Copyright Infringement

March 31, 2016

Copyright Litigation: Authors and Authors Guild Ask to be Heard by Supreme Court in Copyright Infringement Lawsuit Against Google

Washington, D.C. – Following a ruling by the Second Circuit Court of Appeals in favor of Google, Inc., the 2005 class-action lawsuit The Authors Guild et al. v. Google, Inc. has headed to the U.S. Supreme Court.

Copyright litigators for Plaintiffs The Authors Guild et al. are asking the high court to hear the lawsuit, which alleges copyright infringement by the publication by Google of Google’s digital book library. Plaintiffs contend that Google, which seeks permission from the owners of the copyrighted works (typically libraries) but not from the authors of the works, has committed massive copyright infringement. Amicus curiae briefs have been filed with the Court by numerous parties. Among them are several notable authors including Malcolm Gladwell, Margaret Atwood, and Steven Sondheim.

Google has defended against the allegations by arguing, inter alia, that its use of the copyrighted material was permissible as a fair use.

Circuit Judge Denny Chin, sitting by designation, issued the opinion for the Southern District of New York. He agreed with Google that its use of the material was properly classified as a fair use, writing:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

The Second Circuit affirmed.

The questions presented by Plaintiffs to the Supreme Court are:

1. Whether, in order to be “transformative” under the fair-use exception to copyright, the use of the copyrighted work must produce “new expression, meaning, or message,” as this Court stated in Campbell and as the Third, Sixth, and Eleventh Circuits have held, or whether the verbatim copying of works for a different, non-expressive purpose can be a transformative fair use, as the Second, Fourth, and Ninth Circuits have held.
2. Whether the Second Circuit’s approach to fair use improperly makes “transformative purpose” the decisive factor, replacing the statutory four-factor test, as the Seventh Circuit has charged.
3. Whether the Second Circuit erred in concluding that a commercial business may evade liability for verbatim copying by arguing that the recipients of those copies will use them for lawful and beneficial purposes, a rationale that has been flatly rejected by the Sixth Circuit.

4. Whether a membership association of authors may assert copyright infringement claims on behalf of its members.

March 30, 2016

Indiana Copyright Law: Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Jane Magnus-Stinson dismissed a lawsuit by Indiana copyright attorney and professional photographer Richard Bell against Defendant Find Tickets, LLC of Alpharetta, Georgia for lack of personal jurisdiction.

In June 2015, Bell sued Find Tickets in the Southern District of Indiana asserting copyright infringement. He stated that the Georgia-based company had published a copyrighted photo on its website, www.findticketsfast.com, without his permission. The photo in question was one that Bell had taken of the downtown Indianapolis skyline. It had been registered by the U.S. Copyright Office under Registration No. VA0001785115.

On behalf of Find Tickets, a copyright lawyer asked the court to dismiss the complaint for lack of jurisdiction, averring that Find Tickets “does not maintain any offices in Indiana, has no employees in Indiana, holds no assets in Indiana, pays no taxes to the state of Indiana, and has no bank or other financial institution accounts in Indiana.” It was further stated that the business was owned by two Georgia residents, neither of whom had ever set foot in Indiana.

The court turned to a constitutional analysis of the due process requirements for personal jurisdiction, as elucidated by the Seventh Circuit in Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800-01 (7th Cir. 2014). Citing that appellate case, the district court stated:

Due process is satisfied so long as the defendant had “certain minimum contacts” with the forum state such that the “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” The relevant contacts are those that center on the relations among the defendant, the forum, and the litigation. However, “[f]or a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Thus, the relation between the defendant and the forum “must arise out of contacts that the ‘defendant himself‘ creates with the forum . . . .” Moreover, although no special test exists for internet-based cases, the Court focuses on whether the defendant has purposely exploited the Indiana market beyond the availability of the website in the forum state. (Citations omitted).

The district court was unpersuaded by Bell’s arguments, opining that the Seventh Circuit precedent set forth in Advanced Tactical “established that a defendant who ‘maintains a website that is accessible to Indiana residents should not be haled into court simply because the defendant owns or operates a website that is accessible in the forum state, even if it is ‘interactive.'”

The court similarly held that, as with Advanced Tactical, Defendant’s sales to residents of the forum state were insufficient to establish personal jurisdiction as it had not been demonstrated that such sales were related to the lawsuit.

Finding no personal jurisdiction over Defendant, the court dismissed the lawsuit without prejudice.

Practice Tip: Overhauser Law Offices, publisher of this blog, represented Defendants Real Action Paintball, Inc. and its president in the appeal to the Seventh Circuit.

March 25, 2016

Fox News Asserts Broadcast TV Database Infringes Copyright; EFF and Others Claim Fair Use

By Overhauser Law Offices, LLC

San Francisco, California – A media monitoring service that creates a text-searchable database of television and radio content is defending its fair use rights before a federal appeals court. The Electronic Frontier Foundation (“EFF”), New York University’s Technology Law and Policy Clinic, and Public Knowledge urged the court Wednesday to protect this innovative technology–and others that have yet to be developed–from being shut down by copyright infringement claims.

“Search engines and book digitization have proven the enormous social benefits of indexing and archiving the media,” said EFF Staff Attorney Kit Walsh. “This case is the latest in a long line of copyright-based challenges to these important tools, and it should fail just as the others have.”

In this case, Fox News sued a company called TVEyes, claiming the company’s broadcast content database–used by journalists, scholars, and political campaigns to study and monitor the national media–infringed its copyright in its programming. The district court acknowledged that the service is generally a fair use of copyrighted material, but then, in a second ruling, held that some of the features of the TVEyes database could facilitate infringement, including the ability to share links or search by date and time. In a departure from established legal precedent, the court ruled that this was enough to defeat TVEyes’ fair use defense.

March 23, 2016

Copyright Litigation: Forensic Exam, Testimony Fail to Demonstrate Infringing Material on Defendant’s Computer

By Overhauser Law Offices, LLC

Chicago, Illinois – Magistrate Judge Geraldine Soat Brown of the Northern District of Illinois granted the motion for summary judgment of John Doe, the anonymous Defendant sued by pornographer Malibu Media LLC (“Malibu”) on allegations of copyright infringement.

Plaintiff alleged that, between May 2013 and July 2013, Defendant infringed Malibu’s copyright in 24 movies by downloading them from the internet using file-sharing software known as BitTorrent. Copyright attorneys for Malibu filed a copyright infringement lawsuit against Defendant, stating that Defendant had been identified by the internet protocol (“IP”) address that had been used to infringe. Defendant was permitted to litigate anonymously as “John Doe” (“Doe”).

Malibu submitted various pieces of evidence to support its contentions that Doe had infringed the copyrights on Malibu’s works, including a declaration by the founder of Malibu and declarations of various experts, such as forensic investigators. Doe denied Plaintiff’s claims and contested its method of proof.

The court evaluated Malibu’s evidence, noting that some of it was simply pro forma and included no relevant and particularized statements about the copyright infringement that Malibu alleged had been committed by Doe. The court stated that at least one pleading was described by Malibu as containing attached materials that had not, in fact, been attached. Other material was described by Malibu as having been sent to the court, while the court indicated that it had never been received.

The court also reproached Malibu’s attorneys for misrepresenting to the court the court’s earlier statements regarding the relevant evidentiary requirements to prove Doe’s liability. It further noted that Malibu had failed to adhere to required procedures, such as the serving of several disclosures under Rule 26(a)(2). Because those disclosures had not been made, and because the court held that the failure to disclose was evidence of at least willfulness, if not bad faith, two of Malibu’s declarations were stricken in their entirety as were portions of a third declaration. All of Malibu’s statements of fact that relied upon the stricken material were also excluded from evidence.

The court subsequently concluded that “Malibu has no evidence that any of its works were ever on Doe’s computer or storage device,” stating that Malibu’s contention that Doe had used visualization software to infringe Malibu’s works was merely speculation:

Malibu admits that there is no evidence of visualization software on Doe’s computer, and not even any evidence of the deletion of visualization software. Malibu says that is “beyond fishy,” and speculates that Doe must have deleted visualization software from his computer in some way that hides the fact that it was deleted, and then extends the speculation to suggest that Doe must have done that deletion to hide his infringement of Malibu’s works. That is not evidence that Doe copied or distributed Malibu’s works.

The court granted Defendant’s motion for summary judgment. Plaintiff’s motion for summary judgment, which asked the court to conclude that Doe had infringed its copyrighted works, was denied.

Practice Tip #1: Malibu has filed a multitude of virtually identical lawsuits around the country. According to a recent case in New York, “Malibu is a prolific litigant: between January and May 2014, for example, Malibu was responsible for 38% of copyright lawsuits filed in the United States.” Malibu Media, LLC v. Doe, No 15 Civ. 4369 (AKH), 2015 WL 4092417, at *3 (S.D.N.Y. July 6, 2015).

Practice Tip #2: We have blogged about Malibu Media’s litigation exploits before. Some recent posts include:

• Magistrate Rejects Malibu Media’s Request for Fees and Sanctions
• Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement
• Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media
• Malibu Media Alleges Infringement of Thirty Copyrighted Works

• Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement

March 21, 2016

Indiana Trademark and Copyright Litigation: Sweetwater Contends Hello Music Copied its Website, Infringed its Intellectual Property

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Indiana intellectual property lawyers for Plaintiff Sweetwater Sound, Inc. (“Sweetwater”) of Fort Wayne, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff alleges that Defendant Hello Music, LLC of Austin, Texas infringed its trademarks, which have registered by the U.S. Patent and Trademark Office as Trademark Nos. 3,652,255 and 3,652,249. In addition, Sweetwater Sound contends that Hello Music infringed its copyright, issued by the U.S. Copyright Office as TX 8-064-067, which protects the contents of its website. Other counts of alleged wrongdoing, including claims under Indiana law, have been asserted.

Hello Music is accused of duplicating copyrighted content from Sweetwater’s website and using that protected content on its own website. Sweetwater contends that part of the content purportedly copied includes the Sweetwater trademark. Sweetwater also asserts that these acts by Hello Music constitute a willful and deliberate attempt to trade on Sweetwater’s goodwill.

In the complaint, filed in federal court Friday, the following claims are made:

• Count I: Copyright Infringement
• Count II: Trademark Infringement (False Designation of Origin)
• Count III: Trademark Dilution

• Count IV: Unfair Competition

Sweetwater asks the court to grant equitable relief, including the destruction of infringing materials. It also seeks actual and treble damages, disgorgement of all profits that resulted from infringing acts, litigation costs and attorneys’ fees.

February 16, 2016

Indiana Copyright Litigation: Design Basics Files Additional Indiana Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana intellectual property attorneys for Design Basics LLC, Plan Pros, Inc. and Carmichael & Dame Designs, Inc., all of Omaha, Nebraska, sued in the Southern District of Indiana alleging copyright infringement. This lawsuit follows the recent filing by Design Basics of six similar copyright lawsuits in the Northern District of Indiana.

Plaintiffs Design Basics, Plan Pros and Carmichael & Dame are engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works.

The Defendant in this lawsuit is Michael Shrader. Plaintiffs contend that Shrader does business as Palladian Home Design, Palladian Home Designs, Palladian Blueprints, Palladian Drafting & Design Services, Palladian Architectural Drafting & Design Services and Palladian Design/Build. Shrader is alleged to have infringed the copyrights of multiple home designs that have been registered with the U.S. Copyright Office and to which Plaintiffs claim ownership.

Defendant’s accused activities include, but may not be limited to, reproductions of one or more of the following:

• Design Basics’ Plan No. 1380 – Paterson (U.S. Copyright Registration Nos. 314-024 & 694-094)
• Design Basics’ Plan No. 1752 – Lancaster (U.S. Copyright Registration Nos. 371-204, 694-094 & 756-041)
• Design Basics’ Plan No. 2332 – Corinth (U.S. Copyright Registration Nos. 485-066, 694-088 & 710-606)
• Carmichael & Dame’s Plan No. 9169 – Kempton Court (U.S. Copyright Registration Nos. 867-084 & 867-087) and

• Plan Pros’ Plan No. 29303 – Bloom (U.S. Copyright Registration Nos. 1-397-448 & 1-412-560) (the “Copyrighted Works”).

Plaintiffs seek equitable relief along with damages, costs and attorney fees.

February 11, 2016

Indiana Copyright and Trademark Litigation: Magazine Publisher Sues Commemorative Plaque Maker Alleging Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright and trademark attorneys for Plaintiff The Rough Notes Company, Inc. (“Rough Notes”) of Carmel, Indiana commenced a copyright infringement lawsuit in the Southern District of Indiana.

The Defendant, That’s Great News, LLC (“Great News”) of Cheshire, Connecticut, is accused of infringing U.S. Trademark Registration No. 2,585,340, which has been filed with the U.S. Patent and Trademark Office, as well as unfair competition, false designation of origin, and dilution under the Lanham Act. Allegations of copyright infringement of material protected by Copyright Registrations Registration Nos. TX 7-988-447 and TX 7-988-464, as well as other related claims, have also been made.

Plaintiff Rough Notes is a publisher of print and online magazines. It indicates that it has used its “Rough Notes” trademark since 1878 and that the trademark was registered in 2002. Rough Notes contends that Defendant Great News has violated it copyright, trademark and other intellectual property rights by producing samples of commemorative plaques that feature protected content owned by Rough Notes and distributing samples via e-mail to solicit the purchase of a plaque.

In this federal complaint, filed with the court by Indiana copyright and trademark lawyers for Rough Notes, the following causes of action are alleged:

• Copyright Infringement
• Federal Unfair Competition & False Designation of Origin
• Federal Trademark Infringement
• Common Law Trademark Infringement
• Federal Trademark Dilution
• Common Law Unfair Competition

• Unjust Enrichment

Rough Notes seeks equitable relief; statutory damages, including up to $150,000 for willful infringement; and reimbursement of costs and attorneys’ fees.

Practice Tip: Plaintiff may have difficulty overcoming the defense of nominative fair use of a trademark in this lawsuit. That doctrine provides that, as a matter of law, nominative use of a mark — where the only word reasonably available to describe a particular thing is pressed into service — lies outside the strictures of trademark law. Defendant may argue that its use of “Rough Notes” on its commemorative plaques was permissible as those are the only words reasonably available to adequately describe a plaque displaying an article featured in a “Rough Notes” publication.
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February 5, 2016

Indiana Copyright Litigation: Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs

By Overhauser Law Offices, LLC

Northern District of Indiana – Plaintiff Design Basics, LLC of Omaha, Nebraska filed six lawsuits in the Northern District of Indiana alleging that multiple Defendants committed copyright infringement by constructing buildings based on plans derived from Plaintiff’s copyrighted works.

Design Basics is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works. It has sued multiple Defendants, most of them home designers and builders, for copyright infringement.

The Defendant in the first lawsuit is Big C Lumber Co. Inc. of South Bend, Indiana. Two Defendants are listed in the second lawsuit: Carriage Place Homes, Inc., f/k/a Carriage Properties, Inc., d/b/a Bridle Homes and Bridle Homes, Inc. of Fort Wayne, Indiana.

The third lawsuit lists multiple Defendants: Culver Construction, Inc., d/b/a Culver Remodeling, Culver Design Build, Culver Custom Homes, and Hallmark Homes of Michiana; Culver Development Corporation d/b/a Property Management Services; Wes Culver Realty, LLC d/b/a KW Commercial and Industrial, Wes Culver Auctions, and Wes Culver Home Team; and New Paris Development Company, LLC of Goshen, Indiana.

In the fourth lawsuit, Lancia Homes, Inc. of Fort Wayne, Indiana, which does business as Lancia Construction, Springmill Development, Lancia Real Estate, Lancia Homes, Springmill Wood Development and Waterford Enterprises, is named. Quality Crafted Homes, Inc. of Harlan, Indiana is the sole Defendant in the fifth lawsuit.

The final lawsuit lists Windsor Homes, Inc., d/b/a Windsor Homes by Jeff Gilmore; Windsor Construction, LLC; Windsor Construction, Inc; and Windsor, Inc. of Fort Wayne, Indiana as Defendants.

While the details vary among the different lawsuits, the allegation at the core of each complaint is infringement of one or more of Design Basics’ copyrighted architectural designs by Defendants, with each lawsuit complaining of Defendants’ “construction and sale” of structures that infringe Plaintiff’s copyrights. Design Basics seeks equitable relief, damages, costs and attorney fees.

January 26, 2016

Indiana Trademark Litigation: Texas Roadhouse v. Texas Corral Litigation Moves to Indiana

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark litigation commenced in the Western District of Michigan in 2013 was transferred to the Northern District of Indiana yesterday.

This federal lawsuit, filed by trademark attorneys for Plaintiffs Texas Roadhouse, Inc. and Texas Roadhouse Delaware LLC, both of Louisville, Kentucky, alleges infringement of U.S. Service Mark Reg. No. 1,833,533, U.S. Service Mark Reg. No. 2,231,309, and U.S. Service Mark Reg. No. 2,250,966. These marks have been filed with the U.S. Patent and Trademark Office.

The Defendants listed in the Michigan complaint were Texas Corral Restaurants, Inc.; Switzer Properties, LLC; Texcor, Inc.; Texas Corral Restaurant II, Inc.; T.C. of Michigan City, Inc.; T.C. of Kalamazoo, Inc.; Chicago Roadhouse Concepts, LLC; Paul Switzer; Victor Spina; and John Doe Corp. Defendants filed a motion to dismiss or, in the alternative, transfer venue, with the Michigan court, which was granted. The lawsuit will continue in the Northern District of Indiana.

Plaintiffs, via their trademark lawyers, asserted the following claims:

• Count I: Trade Dress Infringement
• Count II: Federal Trademark Infringement
• Count III: Trademark Infringement Under Michigan Statutory Law
• Count IV: Trademark Infringement Under Indiana Statutory Law
• Count V: Trademark Infringement Under Common Law
• Count VI: Copyright Infringement

• Count VII: Unfair Competition Under Michigan and Indiana Common Law

Texas Roadhouse seeks equitable relief; damages, including punitive damages; costs and attorney fees.

January 1, 2016

Indiana Copyright Litigation: Former Volunteer Sues Non-Profit for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright lawyers for Plaintiff Angela Ellsworth of Huntington, Indiana filed a copyright lawsuit in the Southern District of Indiana alleging that Mission 22 a/k/a Elder Heart, Inc. of Nashville, Indiana infringed Ellsworth’s copyrighted artwork, Copyright Registration No. VA1-958-239, by creating at least one unauthorized derivative work.

Plaintiff Ellsworth is a professional artist. Defendant Elder Heart is a non-profit organization that helps veterans with post-traumatic stress disorder and promotes awareness of the veteran suicide rate of 22 per day.

From October 2013 to November 3, 2014, Ellsworth volunteered to assist Defendant in its efforts. Ellsworth states that she created original art, entitled “22”, that depicted the silhouettes of 22 soldiers and the shadows of those 22 silhouettes in November 2013. She indicates that she received a copyright for this artwork in April 2015.

Ellsworth claims that she donated 13 prints of a derivative of her copyrighted artwork to Defendant, including one that was specifically designated as a gift to Magnus Johnson, President and Chief Executive Officer of Defendant.

At a time unspecified in this copyright lawsuit, Defendant launched a project, “Mission 22,” to raise awareness of the veteran suicide rate. Ellsworth contends that, as part of this project, Defendant designed a sculpture that knowingly and willfully copied Plaintiff’s copyrighted artwork. Elder Heart also announced its intention to build the sculpture as a national monument.

In March 2015, a copyright attorney for Elder Heart contacted Ellsworth stating that, at the time that Elder Heart created the accused artwork, it was unaware of Ellsworth’s artwork and that “any similarities with [Plaintiff’s] artwork are a coincidence at best.” Ellsworth asserts that Elder Heart’s copyright counsel subsequently admitted that those statements were untrue.

This lawsuit lists a single count, copyright infringement. It asserts that “Defendant has created at least one unauthorized derivative work, violating Plaintiff’s exclusive right to prepare derivative works based upon her copyrighted Artwork.” Plaintiff Ellsworth seeks injunctive relief along with damages, attorneys’ fees and costs.