Case Comments
| Citation | Vol. 41 No. 1 |
| Publication year | 2016 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
Denying requests to admit a plaintiff had not been injured in its business or property by alleged antitrust violations did not support an award of fees to prove the truth of the requested admissions under Rule 37 for refusing to admit when the case was dismissed on summary judgment for lack of evidence of antitrust injury. The issue is not whether plaintiff prevailed on the issue to which the admission was directed, but whether it acted reasonably in believing it might prevail. As plaintiff acted reasonably, plaintiff proceeded in good faith in not admitting facts related to the antitrust injury and the refusal to award fees for denying the admission was affirmed. Magnetar Techs. Corp v. Intamin, Ltd., 801 F.3d 1150, 116 U.S.P.Q.2d 1507 (9th Cir. 2015); Accord 1970 Committee Comments on Fed.R.Civ.P. 37(c) ("[T]he true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.").
A district court dismissed plaintiff's patent infringement lawsuit under its inherent authority to sanction, based on counsel's trial misrepresentations regarding witnesses and prior art. The parties settled and requested withdrawal of the court's dismissal order, with the settlement allowing an appeal. A decision containing critical statements about the conduct of an attorney lacks a case or controversy that allows the appellate court to redress any reputational harm the attorney may have suffered when the case is settled on appeal. The dismissal was not appealable by the attorney. Judge Newman dissented. Tesco Corp. v. Nat'l Oilwell Varco, LP, 804 F.3d 1367, 116 U.S.P.Q.2d 1789 (Fed. Cir. 2015).
The statute of limitations for claims under the Computer Fraud and Abuse Act (18 U.S.C. § 1030) and the Stored Communications Act (18 U.S.C. § 2071 et seq) is two years and runs from at least the date computer hacking is known, even if you are unable to discover the identity of the person hacking the account within those two years. Here, claims against a former boyfriend who hacked an AOL account, changed passwords and distributed malicious statements regarding sexually activities through that hacked account was dismissed, but claims for the same activities regarding a FACEBOOK account six months later were separate and timely so dismissal was reversed. Sewell v. Bernardin, 795 F.3d 337 (2d Cir. 2015).
Testimony that a song (Triste) was played thousands of times from 1974-1990 in Corpus Christi where defendant resided was not supported by consistent testimony, royalty payments, record sales, billboard charts or awards. That the first 16 words of the copyrighted and accused songs were virtually identical did not require infringement as the music was different and the word's theme was common. Absent evidence of uniqueness or complexity in the opening lyrics, and with testimony of differences in the overall songs, the bench trial finding of no substantial similarity was not clearly erroneous. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 117 U.S.P.Q.2d 1076 (5th Cir. 2015).
Floor plans were so constrained by lot size, market demand and regulations requiring duplex plans that the copyrighted general floor plans were unprotectable and plaintiff failed to prove defendant copied any protectable aspects of its plans. Summary judgment of non-infringement was granted. Lennar Homes of Tex. Sales & Mktg. v. Perry Homes, 116 U.S.P.Q.2d 2020 (S.D. Texas 2015).
A floor plan that was the mirror image of a copyrighted work and had additional differences in the garages, front porch, and windows was sufficiently different that summary judgment of no infringement was granted. Medallion Homes Gulf Coast, Inc. v. Tivoli Homes of Sarasota, Inc., 117 U.S.P.Q.2d 1095 (N.D. Fla. 2015)
[Page 43]
A grade school competition resulted in a minor assigning rights in a Hi/Bye design with a smile and a frown on opposing sides of T-shirt. After the assignee introduced a successful line of products related to the design the mother sued on behalf of the minor. State law prohibited the minor from disaffirming the contract until after becoming of age. Repudiating the contract after the company's investment and marketing effort would also unfairly give plaintiff the "fruit of the contract." Whether the contest rules were procedurally unconscionable created a fact issue, but other claims were dismissed. I.C. v. Delta Galil USA, 116 U.S.P.Q.2d 1904 (S.D.N.Y. 2015).
The Batmobile has "physical and conceptual qualities" as it was depicted in numerous comic books and movies. It is "sufficiently delineated" to be recognizable as the same character whenever it appears as it has consistent, identifiable character traits and attributes. It is also especially distinctive and contains unique elements of expression, making it protectable as a character under copyright law. "As a copyrightable character, the Batmobile need not have a consistent appearance in every context, so long as the character has distinctive character traits and attributes." "[T]he author of an underlying work is entitled to sue a third party who makes an unauthorized copy of an authorized derivative work to the extent that the material copied derived from the underlying work." As defendant admittedly copied the Batmobile from a movie, infringement was affirmed. DC Comics v. Towle, 802 F.3d 1012, 116 U.S.P.Q.2d 1068 (9th Cir. 2015).
Plaintiff sought statutory damages for each of 10,411 photos, for which it had 44 "collective" registrations covering 178 groups of photos. A jury found works in 123 of the 178 groups were infringed. "Although the manner of copyright registration is not dispositive of the works issue, this Court has previously considered it to be at least a relevant factor." Whether the works were compilations is a mixed question of law and fact in the Eleventh Circuit. Plaintiff licensed its photos by its "groups" of related photos. The "independent economic value test" was rejected as the economic value arose from the groupings of photos. Because plaintiff created, marketed, published, registered and repeatedly descripted its photos as 178 collections, the court affirmed the court's decision to treat each collection as a compilation, subject to only one award of statutory damages. A jury award of statutory damages of $123,000 was affirmed. Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 115 U.S.P.Q.2d 1977 (11th Cir. 2015).
Emotional distress and stress related harm from alleged infringement is not compensable under the Copyright Act. The related damages claims were dismissed. Plaintiffs also lacked standing as they were listed in the copyright registration as co-authors of the work, but not owners. Kelley v. Universal Music Grp., 116 U.S.P.Q.2d 1777 (S.D.N.Y. 2015).
"We hold...that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. § 103, for her original contribution." A jury found that a stage play was a parody of the movie Point Break. The original contributions did not infringe the underlying work so even though the use of Point Break was unauthorized, the original contributions were not prohibited from copyright protection as a derivative work. Keeling v. Hars, 809 F.3d 43, 116 U.S.P.Q.2d 1664 (2d Cir. 2015).
The content of copyrighted works supersede and control contrary descriptions of the works in pleadings and court papers. Works attached to the complaint may be reviewed for substantial similarity, and here warranted a Rule 12(b) (6) dismissal. Any similarities in the "Married At First Sight" reality show and the copyrighted work were based on stock concepts and were unprotectable. The complaint was dismissed. Williams v. A&E Television Networks, 116 U.S.P.Q.2d 1155 (S.D.N.Y. 2015).
A partial owner of the Miami Heat basketball team bought the copyright rights in an unflattering photo of himself and then sued a writer who obtained the photo from a Google image search and included the photo in 25 blogs that each criticized the owner and his company's business practices. In finding fair use, the court found no effect on the potential market for the photo because the copyright was acquired to prevent further distribution of the photo thus destroying any market for it. Katz v. Google, Inc., 802 F.3d 1178, 116 U.S.P.Q.2d 1060 (11th Cir. 2015).
An award of about $118,000 in fees was awarded against Inglewood for suing when defendant used videos of city council meetings in political elections. That the defendant was represented pro bono did not affect the fee award. The hourly rates ranged from $155 to $645 per hour. City of Inglewood v. Teixeira, 116 U.S.P.Q.2d 1534 (C.D. Cal. 2015).
Copying entire books to enable full text searching, while limiting the display of search results to three non-adjacent but arbitrary segments of three adjacent lines each, was a fair use. The use was transformative as it enabled searching by scholars and others to obtain information about the works themselves, and the entire work had to be copied for such use. Providing participating libraries with digital copies of the works scanned from the participating library was a fair use as the transmittal required the library to use the scanned work only in ways consistent with the copyright law. The digital copy was not a derivative work as it did not covert expressive content to a different form (e.g., language or film) and the snippets do not make the entire work of expressive content available to the...
To continue reading
Request your trial