Articles Posted in Copyright Infringement

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New York – The New York Times reported earlier this week on Righthaven, LLC, a company that has sued hundreds of bloggers for copyright violation. The N.Y. Times story profiles one such blogger, Brian Hill, a 20 year-old North Carolina resident, who was sued by Righthaven after he used a photo of an airport security pat-down on his blog. Righthaven has filed over 250 copyright infringement lawsuits since its founding in 2010, including 24 in March 2011. According to reports, its business model is to purchase assignments of copyrights from newspapers and similar organizations and then search for infringing web postings to sue their publishers.

A Google search on Righthaven reveals that there are numerous websites devoted to condemning Righthaven, calling the company “a bottom feeding legal outfit” and “copyright trolls.” As the N.Y. Times story reported, copyright attorneys have questioned whether the fair use doctrine might protect some of the bloggers sued by Righthaven. The Media Bloggers Association has filed an amicus curiae brief support the rights of the bloggers and raising First Amendment issues. Other attorneys have accused Righthaven of fraud, according to a report from the Las Vegas Sun.

Practice Tip: Although Righthaven has not filed any copyright infringement lawsuits in Indiana district courts to date, this story illustrates the importance of ensuring that a web blogger has rights to use all materials that are posted on the blog. This story brings forth yet again the continuing controversies surrounding copyrights and the Internet.

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Indianapolis, IN – Trademark and copyright lawyers for Coach of New York, New York filed two trademark and copyright infringement suit alleging that Indiana companies and individuals infringed several trademark and copyright registrations in the US Trademark Office and the US Copyright Office.

In the first infringement lawsuit, Coach alleges that Chaos of Muncie, Chaos on Campus, LLC and Teresa Barnes of Muncie, Indiana have been offering for sale and advertising Coach knock-off products. The complaint alleges that in February, the store was offering for sale fifty-five Coach knock-off items including flip-flops, handbags, wallets, and sunglasses. The complaint alleges trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin, false advertising, trademark dilution, copyright infringement, common law trademark infringement, common law unfair competition, forgery, and counterfeiting.

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Indianapolis, IN – Pro se plaintiff Angela Ethel Brooks-Ngwenya of Fort Wayne, Indiana filed a copyright infringement suit alleging Indianapolis Public Schools (I.P.S.) infringed the copyrighted work “TIRS”-Transitioning Into Responsible Students, which has been registered by the US Copyright Office, Registration Number TX0006628223 / 2006-05-26.

Ms. Brook-Ngwenya has previously sued I.P.S. over alleged copyright infringement of TIRS, which Ms. Brooks-Ngwenya claims is an educational program she developed while working at I.P.S. The Seventh Circuit Court of Appeals, however, dismissed the case two years ago, after determining that Ms. Brook-Ngwenya had not filed a notice to the Register of Copyrights. The Seventh Circuit Court opinion can be found here: http://caselaw.findlaw.com/us-7th-circuit/1349120.html. In her present lawsuit, Ms. Brooks-Ngwenya alleges copyright infringement and that an attorney involved committed misconduct in the prior case.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge Mark J. Dinsmore in the Southern District of Indianaand assigned case no. 1:11-cv-00483-SEB-MJD.
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 South Bend, IN – An intellectual property attorney for Garden Homes, of St. Joseph County, Indiana, filed a copyright and trade dress infringement lawsuit against Charles and Maura Weis, of Florida, and Ryan Rans, of Indiana. Charles Weis is the former head coach of the Notre Dame‘s football team. The copyrighted work is custom plans for homes and has been registered by the US Copyright Office.
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 South Bend, IN – Copyright lawyers for Broadcast Music, Inc. (BMI) of New York filed a copyright infringement suit alleging Olive’Or Twist Bar of Elkhart, Indiana and its owner infringed the copyrights of the copyrights to certain songs to which BMI owns the exclusive broadcast license. Nine other companies, the copyright owners of the songs at issue, have also joined the copyright infringement lawsuit as plaintiffs.
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Indianapolis, IN – Last week Mary E. Hining, Pro Se, of Durham, NC filed a copyright infringement suit against Rebecca L. Gregg of Indianapolis in the Southern District of Indiana. Ms. Hining alleges that Ms. Gregg sold painted glassware on Etsy.com, a website where artists offer their work for sale, in violation of 17 U.S.C. § 501. Ms. Hining owns Copyright Registration No. VA0001718592, which copyrighted work HAND-PAINTED GLASSWARE DESIGNED BY MARYWIBIS ALSO KNOWN AS MARYELIZABETHARTS. The copyright is registered by the US Copyright Office.

Ms. Hining creates and sells champagne tasting glasses with hand painted leaves and branches of various types of trees on Etsy.com under the name marywibis. She has copyrighted her work and registered the copyright with the US Copyright Office. In the complaint, which Ms. Hining filed on her own and with out the assistance of a copyright attorney, Ms. Hining alleges that Ms. Gregg offers for sale on Etsy.com glasses that are virtually identical and that infringe upon Ms. Hining’s copyright. Ms. Gregg offers the glasses under the name gnome292. Ms. Hining is seeking an injunction and damages.

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Indianapolis – Last week, copyright attorneys for Joe Hand Promotions, a Pennsylvania corporation, filed a copyright infringement lawsuit against the owners of an Indiana bar who alleged displayed an Ultimate Fight Championship fight without authorization.

Ursula and Guenter Grote operate the Grote Trading Post and Gus’s Sports Bar in Lawrenceburg, Indiana. Joe Hand Promotions owns exclusive rights to distribute the Ultimate Fight Championship television broadcast on March 3, 2009, UFC broadcast #96. The complaint, filed in the Southern District of Indiana, alleges that the Grotes displayed the fight in their bar without authorization from Joe Hand Promotions. According to the complaint, Joe Hand’s copyright attorneys are unsure whether the Grote’s used satellite or cable television network to show the fight. The copyright attorneys therefore allege that the Grotes violated either 47 U.S.C. § 605(a) or 47 U.S.C. § 553. Joe Hand is seeking damages of up to $110,000, costs and attorneys’ fees.

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. This is the third copyright infringement lawsuit making similar claims that Joe Hand Promotions has filed in the Southern District of Indiana since 2010.

The case has been assigned to Chief Judge Richard L. Young and Magistrate William G. Hussmann. The docket number is 4:11-CV-016-RLY-WGH.
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Indianapolis, IN – Copyright lawyers for Dion Designs of Quebec, Canada have filed an infringement suit against Allwin Powersports, Corporation, Inc., Arthur Liao, MHR Helmet Co., Ltd., Foshan Shunde Fengxing Helmets, Ltd., and Jiangmen Pengcheng Helmets, Ltd. Plaintiff Dion claims he is a famous designer of helmets, who signed an agreement in 2005 with the Defendants to receive $0.50 for each helmet sold using Dion’s deigns. Defendants paid Dion for some helmets, but terminated the agreement around 2010. However, Dion claims that Defendants used some of Dion’s latest designs to make several new helmets. While some of these designs have been marketed by the Defendants in Europe, Dion fears that they will be offered in the US at the Dealer Expo 2011 on February 18 – 20, 2011 in Indianapolis. Dion claims that he filed copyright applications and design patent applications on his designs, although none of those applications has resulted in a registration or issued patent.

The complaint asserts a veritable “kitchen sink” of claims, such as a Lanham Act claim based on a misrepresentation that Defendants have “authority to import and sell such products, without disclosing the absence of a valid license or agreement with the designer.” Claims are also alleged for copyright infringement, trade secret misappropriation, breach of contract, conversion, unfair competition, and for declaratory relief. Dion’s complaint is also accompanied by a Motion for Preliminary Injunction seeking to bar the “displaying or promoting” of the allegedly infringing helmets at the Dealer Expo on February 18-20, 2011, or on the Internet.

Practice Note: The Plaintiffs’ complaint appears to have several inconsistencies. The Lanham Act claim based on a “failure to disclose” is highly unusual; normally, a Lanham Act claim is predicated on an overt misrepresentation as to source. Although Dion states that the Defendants’ claim that the helmets were “designed in Europe” is false, even if this is the case, it is hard to see how the Plaintiff is harmed, especially since the complaint states that “Dion’s plans to make commercial use of those designs have been placed on hold.” The copyright infringement claim is suspect because, as discussed elsewhere on this site, the Plaintiffs did not obtain a copyright registration before filing a suit. Also, to support the trade secret misappropriation claim, the plaintiff claims that his designs “derive substantial commercial value from not being generally known.” However, even if the Plaintiffs’ designs were once “not generally known,” they certainly are now since the Plaintiff: (a) attached them to his complaint, (b) filed them with the US Copyright Office, and because (c) the designs are alleged to been sold in Europe for some time. Dion’s claim for “conversion” also appears to be preempted by the Copyright Act. Finally, it seems that Dion will have difficulty establishing the “irreparable harm” factor necessary to obtain preliminary injunctive relief, since his predominant complaint is that he has not received his $0.50 per royalty license fee.

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Chicago, IL – The Seventh Circuit Court of Appeals affirmed the dismissal of a copyright infringement suit. Lawyers for HyperQuest, Inc., of Buffalo Grove, Illinois, filed a suit against N’Site, Inc. and Unitrin Direct Insurance Company alleging copyright infringement of copyrighted software used to process insurance claims. The software, eDoc, had been registered by the US Copyright Office. Although the license agreement used the phrase “exclusive licenses,” the trial court concluded that the specific words in the license granted only a non-exclusive license. Thus, the trial court determined that HyperQuest did not have standing to bring the lawsuit and dismissed the case. The district court also ordered HyperQuest to pay N’Site and Unitrin’s attorney’s fees of $134,958.42 for defending the copyright infringement suit. The plaintiff appealed, but the Court of Appeals, decided that the Copyright Act limits who can sue for infringement of a copyright to “the legal or beneficial owner of an exclusive right under a copyright” and affirmed the district court’s dismissal. The Court of Appeals also affirmed the award of attorney’s fees to N’Site and Unitrin.

Practice Tips: When making a license agreement for the use copyrighted material, attorneys should carefully review whether the terms of the agreement reflect the parties’ intentions. Even if an agreement uses the phrase “exclusive license,” the terms of the agreement must reflect actually exclusivity for the licensee to bring a copyright infringement suit.

Plaintiffs should carefully consider whether to file a Copyright infringement suit. The Copyright Act is one of the few laws that allows a prevailing defendant to collect attorneys fees from the plaintiff if the suit is unsuccessful.

The Court’s Opinion is below.
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South Bend; IN – Copyright lawyers for Truth Publishing Company, Inc. of Elkhart, IN filed a copyright infringement suit alleging Kristopher C. Campbell d/b/a I.C.U. MUG SHOTS of Elkhart, IN infringed allegedly copyrighted news stories.

According to the complaint, Truth Publishing, is the publisher of the daily Elkhart Truth newspaper. The newspaper includes stories regarding criminal activities. The Defendant ICU Mug Shots (ICU stands for Indiana Criminals Uncovered) publishes mug shots of arrested persons accompanied by news stories about particular arrests. These publications sell for $1.50. It is alleged that the stories ICU Mugshots included with its publication stories about particular arrests that were quoted verbatim from The Elkhart Truth.

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-00017-JD-CAN.

Practice Tip: The complaint does not allege that any of the allegedly infringed news stories have been registered with the Copyright Office. Instead, the complaint only alleges, for each story, that “Truth Publishing has timely applied for copyright registration of the [particular] story and paid the appropriate fee to the Copyright Office.” However, the Copyright Act. 17 U.S.C. § 411(a) states that ”no action for copyright infringement may be brought until the work that is the subject of such action has first been registered in the Copyright Office, or at least an attempt to register has been made and refused by the Copyright Office.” Given that the Plaintiff does not allege either registration or a refusal to register by the Copyright Office, the complaint may be subject to dismissal.

When a copyright owner’s work desires to file an infringement suit but does not have a registration, it is advisable to include a request for special handling and pay a special handling fee (currently $480) to expedite processing of the application. This can reduce the time to obtain a registration from several months to a few days.
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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
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Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
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Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
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