Case Comments
| Publication year | 2014 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
That two persons worked for the same company was not enough to show one had access to a copyrighted work disclosed to the other and failed to show a chain of events by which writers had access to a copyrighted song. Selling 46 copies of a song did not establish a widespread dissemination from which access may be inferred. Summary judgment dismissal of infringement claims was granted. Loomis v. Cornish, 109 U.S.P.Q.2d 1484 (N.D. Cal. 2014).
"We hold that courts have no authority to cancel copyright registrations because there is no statutory indication whatsoever that courts have such authority. Also, there is no substantial indication that courts do not have such authority." A federal court can find a copyright is invalid because that "is a determination of ownership which does not disturb the registration of a copyright. Courts have no authority to cancel copyright registrations because that authority resides exclusively with the Copyright Office." Brownstein v. Lindsay, 742 F.3d 5, 109 U.S.P.Q.2d 1535 (3rd Cir. 2014).
As the allegations in the complaint are taken as true upon entry of a default, statutory damages of $150,000 per infringement, totaling $900,000 were awarded. Fees and costs were denied as plaintiff was adequately compensated. Teri Woods Publ'g, LLC v. Williams, 109 U.S.P.Q.2d 1301 (E.D. Penn. 2013).
The use of the Flying B logo in commercial videos of the history of the Baltimore Ravens was a fleeting and insubstantial use that did not affect the copyright owner's market. That use and use of the logo in historical displays in a private club at the football stadium were a fair use. Bouchat v. Baltimore Ravens Ltd. P'ship, 737 F.3d 932, 109 U.S.P.Q.2d 1173 (4th Cir. 2013).
Submitting a non-patent literature article to the PTO in an IDS "transformed [the article] from an item of expressive content to evidence of the facts within it; the expressive content becomes merely incidental." This transformative use was not commercial, was for the public benefit and had no significant effect on the market for the original article. The same applied for articles submitted to the Canadian Patent Office. Summary judgment was granted finding fair use. American Inst. of Physics v. Winstead PC, 109 U.S.P.Q.2d 1661 (N.D. Tex. 2013).
Bloomberg distributed a sound recording and written transcript of a report to 133 invited financial advisors on the importance of an SEC earnings report. Bloomberg's distribution made important financial information public, serving a purpose very closely analogous to news reporting. The commercial nature was given reduced weight in view of the public interest in the information. Good faith generally contributes little to fair use analysis. While the sound recording was unpublished, over 300 persons were invited to listen and thus plaintiff controlled the first public distribution. The information was factual so copyright protection was thin. Using the entire recording was reasonable in light of the purpose of distributing important financial information. The value did not reside in license fees but in distribution of the information which Bloomberg helped expand. The distribution was a fair use. Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg LP, 742 F.3d 17, 109 U.S.P.Q.2d 1429 (2d Cir. 2014).
The individual defendant, whose case led to the Supreme Court construing "lawfully made under" the Copyright Act to encompass defendant's books that were acquired abroad and lawfully sold in the U.S., was not entitled to attorney fees. The dispute on the merits was not frivolous, suit was not motivated by bad faith, and pro bono representation without condition of reimbursement was provided. John Wiley & Sons, Inc. v. Kirtsaeng, 109 U.S.P.Q.2d 1242 (S.D.N.Y. 2013).
[Page 39]
Joint authorship requires each co-author to contribute a non-trivial amount of creative, original expression and both must intend that their contributions be combined. "[W]e hold that an authorship claim arises and accrues when a plaintiff's authorship has been 'expressly repudiated.'" Registration alone does not expressly repudiate joint authorship as co-authors are not expected to investigate the copyright register for competing registrations. Six licenses and settlements could repudiate the agreement but that should have been decided by the jury, not the judge on a Rule 50(a) JMOL. Brownstein v. Lindsay, 742 F.3d 55, 109 U.S.P.Q.2d 1535 (3rd Cir. 2014).
Agreements between photographers and a licensing company stating that photographs "remain the sole and exclusive property of the Photographer, including the copyright," shows the parties did not intend to transfer any ownership to the licensing company, despite language assigning a co-ownership in the images. Nor was there an exclusive license of any right. Infringement claims were dismissed for lack of standing. Minden Pictures, Inc. v. John Wiley Sons, Inc., 109 U.S.P.Q.2d 1892 (N.D. Cal. 2014).
A movie actor for the film "Desert Warrior" who did not assign rights under a work for hire agreement (signature was apparently forged) made independently copyrightable contributions to the joint work (a movie) outside of the script and other directed aspects, making her a joint author and likely to prevail on the merits. Her appearance was used in a film titled "Innocence of Muslims." Dubbing over her voice to ask if "Is your Mohammed a child molester," exceeded any implied license. The resulting fatwa and death threats against her established irreparable injury. The court ordered a temporary injunction pending remand and ordered Google to remove all copies of the film. The dissent found no basis for establishing copyright rights in an actress' performance, along with other defects. Garcia v. Google, Inc., 743 F.3d 1258, 109 U.S.P.Q.2d 1799 (9th Cir. 2014).
A state court cannot order a plaintiff to remove a case containing a copyright claim to federal court as only a defendant can remove a case. A state court should dismiss the copyright infringement claims and retain jurisdiction over other state law claims. Here those were claims for breach of contract, conspiracy to defraud, conversion and breach of fiduciary duty. Benitez v. Williams, 219 Cal.App.4th 270, 162 Cal.Rptr.3d 26 (2013).
The jury had no evidence of similarity for seven works except testimony of minor changes and conclusory expert testimony that they were essentially the same. Expert testimony cannot substitute for the jury's comparison of works under the intrinsic test for substantial similarity and is ordinarily not admissible on that test. Comparing images was not evidence that binary code creating those images was copied or substantially similar. Reliance on similarities in unprotectable elements also required reversal. A new trial was ordered after a jury found infringement of John Madden Football games. Antonick v. Elec. Arts, Inc., 109 U.S.P.Q.2d 1812 (N.D. Cal. 2014).
An author who assigns his legal rights to a work in exchange for royalties from its exploitation has a beneficial interest sufficient for statutory standing under 17 U.S.C. § 501(b). "Where a publisher has registered a claim to copyright in a work not made for hire, we conclude the beneficial owner has statutory standing to sue for infringement." A dismissal for lack of standing was reversed. Smith v. Casey, 741 F.3d 1236, 109 U.S.P.Q.2d 1404 (11th Cir. 2014).
A copyright registration for a hooka with skull and crossbones was asserted against a similarly shaped hooka without the surface design. Useful articles are protectably by copyright if the design is physically or conceptually separable from the article. The court relied on a Copyright Office letter and manual stating that whether an item's shape is distinctive does not affect the separability of the shape from the design, since the shape is not independent of the utilitarian function as the shape still accomplishes the function. The hooka shape was not copyrightable so there was no infringement. An award of $111,993 for attorneys' fees to the defendant was affirmed. Ihale, Inc. v. Starbuzz Tobacco, Inc., 739 F.3d 446, 109 U.S.P.Q.2d 1337 (9th Cir. 2014).
The Visual Artists Rights Acts protects works of "recognized stature." That requires the artwork to have a recognized stature, not the artist. Experts opined that 24 spray paintings on a building at 5Pointz in N.Y. qualified because they were of such quality or innovation as to require protection. But for 19 of 24 works there were no dissertations, journal articles or scholarly mentions of the works, and no Google results for the works or the artist. A preliminary injunction stopping destruction of the building was denied. Gohen v. G&M Realty LP, 109 U.S.P.Q.2d 1869 (E.D.N.Y. 2013).
The voluntary dismissal of a complaint where a CCP § 998 offer of judgment was made but not accepted allows the expert witness fees to be awarded as part of costs, in the court's discretion. Mon Chong Loong Trading v. Superior Ct., 218 Cal.App.4th 87, 159 Cal.Rptr.3d 575 (2013).
[Page 40]
A summary judgment dismissing trade secret claims was reversed because the claim was for breach of a written non-disclosure agreement, not for misappropriation of trade secrets. The dismissal of a claim for breach of oral agreement with a two-year term was affirmed because it was not capable of completion within one year and thus violated the statute of frauds. The dismissal of claims for unjust enrichment was affirmed because it is an equitable claim not available if adequate legal remedies exist and not available just because one made a bad bargain. Loftness Specialized Farms...
To continue reading
Request your trial