Cindy Foss and Hunter Foss Design & Interest filed suit against Eastern States Exposition, accusing Eastern States of creating marketing videos that prominently feature Foss’ copyrighted artworks. She says that her artwork, which was a part of a fairground exhibition at western Massachusetts’ “Big E” exposition in 2017, were used by Eastern States in an advertising campaign, without her permission and without attributing the works to her. The work in question was a recreation of the refectory in St. Joseph’s Abbey that served as a private tasting room for Spencer Brewery’s trappiest ales, which are brewed in association with the Abbey. Foss asserts that Eastern States created a promotional video that featured her work for more than eight minutes and that asserted that the work was the creation not of Foss but of Spencer Brewery.
Foss already brought three different suits related to these allegations, all in 2018 and all naming Spencer Brewery and/or St. Joseph’s Abbey as defendants along with Eastern States. She asserts that those suits do not bar this new filing because (a) none of the rationales under which dismissal was obtained in the prior lawsuits were on the merits; (b) the present claims involve copyrighted works that were not implicated in the prior cases; and (c) the present claims involve conduct that occurred after dismissal of those cases, namely Foss’ formal assertion of her right to claim authorship and Eastern States’ continued airing of the commercial containing the subject works. Foss’ assertion of on-going infringement appears to be based on Eastern State’s refusal to confirm that it is no longer airing or otherwise using the video, as opposed to actual knowledge of on-going publication.