Posted On: April 25, 2012

Mr. Brainwash Sued For Infringing Copyrighted Photos Of Jimi Hendrix, John Coltrane And Other Musicians

Street artist Thierry Guetta (aka “Mr. Brainwash”), featured in the documentary Exit Through the Gift Shop, is not a newcomer to copyright infringement claims relating to photographs of musicians. Almost a year ago, the Court found Guetta infringed photographer Glen E. Friedman’s copyrighted photo of musicians Run DMC by using the photo as a base for pasting broken pieces of phonograph records thereto in creating his derivative work. In the process, the Court also found Mr. Brainwash was not entitled to a transformative fair use defense because it would eviscerate the intent of copyright law, i.e. the protection of original works.

Mr. Brainwash appears to be in hot water again. Photographer James J. Marshall’s estate is suing Guetta and Google for infringing several copyrighted photographs of musicians Jimi Hendrix, John Coltrane, Sonny Rollins, Thelonious Monk, Dizzy Gillespie, Gerald Wilson, Brian Jones, and Stanley Turrentine. Mr. Brainwash is accused of directly copying the images and adapting them without Plaintiff’s permission and engaging in widespread self-promotion of the copies to the public, including selling the derivative works.

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In addition, Thierry built or designed a backdrop in Los Angeles featuring huge blow-ups of the Coltrane and Hendrix images that Google used in an infringing manner to promote its “Google Music” service. Plaintiff also alleges that Google hosted a launch party and authorized others to photograph the infringing backdrop and to reproduce the images with Plaintiff’s authorization, including hosting them on www.gettyimages.com. Plaintiff is demanding an accounting of Defendants’ profits and/or Plaintiff’s actual damages or statutory damages under the Copyright Act, which can be as high as $150,000 per copyrighted work in cases of willful infringement.

The case is The Estate of James J. Marshall v. Thierry Guetta, et al., CV12-03423 SJO (C.D. Cal. 2012). Marshall's estate is represented by Douglas Linde, Friedman's attorney in the Run DMC case.

Posted On: April 12, 2012

eBay Sellers Sued For Using Moshi Trademark On Counterfeit Goods

trademark-infringement-lawsuit-counterfeit-moshi-ebay-ipad-iphone-iglaze-accessory.jpgAevoe has filed a trademark infringement and false designation of origin lawsuit against numerous entities accused of selling iPad and iPhone accessories bearing its Moshi®, stylized M and iGlaze trademarks. Aevoe manufactures peripherals and accessories for portable electronic devices and computers that are sold through Apple, AT&T, and its own online retail store. It alleges that its Moshi® branded products have garnered extensive media coverage and Aevoe has built up and developed significant goodwill and trademark recognition in its entire product line. And in light of this success, it’s alleged that the Moshi® trademark and products have become targets for unscrupulous individuals and entities who wish to take a ‘free ride’ on Aevoe’s goodwill.

Aevoe is accusing numerous eBay sellers of selling counterfeit or imitation goods bearing its trademarks: “Defendants maintain and operate a storefront or webpage on eBay.com [through which] Defendants regularly and systematically advertised, marketed, distributed and sold products bearing unauthorized MOSHI® registered trademarks.” Regarding one defendant, E & D International Trade, Inc., Aevoe’s investigator purchased a “red Moshi iGlaze 4 back case cover for iPhone 4 4G” from E&D. Upon inspection, “security measures confirmed that the item defendants sold was in fact a counterfeit.” Thus, Aevoe contends, “Defendants’ actions have confused and deceived, or threatened to confuse and deceive, the consuming public concerning the source and sponsorship of the counterfeit ‘red Moshi iGlaze 4 back case cover for iPhone 4 4g’ sold and distributed by Defendants. By their wrongful conduct, Defendants have traded upon and diminished Plaintiff’s goodwill. Furthermore, the sale and distribution of counterfeit goods by Defendants have infringed upon Plaintiff’s federally registered trademarks.”

In addition to its trademark infringement and unfair competition claims, Aevoe asserts a claim for trademark dilution, which appears to be susceptible to a motion to dismiss. To establish a trademark dilution claim, Aevoe must allege that "(1) the mark is famous and distinctive; (2) the defendant is making use of the mark in commerce; (3) the defendant's use began after the mark became famous; and (4) the defendant's use of the mark is likely to cause dilution by blurring or dilution by tarnishment." Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634 (9th Cir. 2008). Under the Trademark Dilution Revision Act of 2006, however, a dilution cause of action is reserved for only the most truly prominent brands, such as Coca Cola, Apple, AT&T, or Sony, and it does not appear that Moshi is such a prominent, household name to survive a motion to dismiss.

The case is Aevoe Corp. v. E&D International Trade, Inc., CV12-02928 SVW (C.D. Cal 2012).

Posted On: April 5, 2012

Court Finds “I Gotta Feeling” Song Doesn’t Infringe Pringle’s Copyright, He Destroyed Evidence

copyright-non-infringement-destroy-evidence-pringle-black-eyed-peas-summary-judgment-dismiss.jpgSongwriter Bryan Pringle sued the Black Eyed Peas and others, including David Guetta, for copyright infringement asserting that their “I Gotta Feeling” song copied elements of his “Take a Dive” song, which he copyrighted in 1998. Click here for details of the initial complaint and an audio comparison of the two songs. The Court granted Defendants’ summary judgment motion finding that the song does not infringe Pringle’s copyright, which it found to be invalid, and dismissed Pringle’s claim as a sanction for his willful destruction of evidence, namely the hard drive that Defendants could’ve used to prove his backdating of the creation date of “Take a Dive” dance version.

Pringle claimed that he created the dance version with the eight-bar guitar twang sequence in 1999 and backed up his creation file onto an NRG image file, which is a disc image file that contains a series of separate sound files for each individual instrument in the song. He then claimed that the music equipment and hard drives he used to create the dance version were stolen in 2000. Before the lawsuit was filed, defense counsel sent detailed correspondence to Pringle’s counsel expressing concern about his alleged creation dates of two CDs with the two versions of his song and communicated Pringle’s duty to preserve all evidence, including his computer records to allow investigation of altered dates of creation. Pringle’s counsel agreed and advised that he was preserving evidence.

Pringle then filed a copyright application for the dance version, seeking registration for the sound recording and the musical composition of the guitar twang sequence, which was the only new material added to the original version. In December of 2010, Pringle delivered to his expert a CD-Rom with the NRG files, but in January of 2011 Pringle got rid of the hard drive, copying only “relevant files” but not making a backup copy of the entire hard drive. When asked to produce all hard drives used in 2009, ’10, and ‘11, Pringle did not produce any, although he had copied data from a 2011 hard drive for his expert.

The Court found that “I Gotta Feeling” does not infringe the original version of “Take a Dive” because Pringle could not establish access and because the two songs are not substantially similar. Nor did “I Gotta Feeling” infringe the dance version because that copyright is invalid because Pringle failed to comply with the deposit requirement. In order to obtain a copyright registration, the applicant must provide a copy of the work along with the application. The Copyright Act, however, does not consider a reconstruction of the work as a proper copy, i.e. the copy must be produced by referring to the original work and not by recreating the work anew. Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986). In this case, Pringle’s MP3 of the dance version was not created in 1999 or copied directly from a file created in 1999. Rather, it was created later using the separate sound files for each individual instrument contained on the NRG file; thereby, the copyright registration was not properly obtained. Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998).

The Court also dismissed Pringle’s case because of his willful destruction of relevant evidence. The Court found that Pringle was fully aware of his duty to preserve evidence because of the allegations of back-dating and Defendants’ suggestion to his counsel to copy the hard drives before Pringle is confronted with the allegation of backdating. Pringle was also aware of this duty because he backed up “relevant files” before disposing of all the hard drives. The information on the hard drives was relevant and Pringle’s spoliation of the hard drives prejudiced defendants’ ability to mount a defense and obtain an earlier dismissal of the case.

Even worse for Pringle, Defendants have filed a motion for sanctions against him and his attorney for their improper conduct.

The case is Bryan Pringle v. William Adams, Jr. et al., SACV10-1656 JST (C.D. Cal. 2010).