In this episode of The Briefing by the IP Law Blog, Weintraub Tobin attorneys Scott Hervey and Josh Escovedo discuss copyright litigation around the “Jersey Boys” — a musical and movie about The Four Seasons– involving an unpublished biography by one of the band members.

The Intellectual Property Law Blog provides insight in connection

In Kirk Kara Corp. v. Western Stone & Metal Corp. et al, 2-20-cv-01931 (CDCA 2020-08-14, Order) (Dolly M. Gee), the Central District of California denied Defendant’s motion to dismiss Plaintiff’s claims for copyright infringement, finding sufficient substantial similarity between the copyrighted works and the accused works had been alleged. However, the Court granted Defendant’s motion to dismiss Plaintiff’s DMCA § 1202 claim because plaintiff failed to allege Defendant’s works were exact copies of Plaintiff’s, thus reasoning substantial similarity was not sufficient under the DMCA because DMCA violations exist only where the works are identical.

In the case, Plaintiff Kirk Kara Corp. asserts it is the owner of three registered copyrights for jewelry designs (“Subject Designs”), and alleges they were widely disseminated in the jewelry industry. Plaintiff further alleges that Defendant Western Stone and Metal Corp., doing business as Shane Co., distributed and/or sold four engagement rings (“Subject Products”) that are substantially similar to Plaintiff’s copyrighted jewelry designs. Plaintiff alleged copyright infringement, vicarious copyright infringement, contributory copyright infringement, and a violation of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1202 against Defendant. Defendant moved to dismiss all claims.
Continue Reading District Court Applies Different Requirement for Similarity of Accused and Asserted Works Under DMCA Versus the Copyright Act

The facts in Mango v. BuzzFeed are fairly straight forward. Mango is a freelance photographer who licensed a photograph to the New York Post.  The Post included the photo in a story and below the photo included Mango’s name – an attribution known in the publishing industry as a “gutter credit”.  Three months after the story was published by the Post, BuzzFeed published a related story and included Mango’s photo.  BuzzFeed did not get permission from Mango to use the photo.  Further, BuzzFeed removed Mango’s name from the gutter credit.  Mango sued for copyright infringement and for removal or alteration of copyright management information under the DMCA.  Prior to trial BuzzFeed stipulated to liability on the copyright infringement claim, leaving Mango’s DMCA claim as the sole issue for the District Court
Continue Reading Second Circuit Frames Novel Issue of Photographer’s Claim of Copyright Infringement and DMCA Violation

Unicolors, Inc. creates and markets artistic design fabrics to various garment manufacturers.  Some of these designs are marketed to the public and placed in its showroom while other designs are considered “confined” works that Unicolor sells to certain customers. Unicolors withholds marketing them to the general public for a set period of time. In order to save money, Unicolors often times groups various designs into a “single work” when filing with the U.S. Copyright office for copyright registration.  The Ninth Circuit in Unicolors v. H&M Hennes & Mauritz (May 29, 2020), recently addressed whether this practice, grouping both public and “confined” works into a single registration application, creates a valid copyright that Unicolors could enforce.
Continue Reading “Birds of a Feather” – The Ninth Circuit Confronts “Single Unit of Publication” Copyright Issue

(This article was republished with permission by ABA Business Law Today on 6/2/2020, available here.)

Certain literary or graphic characters may, in some cases, enjoy copyright protection. Think James Bond – or Batman and even his Batmobile.  Recently, the Ninth Circuit was called upon to determine whether the Moodsters, “anthropomorphized characters representing human emotions,” are subject to the same copyright protection as Batman.  Sadly, the Ninth Circuit concluded they do not.

The Moodsters were created by an expert on children’s emotional intelligence and development, Denise Daniels. She created the Moodsters to “help children cope with strong emotions like loss and trauma.”  In 2005, Ms. Daniels and her team released an initial product called The Moodsters Bible.  The Moodsters Bible told the story of five characters who were “color-coded anthropomorphic emotions” that represented a different emotion: pink–love, yellow-happiness, blue-sadness, red-anger and green-fear. Two years later, Ms. Daniels and her team released a 30-minute television pilot featuring the Moodsters called, “The Amoodsment Mixup.”  In 2015, Ms. Daniels and her team had developed a line of toys and books featuring the Moodsters that were sold at Target and other retailers.
Continue Reading Inside Out: The Ninth Circuit Holds The Moodsters are No Batman