In an August 24 order, Magistrate Judge Dein recommended partially granting plaintiff’s motion for default judgment of willful copyright infringement because the well-pled factual allegations of the complaint supported summary judgment, and the defendant’s absence, after having answered the complaint and knowing of the allegations, could be construed as acknowledging the truth of the allegations. The case involves a verbal agreement between two inmates to make a documentary film, titled “Word From The Joint,” designed to influence youths to avoid gang life. The agreement provided that the two would work together to make the film, and that the defendant, who was to be released before the plaintiff, would take the plaintiff’s instructions regarding distribution of the film. Once out, the defendant published the film on YouTube without having been told to do so, and then ignored Pope’s request to take it down. Regarding damages, Judge Dein denied the $50,000 award sought and instead recommended statutory damages of $5,000. This recommendation was because, even upon obtaining default judgment, the plaintiff is still required to prove actual damages, and Pope was unable to provide evidence of $50,000 in actual damages. The amount awarded was based on a review of the sales and rental prices that the film had obtained, and the limited number of times the film had been viewed on YouTube. Finally, Judge Dein recommended the Court enter a permanent injunction preventing the defendant from further distributing the film and requiring all steps be taken to remove it from YouTube. (Update – as of August 30, 2017, it no longer appears on YouTube).
Matthew Chatham sued building company Canterbury Ventures, its owner Daniel Lewis, and real estate agent Patricia Bergevine for infringing his copyright in a house design. Mr. Chatham developed a set of custom plans for the design of a house, and has since registered his “architectural work” with the U.S. Copyright Office. He gave Canterbury permission to use the custom plans for the sole purpose of building the house for him on a lot that Canterbury was to purchase. Canterbury did not complete the house by the contracted closing date, and seven months later still had not completed the house. Mr. Chatham and his wife had earlier sued for breach of contract in state court. He filed this copyright case after learning that Canterbury was showing the partially-constructed house through defendant Bergevine, a real estate agent. The Chathams also obtained a lis pendens order, which in Massachusetts is recorded at the registry of deeds and puts prospective buyers on notice of the lawsuit, effectively clouding title on the real estate. Chatham seeks an order preventing sale of the house, that the house be placed in a constructive trust, and monetary damages and attorneys’ fees. (Full disclosure – Mr. Chatham is represented by Nathan Harris and John Anastasi of my firm, Lando & Anastasi LLP).
The Life Is Good Company sued Florida-based Viral Style LLC for trademark infringement, unfair competition, counterfeiting, and passing off. Viral Style operates www.viralstyle.com, which allowing users to design and sell their own t-shirts, hats, mugs and the like. Life Is Good alleges that Viral Style’s users have infringed it incontestable registration to “LIFE IS GOOD” and that Viral Style itself has infringed the mark by making the shirts designed by its users. Life Is Good further contests that Viral Style’s “Intellectual Property Complaint Policy” does not meet the safe harbor requirements of the Digital Millenium Copyright Act (“DCMA”) because it provides no method for screening a design to ensure it does not infringe another’s intellectual property rights and does not bar repeat offenders from the site, and in any event that the DCMA safe harbor provisions apply only to copyright, and not to trademark claims.
Judge Hillman denied Marshall’s motion for attorneys’ fees. The lawsuit involved a dispute over whether the plaintiff should have been named as a co-author of a PLoS Biology paper, which would have given him the right to retract its publication. Marshall prevailed and moved for fees under 17 U.S.C. § 505, which allows for the discretionary award of costs and fees to a prevailing party in a copyright suit. Using his discretion, Judge Hillman determined that Mallon’s position was not objectively unreasonable and was not brought in bad faith, and that Mallon was unlikely to file more such suits, eliminating the need to impose fees for the purpose of deterrence.
A complaint was filed by David Oppenheimer and his company, Performance Impressions, LLC, against CIEE, Inc., alleging misuse of an aerial photograph of the Isle of Palms in South Carolina taken by Mr. Oppenheimer. CIEE (Council on International Education Exchange) is an organization that runs study abroad programs. CIEE is accused of using one of Mr. Oppenheimer’s photographs on its website without authorization.