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

Recently, Wikimedia (the entity behind Wikipedia) has refused repeated requests from professional photographer David Slater to remove from one of his most famous photos from its royalty free photo collection website.  The photo at issue is a “monkey selfie.” Slater claims he owns the copyright to the photo and Wikimedia is using it without his permission.  Bananas! claimed Wikimedia;  a recent report reveals that Wikimedia editors decided that Mr Slater has no claim on the image as the monkey itself took the picture.

In what must be the wildest of luck, Slater was visiting a North Sulawesi national park in Indonesia when a black macaque grabbed an errant camera and took an amazing array of self-portraits.   These amazing pictures ran in an July 5 article about the incident in the UK’s Daily Mail.  Two of the four pictures featured in the article included a copyright notice indicating Caters News Agency (Slater’s photo agency) as the owner.

Can Canters News Agency or Mr. Slater own the copyright in the photos taken by this highly intelligent and obviously photogenic?   In order for this to be the case, the monkey would have to be an author under the Copyright Act.    And if a monkey can be considered an author, he or she would have to assign or transfer the copyright in the photos to Caters News Agency.
Continue Reading Copyright Ownership Claim Of Pictures Taken By Wild Ape is Monkey Business