Copyright Infringement

November 19, 2020

Gangnam Korean BBQ Sued for Alleged Piracy and Copyright Infringement

Evansville, Indiana – Joe Hand Promotions, Inc. (“Joe Hand”), a frequent Plaintiff in the federal courts of Indiana, apparently specializes in licensing premier sporting events to bars, restaurants, and similar venues. According to the Complaint, Joe Hand had an agreement with the owner of U.S. Copyright PA-002-0660333 to commercially distribute the Floyd Mayweather, Jr. vs. Conor McGregor boxing match (the “Program”) on August 26, 2017.

Per the Complaint, the Defendants, Joseph J. Kim, Sarah Ying AI Kim, and Genesis Business Systems, LLC d/b/a Gangnam Korean BBQ, exhibited the Program to the public without paying for a commercial license through Joe Hand. As such, Joe Hand is seeking damages for satellite and cable piracy pursuant to 47 U.S.C. §§ 605 and 553, respectively, and copyright infringement pursuant to 17 U.S.C. § 505.

November 2, 2020

Seventh Circuit Confirms Presumptive Fees in Copyright Litigation are Not Guaranteed

By Overhauser Law Offices, LLC

Seventh Circuit Court of Appeals – The U.S. Court of Appeals for the Seventh Circuit affirmed the denial of fees for the Defendant, David Knott (“Knott”), after Plaintiff, Timothy B. O’Brien LLC (“Apple Wellness”), voluntarily dismissed all its claims with prejudice.

Originally filed in the Western District of Wisconsin, Apple Wellness alleged that Knott, a former employee of Apple Wellness started a similar, competing wellness shop. Apple Wellness sued Knott for alleged trademark, trade dress, and copyright infringement. Knott countersued for tortious interference and retaliation. The District Court found the copyright claims baseless and denied a preliminary injunction on the trademark and trade dress claims. Apple Wellness later voluntarily dismissed all its claims.

While Apple Wellness submitted a motion to dismiss without prejudice, the District Court ordered Apple Wellness to withdraw its motion or accept a dismissal with prejudice because Knott had already expended resources litigating an injunction. The District Court further noted that in its opinion, no party’s claim was strong. Apple agreed to the dismissal with prejudice and the District Court declined to exercise supplemental jurisdiction over the counterclaims. The District Court subsequently denied Knott’s motion for fees leading to this appeal only as to the fees for the copyright claims and the appeal.

The Court of Appeals found that while Apple Wellness’s copyright claims were frivolous, it appears the claims were brought in good faith. Therefore, “there were minimal concerns regarding compensation and deterrence.” Further, Knott did not have to expend a large amount of time, money, or energy defending against the copyright claims as they were quickly dismissed. After considering all of the factors, the Court of Appeals affirmed the judgment of the District Court denying Knott’s motion for fees.

October 21, 2020

Photographer Sues for Alleged Copyright Infringement of Kid Rock Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana –According to the Complaint, Larry G. Philpot (“Philpot”), the Plaintiff, is a well-known photographer of musicians. Philpot claims to have taken a photo of a well-known musician, Kid Rock, during one of Kid Rock’s concerts. After taking the photo, Philpot apparently applied for and obtained U.S. Copyright Registration No. VAu 1-182-727 for the photo (the “Registered Photo”).

Philpot claims COTR, LLC d/b/a Chicks on the Right of Indianapolis (“COTR”) copied and published the Registered Photo on its website. While Philpot claims to have discovered the alleged infringement on or after July 26, 2017, the post was apparently removed at some point after December 21, 2017. However, per the Complaint, Philpot’s counsel sent a formal infringement notice to COTR on July 6, 2020, prior to the filing of the Complaint. Philpot is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 504 and 505.

September 30, 2020

Church Hymn at Issue in Copyright Infringement Suit

By Overhauser Law Offices, LLC

South Bend, Indiana – Vincent Ambrosetti (“Ambrosetti”), the Plaintiff, is apparently the author and creator of the musical composition “Emmanuel.” According to the Complaint, the composition was first published in a songbook in 1980. However, Ambrosetti did not receive U.S. Copyright Registration No. PA 2-231-246 for “Emmanuel” until March 4, 2020.

Ambrosetti claims Defendant, Bernadette Farrell (“Farrell”), copied and infringed upon his work when she composed “Christ Be Our Light” in 1993. Further, Ambrosetti claims, Defendant, Oregon Catholic Press (“OCP”), obtained the rights to sell, market, distribute, and license “Christ Be Our Light” from Farrell. Because Farrell and OCP have apparently been distributing and publicly performing the allegedly infringing “Christ Be Our Light” for many years, and especially within the past three years, Ambrosetti is seeking damages and attorneys’ fees for copyright infringement pursuant to 17 U.S.C. §§ 504(b) and 505.

September 17, 2020

Pandemic-Related Photograph at Issue in Copyright Infringement Lawsuit

By Overhauser Law Offices, LLC

South Bend, Indiana – Savanna Campbell (“Campbell”), the Plaintiff, claims to have taken a photograph inside a Walmart of the child car seat section (the “Photograph”). Campbell apparently registered the Photograph with the U.S. Copyright Office and given Copyright Registration No. VA 2-204-282.

According to the Complaint, Defendant Gray Television (“Gray”) used the Photograph on a television program and then on its website in an article entitled “Fact Check: Does Michigan’s stay-at-home order ban purchase of child safety seats?”. Campbell claims Gray did not have a license, her permission, or consent to use the Photograph in its television program or on its website. Therefore, Campbell is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 504 and 505. Continue reading

July 14, 2020

Meier Photography Sues Noblesville Audio Company for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Jeremy Meier d/b/a Meier Photography (“Meier”), the Plaintiff, claims to be a professional photographer and owner of U.S. Copyright Registration No. VAu 1-381-446 which includes 380 photographs taken in the Spring of 2019 (the “Registered Photos”). According to the Complaint, Kelley Global Brands, LLC d/b/a KLH Audio (“KLH”), the Defendant, manufactures and sells audio equipment. Meier claims KLH used and published some of the Registered Photos without paying for the use and without the authorized consent of Meier resulting in copyright infringement.

However, the Complaint further states, that Meier and KLH “entered into an agreement pursuant to which Plaintiff agreed to take certain photos in exchange for Defendant paying for the rights to use said photos (the ‘Agreement’).” This may create an issue over whether the copyright infringement can be maintained. If KLH obtained “rights to use the Photos,” it may have a valid defense of “license.”

A similar issue was raised in the famous case known as the “exploding yogurt factory case.”

July 13, 2020

U.S. Supreme Court Upheld States’ Sovereign Immunity for Copyright Infringement

By Overhauser Law Offices, LLC

U.S. Supreme Court–Frederick Allen (“Allen”) was hired as a videographer to document the recovery of the Queen Anne’s Revenge shipwreck off the North Carolina coast. Allen worked to document the recovery for over a decade and registered copyrights for his works. When North Carolina published some of Allen’s work online, Allen sued for copyright infringement. North Carolina moved to dismiss the lawsuit on the ground of state sovereign immunity; while Allen argued the Copyright Remedy Clarification Act of 1990 (“CRCA”) removed the States’ sovereign immunity.

The District Court agreed with Allen while the Fourth Circuit Court of Appeals reversed the decision. The U.S. Supreme Court ruled 9-0 in favor of North Carolina on March 23, 2020.

Sovereign immunity has recently been the basis for granting summary judgment in several recent copyright cases in the Southern District of Indiana, namely at least Richard N. Bell v. Jay L. Hess, Case No. 1:16-cv-02463-TWP-DML, (S.D. Ind. March 9, 2018) and Richard N. Bell v. Jason Henderson, Case No. 1:16-cv-02488-RLY-DML, (S.D. Ind. July 23, 2018).

June 25, 2020

Photo of Bill Murray at Issue in Copyright Infringement Suit

By Overhauser Law Offices, LLC

Lafayette, Indiana – Aaron Babcock (“Babcock”), the Plaintiff, claims to be a professional photographer in Lincoln, Nebraska. According to the complaint, Babcock photographed actor Bill Murray attending a Nebraska vs. Purdue football game (the “Photograph”). The Photograph was registered with the U.S. Copyright Office under Registration No. VA 2-126-687.

In the second of two lawsuits with identical parties, Babcock claims Gannett Satellite Information Network, LLC (“Gannett”), the Defendant, ran four articles on its websites featuring the Photograph. Babcock first sued Gannett for copyright infringement of a different photograph in December 2019 in the Western District of Wisconsin. In this case, Gannett allegedly used the Photograph without a license or permission from Babcock. As such, Babcock is seeking damages, costs, and attorneys’ fees for copyright infringement.

The case was assigned to Chief District Judge Theresa Lazar Springmann and Magistrate Judge Joshua P. Kolar in the Northern District and assigned Case 4:20-cv-00023-TLS-JPK.

June 16, 2020

Evansville Cigar Bar Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Lafayette, Indiana – Professional photographer and Plaintiff, Bryan Glynn, managing member of BG Pictures LLC, claims Defendant Cigar Cigar LLC (“Cigar Cigar”) displayed his photograph protected by U.S. Copyright No. VAu 1-271-409 on its website without his consent. Glynn claims Cigar Cigar’s actions amount to copyright infringement in violation of 17 U.S.C. §§ 106 and 501. Pursuant to 17 U.S.C. §§ 504 and 505, Glynn is seeking Cigar Cigar’s profits from the use of the photograph, statutory damages, and attorney’s fees.

The case was assigned to District Judge Theresa L. Springmann and Magistrate Judge Joshua P. Kolar in the Northern District and assigned Case 4:20-cv-00022.

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May 19, 2020

Photographer Alleges Indiana Company Infringed Photo of Mayor de Blasio

By Overhauser Law Offices, LLC

South Bend, Indiana – Real Clear Holdings LLC (“RCH”), the Defendant, is alleged to have copied Plaintiff Christopher Sadowski’s photograph of Mayor Bill de Blasio (the “Photograph”) without a license or authorization. Sadowski claims to be a professional photographer and owner of U.S. Copyright No. VA 2-175-419 for the Photograph. According to the Complaint, Sadowski licensed the Photograph to the New York Post who posted the Photograph with Sadowski’s name in an article on its website on July 25, 2019.

RCH allegedly took the Photograph from the New York Post’s website and used the Photograph on RCH’s website www.realclearmarkets.com/ in an article posted on September 9, 2019. Sadowski claims RCH did not license the Photograph from him and did not have his permission to utilize the Photograph. He further claims RCH removed the copyright management information identifying Sadowski as the photographer as shown on the New York Post’s website and instead credited “YouTube”. Therefore, he is seeking damages for copyright infringement and removal and alteration of copyright management information.

The case was assigned to District Judge Damon R. Leichty and Magistrate Judge Michael G. Gotsch, Sr. in the Northern District and assigned Case 3:20-cv-00215-DRL-MGG.