July 7, 2014

Kendrick Lamar Sued For Infringing Music Copyrights In Rigamortus Song

music-copyright-attorney-fees-infringement-kendrick-lamar-rigamortus-reed.jpgKendrick Lamar’s hit song “Rigamortus” may be DOA because he is accused of blatantly copying the music from “The Thorn.” Composer, musician, and recording artist Eric S. Reed composed “The Thorn” in 2009 for Willie Jones III’s 2010 recording The Next Phase (WJ3). Reed is the owner of U.S. Copyright Registration No. Pau 3-682-265 in the composition and Jones is the owner of U.S. Copyright Registration No. SR0721860 in the sound recording.

Plaintiffs deny granting Kendrick Lamar permission to use “The Thorn” in any manner, including the numerous versions and remixes which also incorporate Plaintiffs’ original sound recordings.

“The Thorn” is not merely a part of “Rigamortus” or even the heart of “Rigamortus”; it is “Rigamortus”. The distinctive and catchy refrain from “The Thorn” sound recording, sped up a bit, repeats as a continuous loop throughout the entire “Rigamortus” song while Lamar raps over it. The clever melodic triplets, infectious rhythm, and commanding horns from “The Thorn” are copied to “Rigamortus” directly from Jones’ sound recording. Defendants did not play any instruments or contribute any original musical performance to the “Rigamortus” sound recording. The instrumental element of “Rigamortus” and the composition that it embodies are owned and authored entirely by Jones and Reed respectively.

Listen and let your ears be the judge:

Eric Reed and Willie Jones’ The Thorn:

Kendrick Lamar’s Rigamortus:

To establish copyright infringement, Plaintiffs must prove (1) ownership of a valid copyright, and (2) copying by defendants of protectable elements of the work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Here, in the age of let’s record and upload everything we do to YouTube, Plaintiffs allege that co-defendant William T. Brown’s YouTube video demonstrates how he “created” Rigamortus, showing his computer monitor where the words “Willie Jones III The Thorn” are clearly visible. It is rare to catch a copyright infringer red-handed, but this might be one of those rare instances.

Plaintiffs seek at least $1,000,000 in damages and full disgorgement of Defendants’ profits from the infringement. In addition to seeking an injunction, Plaintiffs demand payment of all their attorneys’ fees and costs.

The case is Eric S. Reed, et al. v. Kendrick Lamar Duckworth, et al., CV14-5064 (N.D. Ill. 2014).

June 23, 2014

Pitbull And Kesha’s Timber Song Subject Of Copyright Infringement Lawsuit

music-copyright-song-sampling-pitbull-kesha-timber.jpgSeeking at least $3 million in damages, songwriters Lee Oskar Levitin, Greg Errico, and Keri Oskar are suing Sony Music and Pitbull’s company for copyright infringement over his smash hit “Timber,” featuring Kesha. The duo’s popular song with a country twang is accused of unabashedly sampling the melody and harmonica riff from Plaintiffs’ 1978 hit “San Francisco Bay.”

Listen to the songs below and you be the judge.

San Francisco Bay

Pitbull and Kesha’s Timber

It’s pretty clear that Timber uses San Francisco Bay’s harmonica riff and melody, which is specifically mentioned in Timber’s Wikipedia page, going as far as stating that harmonica player, Paul Harrington, was told to emulate plaintiff Lee Oskar’s harmonica playing style. It’ll be interesting to see if San Francisco Bay was licensed from another rights holder without Plaintiffs’ knowledge.

The case is Lee Oskar Levitin, et al. v. Sony Music Entertainment, et al., 14-CV-04461 PAC (S.D.N.Y. 2014).

May 27, 2014

Artist Elizabeth Peyton’s Sex Pistols Paintings Subject Of Copyright Infringement Lawsuit

Plaintiff Dennis Morris is a renowned photographer and artist well known for his photographs of musicians and cultural icons. Morris is the owner of all copyrights in photographs he took of musicians Sid Vicious and John Lydon of The Sex Pistols band. Morris filed a copyright infringement lawsuit against artist Elizabeth Peyton and retailer Target for unauthorized use of the photographs in creating derivative artwork reproduced on merchandise sold throughout the United States. A side by side comparison of Morris’ photographs and the accused artwork is provided below:

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The complaint seeks unspecified damages, but seeks “disgorgement of each Defendant’s profits directly and indirectly attributable to said Defendant’s infringement of the Subject Photographs” in addition to attorneys' fees and costs.

To establish copyright infringement, Morris must prove (1) ownership of a valid copyright, and (2) copying by defendants of protectable elements of the work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Where, there is no direct evidence of copying, the second element requires plaintiff to prove both that the defendants had access to the plaintiffs copyrighted work and that there is substantial similarity of protected expression between the copyrighted work and defendants work. Three Boys Music Corp., 212 F.3d at 481. Morris’ photographs are ubiquitous and a Google image search for "The Sex Pistols" produces the subject photographs in the results. Further, where the accused works are strikingly similar – e.g., reproduction of the artwork from the photographed shirt in the accused work, access may be automatically established. Three Boys Music Corp., 212 F.3d at 485 (even where there is no proof of access, the copyright holder may prove copying by showing that the copyright holder’s and alleged infringer’s works are “strikingly similar.”)

Plaintiff is represented by copyright litigators at the Linde Law Firm.

The case is Morris v. Target Corporation, et al., CV14-04010 (C.D. Cal. 2014).

April 16, 2014

Flying Fairy Toys Engaged In Copyright And Trade Dress Infringement Lawsuit

copyright-toy-attorney-trade-dress-fairy-spin-master.jpgFlying toy manufacturer, Spin Master, is suing its former technology company and its new business affiliates for allegedly infringing Spin Master’s Flutterbye flying toy fairy’s copyrights and trade dress by selling the competing Starfly fairy. Indeed, the two companies are no strangers to litigation and are currently engaged in a patent infringement lawsuit in Illinois involving remote controlled airplanes and helicopters. Here, Spin Master claims to have introduced the Flutterbye toy in 2013, which fairy doll incorporates a new technology that allows a customer to control the flying fairy using only one’s palm. Spin Master asserts that the Flutterbye received numerous top toy awards and has been a commercial success. The Flutterbye fairy figurine has been copyrighted and several other copyright applications are pending for the flower designs, stardust, and packaging.

Plaintiff alleges that Defendants approached Plaintiff about a possible collaboration to distribute the toy outside of the United States, which Plaintiff declined. Plaintiff contends that “after seeing the success of Spin Master’s Flutterbye fairy toy, and rather than independently creating a distinct product, Defendants Brix, CYI and Rehco together engaged in a plan to create a look-alike flying fairy product in an attempt to unfairly capitalize on Spin Master’s success.” Aside from copying original elements of the toy itself, Plaintiff claims that Defendants use confusingly similar packaging and marketing channels, including similar YouTube commercials.

Because each party's respective product packaging prominently displays their respective trademarks, it will be interesting to see if customers are confused about the source of the products. See Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045-46 (2nd Cir. 1992) (holding that prominently displayed trade names on respective products "weigh[ed] heavily against a finding of consumer confusion resulting from the overall look of the packaging") (preliminary injunction denied).

The case is Spin Master, Ltd. v. Brix ‘N Clix Co., Ltd., CV14-02808 PSG (C.D. Cal. 2014).

January 2, 2014

Playboy Sues Le Book Publishing For Copyright Infringement Over Kate Moss Photos

photograph-copyright-attorney-playboy-kate-moss-le-book.jpgFor its sixtieth anniversary issue, Playboy commissioned noted fashion photographers Marcus Pigott and Mert Atlas to photograph Kate Moss to grace its cover. The photos have received widespread critical acclaim and praise as instant classics, and Playboy sought to timely register the pictures with the U.S. Copyright Office.

Defendant Le Book’s website bills itself as a leading provider, curator and portal for photography, film, video production and event-related services” for over 50,000 creative professionals, including “the most famous famed photographers, art directors, stylists and model agencies; the most lauded producers, locational finders, photo labs, rental studios, event spaces and caterers; the pre-eminent record labels, magazines, advertising agencies, fashion designers and PR firms.” Playboy alleges that despite Le Book’s sophistication on copyright matters in the industry, Le Book has violated federal copyright laws by posting the infringing Kate Moss photos to its website:

[Le Book has] reproduced, distributed and publicly displayed high-resolution copies of the Playboy cover with Kate Moss and the entire 18 page-spread featuring the photos of Kate Moss in toto, including the entire text and interview with Kate Moss...The brazenness of the infringement is further magnified by the fact that the infringement appears to be the product of direct, high resolution reproduction/scanning of Playboy’s magazine, as even the page numbers therefrom appear in the infringing images...Defendants have not just willfully and directly infringed Playboy’s copyrights; they have also enabled and facilitated countless act of infringement by third parties.

In addition to seeking preliminary and permanent injunctions, Playboy seeks unspecified monetary damages and its attorneys’ fees and costs incurred in the lawsuit.

The case is Playboy Enterprises International, Inc. v. Le Book Publishing, Inc. et al., CV13-9349 AGR (C.D. Cal. 2013).

December 11, 2013

Hello Kitty Jewelry Copyright And Trademark Infringement Lawsuit Filed By Sanrio

copyright-attorney-trademark-infringement-lawsuit-hello-kitty-sanrio.jpgThe Hello Kitty character has been around for more than fifty years and numerous other related characters and designs have been copyrighted by Sanrio. In fact, Sanrio’s website has a page listing all of its copyrights. Sanrio aggressively protects both its copyrights and trademarks related to the Hello Kitty characters, even suing a children's beauty pageant organizer for copyright infringement for using the Hello Kitty doll on its tiaras and trophies. Maybe that’s a good thing if you’ve seen how much these beauty pageants charge parents for the illusion of their kid’s success and to prevent exploitation. But more importantly, to prevent the next Honey Booboo from being thrust upon society. To protect myself from such a lawsuit, the image to the right displays some of the characters at issue in this lawsuit and was taken from Sanrio’s website.

Defendants Blink & Blink, Inc. and its officers are accused of selling jewelry and other products that incorporate a cast of Hello Kitty characters: “This case concerns the concerted, systematic and wholesale theft of various world-famous intellectual properties owned by Plaintiff. Defendants are engaged in the manufacture, importation, distribution, promotion, sale and/or offer for sale of bracelets, rings, earrings, necklaces, and other personal accessories, which incorporate unauthorized likenesses of animated or live action characters owned by Plaintiff, including, but not necessarily limited to, Hello Kitty (collectively “Infringing Product”).” The suit seeks unspecified damages, but requests that actual damages be trebled pursuant to 15 U.S.C. § 1117.

The case is Sanrio, Inc. v. Blink & Blink, Inc., et al., CV13-08948 PJW (C.D. Cal. 2013).

November 11, 2013

Chan Luu Sues Victoria Emerson For Trademark And Copyright Infringement Over Wrap Bracelets

how-to-protect-jewelry-trdemark-patent-copyright-attorney-chan-luu.jpgChan Luu, Inc.’s jewelry trademark infringement, copyright infringement, and unfair competition lawsuit arises from Victoria Emerson’s sales of wrap bracelets. Just this week two different jewelry designers inquired, after receiving cease-and-desist letters, whether jewelry designs were entitled to trademark and copyright protection. After explaining not only are jewelry designs entitled to copyright, trademark and trade dress protection, but also entitled to design patent and possibly utility patent protection, the enlightened jewelry designers recognized the value of obtaining intellectual property protection for their own designs. And now we return to our regularly scheduled programming.

Plaintiff contends that because of its extensive use of the Chan Luu trademark on jewelry, clothing, and accessories, consumers recognize the mark as a source of high quality products. Plaintiff also has several USPTO registered Chan Luu trademarks. In addition, Plaintiff allegedly owns the exclusive trademark rights to its purportedly distinctive curved oval button that serves as the closure for many of the bracelets, which it has used since 2002. Defendants are accused of using the curved oval button trademark in addition to using the Chan Luu trademark, including buying the word mark as an Adword.

The copyright infringement claim, however, is based on Chan Luu’s registration of collections of photographs instead of copyright registrations for the jewelry pieces themselves. Defendants are accused of copying Chan Luu’s product photographs and using the photographs on defendant’s website www.victoriaemerson.com. Plaintiff seeks unspecified monetary damages in addition to preliminary and permanent injunction preventing Defendants’ use of the copyrighted images and the Chan Luu word mark and the oval button trademark.

The district court in R.F.M.A.S., Inc. v. Mimi So, 619 F. Supp. 2d 39, 58-59 (S.D.N.Y. 2009) reconfirmed that jewelry collections, whether thematically related or not, may be registered as a single work:

Jewelry collections are eligible to be registered in a single work registration. This issue was recently discussed in Castaneda, where the defendants sought to invalidate the plaintiff's registration for a jewelry collection on the same grounds as those offered by the So Defendants. There the court held:

[J]ewelry collections properly fall under the category of single work registrations rather than group registrations…. [A] single work registration for a published work covers "all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same." In this case, a collection of jewelry -- usually a set of pieces thematically related and released for sale at the same time -- can be deemed a single unit of publication.
Yurman Studio, Inc. v. Castaneda, 591 F. Supp. 2d 471, 492 (S.D.N.Y. 2008) (footnotes omitted).

While Castaneda states that a collection of jewelry is "usually a set of pieces thematically related and released for sale at the same time," id. (emphasis added), there is no requirement that the pieces must be thematically related. Rather, 37 CFR Section 202.3(b)(4) requires only that: (1) all copyrightable elements must be otherwise recognizable as self-contained works; (2) the items must be included in a single unit of publication; and (3) the copyright claimant must be the same. See Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 205 (3d Cir. Pa. 2005) ("The single work registration regulation is silent on whether the individual, self-contained elements of the 'single work' be 'related' in order to be registered. Instead, single work registration requires, in the case of published works, that all of the self-contained works be 'included in a single unit of publication' and share the same copyright claimant.").

The case is Chan Luu Inc., v. Brandshare, Inc. dba Victoria Emerson, et al., 13-CV-8210 (C.D. Cal. 2013).

October 30, 2013

Halloween Jewelry Copying Scares Up A Copyright Infringement Lawsuit

copyright-attorney-infringement-jewelry-necklace-halloween-von-erickson.jpgPlaintiff, Von Erickson Laboratories LLC, has conjured up a copyright infringement lawsuit that is sure to terrify numerous defendants for allegedly infringing its Halloween themed jewelry. Plaintiff is the owner of several U.S. Copyright Registrations for several pieces of jewelry, including a “stitches necklace,” a “blood drip necklace,” and their derivative works. Plaintiff makes the jewelry by hand by creating a mold from the structure and pouring molten vinyl into the mold, which vinyl can be dyed to any desired color. Plaintiff asserts that none of the defendants had any jewelry pieces remotely resembling Plaintiff’s products prior to Plaintiff’s creation, publication, and distribution of its products.

Defendants M&J Trimming Company and Papillon Accessories allegedly had access to Plaintiff’s designs because they previously ordered the stitches necklace from Plaintiff. Plaintiff contends that defendants’ stitches necklace are identical except for the functional closures. Functional features are not relevant in a copyright infringement analysis because they generally cannot be copyrighted.

jewelry-copyright-attorney-necklace-stitches.jpg

Further, although not identical, Plaintiff asserts that defendants' blood drip necklace is substantially similar to Plaintiff’s blood drip necklaces.

attorney-jewelry-copyright-necklace-blood.jpg

The complaint accuses defendant Hot Topic of also contacting Plaintiff to obtain samples of its jewelry, but instead placing orders for the infringing goods with Papillon Accessories. Yet another defendant, Morbid Enterprises, LLC, is accused of actually meeting with Plaintiff’s principal at an industry event and attempting to negotiate an exclusive license, but instead choosing to create its own infringing products. The complaint contends that defendant Spencer’s Gifts purchased and sold M&J’s infringing versions and Spirit Halloween Superstores purchased and sold Morbid’s infringing versions. Plaintiff seeks preliminary and permanent injunctions preventing defendants’ sales of infringing products and unspecified damages, in addition to its costs and attorneys’ fees.

Copying may be established by showing that the works in question are substantially similar in their protected elements and that the infringing party had access to the copyrighted work. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1174 (9th Cir. 2003). Where the two works are identical, as in the stitches jewelry, access is presumed. But for the blood jewelry, where defendants appear to have modified the design, Plaintiff can rely on the "inverse ratio" rule, which lessens the level of proof required to show copying and similarity when the accused defendant had a "high degree of access" to the protected work. Three Boys Music Corp. v. Boltan, 212 F.3d 477, 485 (9th Cir. 2000).

This appears to be the second Halloween themed copyright infringement lawsuit in a month for Spencer Gifts and Spirit Halloween, having been sued earlier for allegedly infringing a skull-shaped cup design.

The case is Von Erickson Laboratories LLC v. Papillon Accessories LLC, et al., CV13-6434 JHR (D.N.J. 2013). Plaintiff is represented by Flann Lippincott.

October 28, 2013

Halloween Copyright Infringement Lawsuit Over Skull-Shaped Cups

Halloween-copyright-infringement-attorney-skull-design-cup-spencer.jpgCool Gear filed a copyright infringement lawsuit against Spencer Gifts and Spirit Halloween Superstores for selling cups incorporating Cool Gear’s copyrighted three-dimensional skull. The skull qualifies as a three-dimensional work of visual art and is entitled to copyright protection and registration. Indeed, Cool Gear is the owner of U.S. Copyright Registration No. VA 1-876-232 for the work titled “Three Dimensional Representation of A Skull.” The complaint alleges:

Defendants, without the permission or consent of Plaintiff, have manufactured and sold, and continue to manufacture and sell, a plastic tumbler product with a three-dimensional skull insert that is substantially identical to the Copyrighted Work (the “Infringing Work”). . . In doing so, Defendants have violated Plaintiff’s exclusive rights of reproduction and distribution. Defendants’ actions constitute infringement of Plaintiff’s copyrights and exclusive rights under copyright law.

It seems like Halloween season scares up a new Halloween themed lawsuit every year, including 2011’s Power Rangers Halloween costume trademark and copyright infringement lawsuit. Plaintiff seeks preliminary and permanent injunctions preventing defendants’ sales of the accused cups, in addition to unspecified monetary damages, attorneys’ fees, and costs.

The conduct of Defendants is causing and, unless enjoined and restrained by this Court, will continue to cause Plaintiff great and irreparable injury that cannot fully be compensated or measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. §§ 502 and 503, Plaintiff is entitled to injunctive relief prohibiting Defendants from further infringing Plaintiff’s copyright, and ordering Defendants to destroy all copies of the Infringing Work made in violation of Plaintiff’s exclusive rights.

The case is Cool Gear Int’l, LLC v. Spencer Gifts, LLC et al., CV13-12550 WGY (D. Mass. 2013).

September 17, 2013

Court Dismisses Animal Practice TV Show Copyright Infringement Lawsuit With Prejudice

copyright-dismiss-prejudice-lawsuit-tv-show-animal-practice-nbc-duckhole.jpgDefendants in questionable infringement cases should rejoice because another judge has dismissed – with prejudice – at the early stages of litigation a copyright infringement lawsuit filed against NBC’s Animal Practice television show. The litigation lasted longer than the seven weeks the show was on the air before being cancelled. Last year, Judge Real also dismissed with prejudice a questionable trademark infringement lawsuit filed by Spearmint Rhino against Chiappa guns for using a rhino logo on a gun, finding that there is no way consumers are likely to be confused by the respective rhino logos on disparate goods and services.

This time Judge O’Connell determined that Paul Andre’s seven-page copyrighted treatment for PETS, a sitcom set in an after-hours veterinary clinic, could not maintain a copyright infringement claim despite despite an opportunity to file a First Amended Complaint. The Court took judicial notice of common elements of a veterinary hospital, including an operating room, examining room, a lobby, and pets, and also took judicial notice of the tone that is common to comedic television shows, such as the pace and romantic relationships. If “the copyrighted work and the alleged infringement are both before the court, capable of examination and comparison, non-infringement can be determined on a motion to dismiss.” Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945).

The Court found that the elements alleged by Andre were too generic to be protectable and are scenes a faire flowing from an animal hospital. Funky Films, v. Time Warner Ent., 462 F.3d 1072, 1081 (9th Cir. 2006) (holding that there was no protection for similar plots involving “the family-run funeral home, the father’s death, and the return of the ‘prodigal son,’ who assists his brother in maintaining the family business”). The Court found that Animal Practice and PETS had distinct plots without any similarity, “much less substantial similarity, between any expressive elements in the works.” In PETS, the characters worked in an after-hours clinic in L.A. that was always strapped for cash and had interwoven courtroom scenes describing how the pets were injured. In Animal Practice, the characters worked at a NY city hospital catering to the wealthy and focused more on the relationships of the staff and owners than the pets. Thus, the commonalities between the situations and incidents in the two works “flow naturally from [the] basic plot premise” of a television show about an animal hospital. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985). Even two similar story fragments of “a Halloween costume contest for pets at the clinic, and an issue about a pet eating chocolate,” did not provide a basis for substantial similarity because Animal Practice’s expressive details of the story idea was different.

The Court also determined the themes were too generic to be protectable because they are common to other comedic shows, in addition to being randomly scattered throughout the works. Mood, pace, and dialogue were also deemed to be non-protectable elements common to sitcoms with ensemble casts. Moreover, PETS was a treatment without any dialogue and could not be compared to Animal Practice’s fully developed TV show. The characters, i.e. veterinarians, nurses, and pets, including the resident pet at the clinic (a capuchin monkey vs. a dog) were generic and not entitled to protection or sufficiently dissimilar. Thus, the Court dismissed the case with prejudice. A copy of the order is available here.

The case is DuckHole, Inc. v. NBCUniversal Media LLC, et al., CV12-10077 JAK (C.D. Cal. 2012).