Copyright Infringement

December 8, 2015

Indiana Copyright Litigation: Brick Shirt House Alleges Infringement of Copyrighted Image of Beer Mug in the Shape of Indiana

Indianapolis, Indiana – Plaintiff The Brick Shirt House, LLC of Indianapolis, Indiana filed a copyright infringement complaint in the Southern District of Indiana. The lawsuit alleges that Indiana on Tap, LLC of Fishers, Indiana infringed Plaintiff’s copyrighted art work “Drink Indiana,” Copyright Registration No. VA0001895289, which has been registered with the U.S. Copyright Office.

Brick Shirt House is engaged in the business of printing on apparel and other merchandise. An Indiana copyright attorney for Brick Shirt House asserts in this lawsuit that the visual art at issue in this litigation, “Drink Indiana,” was created in October 2011 by Alex Janeczek, manager and owner of Brick Shirt House. The art work features an Indiana-shaped beer mug with beer foam spilling over the top.

Around December 16, 2013, Janeczek discovered a drawing in use by Indiana On Tap that Plaintiffs contend is “substantially similar to Drink Indiana Beer Mug, as it copied, verbatim, the essential elements of Drink Indiana Beer Mug.” He also learned of Indiana On Tap’s intent to distribute merchandise with the accused artwork. That same day or shortly thereafter, Brick Shirt House indicates that it registered its art work with the U.S. Copyright Office. Approximately a week later, Brick Shirt House e-mailed Indiana On Tap and requested that Indiana On Tap cease using the artwork, stating its belief that the Indiana On Tap work infringed Brick Shirt House’s copyrighted art. Several e-mails were exchanged but apparently no resolution was reached.

In July 2014, Indiana On Tap again advertised its intent to sell t-shirts incorporating the accused artwork. In response, a copyright attorney for Brick Shirt House sent a cease and desist demand letter to Indiana On Tap. Indiana On Tap denied infringement and refused to cease use of the graphic. Plaintiffs indicate that additional instances of copyright infringement were subsequently committed by Indiana On Tap.

This lawsuit, filed December 4, 2015 by an Indiana copyright lawyer for Brick Shirt House, lists a single count: copyright infringement, which Plaintiffs state has been done willfully. Brick Shirt House seeks equitable relief, including impoundment; damages; costs and attorney’s fees.

November 30, 2015

Criminal Copyright Law: Operator of Second-Largest Music Piracy Website in the U.S. Sentenced to 3 Years for Criminal Copyright Infringement

By Overhauser Law Offices, LLC

Norfolk, Virginia – District Judge Rebecca Beach Smith of the Eastern District of Virginia sentenced copyright infringer to prison.

Rocky P. Ouprasith, 23, of Charlotte, North Carolina, was sentenced recently to 36 months in prison for reproducing and distributing without permission millions of infringing digital copies of copyrighted works, including copies of popular songs and albums before they were commercially available. Ouprasith was also sentenced to two years of supervised release, ordered to pay restitution in the amount of $45,288.62, and to forfeit $50,851.05.

This case represents the first criminal copyright infringement sentence imposed for a cyberlocker operator in the United States.

“Ouprasith operated the second largest online file sharing site in the United States, averaging nearly 4.5 million visits per month and resulting in an estimated collective loss of more than $10 million per month to the rightful owners,” said Dana J. Boente, U.S. Attorney for the Eastern District of Virginia. “I believe this sentence reflects the seriousness of the crime and will promote greater respect for the law and property rights of others.”

“HSI is responsible for enforcing federal regulations that exist to protect American businesses from unfair trade practices and intellectual property theft,” said Clark E. Settles, Special Agent in Charge of U.S. Immigration and Customs Enforcement‘s Homeland Security Investigations (“HSI”). “Online piracy has a serious financial impact to business, which is felt at every level of a transaction – from the producer to the point-of-sales clerk.”

Ouprasith pleaded guilty on Aug. 21, 2015. According to court documents, between May 2011 and October 2014, Ouprasith operated RockDizMusic.com, a website originally hosted on servers in France and later in Canada, from which Internet users could find and download infringing digital copies of popular copyrighted songs and albums. Ouprasith admitted that he obtained digital copies of copyrighted songs and albums from online sources, and that he encouraged and solicited others, referred to as “affiliates,” to upload digital copies of copyrighted songs and albums to websites, including RockDizFile.com, that were hosted on servers in Russia, France and the Netherlands, and that hosted hyperlinks to content being offered for download on RockDizMusic.com. Ouprasith further admitted that to encourage such activity, he agreed to pay the affiliates based on the number of downloads from his website.

According to the Recording Industry Association of America, in 2013, RockDizFile.com was the second-largest online file sharing website specializing in the reproduction and distribution of infringing copies of copyrighted music in the United States. Ouprasith admitted that in 2013 and 2014, he either ignored or pretended to take remedial action in response to complaints from copyright holders and their representatives that the website contained links to infringing copies protected songs and albums.

In October 2014, federal law enforcement authorities shut down RockDizMusic.com and RockDizFile.com, and law enforcement authorities in the Netherlands and France seized file-hosting servers utilized by Ouprasith.

According to court documents, the market value of Ouprasith’s illegally pirated material was more than $6 million.

This sentencing is related to the many efforts being undertaken by the Department of Justice Task Force on Intellectual Property (“IP Task Force”). The IP Task Force supports prosecution priorities, promotes innovation through heightened civil enforcement, enhances coordination among federal, state, and local law enforcement partners, and focuses on international enforcement efforts, including reinforcing relationships with key foreign partners and U.S. industry leaders.

Practice Tip: To learn more about the IP Task Force, go to www.justice.gov/dag/iptaskforce.

November 18, 2015

Indiana Copyright Law: Court Restricts Discovery in Copyright Infringement Litigation to Facts Regarding Jurisdiction

By Overhauser Law Offices, LLC

Indianapolis, Indiana – In the matter of Bell v. Find Tickets, LLC, the Southern District of Indiana quashed overbroad discovery requests and limited inquiries to those pertaining to the matter of personal jurisdiction.

Plaintiff Richard Bell of McCordsville, Indiana photographed the Indianapolis skyline in 2000 and copyrighted the work. In this copyright lawsuit, Bell, acting as his own copyright attorney, alleges that Defendant Find Tickets of Alpharetta, Georgia published the photo on a website without Bell’s permission.

As part of the litigation, Bell propounded multiple interrogatories to Defendant. Defendant asked the court to quash this discovery, characterizing it as “far exceed[ing] the scope of a reasonable jurisdictional inquiry.” Defendant also asked for a protective order prohibiting Bell from deposing Find Tickets’ officers.

Writing for the court, Magistrate Judge Mark Dinsmore noted that Defendant’s own affidavit had estimated that “less than 1% of Find Tickets [sic] income is from Indiana related sales.” Consequently, the court concluded that, while personal jurisdiction might eventually be found to be lacking, this small amount of business was sufficient as the required “colorable showing” that jurisdiction over Defendant might exist. Consequently, the court ruled that jurisdictional discovery would be permitted.

However, the court also found that the interrogatories that had been served had been too broad for the limited question of establishing whether the exercise of personal jurisdiction over Defendant was proper. Judge Dinsmore ordered that the interrogatories be limited to inquiries that would support that “Defendant had extensive and pervasive contact with Indiana (general jurisdiction) or that Defendant ‘purposely availed’ itself of the privilege of conducting business in Indiana and the alleged copyright infringement arose from Defendant’s conducting business in Indiana (specific jurisdiction).” The court revised Plaintiff Bell’s interrogatories to limit them to the relevant jurisdictional matters, pending a ruling on Defendant’s separate motion to dismiss, and ordered that Defendant respond by December 1, 2015.

Defendant’s motion to quash the deposition of the owner of Find Tickets was also granted as the court found that such a deposition was unnecessary under the circumstances.

October 21, 2015

Northern District Transfers Copyright Infringement Litigation for Lack of Venue

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – District Judge Jon E. DeGuilio of the United States District Court for the Northern District of Indiana transferred a lawsuit alleging copyright to the Southern District of Indiana, citing a lack of venue in the Northern District.

In this litigation, Angela E. Brooks-Nwenga, acting pro se, alleges that The Mind Trust, United Way of Central Indiana, Central Indiana Education Alliance, Phalen Leadership Academies and Indianapolis Public Schools, all of Indianapolis, Indiana, infringed her copyright work, “Transitioning Into Responsible Students.” Among the wrongdoings asserted are infringement involving Defendants’ use of “Bridges To Success Education School Model” and “Phalen Leadership Academies School Model”

This copyright lawsuit was filed in the Northern District of Indiana, with Brooks-Nwenga acting as her own copyright attorney. The court ordered Plaintiff to show cause why the litigation should not be transferred to the Southern District of Indiana. Brooks-Nwenga argued to the court that she lived in Fort Wayne, Indiana, but the court was not persuaded by this, noting that the statute governing venue in a federal lawsuit, 28 U.S.C. § 1391(b), provides that:

a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

None of these criteria applied to this litigation. Brooks-Nwenga also contended that her prior litigation in the Southern District of Indiana had been excessively delayed and that her lawsuit had not received a fair and unbiased hearing. The court was similarly unswayed by this argument, stating that the court would “not hear appeals from other district courts.”

Finally, the court noted that, while venue in the Northern District was improper, “a substantial part, if not all, of the events or omissions giving rise to Ms. Brooks-Ngwenya’s claim seem to have occurred in the Southern District of Indiana.” Consequently, the court ordered the litigation transferred.

September 30, 2015

Indiana Copyright Litigation: Copyright Infringement Lawsuit Removed to Federal Court

By Overhauser Law Offices, LLC

Evansville, Indiana – Responding to a complaint filed in Indiana state court by Indiana copyright attorneys, a defense lawyer filed a motion to remove the lawsuit to a federal court in the Southern District of Indiana – Evansville Division.

Plaintiff Professional Transportation, Inc. of Evansville, Indiana (“PTI”) is the former employer of Defendant Robert Warmka of Savage, Minnesota. Warmka worked for PTI from September 2012 to December 2013. PTI contends that this employment was governed in part by a trade-secrets agreement. Subsequent to leaving employment with PTI, Warmka began employment with Minnesota Coaches Inc. (“MCI”) d/b/a Crew Motion, a competitor of PTI.

PTI filed this copyright lawsuit in Vanderburgh Superior Court alleging that Warmka infringed its intellectual property by his use of Plaintiff’s copyrighted driver’s manual within MCI’s driver’s manual. PTI contends that multiple sections of PTI’s manual were reproduced nearly verbatim in MCI’s manual. PTI claims that this manual was filed with the U.S. Copyright Office “on or before 2012.” Plaintiff further contends that Defendant appropriated Plaintiff’s confidential material and trade secrets in violation of a trade secret agreement executed by both parties in 2012.

In this lawsuit, filed by Indiana copyright lawyers, the following counts are asserted:

• Count I: Indiana Trade Secret Violation
• Count II: Unfair Competition

• Count III: Copyright Infringement

Plaintiff alleges loss of business and profits and seeks injunctive relief and monetary damages.

Copyright attorneys for Warmka filed a notice of removal, stating that federal subject-matter jurisdiction was proper on the basis of both federal-question jurisdiction and diversity-of-citizenship jurisdiction.

September 28, 2015

Copyright Law: Important Win for Fair Use in ‘Dancing Baby’ Lawsuit

By Overhauser Law Offices, LLC

San Francisco, California – Federal court of appeals affirms that copyright owners must consider fair use in online copyright takedowns.

The United States Court of Appeals for the Ninth Circuit recently affirmed that copyright holders must consider whether a use of material is fair before sending a takedown notice. The ruling came in Lenz v. Universal, often called the “dancing baby” lawsuit.

In 2007, Stephanie Lenz posted a 29-second video to YouTube of her children dancing in her kitchen. The Prince song “Let’s Go Crazy” was playing on a stereo in the background of the short clip. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (“DMCA”), claiming that the family video infringed the copyright in Prince’s song. The Electronic Frontier Foundation (“EFF”) sued Universal on Lenz’s behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use.

September 24, 2015

Indiana Copyright Law: Court Will Not Reconsider Dismissal of Pro Se Litigant’s Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Southern District of Indiana denied Plaintiff Larry Philpot’s

motion to reconsider the dismissal of his 2014 lawsuit alleging copyright infringement.

Acting as his own copyright lawyer, Philpot, a professional photographer of Indianapolis, Indiana filed a copyright infringement lawsuit against Music Times, LLC of New York, New York. He alleged that Defendant infringed his copyright on a photograph of Norah Jones taken during a performance in Milwaukee, Wisconsin. The photo had been registered with the U.S. Copyright Office as Certificate No. VAu 1-164-648.

Prior to this motion to reconsider, Philpot had last taken on the case on December 15, 2014. He had then failed to prosecute the case further. On April 17, 2015, the court set an April 30th deadline by which Philpot must show good cause for his failure to take additional actions to advance the copyright infringement lawsuit. Philpot did not respond and, on August, 26, 2015, the court dismissed the litigation.

Plaintiff Philpot, upon being notified of the court’s dismissal of the lawsuit, filed a motion asking the court to reconsider. He stated that he had not received notice of the court’s April 17th order and that his failure to prosecute had been a result of being “completely overwhelmed” due to having filed “too many actions.” On these grounds, he asked the court to reverse its earlier entry of judgment against him.

The court declined to do so. Under Fed. R. Civ. Pro. 59(e), a court is permitted to alter or amend its judgment “only if the petitioner can demonstrate a manifest error of law or present newly discovered evidence.” Because Plaintiff did not demonstrate either – and because his failure to do so would not be excused merely due to his pro se status – the court denied the motion to reconsider.

September 23, 2015

Indiana Copyright Litigation: Latitude 360 Indianapolis Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Jacksonville, Florida – A copyright lawyer for Universal Music Corp., WB Music Corp., EMI April Music, Inc., Bovina Music, Inc., and B.I.G. Poppa Music, all members of the American Society of Composers, Authors, and Publishers (“ASCAP”), sued in the Middle District of Florida asserting copyright infringement against Latitude 360 Nevada, Inc., Latitude 360 Jacksonville LLC, Latitude 39 Group LLC, Latitude 360 Indianapolis LLC and Brent W. Brown. ASCAP is headquartered in New York, New York. Among the Defendants is Indianapolis restaurant Latitude 360 Indianapolis.

ASCAP is a membership association. It licenses and protects the public performance rights of more than half a million members, including songwriters, composers and music publishers. Latitude 360 Indianapolis is a place of business that offers public entertainment and refreshment.

Plaintiffs have asserted that Latitude Indianapolis 360 infringed multiple copyrighted works by permitting unlicensed performances of copyrighted works belonging to Plaintiffs. Plaintiffs claim that, since November 2012, they have attempted to contact Latitude 360 Indianapolis and/or other Defendants more than 40 times to offer an ASCAP license but that these offers were refused. Four causes of action for copyright infringement have been alleged in this copyright lawsuit.

Plaintiffs ask for injunctive relief against Defendants ordering them to cease publicly performing Plaintiffs’ compositions; and a judgment for statutory damages, attorney’s fees and costs.

September 21, 2015

Indiana Copyright Litigation: CelebrityCafé.com Dismissed from Copyright Lawsuit; Court Allows New Defendants to be Added

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Southern District of Indiana has granted a motion by Defendant The Celebrity Café.com, Inc. (“Celebrity”) to dismiss the copyright infringement complaint filed by Larry G. Philpot of Indianapolis, Indiana. The court also granted Philpot’s motion to amend his complaint.

Plaintiff Philpot is a professional photographer who photographs concert events across the country. He copyrights his photographs and licenses them to others. In December 2014, Philpot sued Celebrity of Oceanside, New York asserting that it had infringed his copyrights by posting two photographs that Philpot had registered with the U.S. Copyright Office. The photos at issue are a 2009 photograph of Willie Nelson and a 2013 photo of Kid Rock.

An Indiana copyright attorney for Defendant Celebrity moved to dismiss the complaint on the grounds that Defendant was not subject to personal jurisdiction in Indiana and that the Southern District of Indiana was an improper venue. A short time later, Philpot asked the court’s permission to amend his complaint to include additional defendants. By this order, the court granted both parties’ requests.

On the issue of jurisdiction, the court held that Philpot had failed to meet his burden to demonstrate the necessary minimum contacts between Celebrity and the State of Indiana. The court found Celebrity to be a New York business that “is not registered to do business in Indiana. It does not have any offices, paid employees, members, agents, or operations in Indiana. Celebrity has no telephone or fax listings in Indiana. It also has no bank accounts in Indiana, has never paid taxes in Indiana, and does not own, lease, or control any property or assets in Indiana. Dominick Miserandino, Celebrity’s sole member, has been to Indiana only twice in his life….”

Moreover, the court held that Celebrity’s use of its website, which it had owned and operated from January 2003 to December 3, 2014, was insufficient to confer jurisdiction upon an Indiana court. Quoting the Seventh Circuit, it stated:

Courts should be careful in resolving questions about personal jurisdiction involving online contacts to ensure that a defendant is not haled into court simply because the defendant owns or operates a website that is accessible in the forum state, even if that site is interactive. Beyond simply operating an interactive website that is accessible from the forum state, a defendant must in some way target the forum state’s market. If the defendant merely operates a website, even a highly interactive website, that is accessible from, but does not target, the forum state, then the defendant may not be haled into court in that state without offending the Constitution.

be2 LLC v. Ivanov, 642 F.3d 555, 558-59 (7th Cir. 2011) (citations and quotation marks omitted).

The court noted that, while it might appear that advertisements on Celebrity’s webpages were targeting Indiana residents due to Indiana-specific content, those advertisements were not the result of Celebrity’s actions to target Indiana. Instead, the advertisements were shown as a result of internet “cookies” that tracked the location of internet end users and then selected and displayed location-specific content from third parties, including content that was specific to Indiana.

Thus, an exercise of personal jurisdiction over Celebrity in Indiana was found to be improper. For similar reasons, venue in the Southern District of Indiana was also held to be improper. The court did, however, permit Philpot to amend his complaint, finding that his request to do so had been timely filed.

September 17, 2015

Indiana Copyright Litigation: Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Filing on his own behalf, copyright attorney and professional photographer Richard N. Bell of McCordsville, Indiana initiated litigation in the Southern District of Indiana alleging copyright infringement by KG American Real Estate Holdings, LLC (“KG”) of Duluth, Georgia.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell claims that the KG used this photo, U.S. Copyright Registration No. VA0001785115, without Plaintiff’s permission. Bell states that KG created “a website to promote and advertise its own real estate business” and displayed Bell’s copyrighted photo on that website. Bell further claims that this company “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos” contained on its website, http://richliferealestate.com/location/indianapolis-metro/, including Bell’s photo of Indianapolis.

In this Indiana federal litigation, a single count is listed: copyright infringement and unfair competition. Bell asks for injunctive relief to prevent KG from using Bell’s copyrighted photo without consent as well as a judgment for damages, attorney’s fees and costs.

Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in Indiana’s federal courts. Previous blog posts regarding his litigation include:

• 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