Copyright Infringement

April 21, 2020

Gary Indiana Venue Sued for Alleged Copyright Infringement

Hammond, Indiana – Broadcast Music, Inc. (“BMI”), along with eleven other Plaintiffs (the “Copyright Owners”), filed suit against Backstage of Indiana, LLC d/b/a Backstage on Broadway (“Backstage”) and Marcell Jackson (“Jackson” and collectively “Defendants”) alleging copyright infringement of six different musical compositions. BMI alleges it has licensing rights to the six musical compositions at issue which are owned by the eleven Copyright Owners. Jackson is allegedly an owner of Backstage and is responsible for the operation and management of the establishment including the public performance of musical compositions. BMI and the Copyright Owners are seeking damages for six claims of willful copyright infringement after allegedly reaching out to Defendants over seventy times in an effort to educate them on the Copyright Act and license the musical compositions to Defendants.

The case was assigned to Northern District Judge Philip P. Simon and Magistrate Judge Joshua P. Kolar in the Northern District and assigned Case 2:20-cv-00010-PPS-JPK.

BMI-Complaint

April 8, 2020

Competing Jewelry Companies in Court Again over Alleged Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Sheryl Lutz-Brown (“Sheryl”), the principal for Plaintiff, Corlinea, is a graphic designer and creator of copyrighted jewelry designs. In 2016, Sheryl claims to have developed a unique work entitled “HEARTY LOVE Design” that incorporated the word “love” into a heart shape design with one continuous line. Shortly after the “HEARTY LOVE Design”, it appears Sheryl created the “Heartlines Love Pendant” which was a heart-shaped pendant with the word “love” incorporated into the design with a continuous line. Sheryl registered both of these designs and they were assigned U.S. Copyright Registration Nos. VAu 1-301-361 and VAu 2-093-049 (the “Registered Copyrights”), respectively. Corlinea claims to own both of the Registered Copyrights by assignment.

Corlinea and Defendant, Shah Diamonds, Inc. d/b/a Shah Luxury (“Shah”), are no strangers in litigation as Corlinea previously sued Shah in a similar lawsuit in 2018. The parties in that case entered into a confidential Settlement Agreement and Release and the case was voluntarily dismissed. Less than one year after Shah signed the previous Settlement Agreement and Release, Corlinea claims it discovered Shah was once again offering infringing jewelry for sale on its website.

Corlinea claims Defendants, Spath Jewelers, Inc. and Showcase Jewelers, LTD are also offering infringing jewelry for sale on their respective websites. Due to the allegedly intentional copying of the Registered Copyrights, Corlinea is seeking damages for Federal Copyright Infringement pursuant to 17 U.S.C. § 501 and breach of the Settlement Agreement and Release from the 2018 lawsuit.

March 10, 2020

Tatuyou Sues Indiana-Based One Ink Seven for Alleged Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, Tatuyou, L.L.C. (“Tatuyou”) of Hastings, Minnesota, filed suit in the Northern District of Indiana alleging that Defendants, One Ink Seven LLC (“One Ink”) of Goshen, Indiana and Robert F. Smead (“Smead”), infringed its rights in its intellectual property portfolio. Tatuyou is seeking damages,costs, and attorneys’ fees.

Tatuyou claims to be in the business of selling products to be used in the tattoo industry with an intellectual property portfolio all relating to its sales business. According to the complaint, Tatuyou is the owner by assignment of U.S. Patent No. 9,546,281 (the “‘281 Patent”) entitled “Tattoo Stencil Composition and Method for Manufacturing.” Tatuyou also claims to be the owner by assignment of U.S. Patent No. 8,545,613 (the “‘613 Patent”) entitled “Tattoo Transfer Pattern Printed by an Ink Jet Printer.”

According to the complaint, One Ink does business as “Electrum Supply” and owns and operates a website with the domain name: http://www.electrumsupply.com. Tatuyou claims that One Ink is infringing, actively inducing infringement, and contributorily infringing both the ‘281 Patent and the ‘613 Patent under 35 U.S.C. § 271 by offering for sale products named “Electrum Premium Tattoo Stencil Primer,” “Electrum Gold Standard Tattoo Stencil Primer,” “NOX Violet,” and “Eco Stencils.” Tatuyou’s attorney allegedly sent One Ink a letter on December 20, 2018 informing One Ink of the alleged infringement of the ‘281 Patent and a subsequent letter on June 12, 2019 to inform One Ink of the alleged infringement of the ‘613 Patent.

February 18, 2020

Indiana Trademark Litigation:Harley-Davidson Sues Harley Life, LLC for alleged Trademark and Copyright Infringement

By Overhauser Law Offices, LLC

Terre Haute, Indiana – Attorneys for Plaintiffs, H-D U.S.A., LLC and Harley-Davidson Motor Company Group, LLC (collectively “Harley”), both of Milwaukee, Wisconsin, filed suit in the Southern District of Indiana alleging that Defendants, Harley Life, LLC (“Harley Life”) and Bill Lemon (“Lemon” and collectively “Defendants”), both of Vincennes, Indiana, infringed their rights in U.S. Copyright Reg. No. VA 1-987-746 and the United States Trademark Registrations below (collectively “Harley’s Intellectual Property”).

Mark	Reg. No.	Goods and Services
HARLEY	1406876	Clothing; namely—tee shirts for men, women and children; knit tops for women and girls; and children’s shirts
HARLEY	1683455	Shirts, tank tops, boots and sweatshirts
HARLEY	1708362	Embroidered patches for clothing
HARLEY	1352679	Motorcycles
HARLEY	3818855	Non-luminous, non-mechanical tin signs, non-luminous, non-mechanical metal signs
	4465604	Clothing, namely, shirts, hats, caps, belts, jackets, gloves, sweatshirts, lounge pants, wrist bands
	3525970	Jackets, coats, gloves, shirts, shorts, caps, hats, headwear, knit hats, belts, neckties, pants, sweatshirts, T-shirts, leather clothing, namely, leather jackets, leather gloves, footwear, namely, boots and vest extenders

February 11, 2020

I’m Speaking at the Center for Intellectual Property Law: Reversal of Fortunes: Indianapolis Skyline Photo and $1,000,000 Damages (Copyright Litigation of the Year)

By Overhauser Law Offices, LLC

On February 18, 2020 at 12:45 pm, I will be speaking at IUPUI Center for Intellectual Property Law at Inlow Hall, Room 259. Reversal of Fortunes: Indianapolis Skyline Photo and $1,000,000 Damages (Copyright Litigation of the Year). This is a free event, however registration is required.

More information about my speech to IUPUI on February 18, 2020, Click here.

December 27, 2019

Indiana Copyright Litigation: German Photographer Sues Toolfarm.com for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Attorneys for Plaintiff, Marco Verch (“Verch”) of Germany, filed suit in the Northern District of Indiana alleging that Defendant, Toolfarm.com, Inc. (“Toolfarm”) of South Bend, Indiana, infringed his rights in United States Copyright Registration No. VA 2-106-766. Verch is seeking actual damages, profits, income, receipts, or other benefits received by Toolfarm, costs, expenses, attorneys’ fees, and pre-judgment interest.

According to the complaint, Verch is a professional photographer claiming Toolfarm has reproduced and publicly displayed his copyrighted photograph of traditional Russian wooden dolls (the “Photograph”). Verch claims Toolfarm ran the Photograph on its website without a license, permission, or consent from Verch. As such, Verch is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 106, 501, and 504.

This case was filed by Verch’s attorney, Mr. Leibowitz, just six days after he was ordered to personally pay $28,567.50 to a defendant in another case. In that case, Mr. Leibowitz was found to have engaged in discovery misconduct by failing to identify witnesses as required by Rule 26. The court stated that Mr. Leibowitz was:

more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties to sell a product or service. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.

The Court then ordered his client to post a $50,000 bond to continue with the case. When his client failed to do so, the court dismissed the case.

November 12, 2019

Indiana Copyright Litigation: German Photographer Sues Elkhart-Based Company, Good Living Enterprises Inc., for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Elkhart, Indiana – Attorneys for Plaintiff, Paul Steeger (“Steeger”) of Germany, filed suit in the Northern District of Indiana alleging that Defendant, Good Living Enterprises Inc. (“Good Living”) of Elkhart, Indiana, infringed his rights in United States Copyright Registration No. VA 2-056-056. Steeger is seeking actual damages, punitive damages, attorney’s fees and costs, pre-judgment interest, and any other relief the court deems proper.

Steeger, a professional photographer, claims he is in the business of licensing his photographs for a fee. In this case, Steeger claims he photographed a leaf in water (the “Photograph”) and registered it with the United States Copyright Office. Steeger claims Good Living posted the Photograph on its website without a license, permission, or consent from Steeger. As such, Steeger is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 106 and 501.

October 30, 2019

Indiana Copyright Litigation: Prevailing Plaintiff Ordered to Pay Losing Defendant’s Costs After Rejecting Rule 68 Offer

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Richard L. Young of the Southern District of Indiana issued a decision on cross-motions for attorneys’ fees and costs in the case of Richard N. Bell (“Bell”) versus Michael Maloney (“Maloney”). The Court first entered judgment in favor of Bell on June 11, 2019 granting him $200 in statutory damages, and costs. Bell sought $33,536,25 in attorney’s fees and $4,719.80 in costs. Maloney made a cross-motion “for leave to file a Bill of Costs totaling $2,183.77 and to enforce the Rule 68 offer. The Court found that the Rule 68 offer should be enforced and Maloney is entitled to the costs he incurred after the offer was rejected.

Bell sent a demand letter to Maloney for $5,000.00 prior to filing this suit. After Bell filed suit, Maloney filed his Answer and then sent Bell an Offer of Judgment pursuant to FRCP 68. This offer was for $2,500.00 for Bell to take judgment against Maloney and would include all attorney’s fees and costs. Bell denied the Rule 68 offer and after the denial of cross-motions for summary judgment, the case went to a bench trial. After the one-day bench trial, the Court found Bell was the prevailing party and was entitled to $200 in statutory damages. Bell filed his motion for fees and costs eleven months after the bench trial occurred.

FRCP 68 provides in part, “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” The court in Payne v. Milwaukee Cty., 288 F.3d 1021, 1024 (7^th Cir. 2002), found that “Rule 68 is designed to provide a disincentive for plaintiffs from continuing to litigate a case after being presented with a reasonable offer.” In determining if a final judgment obtained is less favorable than a Rule 68 offer, “the attorney’s fees and costs that accrued before the offer must be added to the judgment.” Lawrence v. City of Philadelphia, 700 F.Supp. 832, 836 (E.D. PA. 1988).

October 15, 2019

Design Basics Ordered to Pay Over $300,000.00 in Attorneys’ Fees and Costs

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, Design Basics, LLC and W.L. Martin Home Designs, LLC, filed suit in the Northern District of Indiana alleging that Defendants, Heller & Sons, Inc. d/b/a Heller Homes and Heller Development Corporation, infringed numerous copyright registrations. The Court granted the Defendants’ Motion for Summary Judgment on June 24, 2019. Design Basics filed its Notice of Appeal on July 19, 2019. Although Design Basics had filed its Notice of Appeal, Defendants submitted their Petition for Attorney Fees and Costs and were awarded $310,759.34.

According to the Opinion and Order dated September 3, 2019, the “Court invited Defendants to file a request for attorneys’ fees pursuant to 17 U.S.C. § 505, and further invited Design Basics to file a response in opposition.” The Court cites an exception from general rules of jurisdiction following a filing of a notice of appeal from Terket v. Lund, 623 F.2d 29, 33-34, in which a district court may enter an award for attorneys’ fees while the merits of the case are on appeal. In this case, Defendants submitted their Petition for Attorney Fees and Costs and Design Basics submitted its response in opposition.

District courts consider at least four different factors listed in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19 (1994) when determining whether to award attorneys’ fees, including: “(1) frivolity of the claim; (2) motivation in filing the claim; (3) objective reasonableness of the claim; and (4) considerations of compensation and deterrence.” Here, the Court found that while the Defendants argued the Seventh Circuit’s decision in Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017) rendered all copyright cases filed by Design Basics frivolous, Design Basics may still recover on copyright infringement claims although it may be difficult. When analyzing Design Basics’ motivation for filing its infringement claims, the Court noted that Design Basics “realized approximately $5 million in net litigation profits in 2016 and 2017 alone, while the gross revenues for Design Basics during the same period of time were approximately $2.5 million.” Based off this finding, among others, the Court believes that this case, and most infringement cases filed by Design Basics, are filed due to a financial motive.

October 4, 2019

Custom Design and Paint Company, The Art of Design, Inc., Seeks Damages for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, The Art of Design, Inc. (“TAOD”) of Elkhart, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Sharpline Converting, Inc. (“Sharpline”) of Wichita, Kansas, infringed its rights in United States Copyright Registration Nos. VA 1-979-388 and 2-149-309 (the “‘388 Design”) and VA 1-982-002 and 2-149-316 (the “‘002 Design”). TAOD is seeking judgment, actual damages, profits, and any further relief as the Court deems proper.

TAOD claims it is a highly respected and successful business engaged in custom airbrushing and the designing of fine art. According to the complaint, TAOD employs very talented individuals who create original two-dimensional designs (the “TAOD Designs”) that are applied to boats, RVs, airplanes, cars, and helicopters. TAOD claims the TAOD Designs are copyrightable and that it owns all right, title, and interest in the TAOD Designs. The ‘388 Design and ‘002 Design are both designs known as the “Shatter Graphics”.

Per the complaint, Sharpline designs and manufactures vinyl graphics for a diverse market, including the marine industry. Sharpline allegedly sells vinyl graphic image products to Pontoon Boat, LLC, doing business as, Bennington and Bennington Marine (“Bennington”). According to the complaint, Bennington provided Sharpline with unauthorized copies of the Shatter Graphics in 2012, which Sharpline then copied, created a vinyl graphic product, and distributed to Bennington for application on Bennington’s boats and boat motors. TAOD claims one of the images provided to Sharpline from Bennington was a photograph of one of Bennington’s boats painted by TAOD with the Shatter Graphics. TAOD alleges Sharpline has reproduced, copied, and distributed unauthorized copies of the TAOD Designs and as such is seeking damages for copyright infringement and inducing copyright infringement.