Monsarrat v. Zaiger (17-cv-10356).

Jonathan Monsarrat filed suit in March 2017, alleging copyright infringement through Zaiger’s use of a photograph of Monsarrat that had been altered to suggest Monsarrat was a pedophile. The original claim was dismissed (twice)as time barred, as the complaint made clear that Monsarrat knew about the posting of the photograph as early as 2012. The proposed amended complaint sought to add defamation claims resulting from a republishing of the photograph along with a report that Monsarrat had been arrested for serving underage teens alcohol during a party at his apartment. Monsarrat alleged that this posting caused a potential investor in his video game company to withdraw. Unfortunately for Monsarrat, while no charges were ultimately filed, he actually had been arrested for serving alcohol minors, meaning that the statement was true. While a true statement can serve as the basis for a defamation claim if actual malice can be proven, if the maker of the statement subjectively believed the statement to be true, no claim can be had. Here, the story of Monsarrat’s arrest was published in the Boston Globe, providing reason for Zaiger to believe the story (which, of course, was technically true). Because of this, and because the proposed amended pleading did not resolve the statute of limitations issue, Magistrate Judge Bowler recommended that Monsarrat’s motion to amend his pleading be denied as futile. Judge Bowler granted Monsarrat’s motion for judgment on the pleadings and dismissed Zaiger’s counterclaim for misrepresentation of a copyright claim under 17 U.S.C. § 512(f). Zaiger’s counsel had previously withdrawn in light of Zaiger’s non-responsiveness to communications; Zaiger had since failed to show for a hearing or respond to an order to show cause why judgment on the pleadings should not be granted, which demonstrated a disregard of the court and the litigation.

Three Ten Merchandising Services, inc. v. Does 1-100 et al. (18-cv-11605).

Three Ten Merchandising, a concert merchandising company for Beyonce, sued unnamed persons and corporations to preempt sales of counterfeit merchandise bearing any of Beyonce’s registered or pending trademarks – BEYONCE, BEYHIVE, BEYGOOD, #BEYGOOD, and YONCE – at or around Gillette Stadium during her August 5th concert. Three Ten seeks an injunction and an order that U.S. Marshalls and local and state police seize and impound any such merchandise. This preemptive, effectively ex-parte mechanism is permitted under 1984 amendments to the Lanham Act.  Judge Zobel, who has been assigned to the case, seems to be the Massachusetts judge for such matters – she has had a number of similar cases involving artists such as Pink, Coldplay, Katy Perry and Lady Gaga .

Trust Safe Pay, LLC v. Dynamic Diet, LLC et al. (17-cv-10166).

Trust Safe alleges that the defendants misappropriated proprietary information relating to its diet product business and opened a competing company, Dynamic Diet, and that they copied portions of Trust Safe’s website without authorization. Trust Safe’s original complaint was dismissed without prejudice after Magistrate Judge Kelley determined that it failed to meet the Twombly pleading standards, laying out specific deficiencies in the pleadings and allowing Trust Safe the opportunity to amend its complaint. The new complaint again failed to properly plead ownership and pre-registration of a copyright registration as required by Federal copyright law. Instead, Trust Safe again failed to plead that it had submitted a complete application, along with the fees and deposit copy, to the Copyright Office, and failed to plead that it took any action prior to the filing of the lawsuit. While under First Circuit law an application is deemed to meet the preregistration requirement when it is received by the Copyright Office, an incomplete application cannot satisfy the preregistration requirement. Here, not only was the completeness of the deposit pled, the documents attached to the complaint suggested that the deposit was not complete as of the filing of the original complaint. I would note without comment that among the documents submitted there was reference to submitting the copyright applications via Legal Zoom, a dubious proposition where litigation is anticipated. Judge Kelley also found that the complaint failed to allege which elements of the website were actually subject to copyright protection, making it impossible to analyze whether the defendants copied protected material. Given that this was the second failed attempt to properly plead infringement, Judge Kelley dismissed the copyright claim with prejudice. She further dismissed the claims for trade secret misappropriation, fraud, and unfair and deceptive business practices without prejudice, declining to exercise supplemental jurisdiction over the state law claims with the sole federal claim having been dismissed.

Bowers v. JR Language Translation Services, Inc. et al. (18-cv-11588).

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 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.

Premium Sports, Inc. v. Barbosa et al. (18-cv-11502).

Premium Sports claims to have had exclusive rights to the distribution to commercial establishments for public exhibition of the Liga Zon Sagres: Braga vs. Befica soccer match that took place on January 13, 2018 (spoiler alert – Benfica won, 3-1). Premium Sports accuses Nelia Barbosa, the owner of the Ilha Verde Café in New Bedford, of airing the match in the café without a license, using a residential receiving box for commercial purposes. Violations of 47 U.S.C. § 605, which provides for a private cause of action for the unauthorized publication of use of communications, and 47 U.S.C. § 553, which covers the unauthorized interception and exhibition of cable communications, are also alleged. Interestingly, the case was filed by the Lonstein Law Office of Ellenville, NY, who has been accused of seeking out and preying on small businesses for whom DirecTV installers mistakenly set up residential, rather than commercial, accounts; a class action suit has been filed against the firm and DirecTV in California. That case is presently stayed pending DirecTV’s appeal of the denial of its demand that the case go to arbitration. At least one other class action suit has been brought against Lonstein in New Jersey. The case is before Judge Saris.

Sobol v. Canavan et al. (17-cv-12275).

Richard Sobol filed this copyright infringement case in November, alleging that the defendants used a number of his photographs in a documentary concerning Barney Frank and seeking statutory damages. In June, the defendants filed their Answer and Counterclaims, asserting that Sobol made false statements to the Copyright Office in registering nine of the subject photographs just prior to filing suit. Specifically, the defendants allege that Sobol misrepresented that three of the photos had not previously been published, misidentified the date on which two of the photos were taken, and incorrectly identified himself as the photographer on three of the photos. They assert that Sobol’s submission to the Copyright Office did not include direct copies of the 1982 photographs, but instead screenshots from the defendants’ 2015 documentary (noting that three of the submitted photographs even included the pointer from a computer mouse, which would not have existed in 1982, the date the photographs were alleged to have been taken). They further allege that the tenth accused photograph is not the same as the one in the earlier registration Sobol was asserting as the basis for statutory damages. In response, Sobol withdrew his allegations concerning six of the photographs but continued to assert the remaining four. Defendants seek cancellation of the 2017 registration and a declaration that their use of the photographs was fair use under copyright law, and bring counts for violation of M.G.L. 93A and abuse of process. Sobol denies these allegations in his recent Answer to the Counterclaims.

While I don’t know what actually happened here and offer no opinion on the merits of this particular case, I would note that there is a growing trend of copyright cases being filed involving the use of photographs. This trend appears to stem from the increasing sophistication of software in identifying duplicates of an image on-line. Threats of suit follow, with the possibility of high statutory damages and attorneys’ fees used to extract settlements that far outweigh the actual value of the photograph and with no consideration of the nature of the use of the photograph. Often, these threats come through copyright assertion entities or law firms that specialize in this type of work, with no real proof of ownership or rights in the putative plaintiff.

Design Pics, Inc. v. Max Hartshorne d/b/a Travel et al. (18-cv-30103).

Canadian company Design Pics provides stock photographs to registered members. Design Pics obtained the rights to a series of pictures of Chinese food dishes taken by photographer Kyle Rothenborg, which were registered in a bulk registration with other works. The pictures are displayed on Design Pics’ website along with metadata indicating the photographer and the copyright status. Design Pics asserts that displayed the Rothenborg photographs without license. Design Pics claims copyright infringement and violation of the Digital Millennium Copyright Act for the removal of the copyright management metadata.