Dentist’s Before-and-After Photographs of Patient’s Teeth Not Sufficiently Creative Nor Original for Copyrightability​

The court granted defendant's motion for summary judgment that a plaintiff dentist's photographs of a patient's teeth were not copyrightable. "There is . . . only so much to argue about the creativity and originality of close-up photographs of teeth. . . . [Plaintiff's] described process involves no 'creative spark.' [Plaintiff] does not know what type of camera he used—or even if it was a digital camera or one requiring film. He does not know if [the] patient . . . was sitting or standing when he photographed her mouth. To the extent he posed her for the camera, it [...]

2018-06-22T12:08:02+00:00 June 22nd, 2018|Copyright, Docket Report|

Standing Argument Based on Registration, Without Regard for Subsequent Exclusive Licenses, ​Deemed Objectively Unreasonable Under § 505

After the court granted defendant's motion for summary judgment that plaintiff lacked standing to bring its infringement claim, the court partially granted defendant's motion for attorney fees and found plaintiff's standing argument to be objectively unreasonable. "⁠[Plaintiff] argues that [defendant] did not achieve 'complete' success because [defendant's] summary judgment victory was based on standing. This argument is rejected. Numerous courts, including the Ninth Circuit, have awarded fees under Section 505 when summary judgment was granted based on standing. . . . At summary judgment [plaintiff] asserted that it owned the copyright because it had the original copyright registration. According to [...]

2018-06-21T11:55:03+00:00 June 21st, 2018|Copyright, Docket Report|

Shattered-Glass Design on Boats Not Excluded from Protection Under “Useful Article” Exception​

The court denied defendants' motion to dismiss plaintiff's infringement claim based on its shattered-glass designs and rejected defendants' "useful article" argument. "⁠[N]owhere in the FAC does [plaintiff] allege that Defendants committed copyright infringement by manufacturing pontoon boats based on [one of the graphics'] design. Rather, the FAC alleges that Defendants each began and continued 'selling, advertising, and distributing [products]⁠' that incorporate the shatter graphics, without permission. Defendants thus improperly equate manufacturing pontoon boats with incorporating designs on them. For example, Defendants’ pontoon boats that [plaintiff] alleges impermissibly display the shatter graphics might already have been manufactured prior to any of [...]

2018-06-20T11:59:02+00:00 June 20th, 2018|Copyright, Docket Report|

Entity Owner Disallowed from Bringing Derivative Infringement Claim on Entity’s Behalf Against Co-Owner

The court denied a defendant's motion to amend its pleading to add a derivative counterclaim on behalf of an entity defendant against the individual plaintiff for copyright infringement and, subsequently, remanded the case to state court. "⁠[T]he motion to amend is unconvincing for several reasons. First . . . [u]nless and until [the moving defendant] proves otherwise, he and [the individual plaintiff] are equal owners of [the entity defendant]. They are at a total impasse about the ownership and management of the company. [The moving defendant] cannot fairly and adequately represent [the individual plaintiff's] interests any more than [the individual [...]

2018-06-19T12:09:02+00:00 June 19th, 2018|Copyright, Docket Report|

No “Prevailing Party” Under § 505 Where VARA Claim Was Successfully Defended for 1,453 of 1,457 of Asserted Works

After a jury trial where the jury found that only four of plaintiff's 1,457 works destroyed by defendants were works of recognized stature under the VARA, the court denied the parties' motions for attorney fees because there was no prevailing party under § 505. "As defendants correctly point out in their filings, plaintiff’s VARA 'claim' in Count I was actually numerous claims joined into one count. Plaintiff sought to recover for the destruction of 1,457 alleged works of recognized stature, and he prevailed, but only as to four of those works of art. Defendants, on the other hand, successfully defended [...]

2018-06-18T11:46:02+00:00 June 18th, 2018|Copyright, Docket Report|

Destroyed Aerosol Artworks’ “Recognized Stature” Under VARA​ and “Curator’s” Related Testimony Reaffirmed

After the court ruled in its findings of fact and conclusions of law that aerosol-artist plaintiffs were entitled to $6.75 million in statutory damages under the VARA for a defendant's willful destruction of their art, the court denied defendants' motion to modify this ruling and related judgment and rejected defendants' challenges to a plaintiff's testimony that plaintiffs' art qualified as works of "recognized stature" under the VARA. "VARA was not intended to denigrate plaintiffs’ profound works but was more likely designed to 'bar[] nuisance law suits, such as [a law suit over] the destruction of a five-year-old’s fingerpainting by her [...]

2018-06-15T12:35:02+00:00 June 15th, 2018|Copyright, Docket Report|

Whether Posting Gameplay Videos Infringes Copyright Holder’s “Public Performance” Right​ Remains Unsettled

The magistrate judge granted plaintiffs leave to amend their complaint and/or file a new motion for default judgment because plaintiffs did not sufficiently allege that playing a video game and posting footage of that gameplay to YouTube constituted a "public performance" under 17 U.S.C. § 106(4). "⁠[Plaintiffs] cite[] only one case in [their] argument on this issue: Valve Corp. v. Sierra Entertainment Inc., 431 F. Supp. 2d 1091 (W.D. Wash. 2004). . . . Valve did address, in passing, the right to publicly perform video games. But its discourse on that subject only raises additional questions about [plaintiffs'] position. . [...]

2018-06-14T11:50:03+00:00 June 14th, 2018|Copyright, Docket Report|

Cropping of Photo Weighs in Favor of Fair Use​

The court granted defendant's motion for summary judgment that its use of plaintiff's photograph on defendant's website constituted fair use because defendant used only a portion of plaintiff's photo, and there was no evidence that defendant's use had an adverse effect on the market for the photograph. "⁠[I]t is relevant that [defendant] edited the photograph by cropping approximately half of the original photo from the version it used on its website. [Defendant] used no more of the photo than was necessary to convey the photo's factual content and effectuate [defendant's] informational purpose. . . . [Furthermore, plaintiff] attests that he [...]

2018-06-13T11:38:02+00:00 June 13th, 2018|Copyright, Docket Report|

“Conan” Characters Insufficiently Pled to Be Copyrightable​

The magistrate judge recommended denying plaintiffs' motion for default judgment that defendant's figurines infringed on two of their characters because the characters, as presented by plaintiffs, were not sufficiently distinctive to warrant copyrightability. "Plaintiffs’ proffer does not plausibly support that Conan and Ironhand are protectable. Conan is a large, muscular, strong man with scars on his dark face. He has blue eyes and black hair that is cut square. He carries a great sword and wears nothing but a loincloth. His name is 'Conan, the Cimmerian,' and he fights. Ironhand likewise wears only a loincloth with a belt and sandals, [...]

2018-06-12T11:53:03+00:00 June 12th, 2018|Copyright, Docket Report|

“Scarcity Multiplier” of Six Deemed Excessive for Photographer’s Statutory Damages Award

In connection with granting plaintiff's motion for default judgment, the court found that the defaulting defendant's infringement of plaintiff's two photographs was willful and awarded statutory damages, which were calculated by trebling plaintiff's actual damages based on the photographs' license fees and applying a scarcity multiplier of four. "Plaintiff notified [defendant] in writing of [plaintiff's] copyright in the Works and demanded that it cease the infringing use of the Works and pay a license fee for the unauthorized use of the Work. Given Plaintiff's repeated requests and [defendant's] reproduction, distribution, and public display of the copyrighted Works without obtaining, or [...]

2018-06-11T12:35:04+00:00 June 11th, 2018|Copyright, Docket Report|