In 2018, Cynthia Foss, who does graphic design work as Hunter Foss Design filed a pro se complaint in state court against Spencer Brewery, St. Joseph Abbey, Ruggles Media, Northeastern University, Cup of Julie Show, and Big Eastern Exposition (known as the “Big E”), accusing each of copyright infringement, tortious interference with business relations, defamation and violation of 93A. Foss contends that she owns the copyright in graphic compositions that were commissioned by Spencer Brewery, located within St. Joseph’s Abbey, of a stained-glass wall found in the Abbey, with the composition to be displayed at Spencer Brewery’s exhibit room at the 2016 Big E. Foss asserted that Spencer modified the composition, displayed it in places not contemplated by the agreement between Foss and Spencer, and by using the composition in an electronic display continuously since 2016. Cup of Julie, a marketing business, and Ruggles Media, which is associated with Northeastern University. After the case was removed to federal court, Judge Hillman dismissed the state law claims with prejudice as against the Big E and Cup of Julie, and Foss filed an amended complaint alleging claims only for copyright infringement against the two. Subsequently, he granted motions to dismiss and for judgment on the pleadings, which Foss did not oppose – while the dismissal motion was pending, she instead filed a motion for default, apparently (and incorrectly) thinking that the motion to dismiss did not abrogate the need to answer the complaint. Following dismissal, the Big E filed a Bill of Costs under Fed. R. Civ. P. 54(d) and 28 U.S.C. §1920, seeking $1835 in costs. Noting that he had discretion to refuse to award costs despite the presumption that costs be awarded, Judge Hillman denied request despite Foss having not filed a motion for disallowance, because four of the six categories of costs sought were plainly not recoverable under the statute. He found that the Bill of Costs was thus not filed in good faith, but instead evidenced punitive intent, and denied the bill in total.
Foss has filed two other pro se copyright cases in Massachusetts, one of which was dismissed for failure to timely serve or to timely seek an extension to serve (and which asserted claims that were time-barred, implausible and/or preempted); the second was dismissed for failure to state a claim when Foss failed to oppose the motion to dismiss, but Foss was successful in having the case reopened and is presently seeking a preliminary injunction.
Judge Stearns granted photographer John Curtis Rice default judgment, finding that SAJ wrongfully reproduced Rice’s copyrighted photograph of New York City taken by drone from above in SAJ’s “DroneLife” drone news website. The default came after SAJ’s CEO was informed that he (a non-lawyer) could not file an answer on SAJ’s behalf and SAJ could not afford to pay for a defense. Judge Stearns refused, however, to go along with Rice’s demand for regarding damages and fees. Rice had sought $3000 in actual damages for copyright infringement, $10,000 in statutory damages for removal of copyright management information, and $3,825 in fees and $475 in costs, asserting that SAJ’s “infringement and refusal to appear and respond” were “objectively unreasonable.” Judge Stearns, noting that an intern at SAJ had utilized the image without the corporation’s knowledge and that SAJ immediately took down the photograph upon learning of its use, determined that the violations were “unintentional, very limited, and the source of no discernable profit to SAJ.” He awarded only the minimum $750 in statutory damages.
As I have previously noted, the attorney representing Rice has achieved quite a bit of notoriety in demanding vastly unreasonable sums having no ties to the actual infringement or actual likely measure of damages. As Judge Furman of Liebowitz’s home court in the Southern District of New York, recently noted, “[i]n his relatively short career litigating in this District, Richard Liebowitz has earned the dubious distinction of being a regular target of sanctions-related motions and orders. Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone.” Perhaps this decision is an indication that courts outside of New York’s Southern District are taking note of Mr. Liebowitz’s predatory practices.
Photographer Richard Sobol, faced with counterclaims that he repeatedly lied to the Copyright Office to obtain his registrations, opted to settle his infringement suit against the makers of a Barney Frank documentary. Sobol had asserted that filmmakers Sheila Canavan and Michael Chandler had used ten of his photographs without license. Canavan and Chandler asserted that Sobol had lied to the Copyright Office about the initial publication date of the photographs and that he was the photographer on three of them, and that some of his submissions were actually screenshots from the documentary. Sobol’s settlement seems to validate the defendants’ positions – he agreed to dismiss all claims with prejudice, and admitted that the film did not infringe his copyright, that he did not take three of the photographs covered by one of the registrations, that six of the photographs covered by the registration were published more than five years prior to registration, and that two registrations were invalid and must be cancelled. Sobol agreed to cancel the registrations. Sobol further acknowledged that the defendants expected to recover more than $480,000 in damages should the case proceed, and agreed to pay an undisclosed amount as a part of the settlement.
John Epstein again sued Miller Brothers Furniture for copyright infringement related to the unauthorized use of promotional material he created for the company. Epstein had filed suit in April, alleging breach of contract in addition to copyright infringement, and Miller Brothers counterclaimed with interference with advantageous business relations and unfair competition claims. Epstein sought to add a second registration by amended complaint, but subsequently withdrew the amended complaint because the second registration had not issued prior to the initial filing of the complaint. This new complaint alleges infringement of both the new registration and the registration that was asserted in the original complaint, meaning the first registration is being asserted in both cases (although joinder of the two cases would resolve that issue). As with the initial case, this case is before Judge Mastroianni.
Minden Pictures accuses Lynn company Kate-Den, which does business as “Dennis the Mennis Pest Control,” of willful copyright infringement and violation of the Digital Millennium Copyright Act. Minden asserts itself to be the premier provider of rights-managed wildlife and nature stock photographs, including photos taken by Michael Durham. Minden says that Kate-Den uses Durham photographs on its website, removed the copyright management information associated with the photographs, and have failed to respond to cease and desist letters from Minden. The case is before Judge Zobel.
On-line image licensing company Getty Images accuses Her Campus Media of widespread copyright infringement for accepting and publishing articles containing unlicensed images controlled by Getty. Her Campus Media, an often-accused business that solicits college women to submit articles for publication, is said to have wrongfully used thousands of Getty images over the last two years alone, many taken by professional photographers with expensive and difficult to obtain access to events like the Grammys and MTV Music Video Awards. Getty seeks the greater of actual and statutory damages and a finding of willful infringement. The case is before Judge Sorokin.
John Epstein, who engages in advertising for retail furniture stores as Direct Results, sued Miller Furniture Brothers, a Pennsylvania company with a store in Punxsutawney (home of Punxsutawney Phil from Groundhog Day!), accusing them of breach of contract and copyright infringement. Epstein alleges that Miller Brothers contracted with him to create promotional material in 2010, which Miller Brothers could not use without his permission. He says that Miller Brothers used this material without authorization in 2011 and 2012; Epstein objected, and Miller Brothers ultimately compensated him for this use. Epstein alleges that Miller Brothers again improperly utilized this copyrighted promotional material last year. Oddly, the complaint alleges subject matter jurisdiction solely under 28 U.S.C. 1331 and 1338 (federal question and patents/plant variety protection/copyrights/mask works/designs/trademarks/unfair competition) and then seeks joinder of the copyright and breach of contract claims, rather than asserting diversity or supplemental jurisdiction.