California photographer Jeffery Cross accuses Custom Contracting, a home remodeling business in Arlington, of using one of his photographs, depicting a kitchen sink and shelves, on its website. Cross, who makes no concrete claims of access (merely stating that “[u]pon information and belief, Defendant located the Copyrighted Work on the internet…”) alleges contributory and vicarious infringement as well as direct, apparently seeking to cover circumstances where Custom Contracting obtained the photograph from someone other than Cross. I note that there are also no factual allegations related to actual or constructive knowledge of Cross’ copyright or of any acts that would show inducement or material contribution, or anything to suggest that the infringement was willful, although such is generally alleged. I would also note that the exhibit alleged to show the infringing use includes five web pages, of which two appear to be identical copies from a Bob Villa (of “This Old House” fame) website and the other three appear to be identical pages from Custom Contracting’s website that include a photo credit to indulgy.com (which is no longer active).
This complaint is similar to a rapidly-growing number of copyright cases involving photographs found on the internet. As image recognition software has improved, a business model of combing the web and bringing suit for unlicensed use of copyrighted images has developed, relying in large part on the simple existence of an alleged infringement and the potential for high statutory damages and attorneys fees to drive quick settlements that are often well out of proportion to the actual harms that the use might have caused. A small number of firms account for the vast majority of complaints along these lines, at least in my experience, including one New York lawyer who has filed more than 1100 such copyright suits since being admitted to the bar in 2015. While I have no objection to photographers protecting their rights, and strongly recommend people not download and use photographs from the internet without first confirming their right or license to do so, I hope to see some pushback on these “information and belief” – type of complaints, which do not seem to meet the Twombly/Iqbal requirement that a complaint show plausible factual allegations that, accepted as true, are sufficient to state a claim for relief that is plausible on its face. These complaints in essence assert that the mere existence of an identical (or, in some cases, merely similar) photograph as a copyrighted work are enough to state a claim for infringement, with no analysis of whether the alleged infringer copied the photograph from the copyright holder, obtained it elsewhere, or created it independently.
Judge Casper awarded Sophos $1,404,949.50 in attorneys fees. She had previously granted Sophos summary judgment of invalidity, and had determined that this was an exceptional case meriting an award of reasonable fees. Here, she determined that the hours and rates sought were reasonable, but that some small degree of block billing occurred, meriting a reduction of 10% but not the substantial reduction sought by RPost. She rejected RPost’s argument that the $1.56 million sought was excessive –RPost’s damages demand, together with the amount of discovery, expert discovery and motion practice, framed the potential stakes and demands for legal work, regardless of Sophos’ belief in the viability of the damages demand.
Having previously granted summary judgment in favor of Defendants and having determined that the case was exceptional and that Defendants were entitled to their reasonable attorney’s fees under 25 U.S.C. § 1117(a), Judge Casper ordered Plaintiffs to pay $153,820.35 in fees. Relying on the opinion of lead counsel, a 2013 Massachusetts Lawyers Weekly article on average rates in Boston, and the approval (over no objection) of the rates sought in earlier discovery proceedings between the parties before Magistrate Judge Kelley, Judge Casper approved of rates of $590-$600 for partners, $290-$465 for associates, and $100-$250 for paralegals. She did reduce the total fees sought by 10% due to some block billing that did not divide out time spent on particular tasks, but otherwise rejected Plaintiffs’ objections to the amount sought.
Judge Casper partially granted Neotech’s motion to stay the litigation pending inter partes review. This case, which concerns allegations of infringement of a patent relating to aspiration devices, was filed in California in May 2017. Following the issuance of the TC Heartland decision, Neotech filed a complaint in Delaware, where it believed Sandbox to have been incorporated, and dismissed the California complaint. Upon being informed that Sandbox was, in fact, incorporated in Massachusetts, Neotech amended its Delaware complaint to remove the jurisdictional allegations and moved to transfer the case to Massachusetts, while Sandbox moved to dismiss the case for lack of personal jurisdiction and improper venue, seeking to have the second Delaware complaint deemed a second voluntary dismissal and asking the Court to dismiss the complaint with prejudice pursuant to FRCP 41(a)(1)(B). The Delaware court transferred the case to Massachusetts and left the decision on Sandbox’s motion to dismiss to the Massachusetts court. Sandbox then requested inter partes review of the patent in suit, and Neotech moved to stay the litigation pending the outcome of the IPR. Judge Casper stayed the case in its entirety until the first of May 30, 2019 or the PTAB’s decision on whether to institute the IPR, and indicated that she would accept requests to continue to stay the case if the IPR should proceed. She further denied Sandbox’s motion to dismiss without prejudice, indicating that Sandbox would be free to renew the motion once the stay was removed.
Judge Casper granted Defendants’ renewed motion for attorneys fees, finding the case exceptional under 35 U.S.C. § 1117(a), which allows for the award of fees to the prevailing party in exceptional cases. She had previously granted summary judgment in favor of the Defendants on all issues. Judge Casper, applying the Supreme Court’s 2014 Octane Fitness guidance in the analysis of whether a patent case is “exceptional” pursuant to 35 U.S.C. § 285, found that sanctions had already been imposed on the Plaintiff for their litigation conduct, repeatedly failed to meet court-imposed deadlines, submitted filings that failed to provide sufficient support for their positions, and otherwise engaging in unreasonable conduct. Moreover, she determined that the plaintiffs’ substantive positions following the completion of discovery were weak and that they failed to produce any evidence of damages. Judge Casper found that Defendants need to be compensated for discovery-related motion practice and for prolonging litigation after discovery through summary judgment. She ordered Defendant to submit its request for fees from the denial of their motion to dismiss forward, excluding fees that had already been awarded through discovery sanctions.
Judge Casper granted summary judgment in favor of the Defendants on the trademark infringement, false designation of origin, trademark dilution, unfair competition, and unfair and deceptive trade practices. The case arose over a dispute between a Chinese restaurant chain and a US company seeking to become a franchisee. The two entered an agreement whereby the US entity opened a restaurant using the Chinese companies’ “Little Lamb” trademark. Plaintiffs allege that the Defendants violated this agreement by not opening another restaurant within one year of opening the Boston restaurant, making their use of the mark infringing as unsanctioned. The Court disagreed, and further determined that the attempted rescission of the agreement by the Plaintiffs was not proper under the terms of the agreement. As the agreement authorized the use of the mark, infringement could not be found. In a footnote, Judge Casper also noted that the Plaintiffs had failed to produce any evidence of damages, and that no presumption of damages could be had under the Lanham Act, which would also support a denial of the motion for summary judgment. As the remainder of the claims for which summary judgment was sought relied on a finding of infringement, these claims were also denied. Summary judgment in the Defendants’ favor had already been granted on breach of contract, breach of implied covenant of good faith and fair dealing, fraudulent inducement and unjust enrichment claims, meaning that all of Plaintiffs’ claims have been denied.
Eric Bowers, a Kansas-based photographer, filed copyright infringement charges against JR Language Translation Service and unknown Does 1-10. He says that JR used one of his photographs of a Christmas tree in Crown Center, Kansas City, on its website www.jrlanguage.com in connection with articles on Christmas traditions. In addition to infringement, Bowers asserts violation of the Digital Millennium Copyright Act’s prohibition on removing or altering copyright management information. Judge Casper has been assigned to the case.