LovePop amended its complaint against PaperPop Cards, adding some new card designs to the allegations. LovePop originally filed suit in June, alleging copyright and trademark infringement relating to 3-D pop-up cards and videos promoting the cards. PaperPop moved to dismiss the copyright claims, on the basis that the complaint did not identify any allegedly protectable expression that is found in PaperPop’s cards, and fails to separate out the public domain elements that are not protectable under copyright law. Here is an exemplary comparison of each companies’ Hanukah card found in PaperPop’s motion to dismiss, with LovePop’s on the left and PaperPop’s on the right:
The motion to dismiss was denied as to certain card designs and otherwise taken under advisement.
LovePop was launched out of the Harvard Innovation Lab in 2014. The cards are beautiful – you can see one of the allegedly copied videos of a Christmas sleigh card being opened at LovePop’s website here.
Silvia Leary is the owner of a trademark registration on the stylized mark “VIA,” in which the “A” lacks the horizontal line, looking like an upside-down “V.” The identified goods and services are “fashion modelling for entertainment purposes.” Ms. Leary alleges that she has a pending copyright application on the mark. She uses the mark at her “Viasworld” website, where (among other things) she sells socks, t-shirts, and other merchandise. Berkshire developed the “Via Seaport Residences” on Fan Pier in Boston, and apparently created some “VIA” merchandising in connection with the development. Berkshire’s use has a similar “A” that lacks the horizontal line. Ms. Leary alleges that Berkshire is using the same VIA mark on hats, glasses, t-shirts and other types of items, causing customer confusion. She claims trademark and copyright infringement and unfair competition. The case is before Judge Saris.
Magistrate Judge Kelley granted defendants’ motion to dismiss the copyright infringement claims, citing the failure of the plaintiff to allege it held any validly registered copyrights and failure to identify any specific content that was alleged to be both original and copied. Trust Safe accuses its former employees of taking a confidential algorithm and using it to create a competing business, of copying Trust Safe’s website, and of tracking the website and changing its own in exactly the same way as Trust Safe’s site. Applying the Twombly standard, Judge Kelley noted that the complaint asserts that Trust Safe is the assignee of three copyright registrations, but fails to allege that the applications, together with the deposit and fees, had been sent to the Copyright Office, which is required when relying on preregistration of a copyright. She also found the failure to specify similarities between Trust Safe’s site and that the Defendant “frustrate[s] any effort to compare the parties’ materials” and thus fails to show copying. Judge Kelley also dismissed the state statutory and common law trade secret counts for failure to adequately identify the trade secrets at issue – the recitation of an “algorithm,” without specifying what the algorithm was or what it did, was not sufficient. Intentional fraud and M.G.L. 93A claims that depended on the trade secret misappropriation claim were also dismissed. Because all of the claims were deemed plausible, albeit inadequately pled, all of the dismissals were without prejudice. The case was before the Magistrate pursuant to 28 U.S.C. 636(c) and with the consent of the parties.
In a lengthy electronic order, Judge Stearns partially granted defendant’s motion to dismiss plaintiff’s copyright infringement claim relating to accounting software. Baystate alleged that Saasant’s competing software misappropriated the look, feel, layout and flow of its own product and associated blog, and that Saasant was using a Baystate trademark. Judge Stearns found that Baystate’s complaint did not identify any actual copying of protectable elements of the software, because Baystate’s software simply employs standard layouts that represent unprotected ideas or unoriginal expression. To the extent Baystate alleged copying of the specific elements of the layouts, the two programs were not similar enough to suggest copying. Judge Stearns denied the motion to dismiss the trademark, unfair competition, and false endorsement/false association claims.
Stellar Records, LLC sued David Pantano for copyright infringement related to the manufacture and sale of music and karaoke recordings. According to the complaint, Stellar Records obtains the rights to a large number of songs, which it then re-records without lead vocals and connects to video files containing the lyrics. Stellar then compiles these karaoke versions of songs into packages, which it sells to karaoke disc jockeys. Stellar alleges that Pantano copied several of these packages and sold them via Craigslist. Both direct and contributory copyright infringement are alleged.
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).