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“Salacious” Content Doesn’t Bar Discovery in Copyright Infringement Suit

The US Court of Appeals for the District of Columbia Circuit preserved discovery options for copyright owners fighting online piracy when it reversed the district court’s refusal to allow a subpoena of an alleged online infringer’s internet service provider. The DC Circuit found that the district court abused its discretion by relying heavily on the copyright owner’s litigation history and the nature of its films rather than the relevant legal standards under the Federal Rules of Civil Procedure. Strike 3 Holdings, LLC v. John Doe, Subscriber Assigned IP Address 73.180.154.14 (DC Cir. July 14, 2020) (Rao, J.). Strike 3 is a producer and online distributor of adult films. Like most of its industry peers, the company faces significant online piracy that is often facilitated by peer-to-peer file sharing. To combat this infringement, Strike 3 regularly files copyright infringement lawsuits against “John Doe” defendants based on the internet protocol (IP) address...

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Fifth Circuit Drills Down to Details in Drilling Database Disagreement

In a wide ranging opinion, the US Court of Appeals for the Fifth Circuit held that copying unimportant database schema from a proprietary database did not constitute infringement. The Court also held that where the technological measure that the defendant allegedly circumvented did not effectively control access to the work, there was no Digital Millennium Copyright Act (DMCA) violation. Moreover, the Court found error in not treating the defendant as the sole prevailing party on the copyright and DMCA claims for purposes of attorneys’ fees, notwithstanding plaintiff’s success on other claims. Digital Drilling Data Systems, LLC v. Petrolink Services, Inc., Case No. 19-20116 (5th Cir. July 2, 2020) (Duncan, J.). Digital Drilling Data Systems (Digidrill) provides software used in oil drilling operations. Digidrill’s software collects data from underground sensors in order to help above-ground operators steer the drill. Digidrill’s systems compile the data into...

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More Than a Feeling: No Fees for Frivolous Claim Where “Perceived Wrongs Were Deeply Felt”

Addressing the appropriateness of the district court’s decision to deny attorneys’ fees relating to a copyright claim it labeled “frivolous,” the US Court of Appeals for the Seventh Circuit affirmed the denial, despite the strong presumption in favor of awarding fees. Timothy B. O’Brien LLC v. Knott, Case No. 19-2138 (7th Cir. June 17, 2020) (Flaum, J). Apple Wellness owns and operates a small chain of vitamin stores in the Madison, Wisconsin, area. David Knott was hired as an employee of Apple Wellness in 2013 and was fired in 2017. Upon his termination, Knott founded a competing vitamin shop, Embrace Wellness, which allegedly shared several design features and a similar layout, and stocked similar products to those of Apple Wellness’s stores. Apple Wellness sued Knott and Embrace Wellness, alleging trademark, trade dress and copyright infringement. Apple Wellness moved for a preliminary injunction on only the trademark and trade dress claims, which was...

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Advertising Falls within Commercial Activity Exception to Sovereign Immunity

The US Court of Appeals for the Second Circuit affirmed a district court’s denial of a motion to dismiss a copyright infringement suit on the ground of sovereign immunity, holding that advertising activity in the United States on behalf of a sovereign government falls within the commercial activity exception to sovereign immunity. Pablo Star Ltd. v. Welsh Gov’t, Case No. 19-1262 (2d Cir. June 8, 2020) (Lynch, J.). Pablo Star is a company registered under the laws of Ireland and the United Kingdom. The Welsh government is a political subdivision of the United Kingdom. Pablo Star sued the Welsh government, along with multiple New-York-based media companies working with the Welsh government, for copyright infringement. Pablo Star alleged infringement of its copyrights in photographs that the Welsh government used in online and printed materials advertising Welsh-themed events in New York and promoting tourism to Wales. The Welsh government moved to dismiss,...

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Copyright Office, Not Courts, Determines Validity of Registrations Containing Inaccurate Information

With the validity of a copyright registration at issue, the US Court of Appeals for the Ninth Circuit reversed and remanded a district court’s judgment after a jury trial and award of attorney’s fees in favor of the plaintiff in a copyright infringement action, holding that the district court was required to request the Register of Copyrights to advise whether inaccurate information, if known, would have caused the Register to refuse registration of the plaintiff’s asserted copyright. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., (9th Cir. May 29, 2020) (Bea, J.). The appeal to the Ninth Circuit arose from a copyright infringement action brought by Unicolors, a company that creates designs for use on textiles and garments, against the global fast-fashion retail giant, H&M Hennes & Mauritz (H&M). After a jury found substantial similarity between a design created by Unicolors in 2011 and a design printed on a skirt and jacket sold by...

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Prayer for Declaratory Relief Invokes Copyright Act and Available Attorneys’ Fees

Vacating the district court’s order denying a defendant’s recovery of attorneys’ fees under the Copyright Act, the US Court of Appeals for the Ninth Circuit held that, even when asserted as a claim for declaratory relief, any action that turns on the existence and potential infringement of a valid copyright invokes the Copyright Act and therefore gives the district court discretion to award reasonable attorneys’ fees pursuant to § 505 of the Copyright Act. Doc’s Dream, LLC v. Dolores Press, Inc. and Melissa Scott, Case No. 18-56073 (9th Cir. May 6, 2020) (Callahan, J.). In a long-running and multi-action dispute between Doc’s Dream and Dolores Press over the ownership rights and usage of video-recorded sermons created by the late religious leader Dr. Eugene Scott, the Ninth Circuit affirmed a district court grant of summary judgment in favor of Dolores in response to Doc’s Dream’s petition for a declaratory judgment on grounds that Dr. Scott abandoned his...

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Chalk One Up to the Knock-Off

Addressing issues of design patent infringement, copyright infringement, trade dress infringement and unfair competition, the US Court of Appeals for the Federal Circuit affirmed a district court’s grant of summary judgment on all claims. Lanard Toys Limited v. Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc., Case No. 2019-1781 (Fed. Cir. May 14, 2020) (Lourie, J.). Lanard makes and sells a toy chalk holder designed to look like a pencil, and owns a design patent and copyright on its design. In 2011, Lanard began selling its chalk holder to Dolgencorp, a national distributor, and Toys “R” Us. In 2012, Ja-Ru admittedly used Lanard’s design as a reference in designing its own toy chalk holder. A year later, Dolgencorp and Toys “R” Us stopped purchasing the Lanard product and started purchasing and selling the Ja-Ru product. In 2014, Lanard sued Ja-Ru, Dolgencorp and Toys “R” Us for design patent infringement, copyright infringement, trade dress...

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Copyright Damages Limited to Three Years Before Lawsuit Filing

Addressing a myriad of issues relating to copyright law, the US Court of Appeals for the Second Circuit found that the discovery rule applies for statute of limitations purposes in determining when copyright claims accrue, but damages are limited to three years before filing of the lawsuit. Sohm v. Scholastic Inc., Case Nos. 10-2110, -2445 (2d Cir. May 12, 2020) (Sullivan, J.). Joseph Sohm is professional photographer. Scholastic is a publisher and distributor of children’s books. Sohm entered into agreements with various agencies that in turn issued limited licenses to Scholastic to use Sohm’s photographs. One of the agencies, Corbis, also entered into a preferred vendor agreement with Scholastic that established fees for certain print-run ranges of Sohm’s photographs. Sohm also participated in Corbis’s copyright registration program, under which Sohm temporarily assigned his copyrights to Corbis for registration purposes, with the understanding that Corbis...

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What’s the Deal with Comedians?: Too Late for Copyright Claim against Seinfeld

In a non-precedential ruling by summary order, the US Court of Appeals for the Second Circuit affirmed the dismissal of a copyright infringement lawsuit filed against famed comedian Jerry Seinfeld, finding that the defendant’s claims, which accrued in 2012, were time-barred. Christian Charles v. Jerry Seinfeld, et al., Case No. 19-3335 (2d Cir. May 7, 2020) (Summary Order). In 2011, Christian Charles and his production company helped develop the pilot episode of Seinfeld’s television series Comedians in Cars Getting Coffee. In early 2012, Charles requested backend compensation from Seinfeld, alleging authorship and ownership in the show. Seinfeld immediately rejected his request, asserting that Charles’s work as a producer and director on the pilot was limited to a work-for-hire basis. When the show premiered in July 2012, Charles was not credited. More than six years later, Charles sued Seinfeld for copyright infringement based on his claimed authorship in...

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For Your Information, Eighth Circuit Upholds Copyright Protection for Database Compilation

The US Court of Appeals for the Eighth Circuit addressed the copyright protection afforded to an information database and whether comments made to a reporter while litigation was ongoing violated the disparagement clause in a separation agreement. Ultimately, the Court affirmed a judgment against the defendant for copyright infringement and against its founder for breach of contract. In doing so, the Court upheld the findings that plaintiff’s database copyright was valid, even though it was only entitled to a narrow scope of protection, and that the defendant’s founder’s comments to a reporter violated his contract with the plaintiff. Infogroup, Inc. v. DatabaseUSA.com LLC, Case No. 18-3723 (8th Cir. Apr. 27, 2020) (Benton, J.). Both Infogroup and DatabaseUSA compile business information into databases. Infogroup founder Vinod Gupta left Infogroup in 2008 and later created the competing DatabaseUSA. Gupta’s separation agreement with Infogroup provided him...

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