Case Comments
| Publication year | 2015 |
| Author | LOWELL ANDERSON Stetina Brunda Garred & Brucker |
LOWELL ANDERSON Stetina Brunda Garred & Brucker
A New Jersey law banned an attorney advertising guideline that required any advertising that included a laudatory quotation from a reported judicial decision to have the entire judicial opinion appear in full. The guideline unduly restricted the First Amendment right of free speech. Dwyer v. Cappell, 762 F.3d 275, 112 U.S.P.Q.2d 1140 (3rd Cir. 2014).
A Hong Kong tailor posted 85 images from Plaintiff's clothing style book and storybook and put its own copyright notice on the images. After service by international certified mail a default judgment was entered. Upon default, the allegations in the Complaint were assumed true. The court found willful infringement and awarded $150,000 for each of two copyrighted works ($300,000 total) and attorney fees of $9,485. Ackourey v. Raja Fashions Bespoke Tailors, 112 U.S.P.Q.2d 1088 (E.D. Pa. 2014).
"[W]e hold that a copyright plaintiff's unwillingness to grant a license to use its copyrighted work does not defeat its ability to recover hypothetical-license damages." But Oracle failed to present objective evidence of the range of reasonable market value for a hypothetical license to support a $1.3 billion jury award, especially when evidence of its lost profits was $120.7 million and the infringer's profits were $236 million. Insufficient evidence was presented to show the infringement as the proximate cause of actual damages for lost sales to three customers. "A remittitur must reflect 'the maximum amount of sustainable [damages] by the proof'" and the $36 million remittitur should have been $356.7 million. On remand Oracle has a choice between the remitter or a new trial on damages. Oracle Corp. v. SAP AG, 765 F.3d 1081, 111 U.S.P.Q.2d 1965 (9th Cir. 2014).
"We're skeptical of Cariou's approach, because asking exclusively whether something is 'transformative' not only replaces the list of 17 U.S.C. § 107 but also could override 17 U.S.C. § 106(2) which protects derivative works." The court applied the statutory list of fair use factors, "of which the most important usually is the fourth (market effect)." A T-shirt with an image of the mayor of Madison, Wisconsin (Mr. Soglin) altered the image so that only the smile and outline of the mayor's face remained unchanged, and those could not be copyrighted. A summary judgment of fair use was affirmed. Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 111 U.S.P.Q.2d 2086 (7th Cir. 2014).
Distribution of an unauthorized recording of a financial briefing given to preferred analysts was fair use. The dissemination of important financial information about a foreign company to inventors favors fair use. Publishing the information to an audience from which the owner intended to withhold the information was a transformative use. The owner admittedly did not seek to profit from distributing the information so there was no harm to the copyright interests and the owner controlled the initial distribution of that information. Use of the entire recording was reasonable in light of the nature of the information. There was no license royalty value to the information to inform analysts about the company. The finding of fair use was affirmed. Swatch Grp. Mgmt. Srvs. Ltd. v. Bloomberg LP, 756 F.3d 73, 112 U.S.P.Q.2d 1097 (2d Cir. 2014).
Media neutrality prevents altering the character of a work during the transfer of a work from one media to another and that concerns copy-rightability but does not affect fair use. Here, Professors posted copyrighted works on college databases as course packs for classes. The posting was not transformative as entire articles are taken, but they were taken for a non-profit, educational use under 17 U.S.C. § 107(1) so the first factor favors fair use. The nature of the work was not important here, but favored the copyright owner. The court erred in applying a rule that copying less than 10% of a book was permissible as each work should be separately evaluated, but it adequately evalu-
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ated the remainder in light of Defendants' pedagogical purpose. No evidence showed plaintiff lost sales from the course packs at Georgia State University, as plaintiff argued losses arose only if everyone used such course packs. Plaintiffs had the burden of going forward with evidence that licenses were available for the copied works. The case was remanded. Cambridge Univ. Press. v. Patton, 769 F.3d 1232, 112 U.S.P.Q.2d 1697 (11th Cir. 2014).
The court did not abuse its discretion in awarding fees where defendant was a knowing infringer that hotly litigated a lawsuit by BMI when the suit could have been resolved for a relatively small amount of money. Broadcast Music, Inc. v. Evie's Tavern Ellenton, Inc., 772 F.3d 1254, 112 U.S.P.Q.2d 1918 (11th Cir. 2014).
Attorney fees of almost one millions dollars were at reasonable rates and hours. Plaintiff sued based on two YouTube postings that were removed after notice of infringement and that generated minimal hits and little or no profits. The defendant was difficult and unresponsive. Costs of $500,000 and fees of $30,000 were awarded. Teller v. Doge, 112 U.S.P.Q.2d 1513 (D. Nev. 2014).
An employee auditioned for and was selected for a voice-over of a video game character. Two recording sessions occurred during work hours at her place of work. After she was terminated, she sued for copyright infringement. Her training manual identified content-creation as one of her official responsibilities. The case was deemed objectively baseless and fees of $152,104.50 were awarded. "[U]nder § 505, 'district courts may award otherwise non-taxable costs, including those that lie outside the scope of [28 U.S.C] § 1920).'" Lewis v. Activision Blizzard, Inc., 112 U.S.P.Q.2d 1407 (N.D. Cal. 2014) (citation omitted).
Plaintiff sued a website host for allowing subscribers to post defamatory and unflattering photos of Plaintiff. Plaintiff obtained a copyright registration more than five years after a photo of himself was published, alleging in a first amended complaint that he was the author of the photo when he admittedly was not. As the registration five years after publication was not prima facie evidence of ownership the complaint was dismissed under Rule 12(b)(6). The complaint was objectively baseless. Fees of over $40,000 were awarded to each of two defense attorneys. Choyce v. SF Bay Area Indep. Media Ctr., 112 U.S.P.Q.2d 1845 (N.D. Cal. 2014).
Because a Rule 12(b)(6) motion is decided on the pleadings, for dismissal on laches the plaintiff must plead himself out of court by pleading the action is untimely under the governing statute of limitations. After Petrella, the "right question to ask in copyright cases is whether the complaint contains allegations of infringing acts that occurred within the three-year look back period from the date on which the suit was filed." The dismissal based on laches was reversed and remanded. Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 112 U.S.P.Q.2d 1541 (7th Cir. 2014).
The Supreme Court in Petrella, which found that laches did not bar a copyright claim occurring within three years of filing suit, noted but did not resolve the applicability of "discovery rule" adopted in nine circuits. The discovery rule tolls the beginning of the three-year limitations period until plaintiff knew or should have known of the claim. "Until the Seventh Circuit holds otherwise, this court concludes that the discovery rule is still the law of this circuit." Claims were not dismissed as the discovery rule tolled knowledge to within three years of filing suit. Panoramic Stock Images v. McGraw-Hill Global Educ. Holdings, 112 U.S.P.Q.2d 1969 (N.D. Ill. 2014).
Determining ownership at the pleading stage required factual determinations inappropriate for a motion to dismiss. But the complaint failed to allege defendant's distribution of source code was unauthorized and thus in breach of an end user license agreement so the claim was dismissed with leave to amend. AJ Mgmt. Consulting LLC v. MBC FZ-LLC, 11 U.S.P.Q.2d 2074 (N.D. Cal. 2014).
The works themselves control over the allegations and descriptions in the pleadings describing those works. Plaintiff's submission of images not taken from the movie Avatar and third party articles were not relevant to similarity of the movie to Plaintiff's work, titled Hallelujah. The court analyzed the protectable elements and reviewed the works as a whole to conclude the movie was not substantially similar to Plaintiff's work. To the extent the movie was inspired by Plaintiff's work, the remedy lies in the court of public opinion, not federal court. A Rule 12(b)(6) dismissal was affirmed. Dean v. Cameron, 112 U.S.P.Q.2d 1164 (S.D.N.Y. 2014).
Through a sound recording copyright that extends only to the actual sounds in a record, Plaintiff had the exclusive right to the "actual sounds" in a "Gold Future" record containing the song "Bumpin' Bus Stop." Defendant used licensed sounds from a different, re-mastered, authorized re-recording of Gold Future. Since the actual sounds of the "Gold Future" recording were not used, claims for copyright infringement were dismissed under Rule 12(b)(6). Pryor v. Jean, 112 U.S.P.Q.2d 1419 (C.D. Cal. 2014).
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"Short phrases, no matter how distinctively arranged, are not protectable elements." The phrase "Lettuce Turnip the Beet" did not pass the extrinsic test for copyright infringement at the pleading stage so the copyright claim was dismissed. Gorski v. Gymboree Corp., Ill U.S.P.Q.2d 1631 (N.D. Cal. 2014).
Under Cal.Civ.C. § 980(a)(2), "the legislature intended ownership of a...
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