Be careful not to control someone else’s infringing activities. %CUT% Barcroft Media Ltd. provides a video and image library available for download. Photographer, Jeffrey R. Werner, filed suit against Barcroft alleging that it allowed Valnet Inc. to download his photos without his consent. Jeffrey alleged that Barcroft materially contributed to Valnet’s infringement by granting Valnet a retroactive license. Barcroft brought a motion to dismiss arguing that Jeffrey didn’t state a claim. The court denied the motion deciding that Jeffrey stated a claim for vicarious liability and contributory infringement. Although the court expressed some doubt as to whether Jeffery’s going to be able to prove the facts to support his case.

Submitting an idea doesn’t mean you own it. %CUT% Author, Dan Rosen, had a screenplay called “Darci’s Walk of Fame”. For those who are not ‘in the know’, the standard elements of a walk of shame are: (1) a one night stand; (2) waking up the next morning in someone else’s bed; and (3) having to walk (or taxi or Uber or Lyft) home in the clothes you wore the night before. Dan was lucky to get a meeting with actress and producer, Elizabeth Banks and her husband to present his screenplay. After discussing the plot line, characters, and themes, Banks and her husband took a pass. Not long after the meeting, Banks starred in the 2014 movie “Walk of Shame” which wasn’t exactly a box office hit. Dan’s assignee, Shame on You Productions, Inc. sued Banks, her husband, and the film’s production based on copyright infringement and an implied contract. The court applied the extrinsic test to determine if infringement occurred. The extrinsic test focuses on specific similarities between two works. Scenes a faire (standard situations that flow naturally from the plot) are disregarded. The two works shared the “walk of shame” premise and some natural elements that flowed from it, but the narratives and characters were different. Shame on You’s case was dismissed and affirmed on appeal.

A banana costume could infringe on a banana costume. %CUT% If you bought a banana costume for Halloween today, you may have purchased a copyright infringing product. Rasta Imposta sued Kmart for selling alleged knockoffs of Rasta Imposta’s banana costume. Costumes are generally considered clothing which are useful articles and can’t be copyrighted (Whimiscality, Inc. v. Rubie’s Costumes which held a child’s pumpkin costume could not be copyrighted). But masks can be copyrighted because they aren’t considered useful articles. (Masquerade Novelty v. Unique Industries which held that animal nose masks can be copyrighted). But would a banana costume be considered clothing and not copyrightable? We’re going to have to live in limbo because Rasta Imposta and Kmart settled.

We celebrate the premier of Season 2 of Netflix’s hit horror series, Stranger Things, with a not-so-spooky cease and desist letter. %CUT% The popularity of Stranger Things seeped into the culture. So much so, that in August 2017, Chicago-based Emporium Arcade Bar opened a pop-up location called “The Upside Down” which was designed to look like the sets from the series. The only problem was that they didn’t get permission from Netflix. Netflix’s in-house lawyers sent a cease and desist letter. Netflix took an even-tempered, but effective, approach. The letter could be summarized but it’s much better to see it in its entirety:

Copyright only protects the non-standard elements of an architectural plan. %CUT% Architectural plans, by their nature, incorporate elements that have been in the public domain for centuries, such as doors, windows and types of rooms in a house. Copyright Law calls those standard elements “scènes à faire”. Home developers use a combination of standard elements to create floor plans. Sometimes, the developer comes up with a unique feature. When that happens, the developer has a copyright in the unique feature. The plaintiff in Design Basics LLC v. Lexington Homes, Inc., publishes home floor plans and licenses them on a retail basis. Design Basics sued Lexington Homes for copyright infringement of its floor plans. The 7th Circuit Court of Appeals affirmed summary judgment in Lexington Homes’ favor. The Court agreed with the District Court that a jury could not find that Lexington Homes’ plans were substantially similar to Design Basics’ plans. The graphic to the left illustrates the point by juxta positioning a Design Basics floor plan with a Lexington Homes floor plan. If you take the scènes à faire out of the equation, Design Basics seems to have very little protectable elements. But there’s more. The Court, in dicta, discussed Design Basics' litigation history and used the opportunity to criticize Intellectual Property trolls. As of April 2017, Design Basics had brought over 100 copyright infringement lawsuits. Design Basics trawled the Internet and paid employees to find "infringers". The Court expressed distaste for this type of wholesale litigation. The Court reproached plaintiffs, i.e. Intellectual Property trolls, who misuse the legal system by filing dubious lawsuits for the purpose of prompting settlements to avoid costly litigation.

In case you’re curious about what happened after, here’s an update from a previous post. %CUT%

No group of artists suffers copyright infringement more than photographers. %CUT% Professional and amateur photographers post their photos on the Internet to proudly display their work. Photographers have a hard time reigning in unauthorized uses of their photos. It’s hard to track unauthorized downloads, hard to find the downloaders and the damages are usually not pursuing given the costs of litigation. That’s why VHT, Inc.’s $8.3 million judgment against Zillow Group, Inc. deserves acknowledgement. VHT licenses its photos of properties that are for sale to real estate agents. The real estate agents have a license to post the photos for marketing purposes. Zillow’s infringement resulted from use of the photos outside the scope of the license in two ways. First, it left the photos on its website even after the properties were sold. Second, Zillow posted the photos on its “Diggs” website which provides home design and improvement services.