Arkansas Business Litigation Lawyer & Attorney : Allen Law Firm : Serving Little Rock, Fort Smith, North Little Rock

A pro se plaintiff obtained judgment for copyright infringement and anticircumvention violations in Gregerson v. Vilana Financial, Inc., 2008 WL 451060 (D. Minn. 2/15/08) (previously posted here 9/12/07 and here 1/31/07).

 

Vilana copied two of Gregerson's photographs, and the court had previously granted him summary judgment as to copyright infringement liability. After a bench trial, the court awarded him damages of  $9,462 on the copyright infringement claims. The more important issue was anticircumvention. Vilana removed a digital watermark from one of the photographs. The court held this was an anticircumvention violation, see 17 U.S.C. § 1202(b)(1), and awarded Gregerson statutory damages of $10,000. In reaching this conclusion, the court based its analysis on IG Group, Ltd. v. Wiesner Publishing, LLC, 409 F.Supp.2d 587 (D.N.J. 2006).

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Late last year, the Eighth Circuit ruled that use of professional sports statistics in fantasy games is protected by the First Amendment. See C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) (previously posted 10/16/07). The ramifications from this opinion are now taking effect. The Sports Law Blog reports that ESPN is now seeking a major reduction in digital rights fees that it pays to MLB Advanced Media. As the deal currently stands, ESPN believes it is paying licensing fees for use of the statistics in fantasy games.

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The Eastern District of Arkansas dismissed a copyright infringement case based on sovereign immunity in InfoMath, Inc. v. University of Arkansas, 2007 WL 4562878 (E.D. Ark. 12/21/07).

 

In 2000, InfoMath contracted with the University of Arkansas at Little Rock to provide an internet based pre-calculus course. UALR dissolved the contract in 2001 but continued to use the course materials; InfoMath claims it owns the copyright in the course materials. The Arkansas Claims Commission ("ACC") awarded InfoMath $15,000 for the balance of the contract. Unhappy with the result, InfoMath brought this suit against the university and two individual employees.

 

InfoMath argued that the Copyright Remedy Clarification Act ("CRCA") abrogated Eleventh Amendment Immunity. This is a troublesome argument because the Supreme Court has already struck down as unconstitutional the CRCA's companion statutes, the Patent Remedy Act and Trademark Remedy Clarification Act. Numerous lower courts have already held the CRCA is unconstitutional. The district court sided with the great weight of authority and held that the CRCA is unconstitutional.

 

InfoMath's final argument was that the ACC's award was insufficient and violated the Fourteenth Amendment. The court disagreed and noted that, while InfoMath sought additional relief, the award was not so inadequate that it violated the Fourteenth Amendment.

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The District Court of Nebraska denied a motion to dismiss for lack of personal jurisdiction in Denenberg v. Djordjevic, 2007 WL 4525011 (D. Neb. 12/18/07).

 

Dr. Steven Denenberg is a plastic surgeon in Omaha, Nebraska. Like many in his profession, he posts before/after photographs on his website to promote his work. Denenberg obtained a copyright registration. Dr. Borko Djordjevic, a competing surgeon in California, copied  over 30 pairs of these photos and posted them on his websites as examples of his own work. Denenberg filed suit for copyright infringement, and Djordjevic moved to dismiss for lack of personal jurisdiction.

 

The court easily denied the motion to dismiss. Djordjevic used the photos to solicit clients in Nebraska. Moreover, he knew he had not performed the surgeries and publishing the photos on his website would cause harm to Denenberg in Nebraska.

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The District Court of Minnesota transferred a copyright infringement case to the Northern District of Texas (Dallas division) in RMC Publications, Inc. v. Doulos PM Training, 2007 WL 4287670 (D. Minn. 12/4/07).

 

Gary Rechtfertig offers project management courses in Texas. He used exam-simulation software under a license from RMC Publications. However, he made illegal copies and violated the terms of the license, which amounts to copyright infringement. RMC filed this action in Minnesota.

 

Rechtfertig's only contacts with Minnesota were buying the software and negotiating with RMC's sales agents. The court held that Minnesota had neither personal jurisdiction over Rechtfertig nor was it the proper venue for the suit. The court transferred the case to the Northern District of Texas.

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The Eastern District of Missouri permitted the subpoena of an internet service provider (ISP) in UMG Recordings, Inc. v. Does 1 - 24, 2007 WL 4205768 (E.D. Mo. 11/26/07).

 

UMG and other record companies brought this copyright infringement lawsuit against unknown infringers. Plaintiffs had the Internet Protocol (IP) addresses of the defendants. Charter Communications is the defendants' ISP, which maintains subscriber contact information in activity logs. These logs are kept for a short time and then permanently destroyed. The plaintiffs sought permission to subpoena Charter to match the IP addresses with the defendants' individual names.

 

The court granted the request, largely because the information is not available elsewhere, and the case cannot proceed without identifying the defendants.

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Nelson Design Group (NDG) filed an architectural design copyright infringement lawsuit in the Eastern District of Arkansas. Nelson Design Group, LLC v. Puckett, No. 07-177 (filed 11/21/07). Puckett is a former employee of NDG. According to the Complaint, Puckett copied NDG's designs and gave them to defendants. The defendants used these designs to build houses in Jonesboro, Arkansas. 

 

The Complaint alleges eight counts of copyright infringement and breach of Puckett's employment contract. The Complaint is accompanied by a motion for preliminary injunction but does not include a count for computer fraud.

 

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Several plaintiffs have filed a lawsuit for copyright infringement and Lanham Act claims against Thomas Simon. See Baca v. Simon, No. 07-4447 (E.D.N.Y., filed 10/24/07) (view full text of the complaint here).

 

What makes this case so remarkable is that everything occurred in Second Life. Simon copied various items that the plaintiffs create and sell in Second Life. The lawsuit has received nationwide attention (coverage at the Patry Copyright Blog and Second Life Blogger). This should be a straightforward copyright infringement case.  

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The District Court of Minnesota refused to dismiss part of an architectural design copyright infringement complaint in U.S. Home Construction v. R.A. Kot Homes, Inc., 2007 WL 3037321 (D. Minn. 10/16/07).

 

Plaintiff owns two copyright registrations for an architectural design called the Remington. Defendant built a home that allegedly copied this design. Plaintiff filed a copyright infringement suit and asked for reputational damages but did not include a Lanham Act claim for unfair competition.

 

Defendant moved to dismiss the part of the complaint seeking reputational damages. The court rejected this argument and cited several cases that have permitted copyright owners to recover reputational damages. The court's opinion suggests Plaintiff will have additional remedies if it files an under the Lanham Act.

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The Central District of California granted a preliminary injunction in Ticketmaster, LLC v. RMG Technologies, Inc., No. 07-2534 (10/16/07; full text of order here).

 

Ticketmaster sells tickets for entertainment and sports events to the public. Access to its website is governed by specific Terms of Use, which prohibit the use of automated software. Ticketmaster has had some negative press recently when its events sell out in a matter of minutes. Tickets to these events then appear on websites such as StubHub at prices significantly above their face value (or they are offered for free with a $500 coffee mug). The problem comes from software that permits its users to infiltrate the Ticketmaster system and purchase bulk quantities of tickets.  

 

RMG is one such software provider that designs a software specifically tailored to elude the policing controls in force by Ticketmaster. The software is run through RMG's computer system.  RMG's customers log in to RMG's system and then use the software to purchase bulk tickets. Ticketmaster filed suit primarily for copyright infringement, violation of the Digital Millennium Copyright Act, violation of the Computer Fraud and Abuse Act, and breach of contract.

 

The court anchored its decision on two main points: (1) Ticketmaster owns a copyright in its website; (2) visitors to the website are granted a nonexclusive license to use the website under the conditions set out in the Terms of Use. The court held that RMG itself violated the Terms of Use and caused its customers to violate the Terms of Use. As a result, Ticketmaster showed a likelihood of success on all its causes of action.

 

As to irreparable harm, Ticketmaster received some help from the Arkansas Attorney General. The court observed that public outcry over the unavailability of Hannah Montana tickets caused the Attorneys General of Arkansas and Missouri to initiate investigations. The court held that RMG was causing extensive damage to Ticketmaster's goodwill, which amounts to irreparable harm. Ticketmaster was required to post a $300,000 bond.   

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The Eighth Circuit issued its much anticipated opinion in a dispute regarding the use of professional baseball statistics in fantasy games. C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., No. 06-3357/3358 (10/16/07). This was an important case, with amici briefs filed by the NFL, NBA, NHL, NASCAR, PGA and WNBA. The district court opinion was previously posted here (1/18/07).

 

CBC operates a fantasy baseball game using Major League Baseball players' names and statistics. In previous years, CBC licensed the names and statistics from the Major League Baseball Players Association. This dispute arose when MLBPA refused to renew the license but CBC continued to use the names and statistics in its games. The MLBPA brought claims under the Missouri right of publicity statute. The district court concluded that CBC did not violate the statute, that first amendment concerns trumped the statute, and that the statute was not preempted by the Copyright Act.

 

The Eighth Circuit affirmed on first amendment grounds. The right of publicity statute at issue only requires (1) the defendant use the plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage. The court held that CBC's use of the players' names and statistics satisfied these elements. However, state law rights of publicity must be balanced against first amendment considerations. Zacchini v. Scripps-Howard Broad., 433 U.S. 562 (1977).

 

Discussed more after the break, the court found that first amendment concerns trump the right of publicity statute. This determination made the preemption issue moot, and the court declined to address preemption.

Continue Reading...

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The Southern District of Iowa granted summary judgment on the copyright infringement claim in Rouse v. Walter & Associates, LLC, 2007 WL 2745615 (S.D. Iowa 9/20/07).

 

This case involves a dispute over who owns a particular computer software. Plaintiffs were two professors at Iowa State University. Previously they had developed a software for measuring the quality of beef in live cattle before they were taken to slaughter. They asked a third professor at ISU to develop a new software. ISU then license the software to Walter & Associates. Plaintiffs brought suit claiming they owned the copyright to the software.

 

In a thorough opinion, the court found that ISU owns the copyright in the software, not the plaintiffs. The software was created in the course of the third professor's employment, and ISU was considered the author of the software. There was no written agreement transferring ownership to the plaintiffs, and the court granted summary judgment to defendants.

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The Western District of Missouri dismissed a copyright infringement claim in Scarborough v. Johnson, 2007 WL 2609815 (W.D. Mo. 9/5/07). It is well settled that the plaintiff must file the application for copyright before bringing a copyright infringement lawsuit. Scarborough never filed his application for copyright, and the court easily dismissed the claim.

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The District Court of Minnesota granted summary judgment on a number of claims in Gregerson v. Vilana Financial, Inc., 2007 WL 2509718 (D. Minn. 8/31/07) (previously posted 1/31/07).

 

Vilana copied two of Gregerson's photographs in various advertisements. Gregerson created websites where he discussed Vilana's copying of the photographs and made unflattering statements about Vilana. Gregerson filed suit for copyright infringement, while Vilana filed a counterclaim for trademark infringement, cybersquatting, deceptive trade practices, and other claims.

 

The court easily granted summary judgment on the copyright claim. A comparison of the photographs showed they were identical. The court also granted summary judgment against the trademark and cybersquatting counterclaims, finding that Gregerson just made a descriptive use of Vilana's trademarks in his metatags.

 

However, the court refused to grant summary judgment on the deceptive trade practices and related claims. There was evidence in the record that Gregerson made statements that Vilana is a thief, actively engaged in predatory lending, and a member of the Russian mafia. These issues and the damages on the copyright claim must be resolved at trial.

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Several record companies filed a lawsuit in the Eastern District of Arkansas against unnamed defendants. Arista Records, LLC v. Does 1 - 10, No. 07-0782 (filed 8/28/07). The complaint alleges copyright infringement by various defendants identified only by their computer ISP numbers. According to the complaint, the defendants used an online media distribution system to copy and distribute songs. The lead plaintiff is Arista Records, and the lawsuit largely mirrors a string of default judgments for identical claims in Missouri (most recent post here 4/23/07).

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The Western District of Missouri denied a motion to dismiss in Spurgeon v. Scantlin, 2007 WL 1704937 (W.D. Mo. 6/11/07).

 

This case centers around the alternative-metal group Puddle of Mudd. Patrick Spurgeon filed this suit claiming that, in 1999, he and Puddle of Mudd front-man Wesley Scantlin co-authored 2 songs. In August 2001, Puddle of Mudd released an album with a song substantially similar to the disputed songs.

 

The lawsuit was styled as a declaratory action of co-ownership rather than one for copyright infringement. Spurgeon argued this imposed the 5-year statute of limitations rather than the standard 3-year period for copyright cases. The district court rejected this argument and held the 3-year limitations period would apply. The court denied the motion to dismiss but hinted that Puddle of Mudd will likely win this case at the summary judgment stage.

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The District Court of Minnesota granted in part and denied in part a preliminary injunction based on copyright infringement in DF Institute, Inc. v. Marketshare Eds, 2007 WL 1589525 (D. Minn. 6/1/07).

 

This case involved Kaplan Professional Schools, the real estate exam branch of exam-preparation giant Kaplan. In 2006, Peggy McNamara enrolled in two of Kaplan's courses regarding the Minnesota real estate salesperson exam. In January 2007, McNamara opened her own company, Marketshare, which provided materials for passing the same exam. Kaplan immediately filed this suit, claiming the Marketshare course materials infringe Kaplan's copyrights.

 

After a thoughtful analysis, the court concluded that the bulk of Kaplan's material consists of noncopyrightable elements, such as statements of law and facts that students must learn. However, the court did find that Kaplan's hypothetical questions and answers are copyrightable expression. The court granted the preliminary injunction, but only as to these hypotheticals and answers, which represent a small percentage of the Kaplan course materials. The court denied the remainder of the motion.

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Windchimes by Russco has filed a copyright infringement lawsuit against Yi Qiang Glass Crafts Co., Ltd., a Chinese company, and their American affiliates in the Eastern District of Arkansas. See Case No. 07-056, filed 5/11/07 (full Complaint here). According to the Complaint, Russco obtained copyright registrations for two wind chime designs. Yi Quiang infringed these designs in China and then sold the infringing wind chimes in the United States, including Arkansas.

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The Eastern District of Arkansas compelled production of personnel files in Nuckles v. Wal-Mart Stores, Inc.,  2007 WL 1381651 (E.D. Ark. 5/10/07).

 

Nuckles, a photographer, filed a copyright infringement claim against Wal-Mart for copying of her professional photographs. The court ordered that Wal-Mart must produce personnel files on 12 employees, subject to two conditions. First, all medical and personal information must be redacted. Second, the parties must enter into a confidentiality order. This case could get interesting and is currently scheduled for a jury trial in August.

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As predicted, the copyright infringement claims are picking up against YouTube and Google. In the past two months, the companies have been hit with two lawsuits. Viacom filed its suit in March, representing a handful of plaintiffs. See Viacom v. YouTube (S.D.N.Y., filed 3/13/07). Eric Goldman of the Technology & Marketing Blog provides his analysis here.  

 

Earlier this month, a European soccer leagued dialed it up a notch by filing a class action on behalf of all copyright owners whose works were infringes on YouTube. See Football Ass'n Premier League  v. YouTube (S.D.N.Y., filed 5/4/07). Eric Goldman again provides an excellent analysis.

 

The law is unsettled on both cases. Google could feel it is time to establish a precedent, and these cases could produce some important opinions.

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Arkansas photographer Erick Blair is involved in another intellectual property dispute over bikini photographs (See previous post 4/18/07) in Blair v. World Tropics Productions, 2007 WL 1175045 (W.D. Ark. 4/19/07).

 

Blair sued the various business entities that comprise Hawaiian Tropic, the popular tanning-product company that sponsors Miss Hawaiian Tropic contests across the globe. Hawaiian Tropic would hire Blair to take photographs of models at various Miss Hawaiian Tropic events. Hawaiian Tropic paid his expenses, but they never issued him a W2 or provided employee benefits. While at these events, Blair took pictures of the models when they were not competing.

 

After the events, Blair would send all the images to Hawaiian Tropics on computer disk. Blair claimed they had an oral agreement that Hawaiian Tropics could used the photographs in calendars if they provided him a photographer's credit and that he would own the copyright. Hawaiian Tropics claims they own the photographs because Blair is a Hawaiian Tropics employe. Alternatively, Hawaiian Tropics  claims they had a license to use the photographs as they chose and published a number of the photographs in calendars without giving Blair credit. He filed suit for copyright infringement and both parties moved for summary judgment.  

 

The court denied the motions for summary judgment. The court held that Blair was not an employee of Hawaiian Tropics and owns the copyright to the photographs. As to the existence of a license, the court held that an issue of fact existed for the jury to determine.

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The string of copyright default judgments in Missouri for the use of an online media distribution system (previously posted 3/29/07) continued in Capitol Records v. Crego, 2007 WL 1125698 (E.D. Mo. 4/16/07). This time the plaintiff was Capitol Records, obtaining a judgment of $3,750 for infringement of 5 songs.

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The Eastern District of Missouri granted a preliminary injunction based on copyright infringement in Icke v. Adams, 2007 WL 1063426 (E.D. Mo. 4/5/07).

 

David Icke is a British author obsessed with the Illuminati and an interdimensional race that secretly rules the world. Royal Adams approached Icke to provide printing services for Icke's books in the United States. Adams never acquired exclusive publishing rights or any rights to Icke's copyrights in the books. However, Adams set up a large distribution system of Icke's books without Icke's permission.

 

The court granted an extensive preliminary injunction. The court ordered Adams to immediately turn over all his profits from the venture and to provide Icke with access to all documents and electronic media relating to the infringement.

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The Sater Group filed a lawsuit in the Western District of Arkansas (Case No. 07-5054, filed 3/23/07) claiming a single count for copyright infringement. The Complaint alleges that Lester Hall Builders of Little Rock infringed the Sater Group's copyright in a home design.   

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Illumination Station and Berman Industries filed a lawsuit against two former employees in the Western District of Arkansas (Case No. 07-3007, filed 2/28/07). The Complaint alleges claims for copyright infringement, trade secret misappropriation, and related torts.

 

Berman provides copyrighted lamp designs to Illumination Station ("IS"). The Complaint alleges that the former IS employees copied these designs and took IS trade secrets to open a new company, Grandview Gallery. The defendants have not yet filed an Answer.

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Scholz Design filed a copyright infringement action in the Eastern District of Arkansas (Case No. 07-00111, filed 2/23/07). The Complaint states that Scholz owns the copyright to an architectural design called the Masco Design. The Complaint alleges that two homeowners infringed the copyright by building a house using the design. Scholz anticipates adding the architect who designed the home as a defendant once the architect is identified.  

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The District Court of Minnesota denied a preliminary injunction based on copyright infringement in Windgate Software, LLC v. Minnesota Computers, Inc., 2007 WL 951668 (D. Minn. 3/27/07).

 

Windgate manages a database called RISC Analysis that manages thousands of replacement parts for various IBM products. Windgate obtained a copyright for the database. Minnesota Computers buys and sells IBM parts. Minnesota copied some of the part numbers and descriptions from Windgate's database and posted them on the Minnesota Computers site.

 

The court denied the preliminary injunction on two main grounds. First, MC did not copy any copyrightable elements of the database, so Windgate could not establish likelihood of success. Second, Windgate only presented evidence of commercial harm; it could not establish the requisite irreparable harm.

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The Eastern District of Missouri granted summary judgment on claims for copyright infringement and patent infringement in Clark v. Crues, 2007 WL 906702 (3/23/07).

 

Clark was a ninth grade teacher in St. Louis. He created a program called the Out of Area Program, which provided disciplinary procedures for students who were found outside of designated areas. He gave the program to some teachers who made use of the program. Clark was terminated. He promptly filed suit against the school, school district and various teachers claiming they infringed his patent and copyright in the program.

 

The court easily granted summary judgment. While Clark had filed for a patent, he never received one. Moreover, his program was just an idea, which precluded copyright protection. The court granted summary judgment on all counts.

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The Eastern District of Missouri granted another default judgment for copyright infringement in Arista Records v. Shernet Showers, 2007 WL 735612 (E.D. Mo. 3/8/07). Previous posts on the other default judgments are available here and here.

 

Like the other cases, Arista brought suit for the defendant's use of an online media distribution system. The defendant never answered or filed a responsive pleading. The court entered default judgment and awarded statutory damages of $7,500.

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The District Court of South Dakota held that copyright infringement is not subject to heightened pleading requirements in Craft & Associates, Inc. v. College America, Inc., 2007 WL 675621 (D.S.D. 2/28/07).

 

College America ("CA") provides services for colleges. They entered into an oral contract with Craft where Craft provided marketing materials. After a few years CA quit paying and claimed ownership in the marketing materials. Craft filed suit claiming breach of contract, unjust enrichment, and copyright infringement. CA moved to dismiss claiming preemption and that Craft failed to allege with specificity the infringing acts.

 

Because the contract claim required an additional element over the copyright claim, the court held the contract claim was not preempted. However, the unjust enrichment claim was preempted. The court noted that, while some district courts have required heightened pleading, neither the Copyright Act nor the Federal Rules of Civil Procedure impose such a requirement. The court denied the motion to dismiss for failure to plead with specificity.

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The District Court of Minnesota granted summary judgment on a counterclaim for copyright infringement in Piper Jaffray & Co. v. SunGard Systems Int'l, Inc., 2007 WL 541679 (D. Minn. 2/16/07).

 

SunGard, a global software developer, entered  into a software license with Piper for use of SunGard's Global Trader software. The agreement was amended to include additional software products. The contract included two standard limited liability clauses: (1) Neither party shall be liable for incidental, indirect, consequential, or punitive damages; and (2) Any tort liability is limited to the license fees paid by Piper.

 

SunGard terminated the contract citing failure by Piper to pay fees, and Piper filed this lawsuit claiming breach of contract. SunGard counterclaimed for copyright infringement for Piper's continued use of software products after the contract was terminated. SunGard sought Piper's profits.

 

The court agreed with Piper that the copyright infringement claim arose of the contract. The court found that Piper's profits were not direct damages to SunGard, and applying the limited liability provisions of the contract, the court held Piper could not be liable for copyright infringement. Parties have extensive freedom to structure intellectual property rights via contract and can sometimes contract themselves out of an intellectual property claim.

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The Western District of Arkansas denied a temporary restraining order based on false advertising and trademark infringement in Trott's WoodProducts, Inc. v. American Cabinet Doors & More, Inc., 2007 WL 625920 (W.D. Ark. 2/27/07).

 

Trott's took pictures of its cabinets to use in promotional materials. American Cabinet acquired these pictures from one of Trott's former employees and used the photographs in their own sales brochures. Trott's claimed false advertising and trademark infringement but failed to assert a claim for copyright infringement.

 

The court found no false advertising claim because there was no evidence consumers were deceived by the photographs. In fact, only a trained professional can distinguish the cabinets of one company from another. The court also found the cabinets themselves were generic and could not qualify for trademark protection. The court easily denied the TRO.

 

Trott's had the right idea but brought the wrong claims. The photographs are copyrightable, and Trott's likely would have been successful had it registered copyrights and asserted copyright infringement.

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The Judicial Panel on Multidistrict Litigation held that centralization was not warranted in In re Movie Artwork Copyright Litigation, 2007 WL 473683 (2/7/07).

 

The litigation involves cases in California, Missouri and New York for copyright infringement and trademark infringement. Two of the defendants moved to centralize the litigation in California. The panel denied the transfer because the cases were too individualized.

 

This case is another example that intellectual property litigation usually involves issues that are unique between the parties. As a result, intellectual property litigation typically is not suited for multidistrict litigation or class action litigation.

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The Eastern District of Missouri again granted default judgment in a copyright infringement dispute in Interscope Records v. Gallion, 2007 WL 433376 (E.D. Mo. 2/6/07).

 

Interscope Records filed this suit for infringement of its sound recordings via Gallion's online media distribution system. Gallion never filed an answer or responsive pleading. The facts are identical to a recent case involving Warner Brothers Records (previously posted).

 

The court granted statutory damages of $750 per work for a total of $3,000. The court also indicated it would award costs but required Interscope to submit proper documentation.

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The District Court of Minnesota granted partial summary judgment in a copyright case involving illicit labels in Microsoft Corp. v. Ion Technologies Corp., 2007 WL 188577 (D. Minn. 1/24/07).

 

Microsoft issues certificates of authenticity (COAs) so its customers know they are receiving genuine Microsoft software. Microsoft had successfully sued Ion Technologies and its owner, Paul Martin, for trademark infringement and copyright infringement for selling false COAs. See 2003 WL 21356084. The parties entered into a settlement agreement in late 2004, but Ion continued to sell COAs.

 

In December 2004, the Anti-counterfeiting Amendments Act of 2004 took effect. That law makes it illegal in some circumstances to knowingly traffic in an illicit label affixed to a copy of a computer program. See 18 U.S.C. § 2318. On the Section 2318 claim, the court granted partial summary judgment to Microsoft as to Ion but declined to extend personal liability to Martin. The court also granted partial summary judgment to Microsoft against both Ion and Martin for violation of the 2004 settlement agreement.

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The Eastern District of Arkansas dismissed a copyright infringement lawsuit in Vintage Verandah, Inc. v. Mastercraft Int'l, Inc., 2006 WL 3735975 (E.D. Ark. 12/15/06).

 

Mastercraft sold a monkey-shaped lamp called Bubba Monkey. The Bubba Monkey was designed by one Ms. Briggs, who assigned her rights to Mastercraft. Vintage asserted joint ownership in the lamp, claiming its former employee Mr. Pike (now deceased) helped design the lamp. Vintage also brought a claim for trade dress infringement.

 

After a thorough analysis of copyright authorship, the court found that Vintage failed to prove that Mr. Pike made original contributions to the lamp or that Ms. Briggs intended him to be a joint author. The court also found that Vintage failed to establish secondary meaning for its trade dress claim and dismissed both claims.

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The Eastern District of Missouri granted default judgment in Warner Bros. Records, Inc. v. Heller, 2006 WL 3803705 (E.D. Mo. 11/13/06).

 

Warner Brothers Records brought suit for copyright infringement for Heller's use of an online media distribution system to download and distribute 10 of Warner Brothers' sound recordings. Heller never filed an answer or otherwise defended the lawsuit.

 

The court granted default judgment and awarded statutory damages of $750 per work (the statutory minimum) for a total of $7,500.

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The District Court of Minnesota will award attorney's fees to the successful copyright defendant in Norwood Operating Co. v. Beacon Promotions, Inc., 2006 WL 3103154 (D. Minn. 10/31/06).

 

Norwood brought suit against Beacon for copyright infringement and trade secret misappropriation regarding Beacon's catalogs. After granting summary judgment to Beacon, the court found that Beacon's copyright claims were legally and factually unreasonable.

 

The court will award attorney's fees pursuant to the Copyright Act and has requested additional documentation on a reasonable hourly rate. This decision follows a growing trend among courts to award attorney's fees to successful copyright defendants.

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The Eastern District of Missouri encountered a high-profile case regarding baseball statistics in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 443 F.Supp.2d 1077 (E.D. Mo. 2006).  

 

CBC operates a fantasy baseball game using Major League Baseball players' names and statistics. The players, through Major League Baseball Players' Association, brought claims for right of publicity and copyright infringement. The court found that CBC's use of the players' names and statistics did not indicate sponsorship by the players, and in a thorough opinion, the court held that: (1) CBC did not violate the players' right of publicity; (2) First Amendment concerns took precedence over right of publicity; and (3) the players' right of publicity was not preempted under the Copyright Act. 

 

This was the expected (if not popular) result, and the case has been appealed. The Eighth Circuit should weigh in on the scope of right of publicity and express preemption. Note that the court recently addressed conflict preemption in Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005).

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The Northern District of Iowa held a copyright defendant can proceed with defenses of copyright misuse and unclean hands in International Motor Contest Ass'n, Inc. v. Staley, 434 F.Supp.2d 650 (N.D. Iowa 2006).

 

IMCA claimed copyright infringement of its contest rules and regulations. Staley raised the affirmative defenses of copyright misuse and unclean hands. IMCA moved to strike these defenses, claiming the Eighth Circuit does not recognize them. In denying the motion the court observed that, while the Eighth Circuit has never substantively considered these defenses, the Eighth Circuit has never refused to observe these defenses.

 

These defenses are generally accepted defenses to a copyright infringement suit, even though some circuits like the Eighth Circuit have not yet substantively recognized them. No circuit has ever refused to recognize these defenses.

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The Eighth Circuit granted a new trial because the district court improperly permitted expert testimony in Rottlund Co. v. Pinnacle Corp., 452 F.3d 726 (8th Cir. 2006).

 

Rottlund owned copyrights in various architectural designs and brought suit against Pinnacle for copyright infringement. The district court granted partial summary judgment to Rottlund that it owned valid copyrights. Pinnacle had access to the designs, and the ideas in Pinnacle's designs were substantially similar to the ideas in Rottlund's design.

 

The only issue for the jury was similarity of expression between the two designs. The district court erred by permitting Pinnacle to present expert testimony. While expert testimony can be used to establish similarity of ideas, it cannot be used to establish similarity of expression.

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The District Court of Minnesota granted summary judgment to the defendants in Woods v. Pro Video Productions, Inc., 447 F.Supp.2d 1022 (D.Minn. 2006).

 

Woods is a filmmaker who had worked with Pro Video on numerous projects. From 1997 – 2002, Woods and Pro Video worked to get contracts from the State of Minnesota and the Federal Aviation Administration (FAA) to produce documentaries for enhanced safety. Woods created numerous copyrightable documents during this time period. However, most of the information was factual, and the copyright was limited to selection and arrangement.

 
In 2002, the parties had a falling out. Pro Video used the documents to generate the documentary for the FAA. However, Pro Video only copied factual elements and other non-copyrightable elements.

 
While Woods did have a copyright, and Pro Video did use the documents, the court found that Pro Video did not copy any of the copyrightable expression. This case is an example that copyrighted works often contain copyrightable and non-copyrightable elements; only the copyrightable elements will receive protection.

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In an unusual case, the Eighth Circuit granted summary judgment to the defendant because the copyright owner obtained the wrong registration in Action Tapes, Inc. v. Mattson, 462 F.3d 1010 (8th Cir. 2006).

 

Action Tapes makes graphic embroidery designs and embeds the design in disk-like memory cards. The memory cards are placed into a computer-run sewing machine, which then stitches the design on the memory card. Action Tapes obtained a copyright registration, but the registration was for a work of visual art, not a computer program.

 

Kelly Mattson owned a sewing machine supply store and was renting out Action Tapes memory cards without permission. If the cards are not computer programs, Mattson is protected under the first sale doctrine. If the cards are computer programs, Mattson would violate the Computer Software Rental Amendments Act of 1990. The Eighth Circuit held that, because Action Tapes did not register the cards as a computer program, they could not bring the lawsuit.

 

What is more intriguing is that the district court found the memory cards were not computer programs. Because it affirmed on other grounds, the Eighth Circuit did not address this question, but it may have to later if Action Tapes obtains a proper registration and re-files.  

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Copyright infringement involves two basic elements: (1) ownership of a valid copyright; and (2) copying of original elements. See Rottlund Co. v. Pinnacle Corp., 452 F.3d 726 (8th Cir. 2006).

 

Copying is established by (1) direct evidence (which is rarely available); or (2) by showing the alleged infringer had access to the copyrighted m