Copyright Infringement

June 20, 2011

DIRECTV Sues Corner Bar & Grill For Copyright Infringement for Improper Interception Of NFL Games

Evansville, IN – Copyright lawyers for DIRECTV of California filed a copyright infringement lawsuit in the Southern District of Indiana alleging that Kevan Tally and Michael Schnell, owners of McGahery Enterprises, Inc., which operates the Corner Bar & Grill in Evansville, Indiana infringed copyrighted NFL games by illegal intercepted and unencrypted satellite signals.

The complaint alleges that on October 17, 2010, Mr. Schnell and Tally, displayed NFL games publicly at the Corner Bar and Grill without the authorization of DIRECTV. The complaint states that the Corner Bar did not have a paid DIRECTV subscription, yet received and unencrypted DIRECTV satellite signals in violation of the Cable Communications Act. DIRECTV claims the bar and its owners received financial benefit from the display of NFL games. DIRECTV is seeking statutory damages of $1000 to $10,000 for each violation and $10,000 to $100,000 for each willful violation as well as an injunction to prevent further display of illegal intercepted transmissions. Copyright attorneys for DIRECTV have also made a claim of civil conversion, alleging that the defendants intentionally and wrongfully deprived DIRECTV of proprietary interests.

Practice Tip: Most satellite signal providers employ encryption to limit reception to certain groups, such as paying subscribers. If an individual has a “residential” agreement with a satellite provider, this does not give them the right to display the performance in a public setting like a bar or restaurant. Both the satellite signal providers and the owners of the copyrighted content are typically quite aggressive about enforcing their copyrights.

June 16, 2011

Coach Files Two Trademark and Copyright Infringement Lawsuits in Northern District Over Knock-Off Coach Items

By Overhauser Law Offices, LLC

South Bend; IN – Trademark and copyright lawyers for Coach, Inc. and Coach Services, Inc. of New York, New York filed two trademark infringement lawsuits in the Northern District of Indiana.

In the first lawsuit, intellectual property attorneys have alleged that Diva’s House of Style and Elizabeth “Beth” Bond of Elkhart, Indiana infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Diva’s House and Ms. Bond infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint alleges that Diva House and Ms. Bond have been designing, manufacturing, and/or selling “studied imitations” of Coach products that bear the Coach trade marks, trade dress and copyrighted works. Coach alleges that Diva House and Ms. Bond advertised the knock-off products on Facebook. A Coach representative used e-mail and phone to correspond with the defendants and purchased a purse from her. The representative then determined that the purse was not a genuine Coach purse and was a knock-off of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting. This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned Case No. 3:11-cv-00253-JD-CAN.

In the second lawsuit, intellectual property attorneys allege that Lyn-Maree’s LLC of Auburn, Indiana, and its owners, Emma Taylor and Lynn Siples, infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Lyn-Maree’s and its owners infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint states that a Coach representative purchased a hand bag, wallet and sunglasses labeled “Coach” at the Lyn Maree’s retail store. The items were examined by Coach and determined to be not genuine Coach items, but knock-off items of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting.

Practice Tip: Coach has a reputation for vigorously defending their intellectual property. Coach filed two trademark lawsuits in the Northern District of Indiana in April of this year, which were reported on in Indiana Intellectual Property Law News. It seems that a Coach representative is monitoring businesses in the Northern District of Indiana and purchasing knock-off goods that then become the basis of these lawsuits.

June 14, 2011

Boy Racer, Inc. Sues 23 Indiana John Does for Copyright Infringement of an Adult Video Via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN – Copyright lawyers for Boy Racer, Inc. of North Bellmore, New York filed a copyright infringement lawsuit in the Southern District of Indiana alleging 23 Indiana John Does infringed the copyrighted work, a video called LA PINK, which has been registered by the US Copyright Office.

Boy Racer is an adult entertainment company that produced the video at issue. The complaint alleges that the 23 individuals have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that Hard Drive has the Internet Protocol address (“IP address”) of these 23 individuals and will learn their identities during discovery. Boy Racer has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge William G. Hussmann in the Southern District of Indiana, and assigned Case No. 4:11-cv-00070-SEB-WGH.

Practice Tip: As Indiana Intellectual Property Law News reported last month, the adult entertainment industry is using a copyright infringement litigation strategy to target online file sharing. This suit is the second filed in Indiana federal courts so far, and like the earlier suit, it targets file sharing via the BitTorrent program. Typically, the plaintiff will engage in discovery to find out identities of the persons associated with the IP addresses alleged to have infringed the copyrighted work. Once these identities are revealed to the plaintiff, the plaintiff typically reaches out to the alleged infringers to try to settle the case. If a settlement is not reached, the plaintiff will pursue further court action.

June 14, 2011

First Time Videos LLC Sues 18 Indiana John Does for Copyright Infringement of an Adult Video via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN -Copyright lawyers for First Time Videos LLC of Nevada filed a copyright infringement lawsuit in the Southern District of Indianaalleging 18 Indiana John Does, whose names and addresses are unknown, infringed the copyrighted work “FTV – TIFFANY” which has been registered by the US Copyright Office.

First Time Videos is an adult entertainment company that produced the video at issue. The complaint alleges that the 18 individuals have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that the plaintiff has the Internet Protocol address (“IP address”) of these 18 individuals and will learn their identities during discovery. First Time Videos has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

Practice Tip: This is the third lawsuit filed in the Southern District of Indiana alleging copyright infringement of an adult video using the BitTorrent program. Indiana Intellectual Property Law News has reported here on the Boy Racer case and the Hard Drive Productions case. All three lawsuits have been filed by Chicago law firm Steele Hansmeier.

June 9, 2011

Gabbard Sues VMB LLC, Music Factory Direct for Copyright Infringement of Music Web Graphic

By Overhauser Law Offices, LLC

South Bend, IN – Copyright lawyers for Joel Gabbard of Fort Wayne, Indiana filed a copyright infringement in alleging VMB LLC, doing business as Music Factory Direct, and Vento LLC, both of Cassopolis, Michigan, infringed Copyright Registration No. VA0001734862, WEB GRAPHICS; which has been registered by the US Copyright Office.

The Complaint alleges that Mr. Gabbard and VMB entered a contract where Mr. Gabbard granted a license to VMB to use the copyrighted work in VMB’s advertisements on eBay, amazon.com, and ChannelAdvisor. The license contract stated that the graphics were to “be used exclusively for the above mentioned projects. All alterations, updates, and revisions must be first approved by the author.” The Complaint alleges that on August 22, 2010 VMB sent out a promotional e-mail utilizing Mr. Gabbard’s copyrighted work. Mr. Gabbard’s copyright attorneys claim this e-mail was not authorized by the license agreement and therefore was copyright infringement. Mr. Gabbard seeks an injunction, damages, costs, attorney fees, for an order impounding all copies made or used and has requested “The Defendants be required to notify all present and prospective customers of the infringement and that the proper ownership of the materials is Mr. Gabbard.”

Practice Tip: In addition to injunction and damages, this plaintiff is also seeking an impounding order and for the defendants to notify customers that it has infringed the plaintiff’s copyright. The applicable copyright law, 17 U.S.C. § 503, does allow for a court issue an order impounding all copies of the copyrighted work. The plaintiff’s request that customers be informed of the infringement, however, would be an unusual remedy and not specifically provided for in the copyright laws.

June 7, 2011

Richard N. Bell Files Two Copyright Infringement Lawsuits Regarding Photographs of Indianapolis

By Overhauser Law Offices, LLC

Indianapolis; IN – Attorney Richard N. Bell of Indianapolis, Indiana filed two copyright infringement lawsuits regarding photographs of Indianapolis that Mr. Bell took. The first copyright infringement suit alleges Cameron Taylor and Taylor Computer Solutions of Indianapolis, Indiana, Event Premium Tickets of North Fort Myers, Florida, Fred O’Brien and Insurance Concepts of Plainfield, Indiana, Premium Sport Tours of Australia, ForeclosureWarehouse.com, and The Fixx Hair Studio of Indianapolis infringed Mr. Bell’s copyrighted work Indianapolis Photo. Mr. Bell alleges that the defendants used the photograph for commercial use without authorization and without payment to Mr. Bell. On his copyright infringement claim, Mr. Bell seeks an injunction, damages, a declaration of violation of Mr. Bell’s copyright, costs, and attorney fees. Mr. Bell has also made a claim of theft, alleging “the Defendant has knowingly or intentionally exerts unauthorized control over property of the Plaintiff[.]” On the theft count, Mr. Bell seeks actual and punitive damages, costs and attorney fees.

The second copyright infringement suit alleges Indy Cleaning Pros and James and Karen Allan of Indianapolis, Indiana infringed Mr. Bell’s copyrighted work INDIANAPOLIS SKYLINE PHOTO. Neither photo has been registered by the US Copyright Office. The complaint alleges that Indy Cleaning Pros and the Allans have used the copyrighted photo in advertising material without Mr. Bell’s authorization and without compensating Mr. Bell. On his copyright infringement claim, Mr. Bell seeks an injunction, damages, a declaration of violation of Mr. Bell’s copyright, costs, and attorney fees. Mr. Bell has also made a claim of theft, alleging “the Defendant has knowingly or intentionally exerts unauthorized control over property of the Plaintiff[.]” On the theft count, Mr. Bell seeks actual and punitive damages, costs and attorney fees.

Practice Tip: In this case, in addition to claiming copyright infringement, the Plaintiff has made claims of theft based upon allegations of unauthorized use of the photographs. In 1985, however, the U.S. Supreme Court held in Dowling v. United States, 473 U.S. 207 (1985), that a copyright infringer could not be criminally charged under the federal criminal theft statute. The Court noted “The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.”

June 3, 2011

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

By Overhauser Law Offices, LLC

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

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

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

May 20, 2011

Hard Drive Productions, Inc. Sues 21 Indiana John Does for Copyright Infringement of Adult Entertainment Video Via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN – A Copyright lawyer for Hard Drive Productions, Inc. of Phoenix, Arizona filed a copyright infringement suit alleging 21 unnamed John Does who reside in Indiana infringed the copyrighted video work entitled AMATEUR ALLURE – ERIN which has been registered by the US Copyright Office.

Hard Drive Productions is an adult entertainment company that produced the video at issue. The complaint alleges that the 21 John Does have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that Hard Drive has the Internet Protocol address (“IP address”) of these 21 individuals and will learn their identities during discovery. Hard Drive has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

This case has been assigned to Judge Sarah Evans Barkerand Magistrate Judge William G. Hussmann in the Southern District of Indiana, and assigned Case No. 4:11-cv-00059-SEB-WGH.

Practice Tip: As has been reported elsewhere, it appears the adult entertainment industry has adopted the copyright litigation strategy that the music industry used to halt online music sharing. Specifically, file sharing using the BitTorrent program is being targeted for litigation. According to one report, as of November 2010, over 16,000 anonymous BitTorrent users had been sued by the adult entertainment industry for illegally sharing copyrighted materials. Hard Drive Productions filed a similar lawsuit against 300 Illinois John Does late last year. Unlike the music industry copyright litigation, these individuals are likely to be greatly embarrassed when their identities are unveiled in the discovery phase of litigation.
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May 13, 2011

WB Music Corp. et al. Sues Langel’s, Inc. and Its President for Copyright Infringement for Unauthorized Performance of Songs

By Overhauser Law Offices, LLC

Hammond, IN – Copyright lawyers for WB Music Corporation and six other music companies filed a copyright infringement suit alleging Langel’s, Inc. of Highland, Indiana infringed three copyrighted songs. Specifically, the songs at issue are: VOGUE by Madonna, FALLIN by Alicia Keys, and HEART OF ROCK AND ROLL by Huey Lewis, all of which have been registered by the US Copyright Office. WB Music has also filed the claims against Rodney D. Langel, the president of Langel’s, Inc.

The complaint alleges that Langel’s owns and operates Rodney’s Sports Bar and Langel’s Pizza in Highland, Indiana. WB alleges that the three songs at issue were performed at these establishments without license from the copyright owners in May 2008. The plaintiffs in this suit are the owners of the rights to these songs. WB Music and the others allege that Langel’s Inc. and Mr. Langel had been warned by the American Society of Composers, Artists, and Publishers (ASCAP) about its liability for copyright infringement. The complaint makes three claims of copyright infringement pursuant 17 U.S.C. § 501.

Practice Tip: In this case, the plaintiffs have sued Mr. Langel, the president of Langel’s, Inc., personally. 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.

This case has been assigned to Judge Theresa Springmann and Magistrate Judge Paul Cherry in the Northern District of Indiana, and assigned case no. 2:11-cv-00166-TLS-PRC.
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May 10, 2011

Judge McKinney Presides over Jury Trial in Harvest Scents v. KMI Copyright Infringement Lawsuit After Denying KMI Evidentiary Motions

By Overhauser Law Offices, LLC

Indianapolis, IN – This week Senior Judge Larry J. McKinney of the Southern District of Indiana is presiding over a jury trial of a copyright infringement lawsuit. The case is Harvest Scents & Traders LLC v. KMI International Corporation. The trial began on Monday, May 2, continued through last week, and resumed on Monday. According to the latest information available on PACER, the trial continues today.

Copyright attorneys for Harvest Scents, of Indianapolis, filed this copyright infringement lawsuit in March 2008. The complaint alleges that KMI, an Illinois company, has sold and distributed products that contained material that Harvest Scents has copyrighted. There are six works at issue that registered by the US Copyright Office:

Willow Tree, registration number VA 1-380-918

Primitive Pear Collection, registration number VA 1-421-622

Primitive Wood Button Collection, registration number VA 1-421-623

Baskets-n-Berries Collection, registration number VA 1-424-839

Homespun Collection, registration number VA 1-421-620

Roughsawn Collection, registration number VA 1-424-205

The trial began following several recent rulings on evidentiary matters by Judge McKinney. On February 28, 2011, Judge McKinney denied KMI’s motion in limine to preclude Harvest Scents from introducing evidence at trial of its products that it had not deposited with the US Copyright Office when it submitted its copyright application. KMI had argued that “the introduction of this evidence will invite the jury to find that KMI infringed on unregistered derivative works, unduly prejudicing KMI because Harvest Scents may not bring suit based on infringement of unregistered works, 17 U.S.C. § 411.” The court rejected this argument and allowed the evidence at trial. The court explained, “Direct copying of the registered work is not necessary to infringe, so long as the protected elements are copied. See JCW Invs., Inc. v. Novelty Inc., 482 F.3d 910, 914 (7th Cir. 2007) (noting that the elements of infringement include “copying of constituent elements”); see also KnowledgeAZ, Inc., 617 F. Supp. 2d at 789.” This ruling is available here.
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