Eighth Circuit: Designworks Homes, Inc. v. Thomson Sailors Homes, L.L.C

 

Given the differences in their designs, triangular atria alone are insufficient to establish the identity of total concept and feel necessary for copyright infringement; no reasonable minds could differ on whether there was a substantial similarity of expression in the designs.

Although the court erred in saying that attorneys fees awards were the rule rather than the excpetion, it did not abuse its discretion in the actual award of fees in this case.

http://media.ca8.uscourts.gov/opndir/21/08/193458P.pdf

Tenth Circuit: Craft Smith v. EC Design

 

A registered holder of a compilation copyright holds copyright in the totality of the work, not merely as described in the registration.

The protectable expressionof a day-planner notebook consists of the arrangement of the graphic and literary elements that might themselves be protectable works of authorship.

The order, dimensions, and division of the elements, however, is an unprotectable idea -- the protectable expression is limited to the material protected under authorship and its actual layout on the page.

Evidence of actual copying and significant sales does not as a matter of law present a genuine issue of material fact on a Lanham Act claim of product design trade dress -- the question of secondary meaning requires an interpretationof the meaning of sales and the form of the dress.

Craft Smith v. EC Design

Tenth Circuit: Zahourek Systems v. Balanced Body University

There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.

Zahourek Systems v. Balanced Body University

Tenth Circuit: Independent Producers Group v. CRB

Copyright Royalty Judges'  denial of claims as a discovery sanction wasn't a violation of constitutional due process -- as the tribunal is a largely clerical creature of statute, a different calculus applies to review of discovery sanctions than is applied in Article III courts.

Although the tribunal had earlier rejected the scheme that it eventually adopted, the new information provided in the interval constituted a quantum of persuasive evidence.

Independent Producers Group v. CRB 

DC Circuit: Imapizza, LLC v. At Pizza Limited

Conditional request for leave to amend in memorandum in opposition didn't satisfy local rules for motion for leave to amend.

Downloading images from plaintiff's US website is not sufficient for domestic copyright infringement, as fixation happens when the image is reproduced for the foreign viewer.

Taking photographs of US restaurants in support of a scheme of actual copying abroad doesn't infringe, as the act of taking photos of these buildings didn't infringe.

Generally, the predicate act test requires an act of domestic infringement.

Tourist confusion as harm would impermissibly broaden the effects-based extraterritorial scope of the Lanham Act.

Visit for the purpose of infringement was not Trespass.

No abuse of discretion in denial of surreply, as party had two opportunities to weigh in on the issue.

Imapizza, LLC v. At Pizza Limited

DC Circuit: Strike 3 Holdings, LLC v. John Doe

The socially offensive nature of the copyrighted material cannot be considered in a motion to allow discovery in an infringement suit against an unknown deft.

Claim alleging infringement by an IP address has right to discovery process to discover the identity of the owner of the connection, as the information might reasonably be used to state a claim against a specific person or determine that such a claim would be impossible.

While a court can take judicial notice of a party's lawsuits in other forums, the number of suits cannot be the sole basis for concluding that the present suit is without merit, and the number of suits settled before trial is not sufficient basis to infer improper purpose in the present suit.

Strike 3 Holdings, LLC v. John Doe

Second Circuit: Spinelli v. National Football League

As implied license is an affirmative defense, all elements must be plain in order to dismiss an infringement claim at the pleadings stage.

Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.

Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.

Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.

(Miscellany)

Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc.  Rather than simply alleging the existence of a behemoth.

http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/

Third Circuit: Clayton Tanksley v. Lee Daniels

Although the standard is the perception of a layman, where no reasonable juror could find substantial similarity in the allegedly infringing content, judgment as a matter of law for not stating a claim is appropriate.

Although similarities in unprotectable elements of the two works can be probative of allegations of actual copying, striking similarities in the concept for the protagonist do not make the superficial similarities in the protectable expression a violation of copyright.

http://www2.ca3.uscourts.gov/opinarch/172023p.pdf

Ninth Circuit: Chuck Close v. Southeby's Inc.

Express preemption provision in the 1976 Act, together with the provisions on distributions and first sale, preempt state law requiring royalties to the original artist on subsequent sales.  Statements of subsequent Congress as to the preemption implied by VARA  can't be imputed to the earlier law.  Earlier precedent establishing that the 1909 Act did not preempt these claims incorporated common-law notions of distribution and first sale, and is therefore still viable for those claims.

Substantive Due Process undercuts Takings argument, but ultimately a question for remand.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf

Ninth Circuit: Shame On You Productions, Inc. v. Elizabeth Banks

No abuse of discretion in awarding fees to deft in a copyright action, as the claim was denied after an extrinsic review of the scripts, and the plaintiff did not timely provide their script; recent circuit precedent emphasizing the reasonability of the litigating position does not compel the award to be revisited.

State breach of implied contract intermixed with question of infringement, court's non-apportionment of that portion was therefore justified.

No abuse of discretion in the reasonableness of the fees.

Motion for fees timely e-filed, but in the wrong category and then later filed in the correct category was properly considered, as the time limit isn't jurisdictional.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/21/16-55024.pdf

Ninth Circuit: Robert Stephens v. CoreLogic, Inc.

To establish contributory infringement under the statute, plaintiff needs to establish a likelihood of specific future infringement; specific allegations of the theory of infringement are necessary.  While the software removes the metadata that aids in the detection of infringement, plaintiffs do not demonstrate how removal of this information alone will prompt a future infringement.

Discovery denials appropriate, as there was no specific statement of how the additional time and productions would show such future specific infringement.

Costs for testimony of employees of deft corporation can be taxed to opposing party.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/20/16-56089.pdf

Second Circuit: Wilson, et. al. v. Dynatone, et. al.

Deft's registration of copyright in sound recording as "work for hire" and lack of subsequent royalty payments were insufficient repudiations of the plaintiff's rights in the composition to trigger the statute of limitations on the plaintiff's claim.


http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/doc/17-1549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/57bd403b-df30-4dd7-8243-9eb9a1d9f495/2/hilite/

Seventh Circuit: Richard Bell v. Cameron Taylor

FRCP, Res Judicata, Copyright

Where complaint states that deft used one of plaintiff's photos on a website, but in fact deft used another, deft is not required in the response to point out the error.

No error in denial of leave to amend.

Res judicata correctly barred the subsequent suit.

Copyright holder's stated price of photo insufficient to prove damages.

No error in denial of discovery, declaratory judgment.

Richard Bell v.   Cameron Taylor

Second Circuit: Simmons v. Stanberry

Copyright- Statute of limitations

An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.

http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/

Tenth Circuit: Savant Homes v. Collins

Copyright - architecture

Summary judgment for deft upheld, as plaintiff did not establish uniqueness of architectural elements.

Not per se error for the court to use "abstraction & filtration" for architecture.

No error in dismissal of trade dress claims.

https://www.ca10.uscourts.gov/opinions/15/15-1115.pdf

Ninth Circuit: Adobe Systems v. Joshua Christenson

IP - Copyright & Trademark

Where a first sale defense to copyright infringement is argued, the party asserting the defense has the burden to prove the sale, but the party claiming infringement has the burden to prove that the apparent sale was actually a license.

General testimony and generic licensing templates do not suffice for proof that a specific transaction was a license.

An assertion that goods were sold under the correct mark, but without the consent of the owner of the mark speaks to unfair competition, not infringement.

https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/30/12-17371.pdf