Copyright Infringement

December 18, 2020

Declaratory Judgment Sought Against Dog Trainer Donna Chandler

Indianapolis, Indiana – According to the Complaint, Donna Chandler (“Chandler”), one of the Defendants and owner of Co-Defendant, Show Colors, Inc. (“Show Colors”), is the author of a canine training book called “Good Dog!” Apparently, Chandler along with Plaintiffs, Kevin DeTrude (“DeTrude”) and Content & Commerce, Inc. (“Content” and collectively “Plaintiffs”), are members of nominal defendant, My K9 Behaves LLC (“My K9”). Content is allegedly in the business of website development and marketing and is owned by Keneth Zweigel (“Zweigel”). Per the Complaint, Chandler, DeTrude, and Zweigel began working on an online instruction course based upon two books written by Chandler (the “Online Class”) in January 2016. The parties apparently also discussed converting the text-based course to a video format.

Two videos were allegedly recorded and paid for by DeTrude in 2016 with a script for a third video written around February 2017. It appears Chandler, Content, and DeTrude officially formed their business on April 4, 2017, but the parties did not execute an Operating Agreement for the business until mid-June 2017, which included clauses assigning all common law and registered trademark and copyrights, including Chandler’s books and the publishing rights to My K9 (the “Assigned Rights”). Upon dissolution or the termination of Chandler’s ownership in My K9, the Assigned Rights would allegedly revert back to Chandler. According to the Complaint, shortly after the Operating Agreement was executed, a third video was recorded and paid for by Zweigel.

As My K9 was experiencing apparent success, the company entered into a Publishing Agreement for a third book to be written by Chandler with the rights assigned to My K9. Allegedly due to the length of time spent writing the book, the first Publishing Agreement was revoked, and a Second Publishing Agreement was put in place. The Plaintiffs claim Chandler then began demanding a greater portion of the profits and ultimately decided if the rights to the third book were not in her name only, she simply would not publish the third book. Chandler then apparently informed DeTrude and Content that she was withdrawing her membership in My K9 and demanded they cease and desist using her name or likeness and re-assign the Assigned Rights back to her.

DeTrude and Content are seeking a declaratory judgment of copyright and trademark ownership “including any derivative or original intellectual property created by or on behalf of My K9. Further, to the extent the Plaintiffs own any of the copyrighted works, they allege Chandler and Show Colors have infringed those works by profiting off the sale of the works individually and not for the benefit of My K9. To the extent Plaintiffs own any trademarks, they are similarly claiming trademark infringement. Plaintiffs have also brought derivative and direct claims for breach of fiduciary duty, usurpation of corporate opportunities, theft and conversion pursuant to I.C. § 35-43-4-3. Finally, Plaintiffs are claiming breach of contract for Defendants’ alleged breach of the Operating Agreement.

December 9, 2020

Vera Bradley Sues Dollar Tree for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Vera Bradley Designs, Inc. (“Vera Bradley”) the Plaintiff, claims to have more than 1,100 copyright registrations for its unique fabric designs, 17 of which are at issue in this case (the “Vera Bradley Works”). Vera Bradley claims to sell eyeglasses, sunglasses, and cases bearing the Vera Bradley Works.

According to the Complaint, Dollar Tree Stores, Inc. (“Dollar Tree”) and Greenbrier International, Inc. (“Greenbrier”), the Defendants, sell eyeglasses and related accessories that allegedly infringe the Vera Bradley Works. Vera Bradley claims after it sent a cease and desist letter to Dollar Tree, Dollar Tree stated it was unable to remove the alleged infringing products from its stores. Further, Vera Bradley claims Greenbrier sourced and/or imported the alleged infringing products.

Vera Bradley is claiming copyright infringement against both Defendants and vicarious and contributory copyright infringement against Greenbrier pursuant to 17 U.S.C. § 501. Vera Bradley further claims Dollar Tree participated in unfair and deceptive trade practices in violation of I.C. § 24-5-0.5-03.

November 23, 2020

Joe Hand Files Another Copyright Infringement and Piracy Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, New Albany Division, Indiana – Joe Hand Promotions, Inc. (“Joe Hand’), the Plaintiff, claims to specialize in licensing premier sporting events to commercial establishments including bars, restaurants, and other similar locations. Those premier sporting events apparently included the Floyd Mayweather, Jr. vs. Conor McGregor boxing match on August 26, 2017 (the “Program”) that was purportedly registered under U.S. Copyright No. PA 2-006-333. According to the Complaint, Defendants, Lena Marie Smith and Main Street Bar N Grill, LLC (“Defendants”), avoided paying the proper commercial licensing fees and publicly exhibited the Program at their establishment.

This case is extremely similar to the numerous lawsuits Joe Hand has filed previously. Like most of those cases, Joe Hand is seeking damages for satellite piracy (47 U.S.C. § 605), cable piracy (47 U.S.C. § 553), and copyright infringement (17 U.S.C. § 505).

November 19, 2020

Gangnam Korean BBQ Sued for Alleged Piracy and Copyright Infringement

By Overhauser Law Offices, LLC

Evansville, Indiana – Joe Hand Promotions, Inc. (“Joe Hand”), a frequent Plaintiff in the federal courts of Indiana, apparently specializes in licensing premier sporting events to bars, restaurants, and similar venues. According to the Complaint, Joe Hand had an agreement with the owner of U.S. Copyright PA-002-0660333 to commercially distribute the Floyd Mayweather, Jr. vs. Conor McGregor boxing match (the “Program”) on August 26, 2017.

Per the Complaint, the Defendants, Joseph J. Kim, Sarah Ying AI Kim, and Genesis Business Systems, LLC d/b/a Gangnam Korean BBQ, exhibited the Program to the public without paying for a commercial license through Joe Hand. As such, Joe Hand is seeking damages for satellite and cable piracy pursuant to 47 U.S.C. §§ 605 and 553, respectively, and copyright infringement pursuant to 17 U.S.C. § 505.

November 2, 2020

Seventh Circuit Confirms Presumptive Fees in Copyright Litigation are Not Guaranteed

By Overhauser Law Offices, LLC

Seventh Circuit Court of Appeals – The U.S. Court of Appeals for the Seventh Circuit affirmed the denial of fees for the Defendant, David Knott (“Knott”), after Plaintiff, Timothy B. O’Brien LLC (“Apple Wellness”), voluntarily dismissed all its claims with prejudice.

Originally filed in the Western District of Wisconsin, Apple Wellness alleged that Knott, a former employee of Apple Wellness started a similar, competing wellness shop. Apple Wellness sued Knott for alleged trademark, trade dress, and copyright infringement. Knott countersued for tortious interference and retaliation. The District Court found the copyright claims baseless and denied a preliminary injunction on the trademark and trade dress claims. Apple Wellness later voluntarily dismissed all its claims.

While Apple Wellness submitted a motion to dismiss without prejudice, the District Court ordered Apple Wellness to withdraw its motion or accept a dismissal with prejudice because Knott had already expended resources litigating an injunction. The District Court further noted that in its opinion, no party’s claim was strong. Apple agreed to the dismissal with prejudice and the District Court declined to exercise supplemental jurisdiction over the counterclaims. The District Court subsequently denied Knott’s motion for fees leading to this appeal only as to the fees for the copyright claims and the appeal.

The Court of Appeals found that while Apple Wellness’s copyright claims were frivolous, it appears the claims were brought in good faith. Therefore, “there were minimal concerns regarding compensation and deterrence.” Further, Knott did not have to expend a large amount of time, money, or energy defending against the copyright claims as they were quickly dismissed. After considering all of the factors, the Court of Appeals affirmed the judgment of the District Court denying Knott’s motion for fees.

October 21, 2020

Photographer Sues for Alleged Copyright Infringement of Kid Rock Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana –According to the Complaint, Larry G. Philpot (“Philpot”), the Plaintiff, is a well-known photographer of musicians. Philpot claims to have taken a photo of a well-known musician, Kid Rock, during one of Kid Rock’s concerts. After taking the photo, Philpot apparently applied for and obtained U.S. Copyright Registration No. VAu 1-182-727 for the photo (the “Registered Photo”).

Philpot claims COTR, LLC d/b/a Chicks on the Right of Indianapolis (“COTR”) copied and published the Registered Photo on its website. While Philpot claims to have discovered the alleged infringement on or after July 26, 2017, the post was apparently removed at some point after December 21, 2017. However, per the Complaint, Philpot’s counsel sent a formal infringement notice to COTR on July 6, 2020, prior to the filing of the Complaint. Philpot is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 504 and 505.

September 30, 2020

Church Hymn at Issue in Copyright Infringement Suit

By Overhauser Law Offices, LLC

South Bend, Indiana – Vincent Ambrosetti (“Ambrosetti”), the Plaintiff, is apparently the author and creator of the musical composition “Emmanuel.” According to the Complaint, the composition was first published in a songbook in 1980. However, Ambrosetti did not receive U.S. Copyright Registration No. PA 2-231-246 for “Emmanuel” until March 4, 2020.

Ambrosetti claims Defendant, Bernadette Farrell (“Farrell”), copied and infringed upon his work when she composed “Christ Be Our Light” in 1993. Further, Ambrosetti claims, Defendant, Oregon Catholic Press (“OCP”), obtained the rights to sell, market, distribute, and license “Christ Be Our Light” from Farrell. Because Farrell and OCP have apparently been distributing and publicly performing the allegedly infringing “Christ Be Our Light” for many years, and especially within the past three years, Ambrosetti is seeking damages and attorneys’ fees for copyright infringement pursuant to 17 U.S.C. §§ 504(b) and 505.

September 17, 2020

Pandemic-Related Photograph at Issue in Copyright Infringement Lawsuit

By Overhauser Law Offices, LLC

South Bend, Indiana – Savanna Campbell (“Campbell”), the Plaintiff, claims to have taken a photograph inside a Walmart of the child car seat section (the “Photograph”). Campbell apparently registered the Photograph with the U.S. Copyright Office and given Copyright Registration No. VA 2-204-282.

According to the Complaint, Defendant Gray Television (“Gray”) used the Photograph on a television program and then on its website in an article entitled “Fact Check: Does Michigan’s stay-at-home order ban purchase of child safety seats?”. Campbell claims Gray did not have a license, her permission, or consent to use the Photograph in its television program or on its website. Therefore, Campbell is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 504 and 505. Continue reading

July 14, 2020

Meier Photography Sues Noblesville Audio Company for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Jeremy Meier d/b/a Meier Photography (“Meier”), the Plaintiff, claims to be a professional photographer and owner of U.S. Copyright Registration No. VAu 1-381-446 which includes 380 photographs taken in the Spring of 2019 (the “Registered Photos”). According to the Complaint, Kelley Global Brands, LLC d/b/a KLH Audio (“KLH”), the Defendant, manufactures and sells audio equipment. Meier claims KLH used and published some of the Registered Photos without paying for the use and without the authorized consent of Meier resulting in copyright infringement.

However, the Complaint further states, that Meier and KLH “entered into an agreement pursuant to which Plaintiff agreed to take certain photos in exchange for Defendant paying for the rights to use said photos (the ‘Agreement’).” This may create an issue over whether the copyright infringement can be maintained. If KLH obtained “rights to use the Photos,” it may have a valid defense of “license.”

A similar issue was raised in the famous case known as the “exploding yogurt factory case.”

July 13, 2020

U.S. Supreme Court Upheld States’ Sovereign Immunity for Copyright Infringement

By Overhauser Law Offices, LLC

U.S. Supreme Court–Frederick Allen (“Allen”) was hired as a videographer to document the recovery of the Queen Anne’s Revenge shipwreck off the North Carolina coast. Allen worked to document the recovery for over a decade and registered copyrights for his works. When North Carolina published some of Allen’s work online, Allen sued for copyright infringement. North Carolina moved to dismiss the lawsuit on the ground of state sovereign immunity; while Allen argued the Copyright Remedy Clarification Act of 1990 (“CRCA”) removed the States’ sovereign immunity.

The District Court agreed with Allen while the Fourth Circuit Court of Appeals reversed the decision. The U.S. Supreme Court ruled 9-0 in favor of North Carolina on March 23, 2020.

Sovereign immunity has recently been the basis for granting summary judgment in several recent copyright cases in the Southern District of Indiana, namely at least Richard N. Bell v. Jay L. Hess, Case No. 1:16-cv-02463-TWP-DML, (S.D. Ind. March 9, 2018) and Richard N. Bell v. Jason Henderson, Case No. 1:16-cv-02488-RLY-DML, (S.D. Ind. July 23, 2018).