Indiana Intellectual Property Law News
Indianapolis, Indiana – J & J Sports Productions, Inc. of Campbell, California (“J & J Sports”) has sued Joseph M. Hubbard and Alison Kay, LLC, both of Indianapolis, Indiana and d/b/a Wing’N It in the Southern District of Indiana alleging the unlawful interception and broadcast of the Manny Pacquiao v. Juan Manuel Marquez, WBO Welterweight Championship Fight Program.
J & J Sports states that it is the exclusive domestic commercial distributor of the Manny Pacquiao v. Juan Manuel Marquez, WBO Welterweight Championship Fight Program (the “program”). It has sued Alison Kay, which is listed on the complaint as the name of a limited liability company, as well as Joseph M. Hubbard as an individual, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.
Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the program on November 12, 2011 without a commercial license. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.
A count of conversion is also included which asserts that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”
In addition to naming the separate legal entity, Alison Kay, LLC, which apparently owns the restaurant, Plaintiff has also sued Hubbard alleging that he had the right and ability to supervise the activities of Wing’N It. J & J Sports asserts that those activities included the unlawful interception of Plaintiff’s program.
J & J Sports also contends that Hubbard specifically directed the employees of Wing’N It to unlawfully intercept and broadcast Plaintiff’s program at Wing’N It or, if he did not, that the actions of the employees of Wing’N It are directly imputable to Hubbard by virtue of his purported responsibility for the activities of Wing’N It. Hubbard has also been named individually as a result of J & J Sports’ contention that he is a managing member of Alison Kay, LLC. J & J further asserts that Hubbard, as an individual specifically identified on the liquor license for Wing’N It, had an obvious and direct financial interest in the activities of Wing’N It.
In the complaint, the intellectual property attorney for J & J Sports listed the following counts and requests for redress:
•Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
•Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
•Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to the Plaintiff.
Practice Tip #1: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.
Practice Tip #2: As part of its complaint, J & J Sports claims that the Defendants’ actions have subjected it to “severe economic distress and great financial loss.” It will be interesting to see what evidence it offers as proof that, as a result of allegedly not receiving its full commercial fee for the programming purportedly displayed by the Defendants – a circumstance presumably known to few other than the Defendants themselves – it has suffered severe economic distress and great financial loss.
This complaint was filed by Charlie W. Gordon of Greene & Cooper LLP. The case was assigned to District Judge Richard L. Young and Magistrate Judge Tim A. Baker in the Southern District of Indiana and assigned Case No. 1:13-cv-01789-RLY-TAB.