A Celebrity Picture is worth a Thousand Words
Representing defendant Gossip Cop Media, LLC in a copyright infringement action relating to the use of celebrity images on the gossipcop.com website, Leason Ellis obtained a partial dismissal of plaintiffs' various claims based on the plaintiffs' failure to obtain a copyright registration prior to filing the lawsuit (an issue that is subject to an intra-district split in the Southern District of New York). Previously, Leason Ellis obtained a complete dismissal of all claims by plaintiffs against another defendant in the case.
BWP MEDIA USA, INC. V. GOSSIP COP MEDIA, LLC ET AL., CIVIL ACTION NO. 1:13-CV-07574 (KPF) (S.D.N.Y.)
Called on the Carpet
Nourison Industries, Inc., a leading company in the field of floor coverings and handmade area rugs, received a demand letter from a company in Tennessee seeking millions of dollars for alleged copyright infringement. Leason Ellis responded by commencing an action for declaratory judgment of non-infringement in the District of New Jersey -- where Nourison is based. After defendant Virtual Studios asserted counterclaims for copyright infringement and unjust enrichment, on behalf of Nourison, Yuval Marcus filed a motion to dismiss the counterclaims. Judge Sheridan granted Nourison's motion to dismiss defendant's counterclaim for unjust enrichment on the ground that it was preempted by the Copyright Act. Ultimately, Leason Ellis' aggressive strategy paid off. After mediation before Magistrate Judge Esther Salas, Leason Ellis was able to negotiate a very favorable settlement of the case.
NOURISON INDUSTRIES, INC. V. VIRTUAL STUDIOS, INC., 2010 WL 2483422 (D.N.J.)
Best-Supported Copyright Design in a Movie Background
Leason Ellis represented an industrial design firm that created a futuristic public structure. A major studio sci-fi movie (one of the more famous sci-fi franchises) depicted, without authorization, a copy of the structure as a background element in several scenes of the movie. Leason Ellis protested the use, arguing that the screen time of the structure added up to more than mere de minimis use. Averting what could have been a war of attrition with a major studio, we negotiated a win-win license under which the design firm was able to promote the movie’s implicit recognition that the firm’s design was indeed several centuries ahead of its time.
The Tell-Tale Ink Splatter
Leason Ellis, through Martin Schwimmer, represented a manufacturer of fabric bearing a copyrighted depiction of a repeating Japanese garden scene. Defendant, one of the country’s largest retailer began selling garments made from a knock-off of the client’s fabric. Defendant asserted a scenes-a-faire defense – that the similarities could be ascribed to the commonplace elements that make up a Japanese garden – every koi pond looks another. Martin created magnified excerpts of the brush-strokes used to render the Japanese scene. The ink splatter at the edges of the brush strokes were identical – Defendant’s design could only have been created through mechanical copying. The case settled.
Stricter Standard applied to win Summary Judgement
Peter Sloane participated in the successful representation of Defendant against a claim of copyright infringement in Plaintiff’s carpet design inspired by an antique Japanese kimono. The Court agreed that the appropriate test for substantial similarity was the “more discerning” ordinary observer standard because Plaintiff’s copyrighted design included many elements in the public domain. Under this stricter standard, Plaintiff’s copyright protection was limited to the particular selection and arrangement of the public domain elements. Consequently, the Court granted summary judgment in favor of defendant and dismissed the case.