Merchandising Missteps Lead to Willful Infringement and CMI Removal Claims

Music merchandising company Live Nation admitted to copyright infringement by using photographer Glen Friedman’s photographs of the hip-hop group Run-DMC on t-shirts and a calendar without Friedman’s authorization.  On appeal to the Ninth Circuit, the issues in Friedman’s lawsuit against Live Nation involved whether the evidence was sufficient to establish that Live Nation willfully infringed Friedman’s copyrights and to establish that Live Nation violated §1202(b) by knowingly removing copyright management information (CMI) from Friedman’s photos.  There was also an issue of whether the number of retailers who purchased infringing merchandise from Live Nation could be used to calculate statutory damages.

The district court granted summary judgment to Live Nation on the willful infringement and CMI issues.  The district court ruled that Friedman could recover one statutory damages award per work infringed, rejecting Friedman’s damages calculation based on the number of retailers.  The Ninth Circuit reversed the district court’s rulings on the willful infringement and CMI issues, but upheld the district court’s ruling on the statutory damages issue.

Continue reading “Merchandising Missteps Lead to Willful Infringement and CMI Removal Claims”

Haiti Quake Photos Case Offers Multiple Intriguing Issues and $1.2M Jury Award

In late November 2013, a jury awarded Daniel Morel $1.2M against Agence France Presse (AFP) and Getty Images for willfully infringing photos Morel took in Haiti on January 12, 2010, immediately after the earthquake that demolished the country.  Morel, a noted photographer, swiftly contacted AFP and Getty regarding removing his photos from their websites after he found them posted there.  

AFP actually initiated the lawsuit by bringing a declaratory judgment that it did not infringe Morel’s copyrights in his Haiti earthquake photos.  This case presents a number of intriguing issues, including AFP’s and Getty’s claims that they received a license under the Twitter terms of use, AFP’s and Getty’s claims that they were third party beneficiaries of Morel’s Twitter contract, Morel’s contributory infringement and vicarious liability claims against some of the licensees, Morel’s DMCA copyright management information claim, Getty’s claim that it was protected by a DMCA safe-harbor, Morel’s willful copyright infringement claims against AFP and Getty and Morel’s Lanham Act false representation and false advertising claims.  Morel survived motions to dismiss and summary judgment motions brought by AFP and Getty on the way to his jury verdict.  This post discusses why some issues were dismissed, while others remained in the case to be decided by the jury.

Continue reading “Haiti Quake Photos Case Offers Multiple Intriguing Issues and $1.2M Jury Award”

Maximum Statutory Damages for Willful Copyright Infringement a Jury Issue

Chara Curtis, Cynthia Aldrich, and Alfred Currier wrote and illustrated three children’s books, How Far to Heaven?, Fun Is a Feeling and All I See is a Part of Me.  The copyrights on the books are registered.  Illumination Arts, Inc. (IAI) published the books under a publishing contract, beginning in 1989.  IAI paid royalties until September 30, 2009.  After that IAI stopped paying regular royalties, making only one subsequent royalty payment.  The authors demanded that IAI resume paying royalties.  When IAI still failed to pay royalties, the authors terminated the publishing contracts with IAI and requested to buy the books in inventory.  IAI refused to sell the inventory books to the authors.  Prior to the authors’ contract termination, IAI made the books available to consumers in electronic form, even though it was not authorized to do so under the publishing agreements.  IAI continued to make copies of the books, sell the books and display them online after the authors terminated the publishing contract, despite the authors’ demands to cease such activities.

The authors filed a lawsuit against IAI and its successor, Illumination Arts Publishing, LLC (IAP) in federal court in the Western District of Washington.  The authors alleged breach of contract and copyright infringement and sought an injunction against IAI and IAP.  This post addresses only the copyright issues.  In the authors’ first motion for summary judgment, the district court held IAI, IAP and two of their officers directly liable for copyright infringement and for willful copyright infringement.  The district court granted the authors’ motion for a permanent injunction and ordered the defendants to return all infringing copies of the books to the authors.  The authors’ second motion for summary judgment, and the subject of the rest of this post, asked the district court to award the authors $150,000 for each work infringed, the maximum statutory damages for willful copyright infringement.  (17 U.S.C. §504(c)(1)-(2)).

Continue reading “Maximum Statutory Damages for Willful Copyright Infringement a Jury Issue”

Willful Copyright Infringement is Enough Contact for Personal Jurisdiction

Washington Shoe is a Washington State corporation that manufactures footwear for men, women and children.  Through one of its sales representatives, Washington Shoe had an ongoing relationship with A-Z Sporting Goods, a single retail store located in Alma, Arkansas.  A-Z is an Arkansas corporation.  A-Z does not sell products over the Internet.  Washington Shoe’s sales representative discovered that A-Z was selling infringing copies of two of Washington Shoe’s copyrighted children’s rain boot designs.  Washington Shoe’s attorney sent A-Z two cease and desist letters.  After receiving the second letter, A-Z moved the boots out of its store, but sold its remaining supply of the boots to a thrift store.

Washington Shoe sued A-Z for copyright infringement in the Western District of Washington.  The district court granted A-Z’s motion to dismiss for lack of personal jurisdiction, but denied A-Z’s request for attorneys’ fees.  Washington Shoe appealed the dismissal of its case.  A-Z cross-appealed the denial of its motion for attorneys’ fees.  The Ninth Circuit Court of Appeals reversed the order dismissing the case.  The Ninth Circuit ruled that A-Z, whose only relevant contact with Washington State was its alleged willful copyright infringement, was subject to personal jurisdiction in Washington State.

Continue reading “Willful Copyright Infringement is Enough Contact for Personal Jurisdiction”