The last few years have seen a seen a lot of Intellectual Property activity in the Supreme Court. But not all cases make the cut. This term, the U.S. Supreme Court has declined to hear some significant Intellectual Property cases.

• Gerald Morawski v. Lightstorm Entertainment Inc. et al. The plaintiff, a visual effects designer, alleged that James Cameron stole the idea for “Avatar” from him. The trial court granted summary judgment on the basis that Cameron was able to show independent creation. The Ninth Circuit Court of Appeals affirmed. Independent creation happens in many copyright cases. Authors of creative works should consider documenting the evolution of their works such as dating and keeping prior versions of the works as they evolve.

• A.V.E.L.A. Inc. et al v. Fifty-Six Hope Road Music Ltd. et al. In this case, merchandisers had produced products using the late Bob Marley’s images on their products. Marley’s children sued for using unlicensed images. The defendants argued that when Marley’s children gave an exclusive license to one company, they created a monopoly that wasn’t authorized by Copyright Law and Trademark Law. The jury’s verdict in favor of the Marley heirs will now stand. The defendants in this case unsuccessfully fought a well-accepted public policy reason for protecting the authors and owners of Intellectual Property

• Home Legend LLC v. Mannington Mills, Inc. This case involved the standard of copyright creativity. At issue was whether a design that replicates natural wood grain lacked sufficient originality for copyright protection. The 11th Circuit Court’s opinion that the design was sufficiently original will remain intact. As this case demonstrates, the creativity standard for copyrights is rather low.

• Halo Electronics Inc. v. Pulse Electronics Inc. et al. Halo sued Pulse for patent infringement involving electronic components. When Halo sought attorney’s fees due to willful infringement, the district court applied a two prong test to determine whether the infringement was willful. The twoprong test has both an objective and a subject analysis. This same type of analysis had been struck down by the U.S. Supreme Court in Octane Fitness, LLC v. ICON Health & Fitness involving a different provision of the patent statute. The Federal Circuit affirmed the district court judgment that Halo failed to prove the objective prong. Despite the U.S. Supreme Court’s decision in Octane, the two prong test for determining willful infringement may still be applied under certain circumstances.

• Editions Limited West v. Victoria Ryan. Ryan did not register her copyright before her former licensee, Editions, committed copyright infringement. As a result, Ryan could not recover attorney’s fees based on the fee shifting section of the Copyright Act. However, Ryan was able to recover attorney’s fees based upon a fee shifting provision in the agreement she had with Editions. The Ninth Circuit determined that the Copyright Act would not preempt recovery of attorney’s fees based on a contract. This decision demonstrates the power of a well-crafted license agreement.

To discuss how these issues apply to your company contact: Beverly A. Berneman (312)696-1221, baberneman@golanchristie.com

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