Larson v. Perry (19-cv-10203).

Judge Talwani denied Defendants Jeffrey A. Cohen and Cohen Business Law Group’s motion for reconsideration of her previous finding that the claims against them could not be dismissed at the pleading stage.  She rejected Cohen’s argument that her prior decision was based on case law that was not controlling; while she agreed that the particular case was not “controlling” but instead was, as a decision of a district judge presiding over a diversity action, merely persuasive authority.  She instead pointed to the controlling decision of the Massachusetts Supreme Judicial Court, which provides for litigation privilege where the communications at issue are made prior to the onset of litigation only where the communications relate to a legal proceeding which is contemplated in good faith and which is under serious consideration.  Judge Talwani also rejected Cohen’s argument that Larson had failed to sufficiently allege bad faith as required under the controlling SJC decision, finding that the issue had not been raised in the Motion to Dismiss and thus could not be brought for the first time in a motion for reconsideration.

Minden Pictures Inc. v. Find Import Corp. (20-cv-10598).

Stock photography company Minden Pictures accuses Find Import of copyright infringement and violation of the Digital Millenium Copyright Act in connection with Find Import’s alleged use of a Minden-controlled photograph on its website. As has been the case with several similar Minden complaints filed in Massachusetts, this complaint alleges copying and removal of copyright management information without providing any suggestion of access and seek full statutory damages for willfulness without factual allegations of the same.

Yourfavorite.com et al. v. Federation of Exchange Accommodators et al. (20-cv-10649).

Richard Rogers, who runs Yourfavorite.com., accuses Federation of Exchange Accommodators (FEA) and a number of individuals of having wrongfully taken his copyrighted material for use on its own website. Rogers asserts that FEA’s publication titled “Member Guide to Internal Controls and Procedures for Handling Exchange Funds” contains material duplicated from an article he authored on 2007, titled “Reasons for Return.” He states that the infringement is willful and knowing, and that the Defendants ignored his cease and desist letter. The case is before Judge Casper.

Mugraby v. UndercoverWear, Inc. (20-cv-10641).

Israeli photographer Sam Mugraby, who operates through his business Photos5.com, accuses UndercoverWear of infringing his copyright in a photograph entitled “Heart in the Sky” by placing a copy of the image in its website. Mugraby asserts copyright infringement and removal of copyright management information.

Larson v. Perry et al. (19-cv-10203).

Sonya Larson sued Dawn Dorland Perry, seeking a declaratory judgment that a story written by Larson did not infringe Perry’s copyright in a similar story, and sued Perry, her attorney and his law firm for defamation and tortious interference with contractual relationships when Larson’s publisher was threatened with a lawsuit if they continued to publish Larson’s story. Perry’s lawyer, Jeffrey Cohen, and his California firm, Cohen Business Law Group, moved to dismiss for lack of personal jurisdiction, which Judge Talwani denied. She noted that Cohen Law had sent letters to BFF in Cambridge, MA, alleging that Larson’s story plagiarized Perry’s letter and that publication would infringe on Perry’s rights, and threatened statutory damages of up to $150,000 should BFF publish. Larson alleges that this letter knowingly misrepresented both the facts and the law such that it constituted an unfair or deceptive trade practice under Massachusetts law and was designed to interfere with her agreement with BFF. As this behavior was targeted to a Massachusetts company for the purpose of affecting BFF’s business decision. This therefore is sufficient to establish specific personal jurisdiction.

Cohen and his firm also moved for dismissal on the grounds that, as a matter of law, their alleged conduct is shielded by Massachusetts’ litigation privilege. An attorney’s statements in the Commonwealth are absolutely privileged where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation. Where the communication is to a prospective defendant, however, the anticipated litigation must be contemplated in good faith, and does not allow a lawyer the freedom to act with impunity. While lawyers cannot be held liable for the contents of their speech, that speech can be used as evidence of misconduct, with the line between the two determined on a case by case basis. In this case, the complaint asserts that the Cohen letter was used to effectuate unlawful ends, rather than looking to establish liability based on the content standing alone, and Judge Talwani determined that the good faith of the Cohen firm could not be determined on the pleadings. Accordingly, she refused to dismiss based on litigation privilege.

Judge Talwani denied Perry’s moved to dismiss on the grounds that defamation was not properly pled and that Larson failed to plead actual malice, a requirement under Massachusetts defamation law when the plaintiff is a limited purpose public figure. The complaint identified instances in which Perry is alleged to have told several writing organizations, Larson’s employer, and a writing organization where Larson sought a fellowship that Larson plagarized her work, providing Perry with enough specificity to mount a defense. Regarding the “limited public figure” issue, Judge Talwani noted that while the issue is one of law, it is inherently fact-specific such that it cannot be determined on the pleadings.

Judge Talwani granted Perry’s motion to dismiss the tortious interference counts. The complaint alleged that, as a result of Perry’s conduct, two publishers decided to pull Larson’s story from their website earlier than call for by the contracts between Larson and the two. Ordinarily, this would be sufficient to survive a motion to dismiss. Here, however, the two contracts were included as exhibits to the complaint and could thus be fairly considered in determining the motion. In reviewing the contracts, neither included the promises alleged in the complaint that the story actually be published or remain on available for any particular length of time.

As a note, Judge Talwani denied Perry’s request for a hearing on her motion, finding that the coronavirus crisis combined with the Court’s determination that it could properly adjudicate the issue on the papers weighed against a hearing.

August Image LLC v. Uncoached Corp. (20-cv-10579).

August Image, a photography rights management entity, accuses Uncoached of willful copyright infringement. August Image says that Uncoached placed copies of five photographs on websites that Uncoached owns, including www.tvovermind.com. According to the complaint, copyright in only one of the photographs was registered prior to the filing of suit, leading to the complaint only charging copyright infringement as to the one photograph. The willfulness allegation appears to be based solely on the fact that the photographs appear on the website. The matter is before Magistrate Judge Dein.

Annis et al. v. Shinbone Alley, Inc. et al. (20-cv-10449).

Christopher Annis was engaged by Shinbone Alley to assist with photography for Shinbone’s planned website. Annis’ work included retouching photographs, work as a digital capture technician set styling and lighting, and photography over the course of several sessions. After delaying payment several times, Shinbone ultimately did not pay Annis for his work. The photographs were, however, put up on Shinbone’s website, www.shinbonealley.com, when it went live. Annis, having registered copyright in seventeen of the photographs, demanded Shinbone cease and desist using the photographs, which Shinbone has not done. Annis asserts copyright infringement, breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, quantum meruit and unjust enrichment and breach of M.G.L. c. 93A. The complaint further notes that the Massachusetts Attorney General’s office has been given the information to review and that Annis will seek to amend the complaint to add a claim under M.G.L. c. 149 § 150, which relates to requirements for payment of wages, if the Attorney General fails to take action. Judge Young is assigned to the case.

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

Cynthia Foss sued Spencer Brewery in June 2019, asserting breach of contract and copyright infringement. Judge Hillman granted Spencer’s motion to dismiss on res judicata grounds. Foss had previously sued Spencer Brewery on two separate occasions, asserting the same causes of action. Those cases ended with a judgment on the pleadings in favor of Spencer and dismissal for failure to state a claim on which relief could be granted. Judge Hillman found that each of these constituted a final decision on the merits, resulting in preclusion of the instant lawsuit.

RMS International (USA) Inc. v. Anker Play Products, LLC et al. (20-cv-10400).

RMS sued Anker Play Products and Leon Summers, RMS’ former CEO and Anker’s present CEO, for copyright and trade dress infringement, unfair competition and trade secret misappropriation in connection with RMS’ “Dino Operation” game. The game is a take-off on the classic “Operation” game in which players try to remove bones from the dinosaur without touching the sides of the hole in which the bones are located.

RMS Dino OperationAnkler Dino Operation

RMS (whose game is on the left, above) developed the game and began selling it in 2014, while Summers was the CEO of RMS, and registered copyright in the game, although they do not appear to have a registration on the trade dress of the game.  Anker sells games called “Dino Operation” and “Dino Dissection” that each utilize a dinosaur caricature and bone play parts that are nearly identical to the RMS game. RMS asserts that Anker would not have been able to have replicated these components without access to RMS’ technical drawings, which Summers would have been able to obtain while he was with RMS. RMS suggests that such slavish copying is Anker’s business model, noting the existence of five similar lawsuits filed against Anker in the last three years. The trade secret claim seems uncertain – RMS’ conclusorily assert that they treated the trade secret in the design files confidentially and did not allow access unless authorized, with no real description of the actual steps they took, and the notion that the publicly-available game could not have been replicated without access to the design files seems questionable – but it will be difficult to deny that the appearance of the games are very similar.

Chatham v. Canterbury Ventures et al. (17-cv-11473).

Judge Talwani on Thursday adopted Magistrate Judge Cabell’s Report and Recommendation that Canterbury’s motion for summary judgment be denied. Canterbury had moved for summary judgment on Chatham’s copyright, breach of contract, and breach of the covenant of good faith and fair dealing, as well as on the availability of specific performance (effectively, forcing transfer of the property to the Chathams) as a measure of damages. Judge Cabell for a variety of reasons had earlier recommended denial of all elements of Canterbury’s motion for the reasons laid out here. Canterbury subsequently switched counsel, and new counsel objected to Judge Cabell’s recommendation. Judge Talwani, however, rejected Canterbury’s objections. She first determined that Canterbury had not raised a specific objection to the recommendation on the copyright claim be denied, and accordingly adopted Judge Cabell’s recommendation that Canterbury’s attempt to scrap the copyright claim be denied. Judge Talwani further found that a reasonable jury could determine that the purchase and sales agreement had been extended as a result of Canterbury’s representations that it continued to operate in accordance with the agreement following the putative termination, and subsequently threatening to terminate, and ultimately unilaterally terminating the agreement when the Chathams refused to pay additional monies not called for by the agreement. She determined that Canterbury’s argument regarding specific performance – that it was unavailable because the Chathams had never proffered payment – was waived for failure to have raised it before. She further noted that, even if the argument hadn’t been waived, Canterbury could not object to any perceived failure of Chatham to proffer payment because a condition of closing was that Canterbury would have a certificate of occupancy, which Canterbury undisputably did not have a certificate of occupancy, rendering any failure to tender the purchase price moot. Judge Talwani finally noted that Canterbury had not disputed that a failure to attempt, in good faith, to construct the house in the time frame set forth by the agreement could result in a breach of duty of good faith and fair dealings. Accordingly, the report and recommendation of Judge Cabell was upheld in its entirety.

I represent the Chathams, along with Nate Harris and John Anastasi of my firm, Lando & Anastasi, along with Paul Mordarski and Jordan Carroll of Morrissey, Hawkins & Lynch. Needless to say, we are very happy with this decision, and look forward to trial.