Tuesday, January 26, 2010

Traverse Internet Law Federal Court Report: December 2009 Copyright Infringement Cases

The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.

FILED: 12/08/2009

This case deals with the infamous alleged incident in which Tila Tequila claims that Shawne Merriman attacked her.

Plaintiff alleges that Defendant reproduced, duplicated, and is using exact copies of pictorial works to which it owns a copyright on her websites. The Defendant is Tila Tequila and the pictorials are used on her new, for-profit social networking website, according to the lawsuit. The individual Plaintiff, in addition to the corporate Plaintiff, is Shawne Merriman, a football player for the San Diego Chargers.

The Plaintiff has sued for copyright infringement, trademark infringement, federal unfair competition, dilution of famous mark, intentional interference with contract, intentional interference with prospective economic advantage, and common law unfair competition. Plaintiffs request preliminary and permanent injunctive relief, actual damages in an amount to be determined at trial, treble damages, exemplary and punitive damages, pre-judgment interest, statutory damages up to $2 million, costs, expenses and fees, restitution, attorneys’ fees, and such further relief as the Court may deem just and proper. Traverse Internet Law Cross-Reference Number 1390.

FILED: 12/08/2009

These fake sites, often in the form of blogs, and often designed to appear as if they are from a legitimate source or as if they are reporting legitimate news, are known in the industry as “flogs”, which is short for “fake blogs”. Considering the fact that these are clearly in violation of a broad range of regulatory laws, including the recently enacted Federal Trade Commission’s guidelines on the disclosure of financial information and deceptive practices, a business would be well advised to make sure no marketers are employing such a tactic.

Jeremy Schoemaker is known in the affiliate marketing and search engine marketing industry and his blog is visited by more than 25,000 unique visitors each day. One of the images on his website is a close-up of his face with a six figure check from Google. The Defendant is alleged to have launched a “flog” which is a fake blog that appears to be a news site and has misappropriated and is using Plaintiff’s image and copyright protected photograph on its site.

The lawsuit includes claims for copyright infringement, invasion of privacy, and violations of the Consumer Protection Act and Uniform Deceptive Trade Practices Act. Plaintiff requests permanent injunctive relief, actual damages in an amount to be proven at trial, an accounting of wrongful conduct and profits, recovery of all of Defendant’s direct and indirect profits, costs and attorneys’ fees, and any further relief the Court deems to be fair and just. Traverse Internet Law Cross-Reference Number 1391.

FILED: 12/04/2009

Don’t be fooled by the anti-intellectual property online legal commentators who believe that “information yearns to be free” to such an extent as to negate intellectual property rights. You will get that very distinct feeling that this is the law of the web when you read many of the law professors and left wing attorneys who blog about the issue. Of course, they have no attorney/client relationship with the readers, they don’t have malpractice insurance if they did to back up their opinion presented as a statement of fact, and they don’t exercise the slightest bit of objectivity in providing quality risk-management guidance. Which brings us to this case. All because it is on the web, and all because it is not clear that there is trademark protection in the image or text you are viewing, you cannot borrow it and use it for most purposes. There are some carve-outs to this exception relating to fair use and free speech, but theses are particularly complex, unsettled areas of law that lawyers and judges still struggle with. The takeaway from this case is that you simply should not ever “borrow” anything from a website without getting an okay from your lawyer that your intended use falls into a protected category of expression or fair use.

Plaintiff DarbyTech manufactures customized training equipment and provides training services for process-control systems. Defendant Hamden is a competitor. The Plaintiff made a presentation to Saudi Chevron in Kuwait City, Kuwait concerning a proposal on November 11, 2009. During the meeting, Saudi Chevron employees allegedly interrupted and stated that they had in their hands a presentation from another vendor, the Defendant, that contained the same photographs and text that formed part of DarbyTech’s presentation. The Plaintiff contends that the images and text was copied verbatim from DarbyTech’s website and used by the Defendant.

Defendant has been sued for copyright infringement, unfair competition, injurious falsehood, interference with advantageous business relations, conversion, and violation of G.L. c. 93A, § 11. Plaintiff requests preliminary and permanent injunctive relief, statutory damages, treble damages, attorneys’ fees, any gains, profits, and advantages obtained by Defendant, and such further and other relief as the Court deems appropriate. Traverse Internet Law Cross-Reference Number 1392.