Successfully Compelling Arbitration Does Not Confer “Prevailing Party” Status under ​§ 505

After the court granted defendant's motion to compel arbitration and dismissed plaintiff's case pursuant to a binding arbitration clause, the court denied defendant's motion for attorney fees because defendant was not a prevailing party. "⁠[Defendant] is still potentially liable to [plaintiff] under the Copyright Act, although the determination whether [defendant] is liable will be made by an arbitrator rather than this court. To award [defendant] attorney’s fees under § 505 . . . would essentially replace a merits-based requirement for recovering attorney’s fees with a procedural-based requirement. [Defendant] could actually lose on the merits—albeit before an arbitrator rather than in [...]

2018-01-18T15:49:03+00:00 January 18th, 2018|Copyright, Docket Report|

Section 503 Does Not Provide for Destruction or Impoundment of an Infringing Home​

The court granted defendants' motion to cancel plaintiff's lis pendens notice and rejected plaintiff's argument that § 503 of the Copyright Act provides for destruction or impoundment of a home as an infringement remedy. "Plaintiff . . . alleg[es] that Defendants have . . . cop[ied] Plaintiff’s copyrighted materials . . . to build their own home . . . . Plaintiff argues that the lis pendens notice is appropriate because it seeks the destruction or impoundment of Defendants’ home pursuant to 17 U.S.C. § 503(a) and (b). . . . While there is very little authority on this issue, [...]

2018-01-17T13:01:03+00:00 January 17th, 2018|Copyright, Docket Report|

Initial Public Performance or Creation in Foreign Country Does Not Warrant Exemption from § 411 Registration Requirement

The court granted defendants' motion to dismiss plaintiff's direct infringement and contributory infringement claims because plaintiff failed to sufficiently allege that the copyrights at issue were exempt from registration as non-United States works. "⁠[T]he only allegations pertaining to publication of the programming are that [plaintiff] 'published those works outside of the United States' and that it 'licens[ed] other distributors within and without the United States, not including the defendants, to publish them.' But these allegations do not identify where or when the programming was first published. . . . [Plaintiff] avers that the programming was 'created, developed, and produced . [...]

2018-01-16T15:10:03+00:00 January 16th, 2018|Copyright, Docket Report|

Using Musicians’ Concert Photos in Articles Identifying Musicians’ Social and Political Views Deemed Fair Use​

The court granted defendant's motion for summary judgment of fair use because defendant's use of celebrity photographs was transformative. "Plaintiff testified that he was a professional photographer of musicians and that he took the . . . Photographs [at issue] to depict the musicians in concert. By contrast . . . the photographs as used on defendant’s website were surrounded by content and commentary unrelated to the musicians performing in concert; [one musician's] Photograph was accompanied by Pro-Life song lyrics and the [other musician's] Photograph was alongside information about the 2018 U.S. Senate election in Michigan. Plaintiff admitted that he [...]

2018-01-12T13:00:10+00:00 January 12th, 2018|Copyright, Docket Report|

Request for Court to Apply Abrogated Fair Use Rule Does Not Warrant “Draconian” Fee Shifting​

After granting defendant's motion for summary judgment of no infringement, the court denied defendant's motion for attorney fees because plaintiff's copyright claim was not frivolous. "⁠[T]he fact that [defendant's] works were clear parodies of [plaintiff's] works was not dispositive. Instead . . . [plaintiff's] copyright claim turned on the application of a fact intensive, multifactor test. In part for that reason, the Court cannot say that [plaintiff's] arguments were frivolous or baseless, let alone that the company itself believed them to be so. . . . [Defendant] properly takes [defendant] to task for urging the Second Circuit to apply a [...]

2018-01-11T13:36:03+00:00 January 11th, 2018|Copyright, Docket Report|

Agreement Granting “Perpetual” License Does Not Authorize Past Use of Copyrighted Work

The court denied defendant's motion for summary judgment on defendant’s license defense because the parties’ “perpetual” license agreement did not authorize past use of the copyrighted work. "⁠[Defendant] relies on the Merriam-Webster Dictionary definition of 'perpetual,' which is 'valid for all time,' to assert that the license authorized all uses by [defendant] regardless of time. But . . . [another] definition suggests that holding an office or 'something' continues into the future for an unlimited time. An individual cannot hold a 'perpetual' office retroactively to the time of their birth, but rather, they can hold an office from the time [...]

2018-01-10T12:46:04+00:00 January 10th, 2018|Copyright, Docket Report|

Discovery Into Defaulting Defendant’s Revenue Allowed to Aid Plaintiff in Making “Informed Election” of § 504 Damages​

The court granted plaintiff's unopposed motion to conduct discovery regarding defaulting defendant's revenue and possible co-infringers prior to electing either actual or statutory damages under 17 U.S.C. § 504. "According to the Complaint, [plaintiff] purchased a hard drive from [defendant] containing illicit copies of its sound recordings . . . . [Plaintiff] states that without conducting discovery, it cannot prove how long [defendant] has been engaged in the illicit activity, the amount of gross revenue generated therefrom, or whether other entities or individuals have assisted him. Therefore, [plaintiff] requests leave to conduct discovery [for a period of 120 days] . [...]

2018-01-09T13:15:03+00:00 January 9th, 2018|Copyright, Docket Report|

Third-Party Infringer May Not Assert Noncompliance With Writing Requirement as Defense to Undisputed Transfer

The court denied defendants' motion for summary judgment that plaintiff lacked standing and rejected defendants' argument that plaintiff's parent company did not transfer its rights in a copyrighted work to plaintiff. "⁠[Defendants] contend that [a retroactive work-for-hire acknowledgement] was not effective at rendering the Subject Design a work made for hire for [plaintiff] because it was executed after [the textile developer] created the Subject Design. Further, [defendants] argue that the [retroactive work-for-hire acknowledgment] did not assign [plaintiff's parent company's] rights to [plaintiff] . . . . The Court agrees that the [retroactive work-for-hire acknowledgement] did not assign [plaintiff's parent company's] [...]

2018-01-08T12:58:06+00:00 January 8th, 2018|Copyright, Docket Report|

DMCA Counter-Notice Does Not Establish Personal Jurisdiction Outside District Where ISP Is Located​

The magistrate judge recommended granting defendant's motion to dismiss plaintiffs' complaint because defendant's alleged conduct did not constitute consent to the instant forum via a DMCA counter-notice. "Plaintiffs . . . allege that this Court has personal jurisdiction over [defendant] under the DMCA 'because he is a nonresident alien' who filed a 'counter-notice under 17 U.S.C. 512(g)(3), and thereby subjected himself by contract, and by operation of law, to federal personal jurisdiction.' . . . [T]he DMCA provides, and [defendant] does not dispute, that upon submitting the 'Counter-Notification,' [defendant] as the 'subscriber,' consented to personal jurisdiction in the judicial district [...]

2018-01-05T13:04:03+00:00 January 5th, 2018|Copyright, Docket Report|

“Complex Task” of Determining Infringement Damages Does Not Warrant Bifurcated Trial​

The court denied defendants' motion to bifurcate a trial between liability and damages and rejected defendants' argument that the complexity of the damages issues justified bifurcation. "Defendants move for the court to bifurcate the trial, resulting in separate trials on the liability issue and damages. . . . After determining what portion of the profits . . . is attributable to the allegedly infringing amenity center—a complex task considering that will involve distinguishing what portion of the profits of homes purchased [in a subdivision] are due to the amenity center—this amount is offset by any deductible expenses and other elements [...]

2018-01-04T13:11:04+00:00 January 4th, 2018|Copyright, Docket Report|