Thursday, June 01, 2017

Pleading Copyright Infringement: What To Do When Registering Your Copyrights After Starting A Lawsuit?



In a recent case in the Southern District of New York, Judge Robert Sweet cited Copyright Litigation Handbook for the proposition that a plaintiff that started a lawsuit without registered copyrights ought to promptly supplement the complaint to avoid dismissal.   In this case, Judge Sweet dismissed the copyright infringement complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.


Rule 15 of the Federal Rules of Civil Procedure governs amendments and supplements to a complaint.   Here's the cite.


MATILDE GATTONI, Plaintiff, v TIBI, LLC, Defendant., 16 CIV. 7527 (RWS), 2017 WL 2313882, at *3 [SDNY May 25, 2017]


 


Because Gattoni has alleged only that the registration for the allegedly infringed film is pending, and because no application has been made by Gattoni to amend the Complaint if and when the Photograph became registered, Gattoni has not properly pled the pre-requisite element of a copyright infringement claim, and the Complaint's cause of action for copyright infringement necessarily fails to state a claim. The Defendant's motion to dismiss the copyright infringement claim is granted without prejudice. See Membler.com LLC v. Barber, No. 12–CV-4941 JS GR, 2013 WL 5348546, at *5 (E.D.N.Y. Sept. 23, 2013) (explaining that Pyatt v. Raymond, 462 F. App'x 22 (2d Cir. 2012) now stands for the proposition that post-commencement registrations will not automatically be read into the complaint and the plaintiff should seek amendment); Raymond J. Dowd, Copyright Litigation Handbook § 7:1 (2d ed. 2012) (“[I]f a plaintiff registers copyrights after the filing of a complaint but does not supplement the complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure, the court may dismiss the case.”); Patry on Copyright § 19:4 (2013) (“Where plaintiff has received registrations subsequent to the filing of the complaint, the complaint should be amended.”).





 www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Thursday, January 05, 2017

Eighth Circuit: Copyright & Trademark Infringement To Publish Modified Public Domain Materials




Tom & Jerry


In 2011, Copyright Litigation Blog wrote here about an Eighth Circuit decision finding that combining public domain copyright materials could constitute copyright and trademark infringement.  The case Warner Bros. Entertainment v. X One X Entertainment, 644 F.3d 584 full decision here presents difficult limitations on the free use of public domain works.


What happens when publicity stills from the Wizard of Oz, Gone With the Wind and Tom & Jerry fall into the public domain?  Can you lift a sentence from a work still under copyright and combine it with the publicity still?   Can those images be licensed?   The Eighth Circuit concluded that under the facts, the answer was "no" and entered an injunction.


On November 1, 2016, the Eighth Circuit made another decision Warner Bros. Entertainment v. X One X Entertainment, 840 F.3d 971 (8th Cir. 2016) full decision here.    Defendants challenged a statutory damages award of $2,570,000 based on $10,000 per infringement of 257 copyrights.


The Eighth Circuit fended off a slew of challenges to the award.  The facts of this case present a difficult scenario at the intersection of trademark and copyright law that will making use of public domain works that are related to copyrighted works or characters problematic and uncertain.




www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw