Los Angeles Intellectual Property Trademark Attorney Blog

E! Sued For Copyright Infringement Over “Opening Act” Reality TV Show

March 15, 2013 | Milord A. Keshishian

Reality 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 Infringement – Overkill Video Game Maker Sues Gun & Blood Copycat

January 2, 2013 | Milord A. Keshishian

After 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.

Ivanka Trump Sued For Copying Sandals By Mystique Footwear – Copyright Infringement

December 12, 2012 | Milord A. Keshishian

Mystique, a shoe and sandal manufacturing company, filed a copyright infringement and unfair competition claim against Ivanka Trump for allegedly copying two sandal designs. Mystique created and registered with the US Copyright Office its ornamental designs affixed to sandals titled “By the Sea – Style 3323” and “Starry Eyed – Style 4179.” Mystique contends that Trump’s “Pia” and “Pandra” sandals are substantially identical copies of Mystique’s shoe designs: “Defendants’ acts are willful, deliberate and committed with prior notice and knowledge of Plaintiff’s copyrights. At a minimum, Defendants were willfully blind and in reckless disregard of Plaintiff’s copyrights.”

This isn’t the first time Trump’s been accused of pilfering another company’s shoe design. Fashionista covered Derek Lam’s scandalous sandal copying allegations against Ivanka Trump, but it appears the response to Lam’s cease and desist letter was to go pound sand because Lam did not have proper intellectual property protection and the shoe design had been previously produced by numerous third parties. My loyal readers will say: “Wait a minute, you’ve told us that copyright law views fashion products, for example pursues and shoes, as useful articles that cannot be copyrighted. So how was Derek Lam supposed to protect his sandal design.”

Other loyal readers will – I hope – respond with DESIGN PATENTS! Unlike UGG shoes, however, many fashion designers are unaware that fashion designs can be protected through design patents, which must be filed within one year of the design’s public disclosure. Without a design patent, it appears that Derek Lam was attempting the tougher climb of proving trade dress infringement against Trump.

NBC’s Animal Practice TV Show Sued For Copyright Infringement

December 6, 2012 | Milord A. Keshishian

DuckHole, 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.

Storage Wars’ Star Brandi Passante Sues Hunter Moore Over Fake Nude Pictures

October 30, 2012 | Milord A. Keshishian

Brandi Passante appears on A&E Network’s Storage Wars reality show, as a result of which she has achieved notoriety and claims to be a worldwide celebrity and developed trademark rights in her name. Defendant Hunter Moore has been anointed the Internet’s most hated man for publishing unauthorized pornographic pictures of men and women, often submitted by jilted lovers, and linking the pictures to the individual’s Facebook page. Although he reportedly sold the website to an anti-bullying entity, he appears to be posting similar material to his tumblr account and new website.

After numerous unsolicited posts on her Twitter account stating that users wanted to see more of her pictures and video, Passante discovered that Moore had posted images of someone portraying her in a pornographic video to his tumblr account. Passante alleges that she never made any such video and Moore has fabricated the video for the purpose of trading on her fame and celebrity to draw traffic to his site. Moore is also accused of posting defamatory comments related to the video by falsely representing that Passante made the video for him. The complaint states that “Moore posted the video knowing that the images were not of Passante and did so maliciously, and with reckless disregard to Passante’s reputation, privacy, and well-being. He did so with the false and fraudulent intent to mislead the public into believing he was somehow affiliated with Passante.”

The Judge immediately issued a temporary restraining order preventing Moore’s posting, publishing, or linking to the Video, and ordering its immediate removal from Moore’s sites. The Judge also ordered Moore to appear on November 9th to argue why a preliminary injunction should not be entered preventing the dissemination of the video or why “all of Moore’s computers, servers and other electronic storage devices that contain copies of the Video should not be impounded by the United States Marshall’s offices.” The Judge relied on Passante’s likelihood of success on her trademark infringement and Lanham Act claims in issuing the TRO because Moore’s “use of Passante’s name and likeness in commerce in connection with a video and associated images thereof or therefrom (collectively “Video”), and his false and misleading claims that the Video originated with Passante were intended to deceive the public into believing that Passante was in some way affiliated with Moore, thereby driving web traffic to his illicit website.” Because there is no adequate remedy at law, injunctive relief is the “remedy of choice” in trademark cases. Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1180 (9th Cir. Cal. 1988).

Understanding Intellectual Property Law Seminar for In-House Counsel and Non-IP Lawyers

September 17, 2012 | Milord A. Keshishian

I have the pleasure of speaking – along with an esteemed panel – at Bridgeport Continuing Education’s intellectual property law seminar on September 27, 2012 in Los Angeles. The seminar is titled “Understanding Intellectual Property Law for In-House Counsel and Other Non-IP Lawyers”. Topics will include:

* An Overview of IP Law with a focus on California

* Trademark, Copyright, Trade Secret and Patent law explained

Christian Louboutin’s Red-Sole Shoe Trademark Is Valid, To A Limited Extent: Second Circuit

September 14, 2012 | Milord A. Keshishian

The popular Christian Louboutin (CL) shoes’ red sole trademark is readily recognized by the consuming public. But when CL sued Yves Saint Laurent (YSL) for making red soled shoes, the district court disagreed. Finding CL’s red sole trademark unenforceable, the court denied CL’s motion for a preliminary injunction to prevent YSL’s sales of shoes with lacquered red soles.

The Court of Appeals for the Second Circuit concluded that the district court incorrectly held that a single color can never serve as a trademark in the fashion industry. The Court, however, proceeded to then modify CL’s trademark registration for any shoe with a red sole to only apply with red, lacquered outsole with a contrasting upper of the shoe. In other words, the trademark excludes any red shoe with a red sole.

YSL claimed this was not the first time it had designed monochrome footwear with red soles, which it created in the 1970’s prior to CL’s 1992 adoption of the red sole trademark. Thus, YSL filed counterclaims seeking cancellation of CL’s trademark registration because it was ornamental and functional and sought monetary damages for CL’s interference with YSL’s business relations and for unfair competition because many retailers returned YSL’s shoes after receiving CL’s cease and desist letters.

Budweiser’s Not So Wise Trademark Cease & Desist Letter To Wine Maker Results In Declaratory Relief Lawsuit

August 23, 2012 | Milord A. Keshishian

In what appears to be another instance of trademark overreaching, Anheuser-Busch (“AB”) is being sued for sending a tenuous trademark cease and desist letter to San Antonio Winery (“SAW”) accusing SAW’s Bow Tie word mark and Bow Tie slogan of infringing AB’s U.S.P.T.O. design mark registrations for a solid polygon, a striped polygon, and the term “Budweiser” in a polygon. SAW, a trademark infringement lawsuit veteran that previously sued Banfi for trademark and trade dress infringement, wants the court to rule that its use of the Bow Tie word mark and the Bow Tie Slogan (“Bow Tie – the best dressed wine in the class”) does not infringe the Budweiser Design Marks or constitute unfair competition.

At the heart of every trademark dispute is prevention of consumer confusion and “the synonymous right of a trademark owner to control his product’s reputation.” James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 274 (7th Cir. 1976). SAW “contends that its use of the BOW TIE word Mark will not cause consumers to be confused or deceived into believing that San Antonio’s BOW TIE wine comes from Anheuser-Busch or that San Antonio’s BOW TIE wine is affiliated with, connected with or sponsored or licensed by Anheuser-Busch.”

For potential consumers and readers that may be confused by the parties’ respective marks, I have taken the liberty to label SAW’s product as “WINE” and AB’s product as “BEER” to quell any befuddlement. Because the last time I ordered a beer at a game I was asked whether I wanted the beer with a bow tie and predicted the need for the labeling clarification. Seriously though, I was unaware that Budweiser’s label was even meant to represent a bowtie and I think the same can be said for a great number of consumers. And yes, I know that wine and beer are related in a likelihood of confusion analysis and finding, but the marks here – when compared in context – are so completely dissimilar when viewed under marketplace conditions that AB will not be able to establish that consumers are likely to be confused. Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240, 1245-46 (9th Cir. 1984) (even where marks were identical when viewed in isolation, determination of likely confusion required consideration “in light of the way the marks are encountered in the marketplace and the circumstances surrounding the purchase of the pens,” which sufficed to distinguish the two marks except in context of telephone solicitation, where such distinctions were not evident).

Copyright Lawsuit Against Website For Celebrity Photos – DMCA Safe Harbor?

July 25, 2012 | Milord A. Keshishian

National Photo Group (“NPG”) owns the copyrights to numerous celebrity photographs that it licenses to websites and magazines. NPG asserts ownership of registered copyrights and pending applications, but only provides a registration number for photographs of Isla Fisher and does not attach the copyright registration certificates to the complaint. Although it might seem tempting to file a motion for a more definite statement under FRCP 12(e), a district court recently denied a similar request. See General Sci. Corp. v. SheerVision, Inc., 2011 U.S. Dist. LEXIS 100216, 18-19 ( E.D. Mich. Sept. 2, 2011) (“According to the Supreme Court, two elements are required to assert a copyright claim: ownership of a valid copyright and copying of original parts of the protected work. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991). Plaintiff’s proposed Second Amended Complaint sufficiently pleads both elements. As a result, Plaintiff’s copyright claim is not ‘so vague or ambiguous that [Defendants] cannot reasonably prepare a response.'”)

Defendant Emmis Communications operates numerous radio stations, including Power 106 KPWR in Los Angeles. Defendant also operates the radio stations’ respective websites, including the subject 1057thepoint.com website. NPG accuses Emmis of posting celebrity photographs on the website in a post entitled “More Celebrities with No Makeup”. The accused webpage appears to still be live, a partial screenshot of which is shown here. NPG alleges that Emmis received a financial benefit directly attributable to the infringement because “Emmis increased traffic to the Website and, in turns, its advertising revenues. In fact, Emmis saw a spike in traffic to the Website by over 10,000 unique visitors during the month it posted the Photographs.” The webpage at issue, however, only showed a single comment by visitors regarding the posted photographs, which stands to reason that other factors may have caused the spike in traffic. With the proliferation of celebrity gossip websites, copyright lawsuits featuring celebrity photographs are also becoming more common.

Website operators that allow users to post content on their website (e.g. pictures, videos, or comments) can avoid copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”), if the safe harbor provisions are followed, and are also protected against tort liability (e.g. defamation, slander, libel) by the Communications Decency Act. To enjoy the safe harbors of the DMCA, a website operator must designate a copyright agent on a form submitted to the Copyright Office along with the corresponding fee, provide terms of use that outline take down notice procedures to report allegedly infringing content, have no actual knowledge of the infringement, and expeditiously remove accused content.

You Can’t Copyright Public Domain Michelangelo Statue – Lawsuit Follows Copyright Infringement Cease-And-Desist Letters

June 27, 2012 | Milord A. Keshishian

Having received two copyright infringement cease-and-desist letters, ThinkBronze filed a copyright declaratory judgment lawsuit against Wise Unicorn entities, which also includes offensive causes of action for misrepresentation of copyright infringement under 17 U.S.C. § 512(f) and trade libel. ThinkBronze imports from China bronze statues that it sells to customers via its own website and also through an online eBay store.

On July 18, 2011, Wise Unicorn’s counsel sent a cease-and-desist letter identifying fifty six items sold by Plaintiff that allegedly infringed Unicorn’s registered copyrights. Unicorn demanded Plaintiff immediately cease distribution and sale of the allegedly infringing statues, immediately remove the photos from its website, and surrender of the inventory for destruction. Plaintiff’s counsel responded and challenged Unicorn’s ownership claims because many of the sculptures were in the public domain and not entitled to copyright protection.

Unicorn withdrew its claims of infringement relating to several of the works and the parties engaged in settlement discussions. On June 7, 2012, however, Unicorn sent several takedown notices to eBay to remove listings for ThinkBronze’s statues. Among the items listed in the takedown notice was the Michelangelo figurine for which allegations of infringement were previously withdrawn.