Judge Saris denied in part and granted in part PaperPop’s motion to dismiss copyright claims relating to three-dimensional pop-up cards. PaperPop contended that the card designs consisted largely of unprotectable elements under the merger and/or scènes à faire doctrines. Judge Saris had previously denied the motion with respect to three card designs; she here rejected these arguments with respect to cards depicting a French flower cart and a bouquet of balloons extending from a decorative box to have ample room for interpretation, and that the accused designs were similar enough to merit trial. She determined that a nativity design was a closer question, as such a design is virtually certain to contain elements such as a manger, a Baby Jesus, Mary, Joseph, the three Wise Men, and livestock in a barn; however, there are many different ways to present these elements, and enough similarities existed in the presentations to survive a 12(b)(6) challenge. Judge Saris granted the motion with respect to a Menorah design, finding all of the similar elements to be substantially dictated by the indispensable elements of a menorah and the remaining elements so dissimilar as to preclude a finding of copying of protectable elements. With respect to several cards depicting willow trees or the like, Judge Saris noted that reproduction of natural phenomena such as a tree can enjoy copyright protection, but that proof of copying is difficult, as the alleged copier may well have drawn inspiration from the natural phenomenon itself rather than the copyrighted work. She determined that these cards presented a close call better resolved by the trier of fact, and denied the motion to dismiss as to these designs. Finally, LovePop challenged six promotional videos depicting PaperPop cards being slowly opened to reveal the pop-up design. PaperPop asserted that the cards being opened were its own, and that the videos differed in lighting, camera angle, etc., so as not to be copies of LovePop’s videos. At oral argument, LovePop shifted its argument to derivation, arguing that the similarity of the cards depicted rendered the PaperPop videos unauthorized derivative works. Judge Saris found that this reframing raised issues not adequately briefed, and denied the motion to dismiss without prejudice.
Texas photographer Alexander Stross sued Ivymedia, alleging that Iveymedia used one of his photographs, “Plenty of Trees,” in its website and advertising for online travel management. He also alleges that Ivymedia knowingly stripped the digital copyright management information from the photograph to conceal its infringement. Stross seeks actual or statutory damages, to be elected, as well as attorney’s fees and injunctive relief.
Juan Pablo Chavez filed suit against American Idol Productions along with a host of other companies and individuals, accusing them of copyright infringement, violating the No Electronic Theft Act of 1997, which permits criminal prosecution of copyright infringement even where the infringer receives no financial benefit, violation of the Family Entertainment and Copyright Act of 2005, trademark infringement, and violation of the Visual Artists Rights Act of 1990 (which provides for moral rights in copyrighted works such as proper attribution). Mr. Chavez also seeks a criminal complaint for willful copyright infringement under the Artist Rights and Theft Prevention Act of 2015. While difficult to discern from the complaint, appears to relate to a violinist, Johnny Arco, who auditioned for American Idol in 2015, although Mr. Chavez’s relation to Johnny Arco is not clear and there appears to be no basis for jurisdiction in Massachusetts. Mr. Chavez, who is representing himself, appears to have filed virtually the same suit against the same defendants in at least Iowa, Tennessee, California, New York, and Georgia, all at roughly the same time and all pro se. The case is before Judge Stearns.
BMI sued Blue Paws, Inc., which owns and runs JJ’s Tavern and the 13th Floor Music Lounge in Florence, MA, for copyright infringement relating to live performances of a number of songs, primarily country songs. BMI alleges to have contacted Blue Paws more than thirty-five times, with no response. BMI seeks injunctive relief, statutory damages and attorney’s fees.
Michigan graphics company Great Dane offers subscription services that provide licenses to an extensive library of original graphic artwork for clothing such as T-shirts. Gosselin, a former employee of one such licensee, is accused of having stolen thousands of copyrighted Great Dane images from his ex-employer and using them to set up a competing screen printing business, Vovo. Gosselin reportedly used the same selection, arrangement and coordination of the images, and even to have used the same product numbers for the images as had Great Dane. In addition to the civil suit, it appears that Gosselin is being investigated by the Braintree police, as a police report is included as an exhibit to the complaint. Great Dane seeks injunctive relief, statutory damages of up to $150,000 per infringement due to the alleged willful nature of the infringement, and attorney’s fees.
Cynthia Foss filed a pro se complaint against Brady-Built for copyright infringement and failure to submit voluntarily to arbitration. Ms. Foss, a photographer and graphic designer, alleges that she was commissioned to create Brady-Built’s catalog in 2006, but that other than the 2006 catalog, she retained the copyright in her work. She asserts the continued use of the work, in catalogs and on-line, exceeds the use contemplated by her contract with Brady-Built and thus is copyright infringement. Ms. Foss further alleges that her contract incorporates certain Articles of the Code of Fair Practice, one of which specifies that commissioned artwork is not to be considered a “work for hire.” She also alleges that the contract includes an arbitration provision, with which Brady-Built refuses to comply. This case will be heard by Judge Hillman.
Premium Sports sued the Somerville Sports Club, as well as its owners and operators, accusing them of improperly intercepting the satellite signal for a soccer match between Sporting CP and Porto of the Primeira Liga, the premier league of Portugal. Premier Sports claims to have had the exclusive rights to the U.S. distribution of the game. Aside from copyright infringement claims, Premier Sports asserts violation of 47 U.S.C. 605 (a), which prohibits the unauthorized reception and broadcast of foreign communications, and 47 U.S.C. 553, which prohibits the unauthorized reception, interception and exhibition of communications offered over a cable system, The case is assigned to Judge Woodlock.