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Computer Lawyer: Dozier Copyright Casenotes

The Dozier Federal Court Report: Copyright Infringement and Computer Lawyer Case Notes. When you visit the main Dozier Copyright Infringement Page you'll find information on copyright infringement and computer lawyer legal issues, as well as a listing of the many legal matters Dozier Internet Law has undertaken over the years.

Computer Lawyer Copyright Casenotes

Litigation is extremely expensive. Knowing what tactics or practices can get you sued is imperative. The focus of The Dozier Federal Court Reports is to keep you abreast of the issues that are getting businesses in trouble. Understanding what strategies, tactics and practices are getting online businesses sued will help you make better informed decisions. Of course, all references to facts or summaries of facts are based upon the allegations in the lawsuit only and we make no representation as to whether the facts alleged will ultimately be proven truthful. These case comments are not intended to be legal advice, and you should consult your Internet law expert attorney for guidance and advice.

HEARST NEWSPAPERS, LLC d/b/a HOUSTON CHRONICAL, ET AL. v. POLICE NEWS PUBLISHING COMPANY, LLC d/b/a THEPOLICENEWS.NET, ET AL. SOUTHERN DISTRICT OF TEXAS (HOUSTON) 4:08-CV-01268

FILED: 4/25/08

Here is a classic example of the old world order versus the new world order. On the one hand, netizens believe that "information yearns to be free". On the other hand, owners of intellectual property believe that their property should not be stolen. This might be one of the first cases involving the theft of an "RSS feed".

The Plaintiff filed suit for copyright infringement and trademark infringement alleging that the Defendants are accessing Plaintiffs' news reports, without the Plaintiffs' authorization, through the use of the Hearst Newspapers' websites and print publications, and posting the reports in their entirety on Defendants' websites. Plaintiff also alleges that one or more of the Defendants named in the lawsuit are operating websites that display the Houston Chronicle's RSS feed without authorization. In effect, this is a lawsuit by a newspaper against a website for using the newspaper's content, be it print/hardcopy or electronic in nature.

The Plaintiff is asking the court to award compensatory damages, punitive damages, triple damages, attorneys' fees, costs incurred, and a permanent injunction prohibiting Defendants from infringing on Plaintiffs' copyrights and trademarks, and a further order requiring the deletion of Plaintiffs' materials located on Defendants' computers. Dozier Internet Law Cross-Reference Numner 1174.

ADVANCED METAL CORP. v. ATLANTIC METAL ROOFING, INC., ET AL. EASTERN DISTRICT OF NORTH CAROLINA (SOUTHERN DIVISION) 7:08-CV-00060-BO

FILED: 4/21/08

This case between apparent competitors is interesting in what it does not allege. There is no specific count for business defamation despite numerous allegations in the facts. In addition, while there is a count for trademark infringement, the "prayer for relief", which is the part of the lawsuit in which you set forth specifically your requests for an award, omits a request for an injunction relating to the alleged trademark infringement. My instincts suggest to me that this is more likely a product disparagement and defamation lawsuit and the Plaintiffs are hanging their hats on the copyright infringement claim. The lesson to be learned here is that there are many ways to skin a cat and attacking a problem by asserting intellectual property claims instead of implicating defamation and the attending "free speech" issues is often an excellent strategy to pursue.

Plaintiff has filed a lawsuit alleging copyright infringement, unfair and deceptive trade practices, trademark infringement and civil conspiracy. Defendants are alleged to have copied Plaintiffs' "presentation book", published defamatory and misleading statements about the Plaintiff, posted false and defamatory statements on www.topix.com and trademark infringement. No count for defamation is included in the lawsuit.

Plaintiffs request an award of compensatory and actual damages, punitive damages, treble damages, court costs and attorneys' fees, and the entry of an injunction prohibiting the infringement of the Plaintiffs' copyright protected materials and the surrender and destruction of all such materials. Dozier Internet Law Cross-Reference Number 1175.

ROBINSON v. AMERICAN CITY BUSINESS JOURNALS, INC. EASTERN DISTRICT OF NORTH CAROLINA (WESTERN DIVISION) 5:08-CV-00183

FILED: 04/16/08

You cannot go to the web, find an image, and use it. Even without a copyright notice on the image, it is protected by copyright with very few, narrow exceptions.

Plaintiff, a North Carolina resident, is a professional photographer that operates several websites including www.raleighskyline.com to promote his work. Plaintiff owns all of the copyrights to his photographs that appear on his websites. Plaintiff contends that, as part of a publicity initiative by developers of a building, he created a composite photograph wherein he superimposed the building onto a photograph he had taken of Raleigh's skyline. Plaintiff applied for and obtained a federal copyright registration for the "Future Skyline Photograph". According to Plaintiff, Defendant, without permission or authorization from Plaintiff, copied the photograph from Plaintiff's website, purposely removed the copyright notice Plaintiff had inserted thereon, and displayed the photograph on the front-page print addition of the "Triangle Business Journal" and on the website www.triangle.bizjournals.com.

Plaintiff filed suit against Defendant in federal court in North Carolina alleging copyright infringement and false designation of origin in violation of federal law. Plaintiff's suit also alleges unfair and deceptive trade practices in violation of North Carolina statute and common law unfair competition. Plaintiff's suit seeks actual damages, recovery of Defendant's profits, treble damages, punitive damages, attorneys' fees, interest, and injunctive relief. Dozier Internet Law Cross-Reference Number 1172.

BEACHWOOD HAIR CLINIC, INC. v. HAIR LOSS TREATMENT AND PRODUCT, LLC, ET AL. NORTHERN DISTRICT OF OHIO (CLEVELAND) 1:08-CV-00941-SO

FILED: 04/11/08

Here is another twist to copyright infringement. Apparently a promotional video which had been sold to approximately 20 hair treatment facilities was stolen. Intent and knowledge are not necessary requirements to prove copyright infringement. The 20 websites using this video likely have copyright infringement liability. Be very careful in licensing the right to use audio, video and content, and make sure that you have appropriate warranties and assurances of ownership or right to sub-license, and make sure that the party providing these promises has deep pockets to stand behind the promises. Otherwise, your business may be well advised to stay away from content provided by third parties.

Plaintiff Beachwood Hair Clinic, Inc., located in Beachwood, Ohio, was founded in the late 1960s and provides hair replacement solutions to men and women. Plaintiff claims that it has been on the forefront of laser hair therapy and promotes its cutting-edge technology and services through promotional videos created by Plaintiff. According to Plaintiff, Defendants, two of Plaintiff's competitors, are displaying Plaintiff's promotional video on their respective websites. Plaintiff alleges that Defendant Hair Loss Treatment and Product, LLC manipulated Plaintiff's promotional video removing all references to Plaintiff and making it look like Hair Loss Treatment and Product, LLC made the video. Plaintiff further contends that Hair Loss Treatment and Product, LLC sold the manipulated promotional videos to co-Defendant Changing Times Hair Design who put the manipulated video on their website www.changingtimeshairdesign.com as well as approximately 20 other hair treatment facilities.

Plaintiff filed suit against Defendants in federal court in Ohio alleging copyright infringement. Plaintiff claims that its promotional video is protected by the federal Copyright Act and that Defendants are infringing on Plaintiff's copyright entitling Plaintiff to injunctive relief, actual damages, punitive damages, attorneys' fees and costs. Plaintiff's suit further asserts claims of conversion and trespass against Defendant Hair Loss Treatment and Product, LLC. Dozier Internet Law Cross-Reference Number 1163.

HVAC AGENT, LLC, ET AL. v. JOEL FRANCOMANO, ET AL. EASTERN DISTRICT OF TEXAS (MARSHALL) 2:08-CV-00146-TJW

FILED: 04/03/08

This dispute involves two issues we deal with often. The first issue is misuse of the DMCA "takedown" notice process. The second issue is the ownership of software and websites when developers do the work. Generally speaking, absent a contract otherwise, an independent web developer owns certain aspects of the copyright and the original author, typically the client, owns other aspects of the copyright in such work. The developer usually grants the customer a non-exclusive license to use the software. It is always best to get this type of ownership issue in writing and all of the bases covered prior to engaging a developer.

Plaintiffs HVAC Agent, LLC; Plumbing Agent, LLC; and Electrical Agent, LLC, Texas limited liability companies, are web-based businesses that match businesses with professionals that can service their heating, air conditioning, plumbing and electrical needs. According to Plaintiffs, Defendant Joel Francomano initially became involved with Plaintiff HVAC Agent, LLC approximately five years ago when he was hired to edit and revise its software. In 2007, there was a dispute between Plaintiffs and Defendant Francomano. Plaintiffs contend that Francomano and a software company he formed, the other named Defendant, filed a certificate of registration with the United States Copyright Office to attempt to copyright the software package Francomano revised while employed by HVAC Agent, LLC. Plaintiff contends that Defendants then served Plaintiffs' web host with a "take down" notice pursuant to the Digital Millennium Copyright Act and that, as a result, Plaintiffs' web host disabled Plaintiffs' seven websites.

Plaintiffs filed suit against Defendants in federal court in Texas alleging that Defendants violated the federal Copyright Act by making material misrepresentations in the copyright registration and the "take down" notice. Specifically, Plaintiffs allege that Defendants failed to disclose on their copyright registration that the software was made as "work for hire" and that Plaintiffs had an ownership interest in the software. Moreover, Plaintiffs allege that Defendants materially misrepresented that Plaintiffs were infringing on their copyright in the "take down" notice by failing to disclose Plaintiffs' interest in the allegedly infringing material. Plaintiffs' suit seeks damages incurred as a result of their seven websites having been wrongfully disabled as a result of Defendants' actions, costs and attorneys fees. Dozier Internet Law Cross-Reference Number 1147.

RELIOS, INC v. GENESIS, INC. DISTRICT OF NEW MEXICO (ALBUQUERQUE) 1:08-CV-00345-JCH-WDS

FILED: 04/01/08

Another jewelry dispute. These types of cases are very common for some reason. Perhaps it is due to the very subjective nature of the copyright rights in jewelry design.

Plaintiff Relios, Inc. formerly known as Carlisle Jewelry Co. is a New Mexico corporation engaged in design, manufacture and sale of jewelry. Since 1995, Plaintiff's jewelry designs have included a line of necklace pendants known as "Loving Family" which has variations including "loving couple," "two parents," "two children," "one parent," "one child," and the like. Plaintiff contends that it has properly copyright protected its "Loving Family" designs by obtaining registrations with the United States Copyright Office. Plaintiff further contends that it federally registered the trademark "Loving Family" for use in connection with jewelry in 1998. According to Plaintiff, Defendant, a Tennessee corporation, manufactures, imports and/or purchases and sells jewelry through its mail order catalogues and its interactive Internet website www.4schoolsonline.com. Plaintiff alleges that Defendant's website lists several schools in New Mexico with designated codes and that entry of those codes leads to web pages for product catalogues including jewelry which infringes on Plaintiff's copyrights and trademark.

Plaintiff filed suit against Defendant in federal court in New Mexico alleging copyright infringement, trademark infringement, and false designation of origin in violation of federal law. Moreover, Plaintiff's suit asserts a claim of common law unfair competition and trademark infringement in violation of New Mexico law. Plaintiff's suit seeks an injunction enjoining Defendant from continuing to infringe on Plaintiff's rights, damages including an accounting of Defendant's profits from such infringing activity or statutory damages, treble damages, costs, attorneys fees and pre- and post-judgment interest. Dozier Internet Law Cross-Reference Number 1143.

I'M A LITTLE TEACUP CORPORATION v. QUALITY PET PRODUCTS, ET AL. SOUTHERN DISTRICT OF FLORIDA (FT. LAUDERDALE) 0:08-CV-60446-WJZ

FILED: 03/28/08

Why didn't the Plaintiff use a DMCA takedown notice? Copyright infringement litigation is expensive, but can lead to a big judgment. Perhaps that was the motivation.

Plaintiff I'm a Little Teacup Corp., a Florida corporation, is engaged in the business of designing, manufacturing, advertising, marketing, distributing and selling dietary products for pets. In 2005, Plaintiff hired two people to author its website. Approximately 2 1/2 years later, the authors assigned all rights to the website and its content to Plaintiff who then registered the work with the United States Copyright Office. Plaintiff alleges that one of the named individual Defendants in this suit ordered one of Plaintiff's products on at least three occasions and subsequently thereafter worked in concert with the other Defendants to copy Plaintiff's website verbatim in order to market and sell an imitation of Plaintiff's product.

Plaintiff filed suit against Defendants in federal court in Florida alleging copyright infringement in violation of federal law. Plaintiff contends that Defendants' web pages contain material that is verbatim copied from Plaintiff's websites to which at least one of the named Defendants had access as evidenced by the ordering of Plaintiff's product which Defendants have now imitated. Plaintiff's suit further contends that Defendants have infringed on Plaintiff's trade dress. Plaintiff argues that its web pages are distinctive and creative and that Defendants have infringed on the design and combination of features to promote their knockoff product. Plaintiff's suit seeks an injunction ordering Defendants cease their infringing activities and account for all of the gains and profits received as a result. Plaintiff's suit also seeks damages, attorneys fees and costs. Dozier Internet Law Cross-Reference Number 1138.

SYMANTEC CORPORATION v. JOSEPH TESHOME d/b/a PRONET CYBER TECHNOLOGIES, ET AL. NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE) 5:08-CV-01619-RMW

FILED: 03/26/08

If these allegations are true, this is the type of misconduct that can sometimes lead to criminal prosecution.

Plaintiff Symantec Corporation is a global leader in developing and providing security, virus detection and performance enhancing software for computers and networks. Plaintiff alleges that Defendants have systematically and without authorization copied and distributed Plaintiff's software products and sold them on websites including www.pronetcd.com and www.ussoftwarestore.com. Plaintiff contends that it owns federally registered copyrights for all of the software as well as federally registered trademarks in connection with its computer software products including "GHOST," "GOBACK," "NORTON," "PCANYWHERE," and "SYMANTEC." According to Plaintiff, Defendants are copying Plaintiff's software and packaging it in packaging that uses Plaintiff's trademarks without authorization.

Plaintiff filed suit against Defendants in federal court in California alleging copyright infringement and trademark infringement in violation of federal law. Plaintiff's suit seeks an injunction ordering Defendants to cease their infringing activities. Plaintiff's suit also seeks damages including trebled actual damages and/or statutory damages, attorneys fees and costs. Dozier Internet Law Cross-Reference Number 1134.

CLICK SALES, INC. d/b/a CLICK BANK v. DCLICKZ, INC., ET AL. DISTRICT OF IDAHO (BOISE - SOUTHERN) 1:08-CV-00130-EJL

FILED: 03/18/08

This reminds me of a case I tried that lasted two weeks in this same Federal Court in Boise. Fortunately the jury didn't buy it and we got a defense verdict on copyright and trademark infringement.

Plaintiff, a Delaware corporation with its principal place of business in Boise, Idaho, was founded in 1998 and is now one of the leading Internet retailers of digitally delivered products in the world. Plaintiff developed a unique business model whereby it serves as an intermediary that connects sellers, promoters and buyers of digital media. Currently, Plaintiff processes over 20,000 orders per day to over 100 countries. Plaintiff's website is one of the most frequently visited websites on the Internet. According to Plaintiff, its website contains copyrighted material that was created and developed by Plaintiff. Plaintiff contends that it registered its website and its underlying computer code with the United States Copyright Office and that it has the exclusive right to reproduce, distribute and created derivative works. Plaintiff alleges that Defendants are the owners and operators of the website www.dclickz.com who Plaintiff alleges essentially copied a substantial portion of the content and possibly the code contained on Plaintiff's website merely substituting the word "ClickBank" with "DClickz."

Plaintiff filed suit against Defendants in federal court in Idaho alleging copyright infringement in violation of federal law. Plaintiff's suit further claims that Defendants actions violate the Idaho Consumer Protection Act and constitute unfair competition in violation of common law. Plaintiff's suit seeks an injunction preventing Defendants from using, disclosing, disseminating, distributing or copying Plaintiff's copyrighted information or any substantially similar code, preventing Defendants from destroying any potential evidence, and ordering Defendants to disclose what materials they have of Plaintiff's. Plaintiff's suit further seeks damages including exemplary and punitive damages, pre- and post-judgment interest, attorneys fees and costs. Dozier Internet Law Cross-Reference Number 1115.

LOU MAXWELL TAYLOR v. AMAZON.COM, INC., ET AL. DISTRICT OF VERMONT (BURLINGTON) 2:08-CV-00061

FILED: 03/17/08

A common issue with copyright ownership. How would one know that the claimed owner is not the real owner? There isn't a national clearing house registry to research the issue, but there are several things you can do to manage this risk effectively.

Plaintiff is a Vermont resident who authored and composed music and lyrics fixed in a tangible medium which are collectively titled "Cheshire Tree Suite." Plaintiff contends that he owns the copyright for the 13 sound recordings comprising "Cheshire Tree Suite" which were commercially released in 2001 on a compact disc that was pressed and marketed by QuiXote Music. Plaintiff alleges that Defendants, Delaware corporations with principal places of business in Seattle, Washington, have placed on their website and offered for sale an MP3 of Plaintiff's "Cheshire Tree Suite." Plaintiff further alleges that Defendant's website falsely states that "Cheshire Tree Suite" was copyrighted by QuiXote Music in 2008.

Plaintiff filed suit against Defendants in federal court in Vermont alleging copyright infringement in violation of federal law. Plaintiff contends that he holds the copyright to "Cheshire Tree Suite" and that he has never transferred that right and never authorized Defendants or anyone else to sell MP3 files of "Cheshire Tree Suite." Plaintiff seeks an injunction preventing Defendant's from infringing on his copyright. Plaintiff further seeks statutory damages, attorneys fees and costs. Dozier Internet Law Cross-Reference Number 1113.

RENAISSANCE LEARNING, INC. v. DOES 1-10 d/b/a AR-ANSWERS.COM WESTERN DISTRICT OF WISCONSIN (MADISON) 3:08-CV-00138

FILED: 03/07/08

Sounds more like a copyright infringement case in which tests and answers were being sold, but the suit is couched in trademark terms. My guess is that something is likely wrong here with the validity of the copyright in the works...perhaps they were drafted by an independent contractor and there is no assignment of the copyright to the plaintiff so the plaintiff fouled up and cannot prove ownwership of the tests and answers. The trademark claim appears to be weak. The catch-all "deceptive trade practices" allegations may do the trick for the plaintiff.

Plaintiff Renaissance Learning, Inc., a Wisconsin corporation, is a leading provider of educational computer-based assessment technology. Specifically, Plaintiff markets and sells a software product that tests a student's knowledge of assigned reading and consists of a series of tests relating to book subject matter. Plaintiff is the owner of the federally registered trademarks "ACCELERATED READER, AR" and "RENAISSANCE LEARNING" in connection with educational assistance products for teachers and students through assessing a student's knowledge of books. Plaintiff has also applied to register the copyrights related to its tests. Plaintiff owns the domain name "AcceleratedReader.com" and promotes its products and services on its website "RenLearn.com." According to Plaintiff, Defendants registered the domain name "AR-Answers.com" and began advertising, promoting and offering Plaintiff's copyrighted tests and answers on the website.

Plaintiff filed suit against Defendants in federal court in Wisconsin alleging trademark infringement and unfair competition in violation of federal law, unlawful and deceptive trade practices in violation of Wisconsin law and common law unfair competition. Plaintiff alleges that Defendants had actual notice of their registered trademarks and even reference them on their website. Plaintiff further alleges that Defendants' unauthorized use of its materials and marks is likely to cause confusion because Defendants market to students. Plaintiff's suit seeks injunctive relief and monetary damages including trebled and enhanced damages, costs and attorneys fees. Dozier Internet Law Cross-Reference Number 1093.

JAGEX LIMITED v. JAMESON A. PREVITE, ET AL. DISTRICT OF NEW JERSEY (TRENTON) 3:08-CV-01193-GEB-TJB

FILED: 03/07/08

This is a popular virtual world. Anyone with alot of their intellectual property available for everyone to access needs to be particularly vigilant in pursuing potential infringers quickly and aggressively, or the business may be gone in months, replaced by the stolen version.

Plaintiff Jagex Limited, a British corporation, designs, develops and publishes online computer games. Plaintiff's primary product, a game known as "RuneScape" available at www.RuneScape.com, is an interactive, multiplayer, online role-playing game where players traverse virtual worlds, undertaking tasks and completing quests that are updated weekly by Plaintiff. In order to play the game, users open a free or paid subscription account on www.RuneScape.com at which time proprietary software is downloaded automatically onto their computers. The software allows the users' computers to interact with the software on Plaintiff's servers and play the game. According to Plaintiff, RuneScape is played by approximately 4.5 million people in over 15 countries. Plaintiff alleges that Defendants, an individual residing in New Jersey and other yet to be determined individuals, began offering a copycat game called "Demonik" available at Demonikonline.com.

Plaintiff filed suit against Defendants in federal court in New Jersey alleging copyright and trade dress infringement in violation of federal law. Plaintiff alleges that it owns the copyrights to the RuneScape game and the www.RuneScape.com website and that Defendants copied Plaintiff's RuneScape game. Plaintiff further alleges trade secret misappropriation and unfair competition in violation of state law. Moreover, Plaintiff alleges common law breach of contract and unjust enrichment. Plaintiff's suit seeks injunctive relief and damages including restitution, costs and attorneys fees. Dozier Internet Law Cross-Reference Number 1097.

MALCOLM v. WILLIS, et al. GEORGIA MIDDLE DISTRICT (VALDOSTA) 7:08-CV-00031

FILED: 02/28/2008

These are very serious allegations...the kind that you see in criminal indictments, and the kind that lead to prison time. Perhaps this is a case of the local criminal prosecutors not having the expertise or resources to prosecute, or maybe there is more to this story than the allegations suggest.

Plaintiff, an individual residing in Georgia, is the owner of The Nursery at Ty Ty, a plant supplier and nursery. Plaintiff markets his products over the Internet on his websites at tytyga.com and aaronscanna-amaryllis.com. Defendants, individual residents of Georgia, are former employees of Plaintiff; they served as Plaintiff's office manager, computer and information technology specialists, and webmasters. In June 2007, Defendants abruptly quit working for Plaintiff, taking with them personal property and inventory belonging to Plaintiff. Soon after, they set-up several competing websites that used Plaintiff's copyrighted materials. Defendants repeatedly hacked Plaintiff's websites to render them inoperable. Defendants also unlawfully accessed Plaintiff's bank accounts to make withdrawals and transfers.

Plaintiff has filed suit against Defendants in federal court in Georgia. Plaintiff alleges copyright infringement and violations of the federal Computer Fraud and Abuse Act. He asks for injunctive relief, prohibiting Defendants from unlawfully accessing Plaintiff's computer facilities and from using Plaintiff's copyrighted works. Plaintiff also requests damages, punitive damages, attorneys' fees, and costs. Dozier Internet Law Cross-Reference Number 1072.

BALSLEY, ET AL. V. LFP, INC., ET AL. NORTHERN DISTRICT OF OHIO (EASTERN DIVISION) 1:08-CV-00491

FILED: 02/27/2008

If a photographer licensed the wet T-shirt video to Hustler on a non-exclusive basis, and Hustler then assigned all of its rights in the materials, then plaintiffs still may not have any copyright infringement claim here. To avoid these types of situations, and they occur often with G rated video content, make sure you have releases signed if at all possible. When recording a public event the legal issues of free speech and implied license will often apply.

Plaintiffs Catherine Balsley and Richard Brown are individuals residing in Ohio. Defendant Hustler, Inc., a California limited liability company, and its parent, Defendant LFP, Inc., a California corporation, are in the business of distributing media containing adult material. In 2003, Plaintiff Balsley participated in a wet T-shirt contest that was photographed and videotaped without her knowledge. When those photos and videos were later distributed, Plaintiffs initiated a previous lawsuit in the United States District Court for the Northern District of Ohio. The previous lawsuit was resolved and Plaintiffs were assigned the rights in material containing the aforementioned photos and videos, which Plaintiffs thereafter registered copyrights in.

Defendants, without the Plaintiffs' permission, reproduced and publicly displayed and distributed Plaintiffs' copyrighted photograph of Plaintiff Balsley in Defendants' Hustler Magazine. Plaintiffs initiated this lawsuit against Defendants alleging copyright infringement, contributory copyright infringement, vicarious copyright infringement, unauthorized use of Plaintiff's likeness, and unfair/deceptive trade practices. Plaintiffs are seeking the greater of either actual or statutory damages for both copyright infringement and the unauthorized use of Plaintiff's likeness. Plaintiffs are also seeking punitive and compensatory damages, costs, and attorneys' fees. Dozier Internet Law Cross-Reference Number 1068.

JANEL RUSSELL DESIGNS, INC. v. FAIR INDIGO, LLC DISTRICT OF MINNESOTA (DMN) 0:08-CV-00540

FILED: 02/26/08

Statutory damages can be as high as $150,000, and coupled with attorney fees that will likely have to be paid by the Defendant, this could be a $500,000 loss. Be careful not to copy someone's creative works. Jewelry is a problem area on the web. Retailers want to get as close to copying as possible without crossing the line, and since copyright lawyers would disagree about where the line is to be drawn, the online "inspired by" jewelry business is inherently high risk. It does not look like the individuals involved in Fair Indigo have been sued yet, although there may be strong arguments to pursue them individually as the case develops.

Plaintiff Jane Russell Designs, Inc., a Delaware corporation, has designed unique pieces of jewelry for many years. One such work, "Mother and Child," has been federally registered with the U.S. Copyright Office. Defendant Fair Indigo, LLC, a Wisconsin limited liability company, is offering for sale on its website, located at www.fairindigo.com, an unauthorized copy of the "Mother and Child" pendant.

Plaintiff has filed suit against the Defendant in federal court in Minnesota. The suit alleges that the Defendant has willfully committed copyright infringement through its sale of the "Mother and Child" pendant. Plaintiff seeks an order enjoining the Defendant from infringing on Plaintiff's copyrights and requiring the Defendant to provide all of the infringing articles to Plaintiff. The Plaintiff further seeks an order awarding the Plaintiff the greater of the actual damages, Defendant's profits, or statutory damages, along with attorneys' fees and costs. Dozier Internet Law Cross-Reference Number 1063.

ANTON SPORT, INC., et al. v. MONKEY BOY GRAPHIX INC., et al. DISTRICT OF ARIZONA (PHOENIX) 2:08-CV-00377

FILED: 02/26/2008

This is what can happen when you assert a claim and give the other party a chance to file a lawsuit against your company for a "declaratory judgment". Notice that the venue for this lawsuit is now in Arizona, in the backyard of the alleged copyright infringers. When you use someone else's creative work make sure you have documented the terms of the license agreement to avoid this type of problem.

Plaintiffs are three Arizona businesses and their individual owner. Plaintiffs are engaged in the business of promoting and selling custom T-shirts. In 2003, Plaintiff Anton purchased CDs of clip art images from Defendants. Plaintiff Anton discussed the nature of Plaintiffs' businesses with Defendant Sherwood; it was therefore obvious that Plaintiffs would use the clip arts on Plaintiffs' T-shirts. However, during that discussion, Defendant Sherwood did not mention any limitations regarding the use of the artwork and images from the CDs. Plaintiffs used the artwork from the CDs on their T-shirts, which were then sold to customers. In 2008, Defendants sent Plaintiff Anton a cease and desist letter, accusing him of improperly distributing Defendants' copyrighted artwork and images to the other Plaintiffs; Defendants also accused all Plaintiffs of committing copyright infringement. In follow-up correspondence, Defendants accused Plaintiffs of violating Defendants' license agreement. Plaintiffs, however, claimed that they never saw or received any license agreement from Defendants.

Plaintiffs have filed suit against Defendants in federal court in Arizona. Plaintiffs seek a declaratory judgment that they have not committed copyright infringement, that they have not engaged in unfair competition, that they have not breached any license agreement or other contract, and that Defendants' purported license agreement is unenforceable as to them. Additionally, Plaintiffs seek costs and attorneys' fees. Dozier Internet Law Cross-Reference Number 1057.

MAPLEWOOD SOFTWARE, INC. V. MICROSOFT CORPORATION EASTERN DISTRICT OF WASHINGTON (SPOKANE) 2:08-CV-00066

FILED 2/15/08

This case raises an interesting question. Historically a company makes sure it limits access to a competing software product in the development stages of a competing product. How can you do that when you are using it as a part of the original application? You can't. Be very careful when you start deciding to replace a third party's technology or application with your own.

Plaintiff Maplewood Software, Inc., a Washington corporation, develops and licenses computer software. Defendant Microsoft Corporation, a Washington corporation, also develops computer software, including operating systems and applications, and licenses its products throughout the world. On November 11, 1999, Defendant placed a Purchase Order with Plaintiff for an SQL database named TUPLE. TUPLE would be part of Defendant's automated software testing program called Shiny New Automation Process ("SNAP"). Plaintiff created the TUPLE database and obtained a Certificate of Copyright Registration for it.

Plaintiff has filed suit against Defendant in federal court in Washington claiming copyright infringement, breach of contract, unjust enrichment, and conversion. Plaintiff alleges that Defendant has infringed upon Plaintiff's copyrights in the TUPLE database by developing a variation of the SNAP tool that continues to incorporate Plaintiff's TUPLE database, essentially unchanged from the product Plaintiff delivered to Defendant. Plaintiff also claims that this incorporation of the TUPLE database in the variation of SNAP is a breach of the terms in the Purchase Order, a conversion of their intellectual property, and an unjust enrichment for the Defendant. Plaintiff is seeking actual damages, Defendant's profits, a permanent injunction against the Defendant, prejudgment and other interest, costs and attorneys' fees. Dozier Internet Law Cross-Reference Number 1047.

ALLISON v. WISE SOUTHERN DISTRICT OF OHIO (EASTERN) 2:08-CV-157

FILED: 02/19/08

How many publishers or copyrighters could file this lawsuit? It is very common for websites to be copied and used to compete against the original creator. Consider using the Dozier Internet Law copyright infringement warning button on your site, monitoring the web, using Google Alerts with unique phrases from your copy to identify theft, and using a "plagiarism" reporting tool. Since expensive litigation may not be an option, there are many other ways to handle this type of theft.

Plaintiff, an individual doing business in Colorado, has been operating a video game website at www.cheatcc.com since 1998. Plaintiff's website offers video game strategies, tips, hints, tricks, and cheat codes, all of which Plaintiff has compiled and arranged himself. Plaintiff has also written all of the text contained on each webpage, which includes information and his own commentary, and he has federal copyright registrations for his website. Defendant is an individual who operates video game cheat code websites, which directly compete with Plaintiff's website. Without permission or authorization, Defendant copied Plaintiff's webpages and reproduced them in their entirety on Defendant's websites.

Plaintiff has filed suit against Defendant in federal court in Ohio. Plaintiff alleges copyright infringement, passing off and federal unfair competition, common law unfair competition, and deceptive trade practices. Plaintiff seeks a permanent injunction prohibiting Defendant from publicly displaying or using any of Plaintiff's copyrighted material; an order permanently prohibiting Defendant from copying, reproducing, modifying, displaying, or distributing both Defendant's webpages and Plaintiff's webpages; and the destruction of all products containing Plaintiff's copyrighted work. Additionally, Plaintiff seeks an accounting from Defendant and an award of Defendant's profits, treble damages, costs, and attorneys' fees. Dozier Internet Law Cross-Reference Number 1050.

MCINTYRE, CAPRON & ASSOCIATES, P.C. v. HAMANASSETT AT DARLINGTON, LLC, ET AL. EASTERN DISTRICT OF PENNSYLVANIA (PHILADELPHIA) 2:08-CV-00812

FILED: 02/20/08

How did the Defendant know these belonged to the plaintiff since there is no method of searching for copyrights and getting clearance for use? The best rule is that unless you are the author or you get a license from the author or authorized party, don't use the content. If you get a license from an authorized third party, get an indemnification agreement and make sure they can financially afford to pay for your damages and legal fees. Lack of knowledge or intent is not a defense to copyright infringement.

Plaintiff is an architectural firm that has federal copyright registrations in its architectural plans for residential homes. Defendant Hamanassett at Darlington, LLC and its principals (Defendants Matteo and Palomba) operate a website at hamanassett.net, which displays floor plans and elevations for several house models. Plaintiff discovered that Defendants' floor plans and elevations infringe on Plaintiff's copyrighted architectural plans. Plaintiff alleges that Defendants have created the false impression that they created the floor plans and elevations. Furthermore, Defendants did not have Plaintiff's approval or consent to use Plaintiff's copyrighted architectural plans.

Plaintiff has filed suit against Defendants in federal court in Pennsylvania. Plaintiff alleges copyright infringement and false designation of origin under the Lanham Act. Plaintiff seeks a preliminary injunction against Defendants, prohibiting them from using the infringing plans and any substantially similar plans to market or construct houses, and from reproducing Plaintiff's copyrighted works on Defendants' website. Additionally, Plaintiff requests the return of or destruction of all of Defendants' infringing plans and marketing materials. Finally, Plaintiff requests an award of actual damages, Defendants' profits, statutory damages, attorneys' fees, and costs. Dozier Internet Law Cross-Reference Number 1052.

HERZBERG v. OFFICE FURNITURE INNOVATIONS, LLC, ET AL. SOUTHERN DISTRICT OF TEXAS (HOUSTON) 4:08-CV-00508

Let me see if I can get this right. The furniture store worked with a multimedia artist to come up with an image for the furniture store. When it was finished, the artist copyright protected it, and asked for an excessive license fee in the eyes of the furniture store. Do the concepts of a written contract, work made for hire, copyright assignment, and license agreement come to mind? Get the "little details", like cost and ownership, in writing at the outset.

Plaintiff is a multimedia creator whose primary business is the implementation of theme-driven persuasion campaigns. In October 2006, Defendant Edison approached Plaintiff about designing and preparing an advertising piece for her furniture business. Defendant informed Plaintiff that she was interested in offering a donation to breast cancer research every time a potential customer sat in a display chair. Plaintiff agreed and began working on a unique design to suit Defendant Edison's purposes. After Defendant Edison approved Plaintiff's initial design concept, Plaintiff created an image that consisted of a single pink executive chair, arranged to face slightly toward the right and placed in front of a dark background. The phrase "Sit for the Cure" was digitally added to the top of the image. Plaintiff copyrighted his image. Defendant Edison ultimately refused to use Plaintiff's image because of the cost of the licensing fee. In 2007 Plaintiff discovered that Defendants had started an advertising campaign, which included a website at www.sitforthecure.com, which featured a picture that was strikingly similar to Plaintiff's image.

Plaintiff has filed suit against the Defendants in federal court in Texas, alleging copyright infringement, constructive trust, implied contract, conversion, fraud, and unfair competition. Plaintiff has asked the Court to order the Defendants to provide a full accounting of all profits and to award damages. Plaintiff has also asked that the Defendants be enjoined from using any material that infringes upon his copyright. Additionally, Plaintiff requested an award of attorneys' fees and costs. Dozier Internet Law Cross-Reference Number 1041.

DYNAMIC SPORTS NUTRITION, INC. v. ELITE FITNESS, INC., ET AL. SOUTHERN DISTRICT OF TEXAS (HOUSTON) 4:08-CV-00496

The e-book dilemma continues. Businesses have to be very careful and monitor the web for situations in which content has been taken for resale purposes and, as is often the case, for SEO purposes.

Plaintiff is the creator of several copyrighted works, including a work titled Anabolic Steroids Ultimate Research Guide. Plaintiff has also created profiles and product descriptions that are displayed on its Internet websites. Plaintiff alleges that Defendant, who operates a fitness website, has taken portions of Plaintiff's work and incorporated them into a book titled Anabolic Gameplan, which is offered for sale and instant download at Defendant's website.

Plaintiff has filed suit against Defendant in federal court in Texas. Plaintiff has alleged copyright infringement and seeks statutory damages of $150,000 per willful infringement and $30,000 per non-willful infringement. Plaintiff has demanded an accounting for Defendant's unlawfully received profit. Plaintiff has also asked the Court to award a preliminary injunction against Defendant to prevent the continued sale of the infringing work and has asked for the destruction of the infringing material. Finally, Plaintiff has asked the Court to award it attorneys' fees and costs. Dozier Internet Law Cross-Reference Number 1035.

GOOD SPORTS, INC. v. MID FLORIDA SPORTS WEAR, INC. and JOHN A. KOBERG DISTRICT OF CONNECTICUT (NEW HAVEN) 3:08-CV-00219

Here is the rule of thumb...don't use any image, text descriptions or the like without either being the creator or having a license from the creator.

Plaintiff Good Sports, Inc., a Connecticut corporation, manufactures, distributes, and sells a variety of apparel items that contain unique artwork. Plaintiff has multiple federal copyright registrations in the artwork appearing on its apparel, including the artwork titled "Assassin." Defendants Mid Florida Sports Wear Inc., a Florida business, and John A. Koberg, a Florida resident, sell a variety of souvenir printed and embroidered shirts and related items over the Internet. In January 2008, Defendants began to offer for sale items bearing Plaintiff's copyrighted artwork.

Plaintiff has filed suit against Defendants in federal court in Connecticut claiming copyright infringement, unfair competition, and unauthorized use of trade dress. Plaintiff alleges that the Defendants have, with full knowledge of Plaintiff's rights, willfully infringed on Plaintiff's copyright by selling products on which Plaintiff's artwork appears. Plaintiff also alleges that Defendants' actions create a likelihood of confusion among the public and that Defendants' use of Plaintiff's artwork constitutes unfair competition and unauthorized use of trade dress. Plaintiff seeks an order enjoining the Defendants from infringing on Plaintiff's copyrights and requiring that Defendants destroy all of Defendants' products that use Plaintiff's copyrighted material or trade dress. Plaintiff also seeks actual damages, statutory damages, costs and attorneys' fees. Dozier Internet Law Cross-Reference Number 1031.

ANDREW PAUL LEONARD v. STEMTECH HEALTH SCIENCES, INC., ET AL. DISTRICT OF DELAWARE 1:08-CV-00067

Unusual to see a lawsuit filed over an image or two...usually this type of thing is resolved through negotiations with damages based upon a multiple of implied license fees. Don't exceed the scope of a license, pay for the license in full, and make sure you have rights to all images on your website, either as an owner or licensee.

Plaintiff Leonard, a resident of New York, is in the business of microscopic photography. In 2001, he created two images of copyrightable work, which he registered in 2007. Defendant Stemtech, a Delaware corporation, licensed one of the images from the Plaintiff for use in a publication for a period of one year. Plaintiff alleges that the Defendant, however, did not fully pay for the use of the one image and also displayed both images on various websites without permission.

Plaintiff has filed suit in federal court in Delaware, claiming copyright infringement. The Plaintiff alleges that the Defendant willfully infringed on Plaintiff's copyright. The Plaintiff is seeking an order enjoining the Defendant from infringing on Plaintiff's copyright, as well as awarding damages, attorneys' fees, and costs. Dozier Internet Law Cross-Reference Number 1023.

WARNER BROS. ENTERTAINMENT INC. ET AL V. ASHWORTH DISTRICT OF UTAH, CENTRAL DIVISION 2:08-CV-00083

Be careful about what you, as an affiliate marketer, are selling and make sure it is not illegal. If you have an affiliate program, take a look at the use by this affiliate of trademarks of the plaintiff. Liability for such affiliate advertising misconduct can be imputed to the merchant under certain circumstances. In other words, affiliate programs require due diligence, performance standards, auditing and enforcement.

Plaintiff owns the copyright and/or exclusive production and distribution rights to many popular films and television programs. Plaintiff alleges that Defendant is the operator of the website www.MovieAdvanced.org which solicits Internet users interested in downloading films and television programs and, pursuant to an "affiliate agreement," delivers those customers to a similarly named website www.MovieAdvanced.com where tools allowing customers to download films were sold. Plaintiff alleges that Defendant was paid a referral fee for all of the customers that were directed to www.MovieAdvanced.com from its website.

Plaintiff filed suit against Defendant, a Utah resident, in federal court in Utah. Plaintiff previously sued parties involved with www.MovieAdvanced.com including Defendant in federal court in New York which resulted in a settlement wherein www.MovieAdvance.com was shut down and disgorged of $300,000 in profits to Plaintiff. However, Defendant alleged that the New York court did not have jurisdiction over Defendant. Therefore, Plaintiff filed suit against Defendant in Utah alleging that Plaintiff violated the federal Copyright Act as a contributory infringer and federal trademark law by using Plaintiff's marks in its advertisements and engaged in civil conspiracy in violation of Utah common law through its affiliate with www.MovieAdvanced.com which encouraged and provided customers with the tools to commit film piracy. Plaintiff's suit seeks to disgorge Plaintiff of its profits, damages, costs and attorneys fees. Dozier Internet Law Cross-Reference Number 1007.

CITADEL INVESTMENT GROUP, LLC V. YANG ET AL NOTHERN DISTRICT OF ILLINIOS, EASTERN DIVISION 1:08-CV-00584

This type of "cloning" is really screen scraping in all likelihood. Probably took the culprits a couple of minutes to do this. Your business should be proactively monitoring the web to identify if, and more likely when, this happens to one of your online properties. There are remedies, by the way, that are very effective without litigation in most cases.

Plaintiff is an investment company founded in 1990 that has grown into one of the world's largest alternative investment institutions, manages over $17 billion in investment capital, and has offices in New York, Chicago, San Francisco, London, Bermuda, Hong Kong and Tokyo. Plaintiff's website is www.citadelgroup.com. Plaintiff alleges that Defendants operate a Chinese-based website, www.citadel-group.net, which cloned a former version of Plaintiff's website, and which seeks to conduct business by passing itself off as Plaintiff. Plaintiff alleges that Defendants' operation of the website, which includes the email addresses of persons who appear to be associated with Plaintiff, poses great risks of theft of confidential information from its consumers, potential consumers, employees and potential employees.

Plaintiff filed suit in federal court in Illinois alleging that Defendants are violating the federal Lanham Trademark Act by using Plaintiff's federally registered trademark on their website which is likely to cause confusion or mistake; engaging in unfair competition in violation of federal and state law; and cybersquatting by using a domain name that is substantially similar to Plaintiff's domain name and incorporates Plaintiff's trademarks. Plaintiff seeks an order preventing Defendants from using its trademarks, transfer of the domain name "citadel-group.net" to Plaintiff, damages, costs and attorneys' fees. Dozier Internet Law Cross-Reference Number 1012.

GALLAGHER V. CRYSTAL BAY CASINO, LLC ET AL DISTRICT OF NEVADA (RENO) 3:08-CV-00055

I guess this puts a whole new perspective on having a pie in the face (for you Gallagher fans out there). The lesson is to make sure you have the license rights or ownership to everything you use on your site. Don't give your web developer the leeway to get the right licenses...and if I was a betting man, I would lay odds that the Casino either did not know this was on its site or believed it had a license to use it.

Plaintiff is in the entertainment business and makes his living as a singer, songwriter, comedian, and promoter. Defendants operate the Crystal Bay Casino. Plaintiff alleges that he created a song for use in advertising and promoting the casino. Plaintiff allowed Defendants to listen to the song but did not authorize them to use the song without the agreed-upon payment. Plaintiff alleges that the Defendants are currently using his song on their website, www.crystalbaycasino.com.

Plaintiff has filed a federal lawsuit against the Defendants in Nevada. He alleges copyright infringement, misappropriation, breach of contract, and breach of the implied covenant of good faith and dealing. For damages and costs, Plaintiff has requested Defendants' profits, punitive damages, and attorneys' fees. Dozier Internet Law Cross-Reference Number 1013

MERCANTILE COMMERCIAL CAPITAL, LLC V. MIDWEST CAPITAL CORPORATION MIDDLE DISTRICT OF FLORIDA (ORLANDO) 6:08-CV-00101

Competition stealing content is a very common problem. Make sure your content providers, web developers and web people know not to do this. There is still a dangerous belief out there held by some web developers that if it is on the web it can be taken and used. Be very wary if a competitor starts complaining. This content could likely have been forced down without suit, so this looks like a pure battle of competitors, and it�s going to get expensive.

Plaintiff is a licensed mortgage lender operating in the state of Florida since 2002. It is a leading provider of commercial loans under the Small Business Administration 504 loan program. In 2003, Plaintiff's co-founder and CEO created a work entitled "Twelve Reasons a 504 Loan is Best for Your Business" and filed an application for copyright registration. This work has been integrated into Plaintiff's website at www.504experts.com. Defendant is a direct competitor of Plaintiff. According to the Plaintiff, Defendant has copied portions of Plaintiff's website and is displaying that material on Defendant's website at www.midwestcapitalcorp.com.

Plaintiff has filed a federal lawsuit against Defendant in Florida alleging willful copyright infringement. Plaintiff has asked the Court to permanently enjoin Defendant from infringing Plaintiff's copyrighted work. Plaintiff has also requested damages, attorneys' fees and the return of any copies of the Plaintiff's copyrighted works in the Defendant's possession. Dozier Internet Law Cross-Reference Number 1016

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