Case Comments
| Publication year | 2014 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
Injunctive relief under the Clayton Act § 16 has no limitations period, but is subject to the equitable defense of laches and thus the four-year limitations period of § 4B is used as a guideline. But a cause of action arises each time a violation occurs causing injury and here each time a defendant sells a price-fixed product a new act arises causing consumer injury. A dismissal for laches was reversed. Oliver v. DS-3C LLC, 110 U.S.P.Q.2d 1954 (9th Cir. 2014).
Google's dismissal without prejudice of cross-claims would normally defeat the finality required for appeal but Google represented at oral argument it would dismiss the claims with prejudice and that sufficed to make the judgment appealable under 28 U.S.C. § 1291. Specht v. Google, Inc., 747 F.3d 929, 110 U.S.P.Q.2d 1319 (7th Cir. 2014).
Ownership and infringement claims accrue when the copyright owner discovers or with due diligence should discover the violation. The injury rule which accrues actions upon injury has now been rejected by every circuit to address the issue. The infringement claims were thus timely. Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 110 U.S.P.Q.2d 1325 (7th Cir. 2014).
"The Copyright Office takes the position that only the author of the collective work, not the individual authors of separate contributions need be provided in the application." "[T]he statute requires a title for 'the work,' in the singular, which would be the collective work in this case. There is no inconsistency between the statutory language and the Copyright Office procedure, allowing identification of the 'work' without requiring titles for each constituent of the work." "The 'author or authors' that must be listed in this context are the author or authors of the collective work itself," not the individual authors of photos in the collective work. "Where as here, the photographers have assigned their ownership of their copyrights in their images to the stock agency, and the stock agency registers the collection, both the collection as a whole and the individual images are registered." While the statute could be read otherwise, the Register of Copyrights' construction is reasonable and has been used for 30 years and is entitled to Chevron deference. Thus, a collection of stock photos may be registered without individual titles, without naming more than three of the authors and merely designating the number of authors, if the photos are assigned to the registrant. Alaska Sock, LLC v. Houghton Mifflin Harcourt Publ'g Co., 747 F.3d 673, 110 U.S.P.Q.2d 1062 (9th Cir. 2014).
A jury award of $100,000 and $30,000 in statutory damages was affirmed despite allegations the award did not correspond to lost revenues. The court did not abuse the wide discretion given in setting statutory damages. Other possible bases for awarding damages were noted by the court in affirming the jury's award. Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 110 U.S.P.Q.2d 1325 (7th Cir. 2014).
A derivative work includes "any other form in which a work may be recast, transformed or adapted." 17 U.S.C. § 101. That does not include an electronic copy of a printed translation because while the medium changed from print to electronic format, the content of the pre-existing work was not changed, nor does the change in medium have sufficient originality to be a protected work of authorship. Peter Mayer Publishers, Inc. v. Shilovskaya, 110 U.S.P.Q.2d 1396 (S.D.N.Y. 2014).
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17 U.S.C. § 512(i) (1)(A) does not require that all messages ever posted by a repeat infringer must be deleted. The section requires termination of the account, not deletion of messages. Terminating 46 repeat infringers since 2008 despite 531 million infringing messages over the past year does not compel an inference that the ISP's takedown plan is improperly implemented. A takedown notice including search results with thumbnail images or screenshots is inadequate. Because the material is constantly changing there is no certainty that a specific search will yield the exact same results at different times and even if the same results occur it requires the ISP to compare results line-by-line. That is not a "reasonably sufficient" identification of the allegedly infringing material allowing the ISP to remove the accused material expeditiously. The copyright holder requesting take-downs must undergo the burden of identifying Message-ID's, not the Usenet service providers. Summary judgment was denied. Perfect 10, Inc. v. Giganews, Inc., 110 U.S.P.Q.2d 1209 (C.D. Cal. 2014).
Judge Posner discusses possible claims arising from a singing telegram performed in a banana costume where viewers were allowed to take photos and videos only for personal use but one viewer posted a video of the performance on Facebook. The performance was not fixed in any tangible medium of expression and thus not copyrighted or copyrightable so the dismissal of claims was affirmed, along with a recommendation to bar further suits by plaintiff until she paid past damage awards against her for other unsuccessful claims. Conrad v. AM Cmty. Credit Union, 750 F.3d 634, 110 U.S.P.Q.2d 1333 (7th Cir. 2014).
While appellate courts are mixed on whether applying for copyright registration establishes jurisdiction, the copyright applications for two dog photos were filed after the close of discovery and the court did not abuse its discretion in allowing amendment to add those claims. Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 110 U.S.P.Q.2d 1325 (7th Cir. 2014).
"[I]n the face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief," in part because the limitations period on damages of 17 U.S.C. § 507(b) already takes account of any delay in filing suit by limiting damages to the past three years. Copyright owners need not challenge each violation and may wait to see whether infringement undercuts the value of the copyrighted work. Despite an 18 years delay in seeking damages for alleged infringement by the movie "Raging Bull" laches may not bar money damages for the three years before suit was filed. Estoppel may apply if affirmative representations arise. Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962, 110 U.S.P.Q.2d 1605 (2014).
A 95% owner of a restaurant was vicariously liable for copyright infringement of songs performed in the restaurant as the owner had the right and ability to supervise the infringing performances even though he never personally performed them and was ignorant of the infringement. Broadcast Music, Inc. v. Meadowlake, Ltd., 110 U.S.P.Q.2d 1958 (6 Cir. 2014).
A magic trick involving cutting leaves off of the shadow of a rose which causes leaves on a real rose to fall, was a copyrighted performance infringed by defendant. Fees were awarded. Teller v. Dogge, 110 U.S.P.Q.2d 302 (D. Nev. 2014).
"[U]nder proper circumstances, it is appropriate for the Court to determine the issue of substantial similarity based on a Motion to Dismiss." For architectural works "only subsequent works which copy the work's specific expressions and designs will infringe upon that protection," excluding standard elements which are not protectable. There was insufficient similarity between a building and copyrighted plans so that a first amended complaint was dismissed with prejudice for failing to state a claim. Sieger Suarez Architectural P'sip. Arquiteconica Int'l, 110 U.S.P.Q.2d 1129 (S.D. Fla. 2014).
Failure to allege a single act of direct infringement as needed to support allegations of contributory infringement, resulted in a Rule 12(b)(6) dismissal of copyright infringement claims. A motion to dismiss for fair use was premature as the defense does not arise until a viable claim for contributory infringement is pled. Taratino v. Gawker Media LLC, 110 U.S.P.Q.2d 1518 (C.D. Cal. 2014) (leaked details on The Hateful Eight Taratino movie).
A license and registration referenced in the complaint but not attached to it were both considered on a motion to dismiss. Failure to plead how a publisher knew of direct infringement by third parties and knew a song included an infringing sample of a copyrighted work warranted dismissal for failure to state a claim, with leave to amend. Pryor v. Warner/Chappell Music, Inc., 109 U.S.P.Q.2d 2141 (C.D. Cal. 2014).
The 1976 Act "clarifies that to 'perform' an audiovisual work means 'to show its images in any sequence or to make the sounds accompanying it audible.'" Both the broadcaster and the viewer of a television program 'perform' because they both show the program's images and make audible the program's sounds. The newly added "Transmit Clause" defines transmit as "to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." These provisions overturned the prior Fortnightly and Teleprompter decisions in order to bring the activities of cable systems within the 1976 Act. Defendant Aero does not merely provide equipment to transmit broadcast signals, but is so similar to the prior cable systems that given Congress' intent in amending the statute, Aero performs the transmitted works. American Broad. Co. v. Aero, Inc.,___S.Ct.___, 110 U.S.P.Q.2d 1961 (2014).
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In view of the regulatory purpose of amending the 1976 Act to overturned the prior Fortnightly and Teleprompter decisions in order to bring the activities of cable systems within the 1976 Act, defendant Aero performs "publicly." The Act encompasses transmissions "by means of any device or process" and Aero's transmissions are...
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