Copyright Infringement

March 5, 2012

Northern District of Indiana Consolidates Cases, Discovery in Dispute Between Elkhart RV Manufacturers, Includes Patent and Copyright Infringement Claims

South Bend, IN – The Northern District of Indiana has issued an order consolidating related trade secret, copyright infringement and patent infringement lawsuits a dispute between RV manufacturers, Heartland Recreational Vehicles, LLC of Elkhart, Indiana and Forest River, Inc. of Elkhart, Indiana. This order address five cases currently pending in Northern District of Indiana: 3:08-CV-490-JD-CAN, 3:09-CV-302-JD-CAN, 3:10-CV-011-JD-CAN, 3:10-CV-409-JD-CAN, and 3:11-cv-250-JD-CAN. In addition to Heartland and Forest River, Brian Brady, Catteron Partners and Thor Industries are also named in the suits.
The court found that three of the cases, 3:08-CV-490-JD-CAN, 3:09-CV-302-JD-CAN, and 3:10-CV-409-JD-CAN, involve Heartland’s acquisition of Forest River’s Master List. Since they involve similar questions, the court consolidated these three cases.
The court did not consolidate two of the cases. The court noted that 3:10-CV-011-JD-CAN is a copyright infringement case, where Forest River claims that Heartland infringed its “r.Pod” floor plan. The fifth case, 3:11-cv-250-JD-CAN, is a patent infringement case. In June. Patent lawyers for Heartland Recreational Vehicles, LLC of Elkhart, Indiana filed a patent infringement lawsuit alleging Forest River, Inc. of Elkhart, Indiana infringed Patent No. 7,878,545, Travel trailer having improved turning radius, which has been issued by the US Patent Office.
Indiana Intellectual Property Law and News blogged about the case here: Heartland Recreational Vehicles LLC Sues Forest River Inc. for Patent Infringement of Travel Trailer Turning Radius. The court found that the patent infringement case should not be consolidated because it would likely create confusion and make the litigation more complex.
The court, however, ordered that discovery in all five of the cases be consolidated.

Practice Tip: Under Federal Rule of Civil Procedure 42(a), common questions of law and fact are a prerequisite to the consolidation of cases

February 28, 2012

BMI Sues Indianapolis Bar for Copyright Infringement of Honky Tonk Women

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for Broadcast Music, Inc. (BMI) of New York, New York, along with Abkco Music, Inc, Screen Gems-EMI Music, Inc. of and Jay-Boy Music Corporation of have filed a copyright infringement suit in the Southern District of Indianaalleging B & D Restaurants, Inc. d/b/a Gallagher’s II a/k/a Gallagher’s Pizza, Nicholas Himes and David R. Himes of Indianapolis, Indiana infringed the copyrighted works Brown Sugar and Honky Tonk Women published by Abkco Music, Inc., We Gotta Get Out Of This Place, publisher Screen Gems-EMI Music, Inc. and You Really Got Me, publisher is Jay-Boy Music Corporation, of which all have been registered by the US Copyright Office.

The complaint alleges that the copyrighted songs were performed publicly at Gallagher’s II, also known as Gallagher’s Pizza, on September 10 and 11, 2011. The complaint states that Nicholas and David Himes are directors of B & D Restaurants have a financial interest and management responsibilities for the establishment. The complaint makes four claims of willful copyright infringement and seeks an injunction, damages, costs and attorney fees.

Practice Tip: BMI is known for aggressively defending copyrights and seems to be targeting Indiana bars and restaurants where copyrighted songs were performed without license or authorization. This is the third copyright infringement case filed this month in Indiana district courts. We blogged about the other two cases here and here.
Continue reading

February 24, 2012

BMI Sues Elkhart Bar for Copyright Infringement of Achy Breaky Heart and Other Songs

By Overhauser Law Offices, LLC

South Bend, IN – Copyright attorneys for Broadcast Music Inc. (BMI) of New York, New York, Universal-Millhouse Music a Division of Magna Sound Corporation, Marvin J. and Laleta Moore Living Trust is a Trust d/b/a Green Door Music, Central Songs a Division of Beechwood Music Corporation, Sutjujo Music, Faizilu Publishing, Sony/ATV Songs LLC, Mann and Weil Songs, Inc., Welsh Witch Music, EMI Al Gallico Music Corp., Geomantic Music, Unichappell Music Inc., Two Night Music, Peermusic III Ltd., Universal-Champion Music Corporation, Sony/ATV Songs LLC d/b/a/ Sony/ATV Acuff Rose Music, Galeneye Music, Universal-Songs of Polygram International Inc., Lost Boys Music, Tokeco Tunes, Sony/ATV Songs LLC d/b/a/ Sony/ATV Tree Publishing and Big Yellow Dog LLC d/b/a Big Yellow Dog Music filed a copyright infringement suit in alleging Gibson’s, Inc. d/b/a The Big Easy and Oscar N. Gibson of Elkhart, Indiana infringed the copyrighted works of Don’t Tell My Heart a/k/a Achy Breaky Heart by Don Von Tress, Four Walls by Marvin Moore and George Campbell, He’ll Have to Go by Joe Allison and Audrey Allison, I’d Really Love to See You Tonight by Parker McGee, Just Once by Barry Mann and Cynthia Weil, Landslide by Stevie Nicks, Let Me Be There by John Rostill, ManEater by Sara Allen, John Oates and Daryl Hall, Ring My Bell by Frederick Knight, Satin Sheets by John E Volinkaty, Signs by Les Emerson, Tiny Dancer by Elton John and Bernie Taupin, Total Eclipse of the Heart by Jim Steinman, You Ain’t Much Fun by Toby Keith and Carl Geoff Jr. and Whiskey Girl by Scott Emerick and Toby Keith, which have been registered by the US Copyright Office.

The complaint alleges Gibson’s, Inc. operates a bar in Elkhart called The Big Easy. Oscar N. Gibson is the owner of Gibson’s, Inc. The complaint alleges that on November 17, 2011, the fifteen copyrighted songs were performed at The Big Easy without license or authorization from the copyright owners. The complaint seeks an injunction, damages, costs and attorney fees.

Practice Tip: In this case, the plaintiffs have sued the owner of Gibson’s personally as well as the corporate entity. Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement. An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.
Continue reading

February 17, 2012

BMI Sues Fishers Bar for Copyright Infringement of Counting Crow’s Mister Jones and Other Songs

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for Broadcast Music, Inc. (BMI) New York, New York, along with Adult Music, Gems-EMI Music, Inc., Universal-Songs of Polygram International, Inc., EMI Blackwood Music, Inc. and Counting Crows, LLC d/b/a Jones Falls Music have filed a copyright infringement suit in Southern District of Indiana alleging C & R Restaurants, LLC of Fishers, Indiana infringed the copyrighted works I want you to be me by Rick Neilsen, Jessie’s Girl by Rick Springfield, and Mr. Jones a/k/a Mister Jones by Adam Duritz, David Bryson, Matt Walley, Charlie Gillingham and Steve Bowman which have been registered by the US Copyright Office.

The complaint states C & R operates a restaurant called Casler’s Kitchen and Bar in Fishers. BMI has also named the owner of C & R, Enrique Fonseca, as a defendant in the lawsuit, stating that he had the right and ability to control the alleged infringement and financially benefitted from the alleged infringement. The complaint alleges that three copyrighted works were performed at Casler’s Kitchen & Bar on August 27, 2011 without a license or authorization from the copyright owners. BMI is seeking an injunction, damages, attorney fees and costs.

Practice Tip: In this case, the plaintiffs have sued the owner of alleging C & R Restaurants, LLC personally as well as the corporate entity. Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement. An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.
Continue reading

February 14, 2012

Trademark Controversy Over Madonna’s Super Bowl Performance

By Overhauser Law Offices, LLC

Indianapolis, IN – The threat of a copyright and trademark infringement lawsuit may have influenced Madonna‘s playlist for her Super Bowl XXXXVI half time performance at Lucas Oil Stadium in Indianapolis. According to reports, Joe Francis, who owns the Girls Gone Wild trademark, sent Madonna a cease-and-desist letter that threatened to sue her if she performed the song from her new album, “MDNA,” which is scheduled for release in March.

Joe Francis, founder of the Girls Gone Wild adult entertainment series, owns the rights to trademark registration no. 4,010741 for the mark GIRLS GONE WILD registered with the US Trademark Office.

Madonna’s Super Bowl performance did not include the Girls Gone Wild song. Another report states that Madonna never planned to play the allegedly infringing song. As of today’s date, a search of Justia.com does not show any pending lawsuits filed by Joe Francis against Madonna.

February 7, 2012

Counterfeit Super Bowl Goods Lead to Federal Seizure and Arrest for Criminal Trademark and Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Federal authorities, led by the Homeland Security Investigations division of the Immigration and Customs Enforcement (ICE), have seized counterfeit Super Bowl goods, shut down websites and made one arrest in a targeted effort to crack down on counterfeit sports goods and websites. According to a government press release, federal authorities seized fake jerseys, caps, t-shirts and other souvenirs illegally bearing NFL and other sports trademarks, trade names and copyrights. According to the press release, the operation has been ongoing since October 2011 and culminated in the raids and arrest on Thursday, February 2. The total value of the goods seized was reported to be $4.8 million.

Indianapolis Metro Police Department also participated in the operation, which focused on street vendors in and around the Indianapolis Super Bowl village as well as counterfeit sellers around the world. According to a news report, a store called Off the Wall in Fort Wayne was one of the stores raided by federal agents.

The operation, dubbed Operation Fake Sweep, also targeted websites that illegally stream sports events and sell counterfeit goods. Over 300 websites were shut down. Yonjo Quiroa of Michigan was the sole person arrested. He has been charged with criminal copyright infringement based on his alleged operation of websites that illegally streamed live sporting events. According to news report, many of the websites selling counterfeit goods were from.

February 6, 2012

U.S. Supreme Court Issues Copyright Opinion in Golan v. Holder, Protecting Foreign Copyrights in the United States

By Overhauser Law Offices, LLC

Washington, DC – The U.S. Supreme Court has affirmed the constitutionality of the Uruguay Round Agreements regarding copyright protection for foreign parties. In 1994, Congress enacted Uruguay Round Agreements Act, which implemented negotiations in the World Trade Organization’s Marrakech Agreement. The law in question restored foreign copyrighted works that had previously been in the public domain back to the private domain and granted U.S. copyright protection for those works. Copyright attorneys for Golan and a group of musicians who had used foreign works while the works were in the public domain had filed this lawsuit against United States Attorney General Eric Holder, arguing that the Act violated the U.S. Constitution’s Copyright Clause and violated the First Amendment Rights of those who had free access to the works that were restored to private domain.

The Supreme Court rejected these challenges and affirmed the constitutionality of the Act. The Court’s opinion emphasized that the Act brought the United States’ law into harmony with that of other nations. The SCOTUSblog has links to all the parties’ and amicus briefs as well comprehensive coverage of this case.

The Court’s opinion affirmed the Tenth Circuit Court of Appeals decision and the decision of Judge Babcock of the United States District Court of Colorado.

Practice Tip: The U.S. Supreme Court has a long trend of strenuously protecting the rights of intellectual property owners. This case is yet another example.
Continue reading

February 2, 2012

Newt Gingrich Sued for Copyright Infringement of “Eye of the Tiger”

By Overhauser Law Offices, LLC

Chicago, IL – Copyright attorneys for Rude Music Inc. of Palatine, Illinois have filed a lawsuit in the Northern District of Illinois alleging that Republican presidential candidate Newt Gingrich and the American Conservative Union of Washington, D.C. infringed the copyrighted song “Eye of the Tiger,” which has been registered with the US Copyright Office.

Rude Music is owned by Frank Sullivan, who is a co-author of “Eye of the Tiger,” which was the theme song from the movie Rocky III. The complaint alleges that Newt Gingrich has been appearing at campaign and fundraising events since 2009 where the copyrighted song was played as he took the stage. Some of these events were fundraising events for the American Conservative Union while other events were part of Gingrich’s presidential campaign. The complaint states that Gingrich’s use of the song is unlicensed, unauthorized and willful infringement. Interestingly, the complaint alleges that Gingrich’s experiences in the House of Representatives as well as being president of Gingrich Productions, a multimedia company, make him knowledgeable about copyright infringement. The complaint seeks an injunction barring Gingrich’s use of the song, damages, attorney fees and costs.

Practice Tip: While this type of unauthorized use of a copyrighted song is likely infringement, it is an interesting question whether Gingrich would have the defense of fair use, particularly in the context of political speech and its first amendment protection. Other political campaigns have also faces similar suits. In 2008, John McCain was sued over his use of the song “Running on Empty” by Jackson Brown. McCain filed a motion to dismiss, citing the fair use doctrine. The court denied the motion to dismiss, but the case was settled soon after.
Continue reading

January 27, 2012

Lioness Vizions, LLC Sues Rhasha and Mikel Hoosier for Copyright Infringement in Dispute Between Co-authors of Book

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for Lioness Vizions, LLC, Angentia Childs of Indianapolis, Indiana and Delina Hill-Brooker of Powder Springs, Georgia filed a copyright infringement suit in the Southern District of Indiana alleging that Rhasha and Mikel Hoosier of Gahanna, Ohio, Reign Media Group and Romantic Media Group of the State of Ohio infringed the copyrighted work Revealing & Healing: 3 Women’s Stories of Survival. The plaintiffs also allege other claims based on the operation of a limited liability company that marketed and sold the book.

The complaint describes how Ms. Childs, Ms. Hill-Brooker and Ms. Hoosier wrote a book together, which is the allegedly copyrighted work. Because they could not find a publisher, the three women formed a limited liability company, Lioness Vizions LLC, to publish, market and sell their book. The complaint states that the three women assigned their copyright to the company. The complaint states that in August 2010, Ms. Hoosier resigned from company and then dissolved the company without the authorization of the two other women. The complaint alleges that Ms. Hoosier, however, went on to market and sell the book on her own and formed another company to sell the book. The complaint states that Ms. Hoosier has appeared on radio shows and done other promotional activities to sell the book and has not shared the profits with the other co-authors. The complaint makes claims of wrongful dissolution for Lioness Vizions LLC, copyright infringement, right of publicity infringement, breach of operating agreement, breach of fiduciary duty, civil theft, tortuous interference with existing or potential business relationships, and unfair competition. Copyright attorneys are seeking an injunction, damages, return of all copies of the book, an order reinstating Lioness Vizions LLC, disgorgement of profits,

Practice Tip: It is interesting to note that the Plaintiffs claim venue is proper in Indiana because “solicitation of the Plaintiffs took place” in Indiana. Lioness Vizions LLC was registered as an Ohio limited liability company.
Continue reading

January 10, 2012

Coach Sues Kristy Davidson for Trademark and Copyright Infringement of the Coach Marks

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark lawyers for Coach Inc. of New York, New York filed a trademark and copyright infringement suit in the Southern District of Indianaalleging Kristy Davidson d/b/a Kristy’s Trends of Greenfield, Indiana infringed the Coach’s registered trademarks and copyrights, including the copyrighted works known as the “Coach Design Elements” including the SIGNATURE C DESIGNS, Registration No. VAu1-046658, COACH 70^th ANNIVERSARY SNAPHEAD PRINT Registration No. VA1-010-918, and COACH CLOVER DESIGN, which have been registered by the US Copyright Office, and approximately fifty trademarks that have been registered by the US Trademark Office.

The complaint alleges that Ms. Davidson is designed, distributed, sold, promoted and offered for sale products that bear the Coach marks and copyrights without authorization from Coach. Essentially, Coach claims the Ms. Davidson is offering counterfeit Coach products for sale. The complaint alleges that on November 7, 2011, a Coach Representative visited Kristy’s Trends in Greenfield, Indiana and purchased a handbag bearing the Coach marks, but that was not an authentic Coach handbag. The complaint alleges that the representative saw 20 additional handbags, six wallets, and a pair of boots bearing the Coach marks that was offered for sale. The complaint states that Coach’s trademark attorneys sent a cease and desist letter to Ms. Davidson thereafter. In response, Ms. Davidson surrendered handbags, wallets, sunglasses and boots bearing the Coach marks.

The complaint makes claims of copyright infringement, trademark infringement, trade dress infringement, false designation of origin, false advertising, trademark dilution, unfair competition, forgery and counterfeiting. Coach seeks an injunction, damages of $2,000,000 per counterfeit mark, actual and punitive damages, costs and attorney fees.

Practice Tip: Coach has been very aggressive in protecting its intellectual property rights in Indiana courts in the last year. Coach’s intellectual property attorneys have filed eight similar lawsuits in Indiana courts, which Indiana Intellectual Property Law and News has blogged and that are linked below.
Continue reading