Articles Posted in Copyright Litigation

On August 10, 2018, I have the pleasure of speaking at CLE-picture-300x105Bridgeport Continuing Education’s “What Makes Jurors Tick?” seminar at Hotel Indigo LA Downtown.  I will discuss how to successfully communicate complex and technical information to jurors.  Click here for more information and to register for the seminar.

House of Lashes is a Southern California beauty company that sells eyelashes, beauty products, and accessories, and is well known in the beauty and eyelash industry.  House of Lashes owns the federally registered ICONIC trademark (Reg. No. 4.839,324) for false eyelashes, adhesives for affixing eyelashes, and artificial eyelashes.  Additionally, House of Lashes has a federal copyright registration for a photograph of its “Iconic” lashes (Copyright Reg. No. VA 1-996-524).  House of Lashes’ ICONIC brand of lashes is one of its most popular products and designs on the market and is sold online as well as in many stores nationwide.  Additionally, House of Lashes alleges that its product’s packaging is inherently distinctive because it is unique in the eyelash industry, and combines elements making it recognizable to consumers without accompanying words.Final-image-273x300

Kiss Nail Products is a competitor in the beauty industry that began selling “Iconic” brand eyelashes on websites and in stores.  On April 24, 2018, House of Lashes sent Kiss Nail Products a cease and desist letter, and the latter responded that it would not be complying with the cease and desist letter and would continue to make and sell “Iconic” branded eyelashes.  Thus, House of Lashes is suing Kiss Nail Products for (1) infringement of registered trademarks (15 U.S.C. § 1114), (2) unfair competition (15 U.S.C. § 1114), (3) false designation of origin (15 U.S.C. § 1125(a)), (4) trade dress infringement (15 U.S.C. § 1125(a)), (5) copyright infringement (17 U.S.C. § 501), (6) registered trademark infringement (Cal. Bus. & Prof. Code § 14335), (7) unfair competition and false designation of origin (Cal. Bus. & Prof. Code § 17200 et seq. and § 17500), and (8) declaratory judgment.

House of Lashes alleges money and time investment in building a loyal fan base and protecting its ICONIC trademark, including a strong social media presence with millions of followers, videos with 18 million views, and estimates over a billion impressions related to their ICONIC brand eyelashes.  House of Lashes argues that the defendant’s purpose in using the Iconic trademark and packaging trade dress is to cause confusion or to deceive customers.  Defendant is also accused of intentionally copying the design, layout, visual presentation, and arrangement in photographs displaying the eyelashes, thereby infringing House of Lashes’ copyrighted photographs.

Star Fabrics, Inc. is suing Cost Plus, a well-known retailer, for copyright infringement of artwork on fabric.  Los Angeles based Star Fabrics owns a two-dimensional artwork print registered with the U.S. Copyright Office (Reg. No. VA 1-764-261).  Star Fabrics alleges that Cost Plus had access to their two-dimensional fabric design due to Star Fabrics’ widespread dissemination of the fabric to numerous parties in the fashion and apparel industries.  Star Fabrics alleges that Cost Plus and other defendants created garments with the same copyrighted design and sold them with a World Market label.

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Taken from the complaint.

To prove copyright infringement, proof of ownership of the allegedly copied work as well as copying of the protected elements of the copyrighted design are required.  Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989).  Star Fabrics’ certificate of copyright registration is prima facie evidence of validity and ownership.  Next, because there is likely no direct evidence of copying, Star Fabrics must prove that the defendants had access to its design and that the two designs are substantially similar.  Star Fabrics lists many ways in which the defendants may have had access to their design, including their showroom, illegally distributed copies of the design by vendors, or access to materials in the marketplace lawfully using the pattern.

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From www.brettdaniels.com

Brett Daniels, a professional magician, collaborated and contracted with defendants Simon Painter and Timothy Lawson on a variety of live magic shows and a potential magic show for television.  Daniels performed in many live magic shows as one of the group’s largest attractions, using his copyrighted method and choreography to make large vehicles appear out of thin air.  Daniels owns the proprietary rights to the concept, apparatus, and method of operation of his “Appearance Illusion,” for which he’s known throughout the magic community.  Daniels ceased performing in the live magic shows, but continued to contribute creatively to the business.  Daniels played a large part in scouting talent for the show, recruiting all but one of the initial performers in the show.  Additionally, Daniels used his TV connections to help further the prospects of a TV magic show.

The situation escalated when a Venezuela tour date was added by Painter and Lawson.  After arriving in Venezuela, the materials and equipment of the acts were seized. Daniels claims that this was a plan by Painter and Lawson and that they would not assist him in leaving the country.  While dealing with a serious illness for five days, Daniels had to threaten legal action before Painter and Lawson provided him with a ticket out of the country.  The relationship soured quickly after this trip.  Soon after, the defendants stopped paying Daniels the 10% of the act fee budget stated in their contract, and cut his contact off with talent he had recruited.

Did you know the photographer owns the copyright in the picture she takes of you?  Famous photographer, Bruce W. Talamon, is suing the owners of bobmarley.com and many other Bob Marley related companies over the alleged use of Talamon’s copyrighted photographs he took of Bob Marley.  Talamon is a Los Angeles photographer who shot exclusive photos of many famous artist and musicians.  From 1978-1980, Talamon traveled with Bob Marley and his band during concerts in California and West Africa and created a book, Bob Marley Spirit Dancer, featuring the many photographs from his travels with Marley.

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Picture taken from the complaint (Subject Photograph 7).

The complaint identifies over twenty instances of infringement, showing websites and Facebook pages allegedly using his copyrighted photographs of Marley.  The named defendants span from music companies to producers of coffee and marijuana products, some of which Talamon previously sued in other cases.  The complaint lists the copyright registration numbers of all 22 photographs that Talamon claims have been infringed and provides screenshots of the photos on the companies’ various websites.  Despite the pictures featuring Bob Marley, a photographer is ALWAYS the copyright owner unless specifically agreed to specifically in writing prior to the shoot or assigned subsequently also in writing.

An Instagram media influencer, Nita Batra, along with a class of other Instagram influencers are suing PopSugar for what could be millions of dollars.  Batra runs an Instagram account with over 214,000 followers and a connected lifestyle and fashion blog.  As with many other Instagram influencers, Batra generates revenue through a contract with LIKEtoKnow.it, an app and website that identifies and sells clothes based on screenshots.  The Influencers’ agreement with LIKEtoKNOW.it allows each influencer to monetize the pictures and information they post to their social media sites.  The photographs that they post are linked to LIKEtoKnow.it’s app and website, allowing users to find and buy outfits the influencers wear in their Instagram posts.  Each influencer receives a percentage of the sale price when users buy products through their links.  The profits earned by many influencers with hundreds of thousands of followers can be substantial.  Copyright-Lawsuit-Instagram-Photo-300x300

Batra claims that PopSugar illegally took copyrighted pictures of many Instagram influencers, removing the referral links from which they profited, and posting the pictures on PopSugar’s website with new links.  These new links deprived the media influencers of their profits by directing users to ShopStyle, a website then owned by PopSugar.

Batra is suing for violations of the Digital Millennium Copyright Act (17 U.S.C. § 1202) and the Lanham Act (15 U.S.C. § 1125(a)), copyright infringement, violations of the unfair competition law, infringement of the right of publicity, and intentional interference with contract.  This feature allegedly cut into the profits of the media influencers and improperly used their names and likenesses without their permission.  Instead of Batra and other class members receiving their commissions, PopSugar’s company at the time, ShopStyle, would receive the total profit from purchases made.

grammy-tickets-unauthorized-trademark-attorney-infringement-copyright.jpgThis is not your ordinary trademark infringement case. It involves Grammy Awards ceremony tickets, allegedly sold by now ex-Recording Academy member and trademark attorney – Matthew Blakely – to alleged swindler and trademark infringer Craig Banaszewski.

The dispute stretches back to 2012 when the Academy informed defendants that tickets to the Grammy awards were private, invitation only events and any unauthorized transfer or sale of the tickets was unlawful, would automatically void the tickets, and the ticket-holders would be deemed trespassers. Defendants complied with the Academy’s take-down requests and the issue appeared resolved.

In 2013, however, attorney Blakely reportedly sold his non-transferable tickets for between $65,000 and $89,500. But when the purchasers were denied entry, they sued Blakely after he refused to refund their money. Blakely informed the Hollywood Reporter that Banaszewski claimed he was obtaining tickets to revive 80’s and 90’s rock bands’ careers and Grammy appearances would be helpful. According to the Hollywood Reporter, “Blakely says he initially declined but then reconsidered after the guy ‘reiterated interest in potentially funding the film projects for Blakely Legal clients.'”

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.

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

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:

copyright-infringement-photograph-morris-artist-elizabeth-peyton-sex-pistols.jpgThe 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.”)