Adler v. Her Campus Media, LLC (19-cv-10087).

Judge Saylor denied Her Campus Media’s motion to dismiss or, in the alternative, for summary judgment, finding it premature to determine whether the use of Adler’s photograph constituted fair use or that Her Campus Media was shielded by the safe harbor provisions. Judge Saylor noted that the complaint alleges that Her Campus Media, which accepts and posts content from non-employees, utilizes an editorial staff to review proposed publications, including the submission that included the Adler photograph, and that a review of fair use and safe harbor would turn on facts such as the nature of the relationship between the website and its student contributors that preclude a finding at this early stage of the proceeding, much as it did in a different case involving Her Campus Media with a very similar fact pattern. Judge Saylor also denied the motion with respect to Mass. G.L. c. 214, § 3A, which provides a civil cause of action for any person whose name, portrait or picture is used in Massachusetts for advertising or trade without their consent. Her Campus Media asserted that, because the subject of the photographs had an independent right to their likenesses that Adler had not secured, an award of money damages to Adler would not be proper. Judge Saylor found this to be legally incorrect, because (a) Her Campus Media lacked the right to enforce the subjects’ rights under the Massachusetts law; (b) court-awarded monetary damages for copyright infringement would not qualify as a “use for advertising purposes or for the purposes of trade” within the meaning of the Massachusetts law; and (c) to the extent the Massachusetts law did somehow prevent an award for copyright infringement, it would likely be preempted by copyright law.

Emrit v. Universal Music Group et al. (19-cv-30147).

In a case before Judge Mastroianni, Ronald Satish Emrit filed a pro se complaint against rapper Rick Ross, his record label Def Jam Group, Universal Music Group (which owns Def Jam), and the estate of Shakir Stewart, the A&R agent who signed Ross to Def Jam, accusing them of copyright infringement in connection with Ross’ song “Billionaire.” Emrit, performs as “Satish Dat Beast,” asserts that the Ross song utilizes the same backing track as his song “Dilemma.” Emrit says that “Dilemma” was distributed by Tunecore and Ditto Music, music distribution services that assist independent artists in selling their music through on-line retailers like iTunes, Tik Tok, Amazon Music and the like. “Billionaire” was released in 2008; the complaint does not allege dates on which “Dilemma” was recorded or released. In addition to the copyright claim, Emrit brings counts for conversion, which seems unlikely as the complaint does not allege that anything physical was taken, and tortious interference with business relations and with contracts, which also seem questionable as no particular business relations or contracts are identified as having been impaired. Further, it is entirely unclear why the complaint was filed in Massachusetts or why personal jurisdiction exists over the defendants – Emrit suggests that he might move to Massachusetts in the near future, but currently resides in Florida, and none of the defendants are alleged to reside in this state.  In addition to damages, Emrit seeks an order mandating that Def Jam and/or Universal sign him to a recording deal.

Emrit is well-known to the federal court system – one federal judge stated that “other courts have taken note of Plaintiff’s extensive and abusive litigation practices” and noted that Emrit has been deemed a vexatious litigant in multiple district courts. Further, Emrit has already sued the same defendants in the Middle District of Florida, the Central District of California, and the Northern District of Iowa, all within the past month.  I would note, however, that while the complaint does have issues with jurisdiction, lacks an express allegation that “Dilemma” and with the non-copyright counts, the backing tracks of the two songs do strike me as remarkably similar.

Getty Images (US), Inc. v. Her Campus Media, LLC (19-cv-11084).

Judge Sorokin denied Her Campus Media’s motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. Getty asserts that Her Campus Media has republished without authorization hundreds of Getty-owned photographs, and continued to do so after Getty notified Her Campus Media of their infringements. Her Campus Media asserted that it was entitled to the safe harbor provision of the Digital Millennium Copyright Act, and that its use of Getty-owned photographs constituted fair use under the copyright laws. Judge Sorokin denied dismissal because Getty, in its complaint, did not admit to all of the components of the safe harbor defense that would permit dismissal on the pleadings, and because the facts as alleged in the complaint were insufficient to analyze the fair use issue. Her Campus Media submitted affidavits in support of summary judgment, but failed to include a statement of material facts as required by Local Rule 56.1, which alone is sufficient to deny the motion. Judge Sorokin further noted, however, that much of the information necessary to evaluate the affirmative defenses on which the motion was based (for example, the relationship between Her Campus Media and its student contributors) was entirely within the control of Her Campus Media but were either absent from the record or disputed by the parties and would require. He therefore denied summary judgment as premature.

Foss v. Spencer Brewery (19-cv-40098).

Cynthia Foss, a graphic designer who has filed a number of pro se copyright suits in Massachusetts, filed suit against Spencer Brewery in July a day after filing a demand for arbitration on the same claims, and subsequently moved to compel arbitration. Judge Hollman denied Foss’ motion, finding her voluntary filing of suits in Federal Court to constitute a waiver of any arbitration rights she might have had. Judge Hillman noted that Foss had filed two civil actions against Spencer Brewery, had litigated for more than a year without seeking to require arbitration, and had had judgment entered against her in both litigations before filing the demand for arbitration – Judge Hillman granted both a motion to dismiss and a motion for judgment on the pleadings after Foss failed to oppose either, apparently thinking that Spencer Brewery still needed to, and failed to, answer the two complaints.

Bassett v. Jensen et al. (18-cv-10576).

Judge Saris denied Bassett’s motion for a preliminary injunction seeking to prevent the release of the accused films. The case was brought by Leah Bassett, a Martha’s Vineyard artist who rented her home to the defendants, who used the home as the setting for pornographic films. Bassett asserted copyright infringement, base don her original artworks in the house being displayed in the films. She filed suit nearly three years after discovering that the defendants were filming at her house, and first sought preliminary injunctive relief nearly eighteen months after filing suit. Judge Saris determined that Bassett could not make the requisite element of irreparable harm. She cited several reasons – Bassett had disavowed claims for actual damages and sought only statutory damages; all of the copyrighted articles were personal belongings not for sale, eliminating many of the categories of irreparable harm (reputational harm, tarnishment, dilution) that might exist for items that were the subject of commerce; the minimal use of the copyrighted material in the films; and Bassett’s delays in filing suit and then seeking the injunction, which undercuts the notion of irreparable harm. Judge Saris further noted that the Defendants had agreed to voluntarily remove all the films and photographs shot in Bassett’s home from distribution, leaving only bootleg copies that an injunction would not address in distribution.

Bravado International Group Merchandising Services, Inc. v. Does et al. (19-cv-12061).

Judge Zobel has been assigned yet another case involving pre-emptive blocking of the sale of bootleg concert merchandise, this time involving an upcoming show by Post Malone. In addition to the POST MALONE trademark, the artist has registrations on POSTY CO, POSTY, POSTY FEST and SHABOINK. Malone is playing the TD Garden later this week, and Bravado (who is licensed to sell Malone merchandise) looks to prevent bootleggers from selling merchandise bearing the Malone marks.

Timmins Software Corporation d/b/a Mitrend v. EMC Corporation d/b/a Dell EMC et al. (19-cv-12053).

Mitrend, a Marlborough company that provides software and services relating to datacenter infrastructure assessment and performance, accuses EMC and Dell of copyright infringement, violation of the Digital Millenium Copyright Act, unjust enrichment, breach of contract, and unfair competition. Mitrend contends that EMC, a wholly-owned Dell subsidiary, began using Mitrend’s analysis service in 2006 under a master services agreement and a number of statements of work, using EMC software for data collection. Mitrend realized that the data collection process could be improved upon, and independently conceived of an automated and accelerated process for data collection that substantially reduced collection times. Mitrend contends that the new software was adopted throughout EMC and became the company’s primary data collection method. Mitrend’s relationship with EMC rapidly grew to several million dollars per year, and EMC did not develop its own competing software. Under the statement of work dealing with this, Mitrend’s software was deemed to remain Mitrend’s property, and all derivative works would belong to Mitrend. Further, a separate software license agreement prohibited reverse engineering of the software by EMC, as well as prohibiting removal of copyright notices. These terms were carried forward in a 2015 agreement between the businesses. In 2017, however, after EMC was acquired by Dell, EMC demanded changes to the license that would include transfer of ownership of the software IP to EMC/Dell. Mitrend refused, and provided notice of termination effective March 2, 2017, although at EMC’s request the parties subsequently agreed to extend the termination date to November 30, 2017. Shortly thereafter, EMC announced the launch of its own competing product. Mitrend contends that EMC sought the extension to develop and deploy its competing software, which it later discovered to be using the same scripts as the Mitrend product, which it alleges EMC copied. The case is assigned to Judge Talwani.