December 6, 2012

NBC’s Animal Practice TV Show Sued For Copyright Infringement

copyright-infringement-script-tv-show-animal-practice-nbc.jpgDuckHole, Inc. is the copyright assignee in a treatment for a television series entitled “Pets,” created by Paul J. Andre in 2010. Mr. Andre, however, did the unthinkable: he registered his treatment with the Writers Guild of America. WRITERS, repeat after me: I WILL NOT WASTE MY MONEY REGISTERING MY WRITTEN WORK WITH THE WGA or SAG. I WILL FILE A COPYRIGHT REGISTRATION APPLICATION INSTEAD.

Why pay for a WGA registration when it affords no significant protection in court? In fact, the WGA shreds your submission after five years and is absolutely useless if the infringement begins in the sixth year.

  • To avail yourself of the advantages available under the law, you must register your screenplay, treatment, or script with the U.S. Copyright Office.

  • In order to file a lawsuit to prevent copying of your work, you MUST have registered the work with the U.S. Copyright Office.

  • In order to recover statutory damages and attorneys’ fees from infringers, the work must have been registered with the U.S. Copyright Office before the commencement of the infringement or within three months from the date of publication. 17 U.S.C. § 412.

  • In order to establish evidence of ownership of the screenplay, treatment, or script, the work must have been registered with the U.S. Copyright Office.

I cannot emphasize the importance of filing your work of authorship with the U.S. Copyright Office. In fact, if you can only afford to register the work with one entity, it should be the U.S. Copyright Office in order to avail yourself to the advantages afforded by a copyright registration certificate.

Judging from the absence of a copyright registration number in the complaint, DuckHole probably only recently filed the copyright application in order to bring suit. DuckHole alleges that NBC’s Animal Practice TV series is “substantially identical and, at best, a derivative work of PETS, which is based on an original copyrighted PETS treatment owned and registered to Plaintiff.” For example, Plaintiff claims that Animal practice’s “concept of centering on a veterinarian that is good with animals but not so good with people, and the setting in a veterinarian clinic are substantially identical, and at least derivative of the concept and setting” in the treatment. The complaint continues:

The supporting characters in the copyrighted PETS treatment include: (i) David- the veterinarian's colleague and "best 'human' friend" who "is woefully inadequate at the dating scene," (ii) Peg- the "hard-as-nail" employee of the clinic, (iii) Brenda- a "clueless" assistant at the clinic, and (iv) Bud- the resident pet at the clinic. The supporting characters in the Series Animal Practice include: (i) Doug- the veterinarian's colleague and "closest 'human' friend" who is "hapless in matters of the heart," (ii) Juanita- the "take-charge" clinic employee, (iii) Angela- an "eccentric" assistant at the clinic, and (iv) Dr. Rizzo- the resident pet at the clinic. The Series supporting characters are substantially identical, and at least derivative of the supporting characters in PETS.

Assuming NBC had access, without reviewing the treatment and the series in their entirety, it is difficult to predict whether these references are unprotectable general themes of a veterinarian’s office or whether they share articulable similarities between plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.

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

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).

July 14, 2008

United States Copyright Office Now Accepting Electronic Filing of Copyright Registration Applications: LA Copyright Attorney

copyright-registration-attorney-application-los-angeles.jpgLos Angeles, CA – The United States Copyright Office, as of July 1, 2008, began accepting electronic filings of copyright applications for registration. The Copyright Office provided tips for navigating the new online copyright registration system, named electronic Copyright Office (eCO). A frequently asked question (FAQ) page is provided on the Copyright Office website to address the most common concerns. Also, an eCO tutorial is provided to familiarize users with the new online registration format. Currently, the following basic copyright claims can be registered through the eCO: literary works, visual arts works, performing arts works, sound recordings, motion pictures, and single serial issues.

The advantages of e-filing of copyright applications include:

  • Lower filing fee of $35 for a basic copyright claim (for online filings only)
  • Fastest processing time of copyright registration applications
  • Online status tracking of copyright registration applications
  • Secure payment by credit or debit card, electronic check, or Copyright Office deposit account
  • The ability to upload certain categories of deposits directly into eCO as electronic files

Even users who intend to submit a hard copy of the work being registered may file an application and payment online and print out an eCO-generated shipping slip to be attached to the hardcopy deposit.

At this time, the following types of copyright registration are not available in eCO: renewals, corrections, mask works, vessel hulls, groups of serial issues, groups of newspaper/newsletter issues, groups of database updates, and groups of contributions to periodicals.