Copyright Infringement

March 23, 2016

Copyright Litigation: Forensic Exam, Testimony Fail to Demonstrate Infringing Material on Defendant’s Computer

Chicago, Illinois – Magistrate Judge Geraldine Soat Brown of the Northern District of Illinois granted the motion for summary judgment of John Doe, the anonymous Defendant sued by pornographer Malibu Media LLC (“Malibu”) on allegations of copyright infringement.

Plaintiff alleged that, between May 2013 and July 2013, Defendant infringed Malibu’s copyright in 24 movies by downloading them from the internet using file-sharing software known as BitTorrent. Copyright attorneys for Malibu filed a copyright infringement lawsuit against Defendant, stating that Defendant had been identified by the internet protocol (“IP”) address that had been used to infringe. Defendant was permitted to litigate anonymously as “John Doe” (“Doe”).

Malibu submitted various pieces of evidence to support its contentions that Doe had infringed the copyrights on Malibu’s works, including a declaration by the founder of Malibu and declarations of various experts, such as forensic investigators. Doe denied Plaintiff’s claims and contested its method of proof.

The court evaluated Malibu’s evidence, noting that some of it was simply pro forma and included no relevant and particularized statements about the copyright infringement that Malibu alleged had been committed by Doe. The court stated that at least one pleading was described by Malibu as containing attached materials that had not, in fact, been attached. Other material was described by Malibu as having been sent to the court, while the court indicated that it had never been received.

The court also reproached Malibu’s attorneys for misrepresenting to the court the court’s earlier statements regarding the relevant evidentiary requirements to prove Doe’s liability. It further noted that Malibu had failed to adhere to required procedures, such as the serving of several disclosures under Rule 26(a)(2). Because those disclosures had not been made, and because the court held that the failure to disclose was evidence of at least willfulness, if not bad faith, two of Malibu’s declarations were stricken in their entirety as were portions of a third declaration. All of Malibu’s statements of fact that relied upon the stricken material were also excluded from evidence.

The court subsequently concluded that “Malibu has no evidence that any of its works were ever on Doe’s computer or storage device,” stating that Malibu’s contention that Doe had used visualization software to infringe Malibu’s works was merely speculation:

Malibu admits that there is no evidence of visualization software on Doe’s computer, and not even any evidence of the deletion of visualization software. Malibu says that is “beyond fishy,” and speculates that Doe must have deleted visualization software from his computer in some way that hides the fact that it was deleted, and then extends the speculation to suggest that Doe must have done that deletion to hide his infringement of Malibu’s works. That is not evidence that Doe copied or distributed Malibu’s works.

The court granted Defendant’s motion for summary judgment. Plaintiff’s motion for summary judgment, which asked the court to conclude that Doe had infringed its copyrighted works, was denied.

Practice Tip #1: Malibu has filed a multitude of virtually identical lawsuits around the country. According to a recent case in New York, “Malibu is a prolific litigant: between January and May 2014, for example, Malibu was responsible for 38% of copyright lawsuits filed in the United States.” Malibu Media, LLC v. Doe, No 15 Civ. 4369 (AKH), 2015 WL 4092417, at *3 (S.D.N.Y. July 6, 2015).

Practice Tip #2: We have blogged about Malibu Media’s litigation exploits before. Some recent posts include:

• Magistrate Rejects Malibu Media’s Request for Fees and Sanctions
• Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement
• Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media
• Malibu Media Alleges Infringement of Thirty Copyrighted Works

• Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement

March 21, 2016

Indiana Trademark and Copyright Litigation: Sweetwater Contends Hello Music Copied its Website, Infringed its Intellectual Property

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Indiana intellectual property lawyers for Plaintiff Sweetwater Sound, Inc. (“Sweetwater”) of Fort Wayne, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff alleges that Defendant Hello Music, LLC of Austin, Texas infringed its trademarks, which have registered by the U.S. Patent and Trademark Office as Trademark Nos. 3,652,255 and 3,652,249. In addition, Sweetwater Sound contends that Hello Music infringed its copyright, issued by the U.S. Copyright Office as TX 8-064-067, which protects the contents of its website. Other counts of alleged wrongdoing, including claims under Indiana law, have been asserted.

Hello Music is accused of duplicating copyrighted content from Sweetwater’s website and using that protected content on its own website. Sweetwater contends that part of the content purportedly copied includes the Sweetwater trademark. Sweetwater also asserts that these acts by Hello Music constitute a willful and deliberate attempt to trade on Sweetwater’s goodwill.

In the complaint, filed in federal court Friday, the following claims are made:

• Count I: Copyright Infringement
• Count II: Trademark Infringement (False Designation of Origin)
• Count III: Trademark Dilution

• Count IV: Unfair Competition

Sweetwater asks the court to grant equitable relief, including the destruction of infringing materials. It also seeks actual and treble damages, disgorgement of all profits that resulted from infringing acts, litigation costs and attorneys’ fees.

February 16, 2016

Indiana Copyright Litigation: Design Basics Files Additional Indiana Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana intellectual property attorneys for Design Basics LLC, Plan Pros, Inc. and Carmichael & Dame Designs, Inc., all of Omaha, Nebraska, sued in the Southern District of Indiana alleging copyright infringement. This lawsuit follows the recent filing by Design Basics of six similar copyright lawsuits in the Northern District of Indiana.

Plaintiffs Design Basics, Plan Pros and Carmichael & Dame are engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works.

The Defendant in this lawsuit is Michael Shrader. Plaintiffs contend that Shrader does business as Palladian Home Design, Palladian Home Designs, Palladian Blueprints, Palladian Drafting & Design Services, Palladian Architectural Drafting & Design Services and Palladian Design/Build. Shrader is alleged to have infringed the copyrights of multiple home designs that have been registered with the U.S. Copyright Office and to which Plaintiffs claim ownership.

Defendant’s accused activities include, but may not be limited to, reproductions of one or more of the following:

• Design Basics’ Plan No. 1380 – Paterson (U.S. Copyright Registration Nos. 314-024 & 694-094)
• Design Basics’ Plan No. 1752 – Lancaster (U.S. Copyright Registration Nos. 371-204, 694-094 & 756-041)
• Design Basics’ Plan No. 2332 – Corinth (U.S. Copyright Registration Nos. 485-066, 694-088 & 710-606)
• Carmichael & Dame’s Plan No. 9169 – Kempton Court (U.S. Copyright Registration Nos. 867-084 & 867-087) and

• Plan Pros’ Plan No. 29303 – Bloom (U.S. Copyright Registration Nos. 1-397-448 & 1-412-560) (the “Copyrighted Works”).

Plaintiffs seek equitable relief along with damages, costs and attorney fees.

February 11, 2016

Indiana Copyright and Trademark Litigation: Magazine Publisher Sues Commemorative Plaque Maker Alleging Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright and trademark attorneys for Plaintiff The Rough Notes Company, Inc. (“Rough Notes”) of Carmel, Indiana commenced a copyright infringement lawsuit in the Southern District of Indiana.

The Defendant, That’s Great News, LLC (“Great News”) of Cheshire, Connecticut, is accused of infringing U.S. Trademark Registration No. 2,585,340, which has been filed with the U.S. Patent and Trademark Office, as well as unfair competition, false designation of origin, and dilution under the Lanham Act. Allegations of copyright infringement of material protected by Copyright Registrations Registration Nos. TX 7-988-447 and TX 7-988-464, as well as other related claims, have also been made.

Plaintiff Rough Notes is a publisher of print and online magazines. It indicates that it has used its “Rough Notes” trademark since 1878 and that the trademark was registered in 2002. Rough Notes contends that Defendant Great News has violated it copyright, trademark and other intellectual property rights by producing samples of commemorative plaques that feature protected content owned by Rough Notes and distributing samples via e-mail to solicit the purchase of a plaque.

In this federal complaint, filed with the court by Indiana copyright and trademark lawyers for Rough Notes, the following causes of action are alleged:

• Copyright Infringement
• Federal Unfair Competition & False Designation of Origin
• Federal Trademark Infringement
• Common Law Trademark Infringement
• Federal Trademark Dilution
• Common Law Unfair Competition

• Unjust Enrichment

Rough Notes seeks equitable relief; statutory damages, including up to $150,000 for willful infringement; and reimbursement of costs and attorneys’ fees.

Practice Tip: Plaintiff may have difficulty overcoming the defense of nominative fair use of a trademark in this lawsuit. That doctrine provides that, as a matter of law, nominative use of a mark — where the only word reasonably available to describe a particular thing is pressed into service — lies outside the strictures of trademark law. Defendant may argue that its use of “Rough Notes” on its commemorative plaques was permissible as those are the only words reasonably available to adequately describe a plaque displaying an article featured in a “Rough Notes” publication.
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February 5, 2016

Indiana Copyright Litigation: Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs

By Overhauser Law Offices, LLC

Northern District of Indiana – Plaintiff Design Basics, LLC of Omaha, Nebraska filed six lawsuits in the Northern District of Indiana alleging that multiple Defendants committed copyright infringement by constructing buildings based on plans derived from Plaintiff’s copyrighted works.

Design Basics is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works. It has sued multiple Defendants, most of them home designers and builders, for copyright infringement.

The Defendant in the first lawsuit is Big C Lumber Co. Inc. of South Bend, Indiana. Two Defendants are listed in the second lawsuit: Carriage Place Homes, Inc., f/k/a Carriage Properties, Inc., d/b/a Bridle Homes and Bridle Homes, Inc. of Fort Wayne, Indiana.

The third lawsuit lists multiple Defendants: Culver Construction, Inc., d/b/a Culver Remodeling, Culver Design Build, Culver Custom Homes, and Hallmark Homes of Michiana; Culver Development Corporation d/b/a Property Management Services; Wes Culver Realty, LLC d/b/a KW Commercial and Industrial, Wes Culver Auctions, and Wes Culver Home Team; and New Paris Development Company, LLC of Goshen, Indiana.

In the fourth lawsuit, Lancia Homes, Inc. of Fort Wayne, Indiana, which does business as Lancia Construction, Springmill Development, Lancia Real Estate, Lancia Homes, Springmill Wood Development and Waterford Enterprises, is named. Quality Crafted Homes, Inc. of Harlan, Indiana is the sole Defendant in the fifth lawsuit.

The final lawsuit lists Windsor Homes, Inc., d/b/a Windsor Homes by Jeff Gilmore; Windsor Construction, LLC; Windsor Construction, Inc; and Windsor, Inc. of Fort Wayne, Indiana as Defendants.

While the details vary among the different lawsuits, the allegation at the core of each complaint is infringement of one or more of Design Basics’ copyrighted architectural designs by Defendants, with each lawsuit complaining of Defendants’ “construction and sale” of structures that infringe Plaintiff’s copyrights. Design Basics seeks equitable relief, damages, costs and attorney fees.

January 26, 2016

Indiana Trademark Litigation: Texas Roadhouse v. Texas Corral Litigation Moves to Indiana

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark litigation commenced in the Western District of Michigan in 2013 was transferred to the Northern District of Indiana yesterday.

This federal lawsuit, filed by trademark attorneys for Plaintiffs Texas Roadhouse, Inc. and Texas Roadhouse Delaware LLC, both of Louisville, Kentucky, alleges infringement of U.S. Service Mark Reg. No. 1,833,533, U.S. Service Mark Reg. No. 2,231,309, and U.S. Service Mark Reg. No. 2,250,966. These marks have been filed with the U.S. Patent and Trademark Office.

The Defendants listed in the Michigan complaint were Texas Corral Restaurants, Inc.; Switzer Properties, LLC; Texcor, Inc.; Texas Corral Restaurant II, Inc.; T.C. of Michigan City, Inc.; T.C. of Kalamazoo, Inc.; Chicago Roadhouse Concepts, LLC; Paul Switzer; Victor Spina; and John Doe Corp. Defendants filed a motion to dismiss or, in the alternative, transfer venue, with the Michigan court, which was granted. The lawsuit will continue in the Northern District of Indiana.

Plaintiffs, via their trademark lawyers, asserted the following claims:

• Count I: Trade Dress Infringement
• Count II: Federal Trademark Infringement
• Count III: Trademark Infringement Under Michigan Statutory Law
• Count IV: Trademark Infringement Under Indiana Statutory Law
• Count V: Trademark Infringement Under Common Law
• Count VI: Copyright Infringement

• Count VII: Unfair Competition Under Michigan and Indiana Common Law

Texas Roadhouse seeks equitable relief; damages, including punitive damages; costs and attorney fees.

January 1, 2016

Indiana Copyright Litigation: Former Volunteer Sues Non-Profit for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright lawyers for Plaintiff Angela Ellsworth of Huntington, Indiana filed a copyright lawsuit in the Southern District of Indiana alleging that Mission 22 a/k/a Elder Heart, Inc. of Nashville, Indiana infringed Ellsworth’s copyrighted artwork, Copyright Registration No. VA1-958-239, by creating at least one unauthorized derivative work.

Plaintiff Ellsworth is a professional artist. Defendant Elder Heart is a non-profit organization that helps veterans with post-traumatic stress disorder and promotes awareness of the veteran suicide rate of 22 per day.

From October 2013 to November 3, 2014, Ellsworth volunteered to assist Defendant in its efforts. Ellsworth states that she created original art, entitled “22”, that depicted the silhouettes of 22 soldiers and the shadows of those 22 silhouettes in November 2013. She indicates that she received a copyright for this artwork in April 2015.

Ellsworth claims that she donated 13 prints of a derivative of her copyrighted artwork to Defendant, including one that was specifically designated as a gift to Magnus Johnson, President and Chief Executive Officer of Defendant.

At a time unspecified in this copyright lawsuit, Defendant launched a project, “Mission 22,” to raise awareness of the veteran suicide rate. Ellsworth contends that, as part of this project, Defendant designed a sculpture that knowingly and willfully copied Plaintiff’s copyrighted artwork. Elder Heart also announced its intention to build the sculpture as a national monument.

In March 2015, a copyright attorney for Elder Heart contacted Ellsworth stating that, at the time that Elder Heart created the accused artwork, it was unaware of Ellsworth’s artwork and that “any similarities with [Plaintiff’s] artwork are a coincidence at best.” Ellsworth asserts that Elder Heart’s copyright counsel subsequently admitted that those statements were untrue.

This lawsuit lists a single count, copyright infringement. It asserts that “Defendant has created at least one unauthorized derivative work, violating Plaintiff’s exclusive right to prepare derivative works based upon her copyrighted Artwork.” Plaintiff Ellsworth seeks injunctive relief along with damages, attorneys’ fees and costs.

December 18, 2015

Indiana Copyright Law: District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals

By Overhauser Law Offices, LLC

Chicago, Illinois – One of the copyright lawsuits of Plaintiff Richard N. Bell of McCordsville, Indiana has been terminated by the trial court. Bell filed an appeal on multiple grounds with the United States Court of Appeals for the Seventh Circuit.

This Indiana lawsuit alleged copyright infringement of a photo that Bell, an Indiana copyright lawyer and professional photographer, took and copyrighted. The photo, U.S. Copyright Registration No. VA0001785115, was of the Indianapolis skyline. Bell has sued numerous Defendants alleging copyright infringement of this photo. In this lawsuit, the Defendants were Cameron Taylor, Taylor Computer Solutions, Insurance Concepts, Fred O’Brien, and Shanna Cheatham, all of Indianapolis, Indiana.

On December 4, 2015, District Judge Tanya Walton Pratt of the Southern District of Indiana entered a final judgment in favor of all Defendants and terminated the case. Within days, Bell appealed to the Seventh Circuit. Bell contends that the district court acted improperly regarding:

• The district court’s opinion, order and final judgment granting summary judgment in favor of the Defendants;
• The denial of “Plaintiff’s Second Motion to Compel and sanctions against Defendants for failing to answer Interrogatories and product [sic] requested documents … on October 16, 2013″ as well as his “appeal to the District Judge” on June 9, 2014 regarding that motion;
• The denial of “Plaintiffs [sic] Motion for Leave to File Fourth Amended Complaint”;
• The denial of an additional motion to compel and for sanctions;
• The district court’s ruling on partial summary judgment;
• The district court’s ruling on “Bell’s Motion to Relieve Plaintiff from Orders of the Court”; and

• The district court’s entry of final judgment against Bell.

Practice Tip: This is not the first time Bell has appealed in this litigation. We blogged about a prior appeal to the Seventh Circuit wherein Bell, after appealing, then argued that his appeal was premature and should not yet be heard by the appellate court.

December 16, 2015

Indiana Copyright Litigation: Remaining Copyright Defendants in Bell Lawsuit to be Dismissed

By Overhauser Law Offices, LLC

Indianapolis, Indiana – District Judge Tanya Walton Pratt of the Southern District of Indiana denied Plaintiff’s request for partial summary judgment for declaratory relief and injunctive relief against Defendants in a copyright dispute over the use of Plaintiff’s copyrighted photograph of Indianapolis.

This lawsuit dates back to June 7, 2011 when Plaintiff Richard N. Bell of McCordsville, Indiana sued 22 Defendants for alleged infringement of his copyrighted photo, U.S. Copyright Registration No. VA0001785115. Bell amended his complaint multiple times, with the third amended complaint becoming the operative pleading on December 6, 2012.

In May 2013, the litigation was severed into three separate cases, including the one that is the subject of this opinion. In this lawsuit, Bell, who is both an Indiana copyright attorney and a professional photographer, accused Defendants Insurance Concepts, Fred O’Brien and Shanna Cheatham of copyright infringement. Bell sought injunctive relief along with damages, costs and attorney’s fees.

A prior opinion by the court held for these Defendants on the issues of Bell’s state law claims and copyright damages claims. In this order, the court addressed the parties’ cross motions for partial summary judgment on the remaining issues – declaratory and injunctive relief.

The court first cited the four-factor test necessary to obtain an injunction, which states that a plaintiff must show:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The court noted that in a prior ruling, it had concluded that Bell had failed to establish any damages, including no damages that would rise to the level of “irreparable injury.” Consequently, the first factor was not met. The court then opined that an injunction was also unwarranted under the second factor, as Bell could again institute litigation upon finding any future copyright violations by a Defendant. Having found that at least two of the four elements required for an injunction were missing, the court declined to address the remaining factors.

The court similarly declined to exercise its discretion to grant declaratory relief on the grounds that, after having been notified, the Defendants had promptly removed the copyrighted photo and, moreover, the websites on which the photo had been published no longer existed. As such, it concluded that there was no “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

The court consequently denied Plaintiff Bell’s motion for partial summary judgment and his request for declaratory and injunctive relief. Defendants’ motion for partial summary judgment was granted.

Practice Tip:

• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement

• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

December 14, 2015

Indiana Copyright Litigation: Copyright Defendant Removes Lawsuit to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana copyright lawyer for Defendant Wrightspeed, Inc. of San Jose California filed a notice of removal in the Southern District of Indiana on the basis of both federal-question jurisdiction and diversity-of-citizenship jurisdiction.

Plaintiff Precision Rings, Inc. of Indianapolis, Indiana had filed its lawsuit in Marion County Superior Court seeking declaratory relief, injunctive relief, unspecified damages and attorney’s fees. Among Plaintiff’s contentions was the breach of a nondisclosure agreement. Included in this alleged breach was the misappropriation of Plaintiff’s trade secrets, which involved the use or disclosure by Defendant of certain copyrighted drawings that Plaintiff had registered with the U.S. Copyright Office.

Defendant Wrightspeed contended that federal-question jurisdiction was proper and asked that the federal court in the Southern District of Indiana hear and decide all further matters in the litigation. Defendant asserted that the complaint arose under copyright law because Plaintiff’s complaint included a claim that would require construction of the Copyright Act. Consequently, subject matter jurisdiction rested exclusively in federal court.

Defendant Wrightspeed also asserted that diversity-of-citizenship jurisdiction was a proper basis for the Indiana federal court to hear the litigation. The parties were completely diverse, it stated, with Plaintiff being a citizen of Indiana and Defendant being a citizen of both Delaware and California. Defendant contended further that, considering the potential damages, fees and costs, the amount at stake was well in excess of the $75,000 threshold necessary for diversity-of-citizenship jurisdiction.