Lickerish, Ltd. V. Uncoached Corp. (D. Mass. 20-cv-11505).

Lickerish is a London-based photo syndication company, and is the exclusive licensee of photographer Dimitry Loiseau.  Lickerish says that Uncoached, which does business as “TVOvermind.com,” has displayed one of Loiseau’s photographs without license.  TVOvermind is a pop culture site that publishes articles on television shows, movies, comics and the like, and features articles like “10 Things You Didn’t Know About [insert celebrity name here].”  A portion of the photograph alleged to have been wrongfully used, a fashion photo of actress Emmanuelle Vaugier, appears at the top of an article entitled “Whatever Happened to Emmanuelle Vaugier?” that was published in July 2018.  I note that the article can still be accessed, but a different photograph of Vaugier now appears at the top.  Lickerish asserts that TVOvermind’s infringement was willful because TVOvermind is a “serial infringer responsible for infringement on a massive scale.”  The complaint does not make any factual allegations regarding the actual asserted photograph, however, in making the willfulness claim.  Judge Stearns has the case.

Reiffer v. Haywood Kristiansen Group et al. (D. Mass. 20-cv-11471).

UK photographer Paul Reiffer accuses real estate agency Haywood Kristiansen Group and HKG co-founder Brian Haywood for using one of Reiffer’s photographs of the Boston skyline on HKG’s website without authorization.  In addition to copyright infringement, Reiffer asserts counts under 17 U.S.C. § 1202(a) and (b) for wrongful removal of Reiffer’s copyright notice and watermark and for HKG having its own copyright notice at the bottom of the page on which the photograph appears, suggesting that HKG was the copyright holder of the photograph.

LEGO A/S et al. v. OYO Toys, Inc. et al. (D. Ct/D. Mass. 19-01610).

Connecticut Federal Judge Bolden granted OYO Toys’ motion to transfer venue to Massachusetts.  LEGO sued OYO in Connecticut Federal Court, accusing it of copyright and trademark infringement, false designation of origin and violation of the Connecticut Unfair Trade Practices Act in connection with LEGO’s Minifigure characters.  OYO moved to dismiss for lack of personal jurisdiction or in the alternative to transfer.  Connecticut has a statute under which foreign corporations that do business in the state (which OYO does) without first obtaining a certificate of authenticity (which OYO lacks) “shall be subject to suit in this state by a resident of this state…”  The Court found that this did not apply, however, because neither of plaintiffs LEGO A/S or LEGO Juris A/S. private companies located in Denmark, are “residents” of Connecticut who could take advantage of the statute, and the two cannot “bootstrap” themselves into being able to invoke the statute by way of the residency of third plaintiff LEGO Systems, Inc.’s Connecticut place of business.  The Court further determined that OYO is not “conducting business” in Connecticut merely by selling figurines to national distributors who then bring them into Connecticut.  Similarly, OYO’s sales of figurines through its website falls below the “conducting business” standard of the statute because the sales were a very minor part of OYO’s overall sales and were not targeted specifically to Connecticut.  Rather than definitively find that Connecticut lacks personal jurisdiction over OYO, however, the Court instead opted to transfer the case to OYO’s home state of Massachusetts, and both personal jurisdiction and venue were certain to exist.  While the Plaintiffs’ choice of forum is normally granted considerable weight, where the claims are nationwide, and the owners of the copyrights and trademarks at issue are non-residents of the chosen forum, that weight is not controlling.  LEGO identified no Connecticut-based witnesses, while OYO identified both party and non-party witnesses located in Massachusetts, leading to the transfer.

Affordable Aerial Photography, Inc. v. Gorman Associates LLC d/b/a Golfliferealestate.com (D. Mass. 20-cv-11405).

Affordable Aerial Photography (“AAP”) provides high-end real estate photography services to brokers in South Florida, including photographs of real estate that abuts or is located on golf courses.  Golfliferealestate provides services to connect buyers with real estate opportunities in golfing communities.  AAP asserts that Golfliferealestate took one of its photographs, removed he copyright information from the photograph, and reproduced it on Golfliferealsestate’s website.  AAP asserts copyright infringement and removal of copyright management information, and seeks damages, injunctive relief, and attorney’s fees.  The case is before Judge Burroughs. 

Fitzpatrick v. Kulesh et al. (D. Me. 20-cv-00247).

Brad Timothy Fitzpatrick, who does business as “207 Threads,” sells printed t-shirts and stickers bearing original designs.  He obtained a copyright registration on a recent design of a skull wearing a gas mask, surrounded by “Essential Worker COVID-19 2020.  He accuses Victoryia Kulesh, who does business through an Amazon storefront known as “Tuopedia,” and Katsiaryna Dulevich, who operates the storefront “Katyalike,” of selling stickers that infringe this design.  He asserts that Kulesh and Dulevich, who are each alleged to reside in Minsk, Belarus, consented to personal jurisdiction in Maine, although he does not indicate how.  Fitzpatrick claims the accused stickers are either direct copies or derivative works that infringe, and seeks monetary and injunctive relief.  Judge Woodcock has been assigned the case.

RS Means Company, LLC et al. v. SED Associates, Inc. et al. (D. Mass. 20-cv-10993).

Judge Casper granted RS Means’ motion for a preliminary injunction.  She noted that RS Means had purchased copies of its construction cost estimation books that were sold by Defendant Aaron Richardson of SED.  Judge Casper had previously entered a temporary retraining order prohibiting sales of the book by Defendants.  She reasoned that RS Means had demonstrated a likelihood of success on the merits of both the copyright and trademark allegations that supported the preliminary injunction.

Argov v. Simon & Schuster, Inc. et al (D. Mass. 20-cv-11284).

Author Sherry Argov asserts that she had an agreement with the predecessor of Simon & Schuster Digital Sales to publish and sell digital paperback hard-copies of her book Why Men Love Bitches.  The agreement required the payment of royalties on a per-copy basis.  The book was successful, selling more than 2 million copies between 2002 and Simon & Schuster’s 2016 acquisition of the company that had initially published the book.  Argov says that this agreement was violated by Simon & Schuster’s inclusion of the book in its sBook and eLending subscription programs and other all-inclusive bulk marketing platforms, which is expressly prohibited by the agreement and with no royalties paid to Argov.  Argov says that she waived an advanced payment in return for the clause prohibiting the inclusion of the book in bulk subscriptions.  She further asserts that some of the subscription s permit the downloading of her book without t the digital rights management information, allowing the book to be copied and further distributed due to the lack of encryption security.  Argov says that Simon & Schuster refused to withdraw the book from these subscription services and refused to provide an accounting of the number of views or downloads occurred through the subscription services.  Argov asserts copyright infringement, breach of contract and of the implied covenant of good faith and fair dealing, and violation of 93A.  She further seeks a declaration that the agreement with Simon & Schuster is terminated as a result of the breaches of the agreement.  Judge O’Toole has the case.

FH Cann & Associates, Inc. v. McKinney (D. Mass. 20-cv-11180).

Debt collection company FH Cann filed an additional lawsuit in which a debtor, Carlos McKinney, has claimed copyright infringement for Cann’s use of his name in its collection efforts.  McKinney filed a notice of dispute that demanded a number of things from Cann that the complaint contends are not required by law, such as additional documentation and verification under oath that the claims are valid.  This demand included language stating that Cann’s failure to provide the demanded information within 30 days would result in a waiver of Cann’s right to collect the debt, which Cann contends is not valid.  The demand includes a statement that McKinney declares “under penalty of perjury without the United States that the above statements are the truth…” (emphasis added).  Finally, the demand included an invoice for $500,000 for the alleged breach of McKinney’s common law copyright in his name., and to authorize McKinney to file a UCC-1 Financing Statement asserting a lien for that amount on Cann’s assets.  This document purported to be notarized in Georgia, but Cann asserts that the alleged notary is not licensed in Georgia and that the notarization is fraudulent.  Cann seeks declaratory and injunctive relief as well as damages for tortious interference with business relations.

While it seems unlikely for two such claims to arise in such a short period of time, Cann asserts that the documents provided by McKinney evidence a “number of fraudulent theories circulating on the internet and by various militia and ‘sovereign nation’ groups” to avoid debt collection and defraud creditors.  This case is before Judge Saylor.

FH Cann & Associates, Inc. et al. v. Moorman (D. Mass. 20-cv-11251).

FH Cann, a debt collection company, sought to collect defendant and North Carolina resident Troy Moorman’s past due student loan debt.  In response, Moorman mailed a packet of documents to FH Cann that included an affidavit claiming that he had a “common law copyright” and had trademarked his name and another purporting to establish a security interest in all of FH Cann’s assets, which FH Cann says included a forged signature on behalf of FH Cann.  Moorman subsequently sent an invoice to FH Cann seeking $500,000 for Cann’s use of Moorman’s name.  He then filed a UCC-1 statement with the Secretary of the Commonwealth, purporting to place a $500,000 lien on the home of co-plaintiffs Sherri and Frank Cann, owners of FH Cann.  Cann seeks declaratory judgment that Moorman has no copyright or trademark rights in his name, that the purported contract, lien and UCC statement are not valid, injunctive relief preventing continuations of Moorman’s behavior, a decree granting the Cann’s quiet title in the house on which Moorman purports to have a lien, and actual and punitive damages resulting from the lien under a conversion or trespass to chattel theory.  Judge Woodlock has the pleasure of unwinding this case.

Foss v. Marvic, Inc. d/b/a Brady-Built Sunrooms et al. (D. Mass. 20-cv-4057).

Graphic designer Cynthia Foss, acting pro se, accuses Marvic of using a twenty-page brochure prepared by Foss in a scope beyond that contemplated by her (unwritten) agreement with Marvic and in violation of her copyright in the brochure.  Foss first brought suit in 2018, asserting copyright infringement, breach of contract, tortious interference with advantageous business relations, conversion, unfair and deceptive business practices, fraud, and breach of fiduciary duty.  The copyright claim was dismissed following the Supreme Court’s Fourth Estate decision because the Copyright Office had not yet acted on Foss’ application for registration, and Marvic was granted summary judgment on the remaining claims, in part because Foss failed to respond to Marvic’s requests for admissions, resulting in the admissions being deemed true.  Foss appealed the dismissal of the copyright count, believing that Fourth Estate allows for a stay of litigation pending a decision from the Copyright Office rather than dismissal, and the appeal remains pending.  Foss asserts that Marvic refused to agree to a tolling of the statute of limitations on her copyright claim while the appeal was pending, forcing her to file the new complaint to preserve her rights.  Judge Hillman, who presided over the previous case, has been assigned to this matter.