Photo’s Copyright Protection Not Increased by Subsequent Events

Donald Harney, a professional photographer, took the photo of a man with his daughter riding piggyback on his shoulders outside of a church on Palm Sunday on Beacon Hill in Boston.  The man told Harney that his name was Clark Rockefeller and his daughter’s name was Reigh.  The Beacon Hills Times published the photo on the front page.  About a year later, the man in the photo, whose actual name was Christian Karl Gerhartsreiter, abducted the girl, his daughter, during a custodial visit.  The FBI placed Harney’s photo on a “Wanted” poster without Harney’s knowledge or consent.  The girl was returned safely and Gerhartsreiter arrested about a week later.

The story broke that Gerhartsreiter was a professional imposter, having assumed many false identities over the years, and that he was also being investigated in connection with a 20 year old homicide.  Public interest in Gerhartsreiter’s story remained high.  Harney subsequently licensed the photo for publication in numerous media outlets.  Sony Pictures created a made for TV movie about Gerhartsreiter.  Sony recreated Harney’s photo using the actors in its movie, without Harney’s permission.  Harney sued Sony for copyright infringement.  The district court ruled that Sony’s photo was not substantially similar to Harney’s photo, granted Sony’s motion for summary judgment and dismissed the case.  On appeal, the First Circuit Court of Appeals affirmed the district court’s ruling.

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Personal Jurisdiction Over Foreigner Who Accessed Server in Forum State

The Second Circuit Court of Appeals recently held that a Canadian defendant’s remote use of a computer located in Connecticut satisfied the jurisdictional requirements of both the Connecticut long-arm statute and due process.  MacDermid, Inc., a specialty chemical company, maintains its principal place of business in Waterbury, Connecticut.  Defendant Jackie Deiter lives near Toronto, Ontario, Canada and is a former employee of MacDermid’s Canadian subsidiary, MacDermid Chemical, Inc.  MacDermid alleged that prior to her termination, Deiter forwarded confidential and proprietary MacDermid files from her corporate email account to her personal email account, thereby misappropriating MacDermid’s trade secrets and obtaining unauthorized access to and misusing MacDermid’s computer system.  Deiter obtained and emailed the files by remotely accessing MacDermid’s Waterbury, Connecticut servers.

MacDermid sued Deiter in federal district court in Connecticut for state law violations, basing jurisdiction on diversity of citizenship and the Connecticut long-arm statute.  The district court judge granted Deiter’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, ruling that Deiter did not use a Connecticut computer when she sent email from the MacDermid computer at her home to her personal home computer.  The Second Circuit reversed the district court’s decision. 

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Sports Writer’s Use of National Football Scouting’s Reports Ruled Fair Use

National Football Scouting sued sports writer Rob Rang and Sports Xchange for copyright infringement and trade secret misappropriation for disclosing National Football Scouting’s Player Grades for eighteen college players.  The complaint in this case is described in my post Football Scouting Organization Files Suit for Copyright Infringement and Trade Secret Misappropriation Over Leaked Scouting Reports

Both Rang and National filed summary judgment motions in this case.  Rang argued that the Player Grades are not copyrightable, that Rang’s use of the Player Grades was fair use and that the Player Grades are not trade secrets.  National argued the complete opposite.  The district court ruled that National’s Player Grades are copyrightable, that Rang’s use of the Player Grades was fair use and that the Player Grades are information that can be protected by trade secret law, but that factual disputes precluded deciding the issue on summary judgment.  The district court dismissed National’s copyright infringement claim.  The trade secret claim remains for trial.

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Life is good’s Jake not Substantially Similar to Penmen, Not Infringing

Gary Blehm, a commercial artist and the creator of Penmen characters, sued brothers Albert Jacobs and John Jacobs, creators of Life is good, for copyright infringement.  Blehm’s Penmen are “deceptively-simple looking” figures involved in a wide variety of activities based on Blehm’s life experiences.  Blehm’s Penmen are drawn in black on a white background and “have round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.”  (Opinion pdf pages 2-3).  Between 1989 and 1993, Blehm created 6 posters, each of which contained hundreds of Penmen engaged in a variety of activities.  Blehm’s Penmen posters were sold nationally between 1990 and 2004.  He also created t-shirts, a Penmen comic strip and a Penmen book.

The Jacobses created a leading Life is good character, Jake, in August 1994.  Life is good as a company aspires to “overarching themes of optimism, simplicity, humor, and humility.”  (Opinion pdf page 6).  Blehm claimed that Life is good’s Jake infringed Blehm’s copyrighted Penmen works.  The district court granted Life is good’s motion for summary judgment, ruling that the Jake images are not substantially similar to the legally protectable elements of the Penmen images.  The Tenth Circuit Court of Appeals affirmed, stating “we must be careful not to grant Mr. Blehm a monopoly over all figures featuring black lines representing the human form.  Our analysis cannot be so generous as to sweep in all manner of stick figures as potentially infringing on his works.”  (Opinion pdf page 26).

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