Significant Damages and Attorney’s Fees Award in Music Performance Copyright Infringement Case Upheld by Ninth Circuit

Seven music company members (Music Companies) of the American Society of Composers, Authors, and Publishers (ASCAP) sued East Coast Foods, Inc. and its sole officer and director, Herbert Hudson, for copyright infringement arising out of musical performances of eight works at the Long Beach, California, Roscoe’s House of Chicken and Waffles restaurant.  The Ninth Circuit Court of Appeals upheld the district court’s grant of summary judgment and award of $36,000 in damages in favor of the Music Companies and the district court’s award of $162,728.22 in attorney’s fees to the Music Companies.

East Coast owns the Roscoe’s restaurant chain.  The Long Beach Roscoe’s restaurant opened in 2001.  The Sea Bird Jazz Lounge is attached to the restaurant.  ASCAP is a nonprofit music licensing organization that collects royalties for its members.  ASCAP contacted East Coast shortly after the Long Beach Roscoe’s opened to offer East Coast a license to perform music in the restaurant and lounge.  East Coast did not obtain a license and between 2001 and 2007, ignored ASCAP’s recurring requests to pay licensing fees. 

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Online Protection and Enforcement of Digital Trade Act Targets Nondomestic Infringing Internet Sites

The purpose of the Online Protection and Enforcement of Digital Trade Act (OPEN) is “[t]o amend the Tariff Act of 1930 to address unfair trade practices relating to infringement of copyrights and trademarks by certain Internet sites, and for other purposes.”  This bill was introduced in the House as H.R. 3782 on January 18, 2012 and in the Senate as S. 2029 on December 17, 2011.  Unlike the Stop Online Piracy Act I examined in Stop Online Piracy Act Would Make Major Changes to Existing Law, OPEN makes no changes to the Copyright Act.

Section 2 of OPEN amends Title III of the Tariff Act of 1930 (19 U.S.C. 1304 et seq.) by adding §337A Unfair Trade Practices Relating to Infringement of Copyright and Trademarks by Certain Internet Sites.  Section 337A(a) defines terms used in the section.  Section 337A(b) prohibits operating or maintaining an Internet site dedicated to infringing activity.  An Internet site dedicated to infringing activity is an Internet site with a nondomestic domain name that conducts business directed at U.S. residents and whose primary purpose is to willfully criminally infringe copyrights (17 U.S.C. §506), use counterfeit trademarks (15 U.S.C. 1116(d)) or to willfully violate U.S. laws regarding copyright protection and management systems (17 U.S.C. §§1201-1205).  Subsections 337A(c) – (l) set out the substance of the act.

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Batmobile Not Excluded From Copyright Protection As a Matter of Law, Rules District Court

DC Comics, owner of registered copyrights in the Batman comic book character, sued Mark Towle, dba Gotham Garage, for copyright infringement for reproducing and distributing unauthorized and counterfeit Batmobile vehicles.  Judge Ronald S.W. Lew, U.S. District Court, Central District of California, recently denied defendant Towle’s motion to dismiss DC Comics’ copyright claim

The defendant filed a Federal Rules of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.  A Rule 12(b)(6) motion can be granted for “the lack of a cognizable legal theory or the lack of sufficient facts alleged under a cognizable legal theory.”  (Order pdf page 2).

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