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How are copyright infringement lawsuit cases shaping the current legal landscape, both online and off? From top news stories and case studies to recently filed cases, Traverse Legal offers expert and experienced commentary on copyright infringement lawsuits and litigation.
June 10, 2014

The Monster Copyright Infringement

CopyrightMonster Beverage Corporation recently had a verdict handed down against them in trial for the amount of $1.7 million, which was award to the Beastie Boys for copyright infringement of the band’s music.  Monster’s said in its defense that, even though they had infringed on the band’s copyrights, it had not done so intentionally because an employee of the company had mistakenly believed that it had permission to use the Beastie Boys’ music for their YouTube video.  

Uploading videos on websites like YouTube are a very common practice by both individuals and companies to get additional exposure and attention beyond TV, magazine, radio and websites.  However, if you downloading and using someone else’s videos, pictures, music  and/or other forms of artwork which you don’t have expressed consent to use, you could very well be infringing on their protected copyrighted materials.  Be aware that this could lead you into a lawsuit similar that Monster Beverage Corporation found itself in with the Beastie Boys.   So, unless you are only posting your own photos, music or other forms of work, the unintentional use of a copyrighted material could possibly get you into copyright infringement trouble.  If you want to use some form of media or art, it is extremely important to make sure that it is not copyright protected, that you get the proper written authorization to use it, and/or contact a copyright attorney to assist you with obtaining permission and the proper use of other’s pictures, music and/or videos. 

July 29, 2013

Can I trademark my slogan?

Whether or not an entity can trademark a slogan really depends on how that slogan is to be used. The general principles of trademark law apply in analyzing whether or not the intended or actual use of the slogan constitutes trademark use under the law. At the outset, it is important to understand that a copyright cannot protect a slogan. Therefore, a trademark may be able to do so IF a slogan is used as a source identifier in connection to a particular set of goods or services. Put another way, the slogan must be distinctive, used in interstate commerce, and used as a brand identifier.

To determine whether or not the slogan is distinctive, a trademark attorney can analyze the slogan to ensure that it is not generic or merely descriptive when used in connection with the underlying goods or services. Instead, the slogan must be distinctive, which means that it has either acquired distinctiveness, is arbitrary, or fanciful. Understanding how the slogan will be used will help determine whether or not the slogan is distinctive enough to qualify as a trademark.

The slogan must also be used in interstate commerce as a trademark. Therefore, merely putting it on the front of a t-shirt or some other merely ornamental use does not qualify as a trademark use. It must serve as a source identifier. For example, if used in connection with services, it should be used on a website or other advertising material that confirms that it is a mark. If used in connection with certain goods, such as t-shirts, it must be used on a hang tag, label, or otherwise in such a way that it is clear that it is more than a slogan or phrase without any underlying identification of source for such goods. One looking to protect a slogan would be well served to speak with a trademark attorney who can further advise the proper way to make trademark use of a slogan.

Ultimately, the trademark availability assessment or clearance should be performed on a slogan prior to beginning use or pursuing registration. This will allow a trademark attorney to determine whether or not use of the slogan is likely to subject the entity to claims of trademark infringement, whether or not the slogan is in fact distinctive enough to qualify as a trademark, and provide recommendations as to the likelihood of it being a protectable mark and/or successful trademark registration with the (USPTO) United States Patent and Trademark Office.

July 24, 2013

Motion To Quash Subpoena For IP Address

When an anonymous poster takes action online, an IP address must be used and is associated with that individual poster. In the event that the anonymous poster is engaged in online defamation or copyright infringement, the harmed party must first identify the anonymous poster in order to proceed with a lawsuit. The harmed party, or Plaintiff, will file a lawsuit against a John Doe. We will then seek expedited discovery so as to subpoena information associated with that IP address from the internet service provider, such as a cable company. The internet service provider will then provide notice to the owner of that IP address. That notice will confirm that it will be disclosing the information associated with the Ip address, such as name and address, if a motion to quash is not filed with and granted by the court handling the underlying lawsuit filed by the plaintiff.

Malibu Media, who has been identified in various online sources as a copyright troll, is one such party that regularly deals with anonymous actors online. In particular, Malibu Media is the owner of various adult related copyright works. When such works are allegedly infringed, Malibu Media files a lawsuit against a John Doe, seeks expedited discovery, subpoenas the internet service provider, and then hopefully proceeds with action against an identified person. Some individuals choose to file a motion that quashes a subpoena. One such recent case in the United States District Court for the District of Colorado, as decided on July 14, 2013, the court entertained three reasons why the motion to quash should be granted.

First, it fails to allow a reasonable time to comply. Second, it requires excessive travel by a non-party. Third, it requires disclosure of privileged or other protected matter, if no exception or waiver applies. Fourth, subjects a person to undue burden. Those are the only grounds listed under Federal Rule of Civil Procedure 45 as it relates to reasons to quash a subpoena. The John  Doe defendant in the above identified matter sought the courts quashing of the subpoena on three separate basis, including plaintiff's litigation tactics, defendants inability to challenge the courts order permitting early discovery, and defendants First Amendment right to anonymous file sharing. The court considered each of these arguments. It first noted that a plaintiff has a constitutional right to file a lawsuit to engage in discovery to determine if a defendant or someone using a defendants IP address infringed on a protected work so long as the plaintiff had a good faith basis in doing so under Rule 11, which refers to Federal Rules of Civil Procedure and contains sanctions for frivolous or unfounded filings. Despite acknowledging that Malibu Media has been argued to be and identified as a copyright troll, the court recognized that it has the same right as all the other litigants to settle or dismiss its claims before engaging and discovering prior to filing any dispositive motions. Therefore, court declined to quash the subpoena based upon litigation tactics alleged in the motion to quash.

The court also quickly disposed of the defendants argument that the subpoena should be quashed due to defendants inability to challenge the courts order permitting early discovery. The court recognized that the defendants anonymity was the exact reason why the plaintiff sought early discovery and one of the few reasons that early discovery is permitted. Put simply, deemed the argument unreasonable that defendants failure to participate in the process intended to discover his identity could be used as a basis for restricting the subpoena or other discovery.

Finally, the court considered whether the defendants interest in anonymous file sharing justifies quashing the subpoena. While anonymous internet speech, including file sharing, enjoys some protection under the First Amendment, such protection is not absolute, said the court. As a category, copyright infringement is not protected by the First Amendment. That said, courts have recognized that defendants right to remain anonymous must give way to plaintiffs right to use the judicial process to pursue what appear to be meritorious copyright infringement claims. In analyzing the issue, the court considered what are known as The Sony Music Factors, including whether the plaintiff has made a prima facie case for infringement, the specificity of information sought from the internet service provider, a lack of alternative means of obtaining that information, a central need for the information in order to bring the claim, and the expectation of privacy held by the objecting party.

The court first recognized that a prima facie claim of copyright infringement exists because the plaintiff alleged ownership of valid copyright, including a copyright registration with the US Copyright office, as well as original works of authorship in each of the seven films at issue. Second, the information sought from the ISP was specific enough, including defendants name, address, and telephone number. Third, the court recognized that a subpoena is the first step and that no other means are available to identify the defendant. In doing so, the court noted that this information is not guaranteed to produce the identity of the infringer, the court could not identify any other reasonable way of discovering the infringer other by permitting the discovery into the identity of the defendant, who has not disputed that he owns the IP address through the alleged infringement occurred. Fourth, there is a central need for the subpoenaed information. The court recognized that plaintiffs providing an exculpatory evidence request with its complaint demonstrates steps that it may take to get information from the internet subscriber to the alleged infringer, which further weighs in favor of discovery under the fourth factor. Fifth, and finally, the court chose to recognize that a file sharers First Amendment right to anonymity is exceedingly small. It went on to state that, "It is hard to understand just what privacy expectation a file sharing defendant has after essentially opening up his or her computer to the world". Thus, the court found the information sought in the subpoena is both relevant and necessary to the plaintiffs interest in vindicating its valid copyrights through this litigation and the discovery sought did not violate defendants First Amendment right to anonymous file sharing, which is too slight to overcome any such discovery interest.

More and more decisions are being issued throughout the country as it relates to the quashing of subpoenas related to identifying the owner of an IP address in cases involving alleged copyright infringement. A copyright attorney with experience in this area can help advise as to the likelihood of a successful motion to quash, as well as other efforts in the event that you receive notice from an ISP that your identity is to be revealed pursuant to a subpoena.

July 12, 2013

Copyright Damages Risked By Use of Torrent Sites

There's plenty of commentary on the internet about copyright trolls, with entities such as Malibu Media being on the receiving end of that identifier. Malibu Media is a company that owns copyright rights to various pornographic works and have been active in filing copyright infringement lawsuits against defendants throughout the United States, including in the eastern district of Michigan and the western district of Michigan, for the unauthorized downloading and viewing of their works. In particular, Malibu Media files a complaint against a John Doe since they do not have the name of the person associated with the particular IP address. They then get expedited discovery from the court and subpoena the provider of that IP address, such as Comcast. The owner of the IP address is then provided notice by Comcast that their identity will be revealed if they do not quash the subpoena or otherwise resolve the matter with Malibu Media.

Once this person is provided notice, they have several options. First, they may determine that they did not violate any copyright and work with a copyright attorney to defend the lawsuit. Second, they may choose to fight the subpoena in hopes of the plaintiff not wishing to proceed further, although this is a risky endeavor. Third, they may try and resolve the matter without having their identity revealed. Copyright attorneys are available to assist in any one of these options. However, it is important for the person who is alleged to have infringed on others' copyright to understand what damages might be available under the copyright act. In particular 17USC504 provides the remedies in damages available for any copyright infringement. While a copyright owner, who has successfully registered their copyright will always threaten the $150,000 per infringement, known as the statutory maximum, that amount is not the only amount available. In fact, the Copyright Act specifically allows for damages between $750 and $30,000 as the court considers just, especially where there's no willful behavior on behalf of the alleged infringer. Tellingly, however, there is also the ability for the court, within its discretion, to reduce the award of statutory damages to as little as $200 per infringement. The fact of the matter is that there are cases that have interpreted the various provisions and can provide insight into which amount may be applicable to a given factual situation. If you have received a subpoena and could be at risk of statutory damages, you would be well served to speak with a copyright attorney who can assist you in determining your likely liability and financial exposure. Understanding what is at risk may help you to make an informed decision in the event you wish to settle or spend resources defending or otherwise tempting to quash the subpoena in the underlying matter.

Regardless, copyright infringement lawsuits by copyright owners do not appear to be slowing down. Therefore, you would be well served to understand, via a copyright attorney or on your own, what is at risk.

February 11, 2013

Revenge Porn Websites & Copyright Infringement

If you are the victim of a posting on a revenge porn website, you're going to need a good web attorney to help you have the photograph removed.  Revenge porn websites have become very much the rage over the last 12-months.  Revenge porn typically occurs when someone posts a nude or naked photograph of their boyfriend or girlfriend on one of these revenge porn websites, an act which is often motivated by ill will. 

How do you remove a naked or provocative picture of yourself from one of these revenge porn websites?  There are a variety of different strategies both under copyright infringement law, the Digital Millennium Copyright Act (DMCA) and right to publicity, which could provide you leverage in removing a photograph of yourself from one of these websites.  Under copyright law, the person who takes the video or photograph is typically the copyright owner.  If someone took one of your photographs to which  you have copyright protection, you can send a Digital Millennium Copyright Act takedown notice from your copyright attorney to the revenge porn website in order to have it removed.  You also have a right to control how your likeness is used on the internet, especially commercial uses.  The right to publicity is often a legal theory used by attorney who are trying to remove revenge porn postings.  The first step, however, is to have your lawyer do a full analysis of your situation so that you don't make a wrong move out of the gate.  Identifying the appropriate legal strategy is the primary job of an experienced internet law attorney or website lawyer in handling a revenge porn website removal matter. 

January 30, 2013

Revenge Porn Website Faces Copyright Infringement, Invasion of Privacy and Defamation Claims

Copyright infringement, invasion of privacy and potentially defamation claims could exist when your photo, naked, pornographic or otherwise, is posted on a website without your permission. CNN Reports on one lawsuit which is being brought against a revenge porn website where ex-boyfriends can post naked or pornographic pictures of girlfriends who have broken up with them. The website allegedly will take the picture down if you pay them money. For many web visitors, this smacks of extortion.

Continue reading Revenge Porn Website Faces Copyright Infringement, Invasion of Privacy and Defamation Claims >>
January 02, 2013

Copyright Registration Does Not Equate to Copyright Infringement Liability Always

Any individual or business that wishes to protect its original work of authorship would be well served to pursue a copyright registration with the United States Copyright Office.  Registering copyright prior to an infringement or within three months of publication of the particular copyright does entitle the copyright owner and claimant to statutory damages as well as the potential for recovery of attorney’s fees.   In addition, registering a copyright before or within five years of publication of the particular work affords the copyright owner the presumption of validity of the copyright and the facts listed within the registration certificate.  Given the low registration fee associated with a copyright registration filing, it is typically advisable to pursue copyright registration.
Continue reading Copyright Registration Does Not Equate to Copyright Infringement Liability Always >>
July 27, 2012

Have you been sued for copyright infringement by Nicoletti and Associates?

Nicoletti and Associates, a Michigan law firm located in Bloomfield Hills, has filed suit for copyright infringement on behalf of Patrick Collins and Malibu Media against numerous Michigan residents. If you are looking for defensive representation in one of these copyright infringement lawsuits, contact the attorneys at Traverse Legal, who have represented defendants like you in copyright infringement downloading lawsuits across the country. The attorneys of Traverse Legal know and understand the law and technology surrounding copyright infringement, pure bills of discovery, and movie downloading, and we stand ready to defend you in copyright litigation. Contact us today at (231) 932.0411.

June 08, 2012

Preparing for Copyright Infringement Litigation

copyright litigation can be incredibly bloody. So it's very important that a copyright holder take certain steps to ensure that if, in fact, they ever do get into litigation their rights are adequately protected prior to the filing of a copyright infringement complaint. The first thing that a copyright infringement plaintiff should think about prior to litigation, is that they have registered for copyright protection. A copyright registration gives not only the ability to file a copyright infringement lawsuit in federal court, but it also gives certain damages benefits.

Continue reading Preparing for Copyright Infringement Litigation >>
June 09, 2011

Eminem Files Copyright Infringement Lawsuit against Audi

As reported by BET, Eminem filed a lawsuit against German car company, Audi, for copyright infringement after the company used his Oscar-winning song “lose Yourself” in its commercial advertisement.  In addition to the alleged unlicensed use of the song, Joel Martin, a spokesperson for Eminem’s company Eight Mile Style, said,  "We believe Audi not only used "Lose Yourself" to sell their product without permission, but their spot actually feels inspired by elements of Chrysler's commercial campaign.”

 

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