Articles Posted in Copyright Litigation

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.

copyright-infringement-movie-bullet-film-funimation-lyon.jpgProducers of the “Bullet” movie will attempt to dodge a lawsuit filed by Nicholas Lyon for copyright infringement, breach of contract, breach of covenant of good faith and fair dealing, promissory fraud, intentional interference with contractual relations, and unfair competition. Lyon contends that he entered into an agreement with American United Media and SC Films International to develop and produce the Bullet motion picture based on a script written by him, which script he intelligently registered with the U.S. Copyright Office. Writers, do not, I repeat, DO NOT, file your script with the WGA instead of the Copyright Office. Click here for a detailed explanation. Venting aside, the complaint alleges that Lyon was to receive “A Nick Lyon Film” credit on all posters, DVD covers and advertisements for the motion picture, in addition to receiving 30% of net receipts.

Lyon alleges that merely two days after execution of his agreement, American United Media and FUNimation entered into a deal memo for AUM to “produce and deliver” the motion picture, without any mention of Lyon’s rights, and granting FUNimation 50% equity in the movie. After this purportedly secret agreement was signed, plaintiff alleges that he was falsely convinced to assign his script’s copyrights to Bullet Film Production LLC, which LLC is owned by AUM, FUNimation, and SC Films to the exclusion of Lyon. Lyon alleges that the LLC’s operating agreement violates his agreement which prohibited AUM from entering into any agreement which would impair, interfere, or conflict with the terms of his agreement.

Once shooting began, Lyon contends that he was provided an “Agreement for Directing Services” by the LLC and not afforded an opportunity to consult with an attorney before execution. Instead, he was informed that if he did not immediately sign the agreement, production would be terminated. Lyon also contends that he never received an explanation regarding why he was omitted from ownership of the LLC and was not compensated for his services. Further, Lyon has become aware that the motion picture is being edited by a third party and is being readied for distribution, despite assurances that it had been vaulted while the legal issues are pending. Lyon is seeking unspecified damages.

chinese-copyright-attorney-sue-television-series-lawsuit-license-beijing-ciwen.jpgBeijing Ciwen Film and Television Production Co., Ltd. is the owner of a Chinese copyright registration for forty episodes of the Chinese language television series, whose title translates to “Fox Volant of the Snowy Mountain,” which was created and filmed in China. When filing a copyright infringement lawsuit in the U.S., a U.S. copyright registration is a prerequisite for works created in the U.S. But when the U.S. joined the Berne Convention on March 1, 1989, the Copyright Act was revised to allow the copyright owner in any foreign work of a country that is also a signatory to the Berne Convention to file suit in a United States District Court without proof of a U.S. copyright registration. Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1245 (N.D. Ga. 2012).

Beijing Ciwen alleges that it signed a Copyright Sale Agreement with Bright Media granting it licenses and exclusive rights to the series in territories outside of China for a five-year term, without the right of renewal. The complaint states that Bright Media then entered into an exclusive copyright license agreement with Woodward Management for a non-renewable five-year term for the U.S. and Canadian territories. Beijing Ciwen contends that after the license expired on January 19, 2012, That Woodward Dynasty’s affiliated companies, Defendant U2 Entertainment and Tai Sang Entertainment, entered into a copyright licensing agreement with Dynasty Group to improperly distribute and telecast episodes one through forty of the series. Beijing Ciwen allegedly sent a cease-and-desist letter to defendants that the telecast of the series was without license or authorization and constituted copyright infringement. But to date, defendants have refused to cease broadcasts of the series. The copyright infringement lawsuit seeks unspecified damages against the defendants and an award of Plaintiff’s reasonable attorneys’ fees and costs of the litigation pursuant to 17 U.S.C. § 505.

The case is Beijing Ciwen film and Television Production Co., Ltd., v. New Tang Dynasty, et al., CV13-05978 SVW (C.D. Cal. 2013).

los-angeles-copyright-attorney-troll-photo-bwp-DMCA-defense.jpgPhoto agency BWP Media has recently filed over fifty copyright infringement lawsuits against numerous websites alleging posting of infringing photographs. In one case, its attorneys filed a copyright infringement complaint against Crowdgather, the owner of the www.iswintercoming.com website (actually more of a discussion board), where users generate topics and content relating to HBO’s “Game of Thrones” series and/or George R.R. Martin’s novels on which the series is based. The copyrighted photograph at issue appears to be uploaded by a user to a forum discussing Emilia Clarke’s (Daenerys Targaryen, queen of dragons) love life with Seth MacFarlane, actor/creator of Family Guy and Ted. A screenshot of the discussion forum with the post of the allegedly infringing photograph is shown to the right.

BWP alleges that it is the copyright owner in the subject photograph, although a search of the Copyright Office database shows Pacific Coast News is the owner. Nevertheless, assuming BWP can establish standing to file suit, the complaint is devoid of any allegation that a DMCA takedown notice, pursuant to 17 U.S.C. § 512(c)(3), was sent to Crowdgather’s copyright agent. Under Section 512, a website operator is not liable for copyright infringement if (1) it did not have knowledge of the user-generated infringing content, and (2) as long as it designated a copyright agent to receive takedown notices on a form submitted to the Copyright Office. Even after the website operator receives a takedown notice identifying infringing content, it can avoid liability if it “acts expeditiously to remove, or disable access to, the material.” UMG Recordings, Inc. v. Veoh Networks, Inc., 718 F.3d 1006 (9th Cir. 2013).

Because BWP does not allege that it sent a takedown notice, it instead baldly contends that based on the “totality of circumstances, CROWDGATHER, INC. cannot claim that it is not aware of the widespread infringing activities, including the Infringement(s), on the Website. Such a claim would amount to willful blindness to the Infringement(s) on the part of CROWDGATHER, INC.” The complaint, however, does not appear to provide sufficient information to pass a Rule 12(b)(6) motion to dismiss by baldly claiming “widespread infringing activities” when it can only identify one allegedly infringing picture or accusing Crowdgather of direct infringement when the screen shot shows that a user generated the post bearing the picture. In 2007, the Supreme Court’s Twombly decision stated that under Rule 8(a)(2) a plaintiff’s obligation to provide the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In 2009, the Supreme Court’s Iqbal decision expanded the application of Twombly to all civil cases. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Thus, a complaint will be dismissed under Rule 12(b)(6) if it fails to meet the Twombly pleading standard. See e.g. Xcentric Ventures, LLC v. Mediolex Ltd., 2012 U.S. Dist. LEXIS 152781, *18-21 (D. Ariz. Oct. 24, 2012) (dismissing copyright infringement claim with leave to amend where defendants likely entitled to safe harbor protection).

los-angeles-copyright-attorney-trademark-comic-book-crowd-funding-vigilante-chill.jpgWriters and artists Christopher Dickens and Philip Morgenthaler are suing Chill, Inc. for copyright and trademark infringement over release of Chill’s “Vigilante Diaries” web based live action show. Plaintiffs claim they created a dark, graphic comic book story and distinct character titled “Vigilante Project,” wherein the protagonist is a young African American male named Alvin Gentry. No, not the basketball coach Alvin Gentry. This Gentry wears a hoodie and a skull mask covering the lower half of his face and camouflage attire with a sleeveless black undershirt along with fingerless gloves and military gear. Plaintiffs claim to have created a unique alternative to the classic superhero characters of conventional comic books because Gentry lacks any superhuman or preternatural powers.

Plaintiffs also contend that they have used a distinctive trademark as the title of the published comic books and t-shirts where the trademark is “denoted in bold, red letters that have a particular stylized look and feel, specifically all caps, red letters that have a distressed, worn and shredded appearance.” Plaintiffs have also described the character and the Vigilante Project, both through crowd-funding efforts and at comic book conventions, with the tagline “no cape, now cowl, now web, no problem.”

Chill is alleged to be funded by the venture capitalist firm of Kleiner Perkins and William Morris Endeavor talent agency, among others, and claims to be “the web’s premier video distribution platform for entertainment content direct from filmmakers, artists, and comedians.” Variety covered Chill’s crowd-funding approach to producing new episodes, where fans would pay to have the series continue production.

LA-copyright-attorney-music-infringement-trey-songz.jpgLos Angeles, CA – Plaintiffs Brandon Hale, David Biagas, and Marcus Boyd filed a copyright infringement lawsuit against Atlantic Recording Corp. and singer Trey Songz, real name Tremaine Aldon Neverson, among others. Plaintiffs claim writing a musical composition entitled “Boomerang”, which was registered with the US Copyright Office. Thereafter, Plaintiff Boyd was hired as a writer for Defendant Atlantic, but he allegedly had to submit his entire music catalog to Atlantic for evaluation. Plaintiffs then contend that Boomerang was provided to Trey Songz and/or his co-authors, who then proceeded to make a derivative work “by changing the musical key of the song and remix[ing] the song to create the infringing work ‘Heart Attack.'”

Plaintiffs contend that infringement was willful and intentional because even though the Defendants attempted to “hide their obvious use of [Plaintiffs’] composition in the infringing work by making minor changes,” the “title of the infringing work was taken from the chorus of Plaintiffs’ composition.” Based on the estimated 500,000 copies sold, Plaintiffs are demanding an accounting of Defendants’ profits and/or Plaintiffs’ actual damages or statutory damages under Section 504 of the Copyright Act, which can be as high as $150,000 per copyrighted work in cases of willful infringement.

https://www.youtube.com/watch?v=4r3MZNCGzVY

copyright-attorney-trademark-sue-nyan-cat-keyboard-cat-Scribblenauts.jpgLos Angeles, CA – A copyright and trademark infringement lawsuit was filed against Warner Bros. and 5th Cell Media, the creators of the Scribblenauts videogame, by attorneys for Charles Schmidt – creator of the Keyboard Cat meme – and Christopher Orlando Torres – creator of Nyan Cat meme.

Keyboard Cat is a video of Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its paws. The meme, which is a communication of ideas or information, has gone viral, receiving over thirty million YouTube hits. Schmidt has registered the video’s copyright with the US Copyright and has two pending trademark applications for the term “Keyboard Cat”, click to see the first trademark application and the second trademark application. Keyboard Cat’s stardom has led to numerous appearances in commercials, including a feature role in a national Starburst candy television commercial.

Nyan Cat is a cartoon character with a cat’s face with a Pop Tarts body, basically a pink frosting sprinkled horizontal breakfast bar with glitter and a rainbow flowing therefrom. The GIF animation has also gone viral and it was the fifth most-watched video on YouTube in 2011, winning the 2012 Webbys’ “Meme of the Year” award. Torres also registered the copyright in the animated GIF with the US Copyright Office, but the complaint incorrectly repeats Keybaord Cat’s copyright registration number. Torres has also filed a trademark application to register the “Nyan Cat” word mark with the US Patent & Trademark Office.

Jewelry-copyright-attorney-trade-dress-sued-court-los-angeles-alor.jpgLos Angeles, CA – A’lor International sued numerous jewelry designers, producers and retailers for copyright and trade dress infringement over sales various nautical twisted cable motif jewelry. A’lor filed a summary adjudication motion asking the Court to deem Defendants liable for copyright and trade dress infringement. Defendant Lau filed a motion for partial summary judgment that it did not infringe A’lor’s copyrights and Defendant Miami Lakes filed a motion regarding the trade dress infringement claims, which motions were joined by several defendants.

To succeed on its copyright infringement claims, Plaintiff must show that (1) Plaintiff owns valid copyrights in the Subject Designs; and (2) Defendants infringed on Plaintiff’s copyright. Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140 (9th Cir. 2003). The Court held that A’lor’s copyright registration certificates constituted prima facie evidence of a valid copyright, which presumption of validity defendants were unable to rebut. 17 U.S.C. § 410(c). To rebut the presumption, Defendants argued that the copyrights were invalid because they lack originality. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003). The Court, however, found that Defendants submitted evidence of pre-existing nautical twisted cable motif jewelry sold by third parties and to provide copyright protection to Plaintiff’s would improperly give Plaintiff a monopoly on nautical rope band jewelry. Nevertheless, the Court found that Plaintiff was entitled to a “thin” copyright in the style of the clasp or other ornaments and panther heads. But once the court subtracted the unoriginal elements and considered only Plaintiff’s original contributions, no copyright infringement could be found because virtually identical copying didn’t exist, the proper infringement test for a “thin” copyright.

Regarding its trade dress infringement claim, A’lor had to show that (1) the trade dress is nonfunctional; (2) the trade dress has acquired secondary meaning, and (3) there is a substantial likelihood of confusion between the Accused Designs and the Subject Designs. See Art Attacks v. MGA Entertainment, Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). “Trade dress” refers to the “total image of a product” and may include features such as size, shape, color, color combinations, texture or graphics. International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993). Because the scope of trade dress protection may be broad, courts exercise particular caution when extending protection to product designs, as granting trade protection to an ordinary product design would create a monopoly in the goods themselves. Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 380 (2d Cir. 1997).

copyright-idea-submission-lawsuit-reality-show-entertainment-attorney-lawyer.jpgReality TV writer Henry Haraway filed a copyright infringement and breach of contract case against E! Entertainment Television and William Morris Endeavor talent agency, just to name a few. To see the rest of the defendants and to read the entire complaint, click here. Plaintiff alleges that he wrote a one page synopsis for a reality TV competition called “Opening Act”, described as “battle of the band type of competition local bands with dreams of big time recording contracts will battle it out for a chance to perform as the opening act for a major recording artist in their genre of music.”

As any prudent writer should do, Plaintiff registered the synopsis with the U.S. Copyright Office in 2003. He then submitted it to E! Entertainment and executed its submission agreement. It’s also alleged that William Morris and E! both executed an agreement confirming receipt of the synopsis and acknowledging that the material would not be used without compensating Plaintiff.

Unfortunately for Plaintiff, this appears to be an extremely tough case to win. Copyright law does not protect ideas, only the author’s expressions of that idea. For example, one cannot protect an idea for a reality TV show where contestants sing and are voted off by either judges or viewers, otherwise American Idol would sue America’s Got Talent. Similarly, the authors of the movie Tombstone could not sue the authors of Wyatt Earp, even though both movies told the story of Wyatt Earp and Doc Holliday and the shootout at the O.K. Corral. But if Wyatt Earp copied the script of Tombstone, a copyright infringement claim would arise.

copyright-attorney-lawsuit-videogame-app-craneballs-overkill-gun-and-blood.jpgAfter months of shots across the bow, Craneballs Studios (an app and video game developer) has pulled the trigger on a copyright infringement lawsuit for alleged copying of its popular Overkill first-person shooter game. Craneballs accuses Feelingtouch’s Gun & Blood video game of being an Overkill knock-off and further accuses Feelingtouch of employing a game development strategy that “is based in whole or part on copying of successful games from other developers, sometimes ‘porting’ them to a different operating system before the original publisher.” Craneballs claims that its iOS version of the video game was extremely successful, but that its Android version did not reach the same number of downloads because Feelingtouch ported its copycat version to the Android platform and illicitly cut into Overkill’s success.

Not only did Feelingtouch’s Gun & Blood video game become a top twenty Android download, it was also awarded the $200,000 grand prize in Samsung’s Smart App Challenge, a competition intended to reward developers of “innovative apps” for Samsung’s Galaxy Note and Tab devices. The complaint cites an Appaddict.net article stating: “It is sickening to see Samsung Actively rewarding and promoting such behavior and calling it innovative…Instead you are just hurting a hard-working indie developer and sending the wrong message, saying that it’s alright to clone.” When Feelingtouch ignored Craneballs’ cease and desist letter and complaints to Samsung fell on deaf ears, Craneballs was left with no alternative but to file this copyright infringement lawsuit. Click here for a copy of the complaint.

To prevail on its copyright infringement claim, Craneballs must show that 1) it owns the copyright in the allegedly copied work; 2) defendants had access to the work; and 3) plaintiff’s and defendant’s works are substantially similar. Cooling Sys. and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 491 (9th Cir. 1985). Craneballs can probably establish the first two factors fairly easily, but with respect to substantial similarity, it must show that defendants copied protectable components of its Overkill video game as opposed to the general ideas of a first-person shooter game, e.g. camouflage outfits, selecting different weapons, an artillery depot setting, etc. 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”). Also, when an idea for a game can be expressed in only a limited number of ways, the “merger” doctrine provides that the idea merges with its expression and receives no protection absent identical copying. Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209 (9th Cir. 1998) (elements of karate video game including number of combatants, logistics of the match, common karate moves, and certain background scenes-not protectable because they resulted from “either constraints inherent in the sport of karate or computer restraints.”). Thus the court will need to filter out all of the non-protectable elements of the two games to determine substantial similarity and infringement. To that end, Craneballs has produced the accompanying side by side comparison of the two games illustrating what it believes are copied elements.