May 3, 2010

EuropaCorp Sues Consolidated Pictures Over Distribution Of “I Love You Phillip Morris” Movie

copyright-attorney-film-movie-europacorp-consolidated-pictures.jpgLos Angeles, CA – EuropaCorp is a French motion picture studio that produced the feature film “I Love You Phillip Morris,” starring Jim Carrey and Ewan McGregor. In a May 8, 2009 agreement, EuropaCorp licensed to Consolidated Pictures all domestic distribution rights in the movie, including all theatrical, home video, and television rights. In exchange, Consolidated Pictures was to pay a $3 million advance. After the licensing agreement was executed, EuropaCorp alleges that it delivered the movie and marketing materials; however, a dispute arose between the parties as to the timing of delivery. The dispute was addressed by the execution of an amendment to the license agreement in February of 2010.

EuropaCorp now contends that Defendants have breached the agreement by failing to make the installment payments towards the $3 million advance. As a result, EuropaCorp rescinded the agreement and sought return of the movie and marketing materials. EuropaCorp alleges that Defendants have refused to return the movie or acknowledge the rescission of the distribution rights. Thus, the instant copyright infringement and breach of contract suit was filed. The case is EuropaCorp v. Consolidated Pictures Group, Inc., et al., CV10-2917 DSF (C.D. Cal. 2010).

Here's the trailer:


April 28, 2010

InStyler® Hair Brush Products Subject of Copyright and Trademark Infringement Lawsuits

copyright-attorney-trademark-instyler-hair-beauty-product.jpgLos Angeles, CA – Tre Milano is the owner of the InStyler® trademark and several copyrights used in the sale and advertising of its hair styling product, including a copyright registration for its www.getinstyler.com website. You may have seen one of its infomercials for its “rotating iron” hair brush, a hair product that combines a hair brush and rotating hot iron to curl, straighten, and style hair. Since its first sale in June of 2008, Plaintiff contends that it has spent $30,000,000.00 to air its television infomercials and $5,000,000.00 on print and internet advertising. As a result, Plaintiff asserts that its trademark has become famous.

Plaintiff asserts that its investigator purchased an “InStyler” rotating hot iron from Defendants’ eBay listing for $65.99, which was charged to the investigator's PayPal account. In advertising and selling the "InStyler" products, Plaintiff further contends that Defendants use images that infringe on Plaintiff’s copyrights and use trademarks that are confusingly similar to Plaintiff’s. In addition to the trademark and copyright infringement causes of action, Plaintiff also asserts Lanham Act and § 17200 unfair completion, trademark dilution, accounting, and unjust infringement causes of action. The case is Tre Milano, Inc. v. Daryl Ewald et al., CV10-2849 SVW (C.D. Cal. 2010).

April 13, 2010

FarmVille, Zynga Poker & Mafia Wars Maker Sues PlayerAuctions.com For Trademark & Copyright Infringement

zynga-farmville-trademark-attorney-copyright.jpgLos Angeles, CA – Zynga Game Network is a social gaming company and provides numerous games, such as Zynga Poker, Mafia Wars, FarmVille, YoVille, Cafe World and Word Twist, that are available on Facebook, MySpace, Friendster, iPhone and iPod Touch, among others. Zynga has several pending USPTO trademark applications for its Mafia Wars, Farmville and Yoville trademarks and several copyright registrations for the games as well. Zynga asserts that its games have been a runaway success, with an increase from 1.3 million daily users in July of 2008 to 9.5 million daily users in May of 2009.

When players sign up with Zynga to play the games, they receive a certain amount of virtual currency, which amount can increase through continued play and purchased directly from Zynga. The virtual currency is then used to purchase virtual goods that are used in the games. The “Terms of Service” prohibit the use of virtual currency or goods for real-world money and Zynga does not authorize any third party to sell virtual currency or virtual goods.

In the lawsuit, Zynga accuses Defendant of allowing users to post and sell virtual currency or virtual goods to be used in Znyga’s games on its playerauctions.com website. Zynga claims that in addition to using Zynga’s trademarks without authorization, Defendant profits from the sale of virtual currency and goods by selling them for real-world money in violation of the “Terms of Service” agreement. Further, Defendant is accused of using images of Zynga’s games without authorization, which use infringes its copyrights. The case is Zynga Game Network, Inc. v. Playerauctions.com, CV10-2576 CBM (C.D. Cal. 2010).

April 11, 2010

MGA Sues QVC and Brookstone For Copyright Infringement of its Land Sea RC® Toy

copyright-attorney-mga-entertainment-land-sea-rc-copyright-infringement-qvc.jpgLos Angeles, CA – A copyright infringement lawsuit was filed by MGA Entertainment against QVC, Brookstone, and Rooftop Group USA. MGA claims that it created the Land Sea RC® amphibious vehicle that kids can remotely control. MGA is the owner of two copyright registrations covering the toy designs. MGA alleges that Rooftop “arranged for the manufacture and sale of a product entitled RC Land-and-Sea Mobile” that are sold through retailers such as QVC and Brookstone.

In addition to the copyright infringement claims, MGA asserts unfair competition claims under both Cal. Bus. & Prof. Code § 17200 and California common law. The state causes of action, however, seem to be preempted as they arise from the same operative facts as the copyright claim. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 (2003); Fractional Villas, Inc. v. Tahoe Clubhouse, 2009 U.S. Dist. Lexis 39522 (S.D. Cal. 2009)(dismissing § 17200 claim because it was preempted by the Copyright Act). The case is MGA Entertainment, Inc. v. Brookstone, Inc., et al., CV10-2463 GW (C.D. Cal. 2010).

March 21, 2010

Aram Saroyan Sues Over Copyright Ownership Of “Come On A My House” Song

Los Angeles, CA – William Saroyan, the Academy Award and Pulitzer Prize winning author and screenwriter, co-wrote “Come On-A My House” with his cousin Ross Bagdasarian, the creator of “Alvin and the Chipmunks.”

Saroyan’s son and sole heir, Aram, alleges ownership of fifty percent of the copyright in the song by his 2006 termination – under 17 U.S.C. 304(c) – of an earlier transfer from his father to

Continue reading "Aram Saroyan Sues Over Copyright Ownership Of “Come On A My House” Song" »

March 17, 2010

Kirby Heirs Sue Marvel And Disney To Terminate Comic Book Copyrights In Iron Man, Spider Man, Hulk, etc.

copyright-attorney-x-men-wolverine-incredible-hulk-comics-kirby-marvel-disney.jpgCentral District of California – Comic book author Jack Kirby’s heirs are suing Marvel and Disney (complaint available here) to terminate the copyrights in the popular Spider Man, Iron Man, X-Men, The Fantastic Four, The Incredible Hulk, The Avengers, Thor, Nick Fury and Ant-Man comics, which Kirby authored or co-authored between 1958 and 1963. Plaintiffs allege that during this period, Kirby was not an employee of any of Marvel’s predecessors and the works were not a work-for-hire because he was a freelancer without any written agreements. In 1972, Marvel’s predecessor, Magazine Management Co., entered into a written agreement with Kirby whereby the copyrights in Kirby’s works were assigned for additional compensation.

Because the works were created before 1978, Plaintiffs assert that they can terminate the transfer Kirby's copyrights under 17 U.S.C. § 304(c). Thus, Plaintiffs provided Defendants with termination notices on September 16, 2009. The copyrights are scheduled to revert to the heirs beginning in 2014, which defendants expectedly refute. As a result, Plaintiffs request a declaration from the Court that the termination notices were proper and that the copyright interests will be recaptured. In addition, Plaintiffs ask the Court to determine the split of royalties from co-owned works moving forward. Further, Plaintiffs seek the return of Kirby’s original artwork that is currently in Defendants’ possession. Finally, Plaintiffs assert a Lanham Act cause of action for Defendants’ failure to accredit Kirby as the author or co-author of the underlying works on which X-Men Origins: Wolverine and The Incredible Hulk movies were based. The case is Kirby v. Marvel Entertainment, Inc., SACV10-00289 CJC (C.D. Cal. 2010).

Marvel Entertainment has also sued Kirby's heirs in the Southern District of New York. Details here.

March 14, 2010

Music Group “The Heavy,” CBS, and NFL Sued For Copyright Infringement Over “How You Like Me Now?” Song

Los Angeles, CA – Drive-In Music Company sued the musical group “The Heavy,” CBS, NFL and others for copyright infringement. In 1969, Arlester Christian wrote the musical composition entitled “Let a Woman Be a Woman, (and Let a Man Be a Man),” which was registered with the U.S. Copyright Office. All the rights to the song were then assigned to Plaintiff in the same year. Here’s the Plaintiff’s musical composition:

Plaintiff alleges that The Heavy composed the “How You Like Me Now?” in 2009, which song is included on their “The House That Dirt Built” compact disc. “The sound recording and musical composition of HOW YOU LIKE willfully infringes the musical composition, ‘LET A WOMAN,’ and uses the identical melody as ‘LET A WOMAN.’” Here’s the Defendants’ composition:

The NFL and CBS became defendants for airing a KIA car commercial incorporating The Heavy’s song during the Super Bowl®. Plaintiff alleges that the infringement is willful and intentional and demands enhanced damages and attorneys’ fees. I will go out on a limb and predict that this case will settle quickly. The case is Drive-In Music Co., Inc. v. CBS Corporation et al., CV10-01783 JFW (C.D. Cal. 2010).

February 28, 2010

TMZ Sued For Copyright Infringement Over Video Interview With Michael Jackson’s Ex-Wife

copyright-attorney-tmz-michael-jackson-copyright-infringement.jpegLos Angeles, CA – Celebrity gossip and news website TMZ is being sued by Marc Schaffel Productions for using copyrighted video footage of Michael Jackson’s ex-wife, Debbie Rowe, without authorization. (Here's a copy of the copyright infringement complaint). Schaffel interviewed Rowe in 2003, portions of which were publicly aired in the same year. On January 31, 2004, the Santa Barbara County Sheriff’s office obtained the entire footage – including confidential, never released outtakes – from Schaffel’s house pursuant to a court order issued in the molestation trial.

On July 20, 2009, after Michael Jackson’s death, TMZ is accused of broadcasting confidential outtakes of the interview with Rowe where she jokes about using sedation to combat stage fright. “Schaffel and Rowe were stunned and distressed that TMZ, in a misguided attempt at gallows humor, broadcast the Confidential Outtakes, attempting to tie a 2003 joke by Rowe about drug use to Mr. Jackson’s tragic 2009 death from a drug overdose.” Four days later, TMZ removed the footage upon Schaffel and Rowe’s request and allegedly identified the Sheriff's office as the source of the confidential footage. The Sheriff’s office denied the accusation and TMZ then refused to identify the source of the footage: “TMZ asserts that its status as a ‘news’ provider exempts it from respecting copyrights, permits it to broadcast purloined material, and insulates it from liability for lying about sources of illicitly obtained materials.”

Schaffel asserts causes of action for copyright infringement and conversion under California law. The case is F. Marc Schaffel Productions, LLC v. TMZ Productions, Inc. et al., CV10-01306 GHK (C.D. Cal. 2010).

February 24, 2010

Court: NBC's "My Name Is Earl" Does Not Infringe Mark Gable's "Karma!" Copyright

copyright-lawyer-copyright-infringement-my-name-is-earl.jpgLos Angeles, CA - The District Court granted NBC’s motion for summary judgment of non-infringement in the “My Name Is Earl” copyright infringement lawsuit. (Order available here). Mark Gable filed a copyright infringement lawsuit (details blogged here) claiming that the “My Name Is Earl” television show was based on his copyrighted “Karma!” screenplay. (Details blogged here). Gable complained that he and his girlfriend sent his screenplay to The Gersh Agency in 1995, and that Ken Neisser, one of the Gersh agents who later represented Gergory Garcia, the subsequent creator of Earl, at another agency provided Garcia with a copy of Gable's screenplay.

To show copyright infringement, Plaintiff had to show Defendants had access to the “Karma!” screenplay and that the works were substantially similar. The Court found that Plaintiff failed to show that Garcia had access to “Karma!”:

In sum, even generously assuming that Plaintiff’s submission of Karma! actually reached Gersh, the record is insufficient to allow a reasonable jury to infer that Garcia had access to Karma. Thus, summary judgment for Defendants is appropriate. Finally, even if the weak evidence of access were sufficient to create a triable issue of fact, Plaintiff would still have to present evidence allowing reasonable minds to conclude that Karma! and Earl are substantially similar.

To determine whether the two works were substantially similar, the Court applied the Ninth Circuit’s two-part test consisting of extrinsic and intrinsic components. In the extrinsic test, the Court considered whether the works share a similarity of ideas and expression as measured by external, objective criteria that includes “the articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” On summary judgment, the intrinsic test is inapplicable because it requires a lay person – the juror – to determine whether the “total concept and feel” of the two works is substantially similar – without the aid of expert testimony.

Although Plaintiff had hired David Nimmer – a copyright law expert – to provide an analysis of the objective criteria, the Court found that Nimmer’s report was not admissible under FRE 702 because he was not qualified to render an expert opinion on the issue of substantial similarity between two literary works, even though his expertise and education in copyright law is beyond reproach.

The Court then proceeded to analyze the two works and first found that although the two works share similar unprotectable themes, i.e. karma and redemption, the expression of those themes is markedly different. Beyond the general plot idea that both protagonists win the lottery, the Court found little in common. The Court also found that the sequence of events, excluding the karmic realization followed by the main character making amends for previous bad acts, were considerably different. Further, the Court found that the characters were dissimilar, other than the unprotectable general themes of karma and redemption. The setting for each work is different, Earl taking place in the suburban town of Camden and Karma! set in the slums of New York city. The mood and pace were also different because Earl is paced for half-hour long episodes, whereas Karma! is paced as a full-length feature film. The dialogue is also dissimilar in that Karma! is full of hard-core street vernacular that is unique to plaintiff’s work and has no counterpart in “Earl.” As a result, the Court granted NBC’s summary judgment of non-infringement finding that “even assuming arguendo that there is a triable issue regarding access, no reasonable jury could conclude that Karma! and Earl are substantially similar.” The case is Mark Gable v. National Broadcasting Company (“NBC”) and Gregory Thomas Garcia, CV08-04013 SVW (C.D. Cal. 2008).

January 27, 2010

Jury Trial Begins In Upper Deck Yu Gi Oh! Counterfeiting Case

UPDATE 1/27/2010: Upper Deck settles Yu Gi Oh! counterfeiting case. Details here.

trademark-attorney-yu-gi-oh-counterfeit-upper-deck.pngLos Angeles, CA – Despite the Court’s finding that Upper Deck counterfeited Yu Gi Oh! cards (details here) and advising the parties to settle the damages phase through mediation, the jury trial to determine damages has commenced (Court’s calendar is here). If there ever was a case to settle early to avoid damage to a company’s reputation – which reputation and lifeline is founded on authenticating autographs and memorabilia, this would have been it.

The Cult-Stuff provides a chronology of events in the Konami v. Upper Deck Yu Gi Oh! counterfeiting battle here.

The case is Konami Digital Entertainment, Inc. v. Vintage Sports Cards, Inc. et al., CV08-06630 VBF (C.D. Cal. 2008)