Court flushes septic company’s request for injunction in copyright suit

Biosafe-One, Inc. v. Hawks, — F.Supp.2d —-, 2007 WL 4212411 (S.D.N.Y. November 29, 2007)

Back in 2005, industrial-strength septic system cleaning products company Bio-Safe One, Inc., needed a “jumbo mortgage,” so its president, one Jorgensen, did a web search for brokers and located Messrs. Hawks and Skierkowski, who helped Bio-Safe One with its mortgage needs. Although that transaction was over in June 2005, Jorgensen believed that Hawks and Skierkowski used information he had provided them during the mortgage transaction to start up a competing septic business.

Jorgensen and Bio-Safe One filed a lawsuit against Hawks and Skierkowski in New York federal court alleging, among other things, copyright infringement. They claimed that the competing enterprise illegally copied elements Bio-Safe One’s website.

The plaintiffs sought a preliminary injunction to prevent Hawks and Skierkowski from continuing what they believed to be copyright infringement. The court denied the motion for preliminary injunction.

It held that although the plaintiffs had established ownership of the copyright in the Bio-Safe One website by presenting a registration certificate for it, they failed to show that the defendants had engaged in illegal copying of any original elements of the site.

Applying the “ordinary observer test,” the court held that a side-by-side comparison simply would not prompt a person to regard the aesthetic appeal of the websites as the same. Rather, it was difficult to detect any similarities. The arrangement, photographs, and graphics on the websites were “decidedly dissimilar.” And the textual elements that were similar on the websites, including minor phrasing and terminology, were so far spaced throughout that they were not noticeable.

Accordingly, the court held that the plaintiffs would not likely succeed on their claim of copyright infringement.

Booklocker.com on the copyright offensive in Maine

Booklocker.com, Inc. v. Sartain, No. 07-0176 (D. Me., Filed November 21, 2007). [Download the Complaint]

Online, on demand book publisher Booklocker.com has filed a declaratory judgment action against Utah-based artist Julie Sartain, in response to a cease and desist letter Sartain sent to Booklocker alleging copyright infringement.  In the case, Booklocker seeks a determination by the United States District Court for the District of Maine that Booklocker’s use of artwork on book covers does not infringe on any copyright right held by Sartain.

The allegations are a bit sparse, as one may expect to see in federal pleading, but it appears that Booklocker believes Sartain does not own the copyrights in the cover artwork, but that such artwork is owned by the authors who have Booklocker print their books on demand.  In the alternative, Booklocker asserts that it has some sort of implied license to reproduce the artwork through the course of dealing between the parties during the past four years.

In asserting that the individual authors — and not Sartain — own the copyrights in the individual pieces of cover art, Booklocker is putting a lot of faith in the process whereby the authors may have commissioned Sartain to create those works.  The complaint says that there are more than a thousand works at issue.  Are we to believe that there is a detailed, written agreement in place for each one of those works, in which Sartain assigned her copyright rights to these authors? 

Beaded jewelry website tussle turns into lawsuit alleging bogus DMCA takedown notice

Does a hosting provider breach the contract with its customer when it responds to a DMCA takedown notice concerning its customer’s content? The plaintiff in this case would have you believe that. [Download the Complaint]

Jades Creations, LLC v. White, No. 07-50225 (N.D. Ill., Filed November 16, 2007)

Rockford, Illinois-based Jades Creations, LLC has filed suit in federal court against its competitor in the beaded jewelry industry over what Jades claims were unmeritorious takedown notices sent to Earthlink under the Digital Millennium Copyright Act.

Back in October, SW Creations sent a DMCA takedown notice to Earthlink, the host of Jades Creations’ Web site, claiming that material located thereupon infringed SW Creations’ copyright and trademark rights. (Never mind the DMCA does not apply to trademarks.) Jades, of course, disputed the fact that there was infringing content on its site, and successfully had access to its site restored after sending Earthlink a counternotification.

But Jades didn’t stop there. Obviously perturbed by what it believed to be an unwarranted takedown notice that caused it to lose business, it filed a lawsuit in the Northern District of Illinois, asking for a declaration of non-infringement and asserting various tort claims for the takedown notice.

One of the claims is for tortious interference with the contract between Jades and her hosting provider Earthlink. This is intriguing, but it looks like there could be a bit of a hurdle here.

Under Illinois law, a successful plaintiff in a tortious interference with contract action has to prove, among other things, that an actual breach of contract occurred because of the defendant’s conduct. Belden Corp. v. InterNorth, Inc., 413 N.E.2d 98 (Ill. App. 1st Dist. 1980). Did Earthlink breach the contract with its hosting customer when it obeyed the demands of a third party DMCA takedown notice?

Jades alleges that this was a breach (see paragraph 60 of the complaint). Do you agree?

Earthlink’s terms of service can be found here. And remember, 17 U.S.C. 512(g) provides that “a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.”

This case is not off to a good start

Windy City Marketing, Inc. v. Places Advertising, Inc., No. 07-6401 (N.D. Ill., filed November 12, 2007) [Download the complaint]

Windy City Marketing, a Chicago company, has filed a federal lawsuit against a startup competitor, Places Advertising, Inc. The suit alleges infringement of copyright allegedly owned by Windy City Marketing in certain bound marketing pieces called “inside chicago”. Windy City Marketing claims that Places Advertising has wrongfully copied the marketing materials and is distributing those to Windy City Marketing’s customers.

The big problem with the complaint is that there is no allegation that Windy City Marketing owns a registration in the works at issue. A quick read of Section 411 of the Copyright Act will reveal what’s wrong with this picture. You gotta have a registration before you can file a lawsuit for copyright infringement. For the plaintiff’s sake, thank goodness for Fed. R. Civ. P. 15.

Posts navigation

1 2 3 8 9 10 11