Copyright Claim from Out of the Blue

Leslie Weller has sued Gillian Flynn, author of the book Gone Girl, and a host of others for infringing Wellers’s copyright in a novel titled Out of the Blue.  What is interesting about this case (aside from the fact that every successful movie seems to be based upon copyright infringement) is the case for access by defendant.  Plaintiff emailed her script to a consultant whose books were edited by who was represented by the Levine Greenberg  who also represented defendant Flynn

Plaintiff’s claim is on its face plausible, but so convoluted, that defendant may be able to break the chain.  However, this Complaint, and others like it, are a reminder of the importance of keeping records of development, whether its a story as here, or a computer program or some other work, to be able to prove independent creation.

Plaintiff’s Complaint does identify a number of similarities in between Gone Girl and Out of the Blue, and it will be interesting to see the defendants response.  If there was no infringement, hopefully defendants have records to show the independent creation.


For God’s Sake, Copyright Does Not Protect Ideas, Only Expression

On December 6, 2107, Judge Louis Stanton dismissed Randy Brown’s copyright law suit again Time Warner, Turner Broadcasting, Cartoon Network, and others, based upon the claim that the television series Black Jesus infringed his short story Thank You Jesus.

Judge Stanton’s opinion concisely stated what every copyright owner needs to remember:

It is a principle fundamental to copyright law that a copyright does not protect an idea, but only the expression of the idea.

Judge Stanton found that there are “no similarities between the two works beyond the abstract and unprotected idea of an African American male protagonist named Jesus who believes that he is the Son of God.”  Review plot, characters, setting, themes and total concept and feel, he concluded that the concept of an African American Jesus who engages in allegedly “un-Jesuslike” conduct is an abstract idea, which is illustrated and expressed differently by entirely different stories in each work.  Judge Stanton found that no reasonable jury, properly instructed, could finding that the expressions of Thank You Jesus are substantially related to Black Jesus.

While the law does provided limited protection for ideas under certain circumstances, copyright does not.  Merely because a second work is based upon the same idea as a first work does not mean it infringes the copyright in the first work.


Not All Pirates are in the Caribbean

On November 14, 2017, Arthur Alfred II, Ezequiel Martinez, Jr., and Tova Laiter sued The Walt Disney Company in the District of Colorado, alleging copyright infringement, and claiming that the Pirates of the Caribbean franchise of films, video games, theme park attractions, merchandising, casino games, literature and other related items infringe their screenplay of the same name.  The focus of the Complaint is that the Captain Jack Sparrow character in the Disney productions is substantially similar to the character Davy Jones in their screenplay.

Plaintiffs claim that Jack Sparrow is “an expression of a uniquely new ‘pirate.'”  Interestingly, the “idea” of humorous pirates may have been the idea of the rides original designer, Marc Davis, who realizing actual pirates were not particularly glamorous, opted for a more whimsical and romanticized approach that was less threatening to younger audiences.  Moreover Johnny Depp has claimed that his portrayal of Jack Sparrow was his own invention, and almost got him fired.

The court will have to decide whether Jack Sparrow and Davy Jones are similar because they are embodiments of the same idea or because they share the same expression.

He Who Lives by the Suit, Dies by the Suit

CBS Broadcasting Inc. has sued photographer Jon Tannen for posting still images from the Gunsmoke episode “Dooley Surrenders,” first aired on March 8, 1958. On line posting of images from classic television is fairly common, leaving one to wonder whether there isn’t more to the story, and it turns out there is.  As CBS Broadcasting explains in Paragraph 1 of its Complaint: “Tannen hypocritically engaged in this act of infringement while simultaneously bring suit against Plaintiff’s sister company, CBS Interactive Inc., claiming it had violated his own copyright.”

Tannen sued CBS Interactive in February, claiming that the online division of CBS had used two of his photographs without permission to illustrate an article about high school football player Sofian Massoud.

Despite being created by statute (17 USC 107) the only thing certain about copyright fair use is that it not as broad as everyone thinks it is.  Grabbing pictures from Google image searches to make a point or make a joke is common, but not every such use is technically a “fair use.” Although the widespread use of images in this manner probably is broadening the definition of fair use.  The Tannen v. CBS v. Tannen situation is a reminder that not all online uses of images are fair uses, and more importantly, if you are going to complain about something, you better not be doing what you are complaining about.



Out-of-CTRL C

CTRL C, CTRL V (copy,paste) are widely used keyboard commands to add interesting content to emails, newsletters, and slide decks.  Everyone does it, so it must be o.k., right?  Not quite.  Copying existing text or images can constitute copyright infringement, if the copied material is copyrighted.  The problem is that almost everything is copyrighted.  There is an exception for certain fair uses — uses for criticism, comment, news reporting, teaching, scholarship, or research. But many uses in a commercial enterprise do not qualify as fair uses.

The following guidelines can help minimize the risks when putting together publications for internal or external distribution:

Give a Man Cupcake Sushi, and He’ll Have Dessert for a Day; Teach a Man to Make Cupcake Sushi, and He’ll Rip You Off

Lori Shubert and her company Cupcake Sushi, LLC filed an interesting lawsuit against Santiago and his associates doing business as Sushi Sweets, for patent infringement, trademark infringement, misappropriation of trade secrets, common law trademark infringement, federal and state unfair competition, and trade dress infringement. Shubert claims to have invented a unique confectionery dessert cake: cupcake sushi. Shubert has apparently built a thriving business in Key West Florida.  According to the complaint, Santiago, a former licensee and employee of Cupcake Sushi, absconded with product, equipment and Cupcake Sushi’s trade secrets.

Shubert clearly had an interesting and appealing idea, and while she took some steps to protect it, she probably should have formed a more comprehensive plan at the outset.  As she pleads in her lawsuit she applied for a utility patent (14/487364), she allowed the application to abandon.  She also applied for and obtained a design patent (D789,025) but filed the application several years after she claims to have developed her product.  Even if this patent validly protects a later design, she left her earlier designs exposed. While she did register her CUPCAKE SUSHI name and logo (Reg. Nos. 4471750 and 4770652), she might have also tried to protect her products names and appearances.

Resources are always tight in start-ups, and it is easy to second guess the allocation (or lack thereof) to lawyers, as entrepreneurs always seem to have other fish to fry. Shubert probably could have done more and done it sooner.  Shubert did take a number of appropriate steps to protect herself, and if those rights have been violated, then hopefully she will be able to enforce them and this won’t represent the fish that got away.  However, a more comprehensive approach might have made enforcement like shooting fish in a barrel:

Shubert may have learned another important lesson about protecting confidential information.  A confidentiality agreement does not make a dishonest person honest. The most important steps in protecting confidential information is limiting disclosures to people who can be trusted.

Shubert may have to also have to face the fact that no matter how comprehensive your intellectual property protection, there will always be some way for other to compete.  Good luck to Ms. Shubert, but if things don’t work out, there are always other fish in the sea.

Lawsuit Attempts to Finish the Job that the Iceberg Started

Stephen Cummings has sued James Cameron for turning his life story into the hit movie Titanic.  Mr. Cummings claims that Leonardo DiCaprio’s character Jack Dawson “is based solely/wholly/only” on his life.  Cummings claims violation of Right of Publicity, Unjust Enrichment, Copyright Infringement; and Trespass to Chattels/Conversion, and seeks $300,000,000 and a 1% royalty in perpetuity for each of three counts.

According to Mr. Cummings: “EVERYTHING, which went into to film, ORIGINATED with only myself, including the vessel, -via only my own remarks, and about the vessel/incident of its sinking).”  While conceding that Cameron did photograph the vessel, but that these were mere tools “to tell only MY OWN, story.”

While it seems doubtful that Cummings will be able to sink this Titanic, it is important for creators to document their creative process to be able to establish their independent creation, because it seems as if every time there is a successful product or movie, there is someone claiming he or she thought of it first.

Copyright is a Joke

There is an interesting case pending in the Southern District of California that answers the question: Are jokes copyrightable?  Robert Kaseberg for has sued Conan O’Brien for infringing his copyright in some jokes that he wrote and posted on his blog prior to Conan’s telling of very similar jokes.  Conan moved for summary judgment, which was granted as to one joke that was shown to be created before Kaseberg, and as to another joke that was shown to be sufficiently different.  However the court denied summary judgment  as to the other jokes, confirming that jokes are copyrightable, although the court agreed with O’Brien, that jokes are only entitled to “thin” copyright protection.  The Court said that there was “little doubt that the jokes at issue merit copyright protection,” however that protection was constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm.  The Court explained:

Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright. Feist, 499 U.S. at 345. And although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations that would (1) be humorous (2) as applied to the specific facts articulated in each joke’s previous sentence and (3) provide mass appeal. This merits only thin protection. The standard for infringement must therefore also be some form of “virtual identity.”

The court found sufficient difference as to one joke, but as to the others, the court concluded there was a triable issue of whether the jokes were sufficiently similar.

You Don’t Have a Right to Use a Photograph Just Because its of You

Xposure Photos (UK) Ltd. sued Khloe Kardashian for posting a Manual Munoz photo of Kardashian to her Instagram account. While the complaint The Photograph is highly creative, distinctive, and valuable, a substantial part of the vault is the subject: defendant.

One would expect that the litigation will be setlled, but it is still a good reminder that you can’t post images merely because you want to.


Visual Artists Rights Act Review

In 1990 Congress added the Visual Artists Rights Act to the Copyright Law as new Section 106A.  Section 106A provides:

106A Rights of certain authors to attribution and integrity

(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

   (1)shall have the right—

      (A) to claim authorship of that work, and
      (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
   (2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

   (3)subject to the limitations set forth in section 113(d), shall have the right—

      (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
      (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

(b) Scope and Exercise of Rights.— Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

(c) Exceptions.—

   (1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
   (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
   (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

(d) Duration of Rights.—

   (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
   (2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
   (3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.
   (4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.

(e)Transfer and Waiver.—

   (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.
   (2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
A work of Visual Art to which Section 106A applies is defined as:
   (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include—
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
While it seems hard to quibble with the idea of protecting the integrity of artistic works, the VARA (and it should be noted similar state laws) seem to punish those who are foolish enough to allow their property to be the canvas.  Perhaps for this reason many of the VARA decisions seem to stretch the law to avoid what the court might perceive as an unjust result.
In Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2nd. Cir. 1995), the Second Circuit’s determination that a very large “walk-through sculpture” occupying most, but not all, of the building’s lobby was a work-made-for-hire that saved the building owner from liability under VARA. In the words of the district court:
The artwork consists of a variety of sculptural elements constructed from recycled materials, much of it metal, affixed to the walls and ceiling, and a vast mosaic made from pieces of recycled glass embedded in the floor and walls. Elements of the work include a giant hand fashioned from an old school bus, a face made of automobile parts, and a number of interactive components. These assorted elements make up a theme relating to environmental concerns and the significance of recycling.
In Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006), the First Circuit’s determination VARA does not include site-specific art (art that is integrated into a site) allowed a park to be redesigned without VARA liability.
In Chapman Kelley v. Chicago Park District, 635 F.3d 290 (7th Cir. 2011), the Seventh Circuit’s questionable determination that Kelley’s Wildflower Works was not protected by copyright because it was not fixed in a tangible medium, allowed the City to reconfigure Kelley’s oval flower beds into smaller, rectangular beds, and change some of the flowers, without liability under VARA.
In Pavia v. 1120 Avenue of the Americas Associates, 960 F.Supp. 620 (S.D.N.Y. 2003), the district court held that VARA applied to a sculpture created before its enactment, but not to alleged acts of mutilation that occurred before enactment.  Thus the district court dismissed Philip Pavia’s VARA claims resulting from defendants movement of his “The Ides of March” sculpture from a Hilton Hotel Lobby to a warehouse.
In Pollara v. Seymour, 344 F.3d 265 (2nd Cir. 2003) the Second Circuit’s determination that a hand-painted banner was not a work of visual art, saved a city employee from liability under VARA for removing the banner, which was installed at public plaza without a permit.
In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, 593 F.3d 38 [93 U.S.P.Q.2d 1632] (1st Cir. 2010), although the First Circuit found that VARA applied to unfinished art, its determination that neither partially covering the unfinished work with tarpaulins nor displaying the unfinished work in its entirety violated VARA.
In Martin v. City of Indianapolis, 982 F.Supp. 625 (S.D.Ind. 2007), the district court granted summary judgment to Jan Martin for the city of Indianapolis’ destruction of his Symphony # 1 sculpture after his offers to donate and move the sculpture to another site for a cost of $8000.
In Scott v. Dixon, 309 F.Supp.2d 395 (E.D.N.Y. 2004), the district court found that Scott’s sculpture of a swan that the Dixons asked Scott to build in their backyard, was not a work of sufficient stature to merit protection under VARA, even though some of her other works may have attained that stature.
In Hunter v. Squirrel Hill Associates, L.P., 413 F.Supp.2d 517 (E.D.Pa. 2005), the district court found that the VARA action brought by the painter of a mural damaged by water leakage against a roof repairer was time-barred.
In Flack v. Friends of Queen Catherine Inc., 139 F.Supp.2d 526 (S.D.N.Y. 2001), Audrey Flack, an artist commissioned to create a statute of Queen Catherine of Braganza, namesake of the borough of Queens in New York City, sued Friends of Queen Catherine, Inc. the non-profit organization managing the project.  Flack sculpture of the head of the statue was left outside and was damaged, and rather than paying Flack to resculpt the face, one of her assistants was hired to do the work, so the statute could be completed. The district court rejected the claim that leaving the model outside violated VARA because damage from the passage of time or the inherent nature of the materials is excluded.  The court also rejected that the repair of the model violated VARA because conservation is also excluded.
In Board of Managers of Soho International Arts Condominium v. City of New York, 2003 WL 21403333 (S.D.N.Y. June 17, 2003) the district court denied the parties cross motions for summary judgment, noting that plaintiff failed to establish the sculpture was not removable from the building (and thus not protected under VARA), and defendant failed to established that it was removable (and thus entitled to limited production under VARA).  See Board of Managers of Soho Intern. Arts Condominium v. City of New York, 2005 WL 1153752, 75 U.S.P.Q.2d 1025 (S.D.N.Y. 2005).
In Cohen v. G & M Realty LP, 988 F.Supp.2d 212 (E.D.N.Y. 2003), the district court denied a preliminary injunction against the demolition of the buildings on which plaintiff’s aerosol artwork were created.

In Kleinman v. City of San Marcos, 597 F.3d 323 (5th Cir. 2010), the Fifth Circuit determined that a car-planter did not qualify as a “work of visual art” under the VARA, and thus was subject to regulation by the city.

 In English v. BFC&R East 11th Street LLC, [97 Civ. 7446(HB)] 1997 WL 746444 (S.D.N.Y. 1997), the district court denied artist’s motion for preliminary injunction and granted the developer’s motion for summary judgment, finding that the murals were placed illegally on the property, and thus not entitled to protection under VARA.
In Leicester v. Warner Bros., 232 F.3d 1212 [57 U.S.P.Q.2d 1001] (9th Cir. 2010), the Ninth Circuit determined that artist Andrew Leicesters contributions to the design of the streetscape around the 801 Tower in Los Angeles (featured in Batman Forever) became part of a unitary architectural work, and was not entitled to separate protection under VARA.
In Cheffins v. Stewart, 825 F.3d 588 [119 U.S.P.Q.2d 1094] (9th Cir. 2016), the Ninth Circuit affirmed the determination that a mobile replica of 16th-century Spanish galleon, built from used school bus, was a work of applied art, and thus not protect by VARA, when it was burned by the owner of the land on which it was stored, so that the bus could be sold as scrap.
 In Cort v. St. Paul Fire and Marine Ins. Companies, Inc., 311 F.3d 979 (9th Cir. 2002), the Ninth Circuit held that claims under VARA for covering over artist Jesus “Chuy” Campusano’s Lilli Ann mural did not constitute advertising injury covered by defendant’s commerical insurance policies.
In Hanrahan v. Ramirez, [2:97–CV–7470 RAP RC] 1998 WL 34369997 (C.D. Cal. 1998), Artist Mary B. Hanrahan won default judgment against the lessees of Avenue Liquor Store in West Ventura that painted over her mural.

In Whalen v. United Food and Commercial Workers Local 135, [14–CV–3017 W(BLM)] 2015 WL 4659213 (S.D. Cal. 2015), the district court granted and part and denied in part defendant’s motion to dismiss, finding that artists John and Jeanne Whalen did state a cause of action under VARA for the Union’s painting over their mural “Providing The Feast,” located on the Union’s wall.  SeeWhalen v. United Food and Commercial Workers Local 135, 2016 WL 2866875 (S.D.Cal. 2016)

In Kammeyer v. United States Army Corps of Engineers, [15–869 JGB (KKx)] 2015 WL 12765463 (C.D.Cal. 2015) the court granted the Corps’ motion to dismiss artist Ronald Kammeyer’s VARA lawsuit to stop the Corps from Bicentennial Freedom Mural in Corona, California, but allowed Kammeyer to refile.  See, also, Kammeyer v. United States Army Corps of Engineers, [15–869 JGB (KKx)] 2015 WL 12791408 (C.D.Cal. June 3, 2015) 
In Jackson v. Curators of the University of Missouri, [11–4023–CV–C–MJW] 2011 WL 5838432 (W.D. Mo. November 21, 2011), the district court denied the University’s motion to dismiss artist Paul Jackson’s VARA claims for mistreatment of his Tiger Spot mosaic installed on campus.
In Romero v. California Department of Transportation, [ 08–8047 PSG (FFMx)] 2009 WL 650629 (C.D.Cal. March 12, 2009), the district court granted CalDOT’s motion to dismiss Frank Romero’s VARA claim for painting over his “Going to the Olympics” mural rather than cleaning the graffiti from it.