Copyright Infringement

January 23, 2015

Indiana Copyright Law: Court Orders SVT to Provide Video to EEOC Despite Copyright Concerns

Hammond, Indiana – Magistrate Judge Paul R. Cherry of the Northern District of Indiana, Hammond Division, ordered SVT, LLC d/b/a Ultra Foods (“SVT”) to produce a copyrighted training video to the Equal Employment Opportunity Commission (“EEOC”) in ongoing gender-discrimination litigation.

In 2010, Tiffany Swagerty was rejected from a position as a night crew stocker at SVT’s Ultra Foods operation in Merrillville, Indiana. She complained to the EEOC contending that SVT’s hiring manager had told her that women that were not usually hired for night positions. The subsequent investigation by the EEOC corroborated Swagerty’s assertions. The EEOC later sued SVT for violations of Title VII seeking injunctive relief and, on behalf of Swagerty and other similarly rejected female applicants, monetary damages.

In this current opinion in the matter of Equal Employment Opportunity Commission v. SVT, LLC d/b/a Ultra Foods, the court ruled on several discovery disputes between the parties. Among those issues was whether SVT must produce to the EEOC copies of a copyrighted “stocking video” or whether, in order to obtain a copy, the EEOC must bear a portion of the cost of the materials.

Specifically, as part of its discovery requests, the EEOC asked SVT to provide “all documents containing job descriptions for all stocker positions … including hiring criteria, requirements, and responsibilities created.” SVT objected to providing one piece of responsive material – a stocking DVD that was shown to overnight stockers during orientation – on copyright grounds. SVT stated that, while it had made “in-house copies” of the video, it would not be able to produce a copy of the materials to the EEOC and that it would cost $700 for the EEOC to order and purchase a set of the DVDs. Instead of providing the DVD, SVT offered to have counsel for the EEOC either share in the cost of the DVDs or, in the alternative, to view the DVDs at counsel for SVT’s office during the breaks of depositions. EEOC refused this offer and filed a motion to compel the production of the video.

The court was not persuaded that either of SVT’s proposals was sufficient. The court stated instead that SVT had offered an “unclear … explanation of when and how it obtained the original and/or copies of the DVDs, the nature and extent of any copyright that might exist, and what the costs … were expended for.” Consequently, the court granted the EEOC’s motion to compel, holding that SVT had “not met its burden of demonstrating that the cost of this discovery should be shifted” and ordered SVT to produce the copyrighted material to the EEOC without cost to the EEOC.

January 21, 2015

Open Wi-Fi and Copyright: DMCA Safe Harbors

By Overhauser Law Offices, LLC

As explained in Monday’s blog post, in general a network operator should not be liable for its users’ activity as long as the operator merely acts as a passive conduit for Internet traffic. However, network operators who remain worried about the risk of liability for copyright infringement can consider another option: the safe harbors provided by the Digital Millennium Copyright Act (“DMCA”).

In order to foster online expression and commerce, Congress crafted a set of safe harbors from copyright liability to provide “greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.”

Under the DMCA, “service provider” includes “an entity . . . providing [] connections for digital online communications.” The definition of a service provider is broad, and includes those who do not operate communications equipment themselves. In one case, for example, a federal appeals court held that a payment processor for online content was a DMCA “service provider” even though it didn’t operate the alleged infringer’s Internet connection or transmit any infringing material. Congress also intended that the term cover “subcontractors” of Internet service providers. Arguably, this definition covers the providers of open Wi-Fi, such as municipalities, cafes, and libraries.

January 19, 2015

Open Wi-Fi and Copyright: A Primer for Network Operators

By Overhauser Law Offices, LLC

Open networks provide Internet access to the public. Users do not need to subscribe – they simply connect their devices, often over a wireless connection. For instance, the City of San Francisco recently deployed a free, public Wi-Fi network along a three-mile stretch of Market Street. Similarly, the Open Wireless Movement encourages owners of home Wi-Fi hotspots to open their networks to the public.

Operators of open networks may worry that they could be liable if people use their networks to engage in copyright infringement. This blog post generally explains the scope and limits of secondary liability for the acts of users, and additional steps network operators may choose to take to further limit any legal risk.

This post should not be taken as legal advice specific to any individual network operator.

November 19, 2014

Indiana Copyright Law: Seventh Circuit Holds that Subsequent Copyrighted Works Do Not Extend Copyright Period for Earlier Works

By Overhauser Law Offices, LLC

Chicago, Illinois – California attorney Leslie S. Klinger, co-editor of multiple collections of annotated works based on Arthur Conan Doyle‘s Sherlock Holmes fiction sued Conan Doyle Estate, Ltd. under the Declaratory Judgment Act in the Northern District of Illinois seeking a declaratory judgment that he may freely use material from those Sherlock Holmes works for which copyright protection has expired. The district court held that Klinger’s use of material that was no longer subject to copyright was permissible. The Seventh Circuit affirmed.

Arthur Conan Doyle published 56 stories and 4 novels featuring the fictional character Sherlock Holmes. Of these stories, only the final 10, published between 1923 and 1927, are still protected by copyright.

Leslie Klinger, Plaintiff-Appellee, co-edited an anthology called A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. Klinger had not sought a license from Doyle’s estate, presuming that one was not necessary, as the copyrights on most of the works in the “canon” had expired. The estate disagreed and demanded that Random House, which had agreed to publish Klinger’s book, pay $5,000 for a copyright license. Random House acquiesced and, in 2011, the anthology was published.

The trouble began when Klinger and his co-editor decided to create a sequel, “In the Company of Sherlock Holmes” and entered into negotiations with Pegasus Books, a publisher. The Doyle estate again demanded a fee for a copyright license and threatened to interfere with distribution of the book if that copyright license fee was not paid, telling Pegasus, “If you proceed instead to bring out Study in Sherlock II [the original title of “In the Company of Sherlock Holmes”] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.” No threat of a lawsuit for copyright infringement was explicitly made. Pegasus subsequently refused to publish the book unless and until Klinger obtained a copyright license from the Doyle estate.

Instead of purchasing a license, Klinger sued the estate seeking a declaratory judgment that he could freely use any material from the Sherlock Holmes works for which the period of copyright protection had expired.

The district court held in Klinger’s favor. The estate appealed to the Seventh Circuit on two alternative grounds. The estate first contended that the district court lacked subject matter jurisdiction under the Declaratory Judgment Act because there was no “actual case or controversy.” Second, it asserted that a copyright on a “complex” character, whose full complexity is not revealed until a later story, remains protected under copyright law until the later story falls into the public domain.

Circuit Judge Posner, writing for the court, rejected both arguments. The “case or controversy,” necessary for federal jurisdiction was demonstrated by the estate’s “twin threats” of blocking the distribution of the book and the implied threat of a copyright lawsuit against the publisher, Klinger and the book’s co-editor for copyright infringement if the book were published without a license. That such a case or controversy existed was also demonstrated by the fact that Klinger could have sued on a claim of tortious interference with advantageous business relations as a result of the estate’s intimidation of his publisher.

The court then considered the question of “whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work.” The estate urged the court to grant additional copyright protection in its case, arguing that characters such as Sherlock Holmes were “round” and/or “complex” and thus deserving of greater shelter under copyright law than fictional characters that were “flat” and/or “simple.”

The court could find no basis in statute or case law to support the extension of a copyright beyond its expiration. Thus, it affirmed the uncontested matter of copyright protection for the later works – namely, a right to recover for copyright infringement still existed for some portions of the Sherlock Holmes works for which the copyrights had not yet expired. However, that protection was limited to only those elements of the later Sherlock Holmes works that included “incremental additions of originality.” The remainder, the court opined, had passed into the public domain, regardless of the dimensions of the characters portrayed.

Practice Tip: The court was also unpersuaded by the Doyle estate’s argument to extend copyright law on the grounds that failure to do so would diminish authors’ incentives to create. After noting that Arthur Conan Doyle had died 84 years prior, thus rendering the argument inapplicable in the current litigation, the court noted that “extending copyright protection is a two-edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain.”

October 31, 2014

Indiana Patent and Copyright Litigation: Lake Lite Sues Multiple Defendants for Patent and Copyright Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – A patent and copyright attorney for Lake Lite Inc. of Laotto, Indiana filed a complaint in the Northern District of Indiana asserting, inter alia, that Universal Forest Products, Inc. of Grand Rapids, Michigan (“UFP”); Universal Consumer Products, Inc., also of Grand Rapids, Michigan (“UCP”); and Maine Ornamental, LLC of Greene, Maine infringed “Solar Dock Light” and “Low Profile Solar LED Lamp,” Patent Nos. D697,246 and 8,845,126, which have been issued by the U.S. Patent Office.

Lake Lite is in the business of designing and selling dock lights and other related products and accessories in the boating/dock industry. Its product line includes solar-related dock lights.

In April 2012, Lake Lite first began to offer a “Solar Dot” line of products. Lake Lite indicates that UFP inquired about collaborating with Lake Lite to offer the Solar Dot products to UFP’s customers and that, in November 2012, a mutual non-disclosure agreement was entered so that confidential information regarding Lake Lite’s Solar Dot products could be disclosed and the potential collaboration evaluated. The disclosed information included Lake Lite’s copyright applications to now-copyrighted materials, registered as U.S. Copyright Nos. VAu001118627 and VAu001156962.

Lake Lite asserts that, during these negotiations, it made numerous modifications requested by UFP for which it was not compensated. Lake Lite and UFP failed to reach an agreement about licensing terms and discontinued negotiations. Instead, Lake Lite asserts, UFP has now wrongfully begun offering its own “Solar Deck and Dock Lights.”

In this Indiana copyright and patent litigation, Plaintiff Lake Lite’s specific complaints include that Defendants have been unjustly enriched as a result of their manufacture, importing, marketing and sale of their solar deck and dock light products. Lake Lite contends that Defendants’ acts include infringement of Lake Lite’s copyrights and patents, unauthorized use and misappropriation of Lake Lite’s confidential information and trade secrets and violation of the mutual non-disclosure agreement between Lake Lite and UCP.

The complaint, filed by a copyright and patent lawyer for Lake Lite, alleges the following:

• Count One – Copyright Infringement

• Count Two – Infringement of U.S. Patent No. D697,246

• Count Three – Infringement of U.S. Patent No. 8,845,126

• Count Four – Breach of Contract

• Count Five – Breach of Implied Duty of Good Faith and Fair Dealing

• Count Six – Violation of Indiana Uniform Trade Secret Act

• Count Seven – Unjust Enrichment

Lake Lite asks for a judgment of infringement of its copyrights-in-suit, of infringement of its patents-in-suit, that the non-disclosure agreement was violated by Defendants, that Defendants violated the implied duty of good faith and fair dealing in their dealings with Lake Lite regarding the Solar Dot products, that Defendants have misappropriated Lake Lite’s trade secrets and that Defendants have been unjustly enriched.

Lake Lite seeks injunctive relief; damages, including punitive damages; costs and fees, including attorneys’ fees.

Practice Tip:

Indiana Code Section 24-2-3-2 defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

1. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

2. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The four general characteristics of a trade secret are:

1. it is information;

2. that derives independent economic value;

3. that is not generally known, or readily ascertainable by proper means by others who can obtain economic value from its disclosure or use; and

4. that is the subject of efforts, reasonable under the circumstances, to maintain its secrecy.

October 27, 2014

Indiana Copyright Litigation: ABRO Sues for Infringement of Product Packaging

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana copyright attorneys for ABRO Industries, Inc. of South Bend, Indiana sued in the Northern District of Indiana alleging that 1 New Trade, Inc. of Baltimore, Maryland (“New Trade”), Quest Specialty Coatings, LLC of Menomonee Falls, Wisconsin (“Quest”), Igor Zorin and Boris Babenchick and Vadim Fishkin, infringed copyright protections associated with ABRO’s carburetor and choke cleaner package, pending U.S. Copyright Application Case No. 1-1845314781, which is currently under review with the U.S. Copyright Office.

ABRO markets and sells various automotive, industrial and consumer products throughout the world. It claims ownership of an extensive portfolio of intellectual property rights in more than 165 countries. ARBO indicates that, since at least 1992, it has continuously sold and distributed a carburetor and choke cleaner, the packaging of which is the subject of this intellectual property lawsuit.

In this copyright litigation, ABRO alleges that New Trade, under the direction and control of Zorin, Babenchik and Fishkin, is unfairly competing with ABRO by obtaining products from an affiliate of an ABRO supplier in the United States and then distributing the products in containers nearly identical to ABRO’s containers used with identical products, in the same markets, and to the same customers.

Defendants Zorin, Babenchick, Fishkin and New Trade are accused of having reproduced ABRO’s packaging work by using “nearly identical” packaging for New Trade’s competing carburetor and choke cleaning product. Defendants Zorin and Babenchick are the principal owners of Defendant New Trade. Defendant Fishkin is New Trade’s general manager. Defendant Quest is accused of supplying the carburetor and choke cleaning product.

In its complaint, filed by Indiana copyright lawyers, ABRO lists the following claims:

• Count I: Copyright Infringement

• Count II: Personal Liability and/or Vicarious Liability for Copyright Infringement -Zorin, Babenchik, and Fishkin

In its complaint, filed by Indiana copyright lawyers, ABRO asks for the following:

A. Judgment on all counts against each of the Defendants individually and jointly and severally and in favor of ABRO;

B. A preliminary and permanent injunction enjoining and restraining Defendants, their agents, and all persons who act in concert and participation with them who learn of the injunction through personal service or otherwise:

(1) From further acts of infringement; and

(2) From copying, using, distributing, publishing by any means or creating a derivative work of the Work under 17 U.S.C. §502;

C. An award of actual damages caused by and any profits obtained by Defendants attributable to infringement of the Work pursuant to 17 U.S.C. §504(b);

D. For infringement of the Work occurring after registration thereof, an award of statutory damages or alternatively actual damages caused by and any profits obtained by Defendants attributable to the infringement pursuant to 17 U.S.C. §§504(b) and 504(c);

E. Impoundment and destruction of all products, catalogs, advertisements, promotional materials or other materials in Defendants’ possession, custody or control found to have been made or used in violation of ABRO’s copyrights pursuant to 17 U.S.C. §503;

F. An award of reasonable attorneys’ fees and costs pursuant to 17 U.S.C. §505; and

G. An award of prejudgment and post-judgment interest.

Practice Tip:

This is an interesting complaint. Plaintiff makes what, at first glance, appears to be a case of trademark/trade-dress infringement, including allegations such as “intent to capitalize on ABRO’s goodwill and well-known reputation,” which are normally found in a trademark complaint. ABRO also refers in its complaint to its “extensive anti-counterfeiting program throughout the world… [which has] has resulted in countless raids, product seizures, arrests and jail terms for counterfeiters.” Yet this lawsuit is styled as a copyright case.

Copyright law in the United States is founded on the Constitutional goal of “promot[ing] the Progress of Science and useful Arts” by providing exclusive rights to creators. Protection by copyright law gives creators incentives to produce new works and distribute them to the public. In doing so, the law strikes a number of important balances in delineating what can be protected and what cannot, determining what uses are permitted without a license, and establishing appropriate enforcement mechanisms to combat piracy.

The law of copyright is generally thought of as affording protection to works that are typically thought of as art – books, paintings, music and the like. Nonetheless, works that are not primarily designed as art, such as elements of product packaging, might still secure protection by registering with the U.S. Copyright Office. A copyright registration, if available, is easier and less expensive to obtain than a registered patent or trademark. The registration remains valid much longer than a patent and does not require use in commerce, as does a trademark.

Copyright protection also provides benefits to a plaintiff when suing for infringement. In many cases, copyright infringement can be proved more easily than others types of infringement. Moreover, the damages available upon proof of infringement include statutory damages, available without a showing of harm, as well as attorneys’ fees, which are available without pleading or proving that the case was “exceptional.”

October 15, 2014

Indiana Copyright and Trademark Litigation: Edible Arrangements Sues Edible Creations and Owner

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – An Indiana trademark attorney for Edible Arrangements, LLC (“EA”) and Edible Arrangements International, LLC (“EAI”) of Wallingford, Connecticut filed an intellectual property complaint in the Northern District of Indiana alleging trademark and copyright infringement by Tom Drummond and Edible Creations, LLC (“EC”) of Allen County, Indiana. Defendants are accused of infringing several trademarks (below), which have been issued by the U.S. Trademark Office, as well as a copyrighted work.

Since 1998, EAI has been using the phrase “Edible Arrangements,” together with various related design marks, in connection with various food products. Its products include fruit cut to look like flowers as well as other fruit products. EAI operates a franchise network of over 1,200 independent owner-operated franchise locations throughout the United States and internationally. It sublicenses the trademarks at issue in this Indiana litigation to its franchisees.

The other Plaintiff, EA, owns the following trademarks relating to “Edible” and “Edible Arrangements”:

In August 2013, Defendants Edible Creations and the company’s owner, Tom Drummond, Filed an application for what Plaintiffs content is a mark that is confusingly similar to one or more of EA’s trademarks:

In September 2013, Plaintiffs sent a cease-and-desist letter demanding that Edible Creations cease using the mark. It later filed an opposition before the Trademark Trial and Appeal Board (“TTAB”) challenging the registration on the grounds of deceptiveness, false suggestion of a connection between Edible Creations and EA, likelihood of confusion, dilution, misdescriptiveness and fraud. Edible Creations did not respond to EA’s opposition and the TTAB entered a default against Edible Creations and refused to register Edible Creations’ mark.In August 2013, Defendants Edible Creations and the company’s owner, Tom Drummond, filed an application for what Plaintiffs contend is a mark that is confusingly similar to one or more of EA’s trademarks:

In this lawsuit, Defendants have been accused of continuing to advertise, promote and sell fruit arrangements in Indiana using the phrase “Edible Creations” and “Edible Creations Creator of Edible Floral Arrangements.” They have also been accused of violating EA’s copyright in a sculpture known as the “Hearts and Berries Fruit Design” by displaying the copyrighted design in print, including on vehicles, and on the internet.

In its complaint, filed by an Indiana trademark and copyright lawyer, Plaintiffs list the following claims:

Trademark Infringement
False Designation of Origin
Trademark Dilution

By Blurring
By Tarnishment
Copyright Infringement
Unfair Competition
Unfair Competition

Plaintiffs seek damages, including punitive damages, as well as injunctive relief.

Practice Tip:

Allegations of trademark dilution involve a different analysis from claims of trademark infringement. The first type of trademark dilution is dilution by blurring. An allegation of dilution by blurring requires that the plaintiff prove, among other things, that its mark is “famous.” This is not an easy burden, requiring that the mark have “extensive public recognition and renown” within the population of average consumers. There are some marks, such as Chanel, Coke and Microsoft, for which establishing such renown is likely achievable. However, this bar is extremely high. Even trademarks that are very well known, such as Coach, which has been used since 1961 and under which several billion dollars of sales are made annually, have been found to be “not famous” for the purposes of a dilution analysis. Edible Arrangements will have a difficult time proving this claim.

The second type of trademark dilution is dilution by tarnishment. Edible Arrangements will also have a difficult time establishing the elements of this type of trademark dilution. This cause of action is generally brought when the reputation of a well-known mark is harmed by another’s use of that trademark or a similar mark within a sexual context. For example, in Kraft Foods Holdings, Inc. v. Helm, 205 F. Supp. 2d 942, 949-50 (N.D. Ill. 2002), the court held that the use of the term “VelVeeda” by a pornographic website tarnished the trademark held by the makers of Velveeta cheese. Courts may also find dilution by tarnishment where a defendant offers inferior products or services. It is unclear that Plaintiffs here have alleged facts sufficient to support a claim of tarnishment.

October 13, 2014

Indiana Teen Indicted for Theft of Intellectual Property Valued More Than $100 Million

By Overhauser Law Offices, LLC

District of Delaware – Four members of an international computer hacking ring were

indicted for stealing gaming technology and Apache helicopter training software. Two have already pled guilty.

Four members of an international computer hacking ring have been charged with breaking into computer networks of prominent technology companies and the U.S. Army and stealing more than $100 million in intellectual property and other proprietary data. Two of the charged members have already pleaded guilty. The alleged cyber theft included software and data related to the Xbox One gaming console and the Xbox Live online gaming system; popular games such as “Call of Duty: Modern Warfare 3” and “Gears of War 3”; and proprietary software used to train military helicopter pilots.

August 28, 2014

Indiana Copyright Litigation: Photographer Sues Theater and Publisher for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Larry G. Philpot, a professional photographer from Indianapolis, Indiana, filed two new Indiana copyright infringement lawsuits in the Southern District of Indiana. These lawsuits are in addition to another intellectual property lawsuit filed by Philpot recently.

On October 4, 2009, Plaintiff Philpot photographed Willie Nelson during a performance in St. Louis, Missouri (“Nelson photograph”). On August 2, 2013, he photographed Chris Daughtry during a performance in Indianapolis, Indiana (“Daughtry Photograph”).

In an effort to increase his marketability and reputation and to gain more work, Philpot made the photographs of Nelson and Daughtry generally available through Wikimedia under the Creative Commons Attribution 2.0 Generic license (“CC BY 2.0”). Philpot asserts that CC BY 2.0 requires a licensee to (a) reference CC BY 2.0 with every copy of the photo used and (b) provide attribution in the manner specified by the author. He claims that these requirements applied to republication of his copyrighted photos of Nelson and Daughtry. The two new Indiana copyright infringement complaints assert that Defendants did not comply with these licensing requirements and are, consequently, liable for copyright infringement.

In the first complaint, Mansion America, LLC d/b/a Oak Ridge Boys Theater of Branson, Missouri is accused of copyright infringement of Philpot’s Willie Nelson photograph, Certificate Number VAu 1-132-411, which was issued by the U.S. Copyright Office.

In the second complaint, Everything Brooklyn Media, LLC d/b/a The Brooklyn Daily Eagle, is accused of copyright infringement of Philpot’s Nelson photograph and also the Daughtry Photograph, Certificate Number VAu 1-164-624, which was also issued by the U.S. Copyright Office.

In the copyright complaint against Mansion, filed by Philpot acting as a pro se litigant, the following claims are made:

• Count I: Copyright Infringement and Unfair Competition
• Count II: Unauthorized Distribution of Copyrighted Material
• Count III: Removal of Identifying Information

The copyright complaint filed against The Brooklyn Daily Eagle asserts only the first count (copyright infringement and unfair competition).

In both complaints, Philpot asks the court for an injunction, damages, costs and attorneys’ fees.

Practice Tip #1: Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages. Statutory damages range from a sum of not less than $750 to not more than $30,000 per infringed work.

Practice Tip #2: The claims in these complaints may trigger the “advertising injury” clause of many general business liability insurance policies. If a defendant has applicable business insurance, it may provide coverage for the expenses of a legal defense and damages found due as a result of unintentional copyright infringement. Overhauser Law Offices, publisher of this Site, counsels clients on insurance coverage for insurance claims.

August 25, 2014

Indiana Copyright Litigation: Bake Me A Wish Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Larry G. Philpot, a professional photographer from Indianapolis,

picture of a camera.jpg

Indiana, sued asserting a violation of his intellectual property rights by Bake Me A Wish, LLC of New York. The lawsuit, filed in the Southern District of Indiana, alleges that Defendant Bake Me A Wish infringed the copyright of Philpot’s photograph of Willie Nelson, Certificate No. VAu 1-132-411, which was issued by the U.S. Copyright Office.

On October 4, 2009, Plaintiff Philpot photographed Willie Nelson during a performance in St. Louis, Missouri. In an effort to increase his marketability and reputation and to gain more work, on May 31, 2011, Philpot made the photograph of Nelson generally available through Wikimedia under the Creative Commons Attribution 2.0 Generic license (“CC BY 2.0”). Philpot asserts that CC BY 2.0 requires a licensee to (a) reference CC BY 2.0 with every copy of the photo used and (b) provide attribution in the manner specified by the author. He claims that these requirements applied to republication of his copyrighted photo of Nelson.

Philpot states that Bake Me A Wish owns and operates the website www.bakemeawish.com and a related Facebook page and that those websites are used to generate business. Defendant Bake Me A Wish is accused of placing a copy of the Nelson photo on its Facebook page on April 30, 2013 without displaying the proper attribution to Philpot.

In the copyright complaint, filed by Philpot acting as a pro se litigant, the following claims are made:

• Count I: Copyright Infringement and Unfair Competition
• Count II: Unauthorized Distribution of Copyrighted Material
• Count III: Removal of Identifying Information

Philpot asks the court for an injunction, damages, costs and attorneys’ fees.

Practice Tip #1: This complaint suffers from a number of legal and factual deficiencies. Among them is that Philpot simultaneous admits that Bake Me A Wish removed the content when requested and also alleges not only willful conduct but ongoing willful conduct. The allegation of ongoing willful conduct is made by Plaintiff in support of his contention that Defendant’s conduct entitles him to the maximum statutory damages allowable. Statutory damages may be awarded in a sum not less than $750 or more than $30,000 for each finding of infringement. A determination of willful copyright infringement permits the court in its discretion to increase the award of statutory damages up to $150,000 per infringement.

Practice Tip #2: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.