauthorized copies of, or derivative works based upon the Dexas Photo and those were sold to consumers.

November 12, 2018

Indiana Trademark Litigation: Indiana University Sues Mid-America Publishing for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, The Trustees of Indiana University of Bloomington, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Mid-America Publishing, Inc., of Spencer, Indiana and Terry R. Self of Spencer, Indiana, infringed its rights in United States Trademark Registration Numbers 1,713,815, 4,912,172, 1,705,521, 2,868,784, 1,728,274, and 4,925,141 (collectively the “IU Marks”). The IU Marks were all instituted at different times, the earliest of which were used as early as 1975, and have been continuously used to date. Indiana University advertises and promotes the IU Marks and has spent a substantial amount of money to make the IU Marks inherently distinctive and easily recognizable. Plaintiff is seeking injunctive relief, judgment including statutory damages, and attorneys’ fees.

As of the date of filing, Mid-America Publishing, Inc. (“Mid-America”) was and had been administratively dissolved since July 15, 2010, according to the Indiana Secretary of State. Mr. Self is the sole officer and owner of Mid-America and as such directs all acts of Mid-America including producing, promoting, and selling posters, calendars, cards, and other printed materials. Previously, Mid-America began selling a poster of the Indiana University (“IU”) Men’s Basketball team with a listing of the games for their upcoming season. These posters included one or more trademarks owned by IU. Mid-America would customize these posters for local companies for them to pass out to as free promotional items.

Up until April 2012, there was an informal understanding between IU and Mid-America regarding the posters and the use of their trademarks. The parties’ informal understanding was formalized in April of 2012 when they entered into a multi-year Marketing and Sponsorship Agreement. The use of the trademarks was non-exclusive and limited, and Mid-America agreed not to use any student-athlete’s name or likeness without advance written approval from IU’s Compliance Officer. Mid-America produced and sold the posters in accordance with this Agreement up until May 2, 2016 when IU informed Mid-America that it would not continue licensing to Mid-America. The term of the Agreement was extended by one year in which Mid-America was allowed to produce the poster for the 2016-2017 season, after it received approval for the artwork from IU.

While IU photographs its student-athletes for promoting its athletic programs and events, it has a policy to prohibit any profits being made from the use of a student-athlete’s name, image, or likeness by IU or any third party. IU filed an expedited application with the United States Copyright Office to register their 2017-2018 IU Student-Athlete Photographs on October 3, 2018. The application has been registered as VA0002121460, but a Certificate of Registration had not been received by the Plaintiff as of the filing of the Complaint.

On October 9, 2017, Mr. Self on behalf of Mid-America, submitted an Application for License Agreement to IU to use the IU Marks in producing the 2017-2018 Mid-America IU Basketball Poster. The Application did not request to use any student-athlete names or likenesses, and the Trademark License Agreement provided by IU for consideration did not contain any license for the same. Mid-America executed the Trademark License Agreement on October 28, 2017. IU did not execute the agreement as it learned that Mid-America was already selling unapproved 2017-2018 IU Basketball Posters including the IU Marks, IU Student-Athlete Photographs, and the names of the student-athletes. After numerous attempts to contact Mid-America to resolve the situation, IU contacted the printers that Mid-America fraudulently induced to print the unapproved posters. The printers ceased printing the posters, agreed to destroy any they had remaining in their possession, and gave a quantity for how many they had already printed and delivered to Mid-America.

Despite all of the communication that was ignored by Mid-America for the 2017-2018 IU Basketball Poster production, Mid-America began producing and offering for sale its 2018-2019 version on August 29, 2018. Further, they are producing a Hoops Hysteria Handbook, which includes the schedule of each Division 1 college in Indiana, including IU’s. The Handbook does contain IU Student-Athlete Photographs and is offered for “free” with each Mid-America IU Basketball Poster, but advertises may pay for their advertisement to be printed on the back for $0.20 per booklet. As such, IU is claiming, trademark infringement and counterfeiting, false and deceptive labeling, unfair competition, and copyright infringement.

October 22, 2018

Summary Judgment Entered for Defendant in Richard Bell’s Indianapolis Skyline Photo Copyright Infringement Suit

By Overhauser Law Offices, LLC

Richard N. Bell of McCordsville, Indiana filed a copyright infringement suit in the Southern District of Indiana alleging that David N. Powell, the executive director of the Indiana Prosecuting Attorneys Council (“IPAC”) infringed the “Indianapolis Nighttime Photo” of Richard Bell by using the photograph in a Spring Conference Brochure for the Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”). Last week the Southern District of Indiana District Judge Tanya Walton Pratt denied Bell’s Motion for Summary Judgment and granted Powell’s and MRNISO’s Cross-Motions for Summary Judgment in the case.
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September 25, 2018

Southern District of Indiana Judge Grants Motion for Summary Judgment in Design Basics LLC. vs. Kerstiens Homes & Designs Case

By Overhauser Law Offices, LLC

Design Basics, LLC, Plan Pros, Inc. and Prime Designs, all of Omaha, Nebraska, filed suit in the Southern District of Indiana alleging that Kerstiens Homes & Designs, Inc., T-Kerstiens Homes Corp., Kerstiens Realty, Inc., Kerstiens Management Corp., Kerstiens Leasing Corp., Kerstiens Holding Corp., and Kerstiens Development Inc. infringed multiple copyrights of the Plaintiffs.

Plan Pros is in the business of licensing home designs to builders through Plaintiff Design Basics and other such brokers. Design Basics also designs their own home designs and licenses these as construction drawings that can be modified to fit the customer’s needs. Design Basics has published and distributed almost 200 home catalogs and other publications with their copyrighted home designs. For the seven home designs at issue in this case, Design Basics earned $25,000.00 in licensing fees from 116 licenses since 2009.

The Defendants filed summary judgment motions asserting that they were not in the business of building homes or creating house plans for the management and holding companies and that the Plaintiffs’ evidence did not support the elements of a copyright claim for the design and building companies. Further, the home and building companies asserted that they independently created the designs and the Plaintiffs did not show that they own the registrations for the copyrights at issue.

September 21, 2018

Indiana Copyright Litigation: Indiana’s Chicks On The Right Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Gabriella Bass of Brooklyn, New York, filed suit in the Northern District of Indiana alleging that Defendant, COTR, LLC of Indianapolis, Indiana, infringed her rights in United States Copyright Registration No. VA 2-055-082. Plaintiff is seeking damages, statutory damages, costs, expenses, attorneys’ fees, pre-judgment interest, and other relief as the Court may deem just and proper.

The copyright at issue in this case is that for photographs of the fearless girl statue in New York City with the addition of a urinating dog. Bass licensed the photographs that she took to the New York Post. They subsequently ran an article featuring the photographs on May 29, 2017 with Bass listed as the photographer. Following the release of the New York Post article, COTR ran an article on their website featuring Bass’ photographs. COTR, however, failed to license the photographs from Bass or obtain her permission or consent to publish the photographs in their article.

Bass is suing for copyright infringement under 17 U.S.C. §§ 106 and 501 for COTR’s unauthorized use of her photographs. She is seeking damages and statutory damages for this violation for up to $150,000 per work infringed under 17 U.S.C. §504. Bass also alleges that COTR violated 17 U.S.C. § 1202(b) by removing copyright management information identifying Bass as the photographer. Statutory damages under this violation fall under 17 U.S.C. § 1203(c)(3) and amount to at least $2,500 up to $25,000 per violation.