Tag: copyright infringement

February 1, 2021 Copyright

Chicago area retailers sued over iconic David Bowie photo

Brian Duffy was an English photographer. He died in 2010 but the Brian Duffy Archive owns and enforces the copyright in his works. Defendants are small retailers around Chicago who developed and sold gift items alleged to appropriate one of Duffy’s well-known David Bowie photos. Who among us hasn’t wished for a Rebel Rebel Pouch or a Ziggy Stardust Koozie? Apparently not the Brian Duffy Archive. It has sued for copyright infringement.

Bowie photo

Plaintiff first noticed allegedly infringing works on Instagram and then chased down the defendant retailers who do business both online and through brick and mortar stores. Plaintiff filed the case in January and things are just getting underway. Here are some of the interesting issues that could arise in the litigation:

  • Registration timing issues – the photo was taken in 1973 but not registered in the U.S. until 2017.
  • Whether the photo was ever published before 1989 without a copyright notice. That could have placed it in the public domain.
  • Fair use – Are these uses transformative? Have they affected the market for the original work?

The Duffy Archive is certainly trying to keep defendants under pressure. Plaintiff seeks injunctive relief, maximum damages, costs and attorneys fees and anything else the court will give it.

Duffy Archive Limited v. The Found, Inc. et al., No. 21-cv-00181 (N.D.Ill., filed January 12, 2021)

About the author: Evan Brown is a technology and intellectual property attorney in Chicago. This post originally appeared on evan.law.

October 30, 2012 Copyright, DMCA

Court rules against Ripoff Report in copyright case

Xcentric Ventures, LLC v. Mediolex Ltd., 2012 WL 5269403 (D.Ariz. October 24, 2012)

Plaintiff Xcentric Ventures provides the infamous Ripoff Report, a website where consumers can go to defame complain about businesses they have dealt with. Defendant ComplaintsBoard.com is a similar kind of website.

Ripoff Report’s Terms of Service provide that users grant Ripoff Report an exclusive license in the content they post to the site. Based on this right, Xcentric sued various defendants associated with ComplaintsBoard for “encourag[ing] and permit[ing] consumers to post content that has been exclusively licensed to Xcentric.”

Defendants moved to dismiss the copyright infringement claim, asserting they were protected by the safe harbor provision of the Digital Millennium Copyright Act (“DMCA”). The court granted the motion to dismiss, but not because of the DMCA.

DMCA Analysis

The safe harbor provision of the DMCA states that a “service provider shall not be liable for monetary relief” if all of the following requirements are met:

(1) it does not have actual knowledge that the material on its network is infringing;

(2) it is not aware of facts or circumstances that would make the infringing activity apparent;and

(3) upon obtaining knowledge or awareness of such infringing activity, it acts expeditiously to remove or disable access to the copyrighted material.

In this case, Xcentric alleged that defendants actively “encouraged and permitted” copyright infringement by ComplaintsBoard users. The court held that this allegation, if taken as true, could be sufficient to preclude defendants from taking advantage of the DMCA’s safe harbor provisions.

But the court went on to hold that Xcentric had failed to state a copyright claim on which relief may be granted.

Secondary Liability Insufficiently Pled

Xcentric did not allege that defendants directly infringed copyright. Instead, it alleged that by encouraging and permitting users to copy and republish material, ComplaintsBoard was engaged in secondary infringement — either vicarious or contributory infringement.

To state a claim for contributory copyright infringement, Xcentric had to plead that ComplaintsBoard had knowledge of the infringing activity and induced, caused, or materially contributed to the infringing conduct of its users. The court found that Xcentric had not alleged any facts that would lead to a reasonable inference that defendants knew of their users’ republishing Xcentric’s copyrighted content or that defendants had induced, caused, or materially contributed to such republication.

To successfully plead vicarious infringement, Xcentric had to show that defendants had the right and ability to supervise the infringing activity and also had a direct financial interest in those activities. The court found that Xcentric had not put forward enought facts to show that defendants had the right and ability to supervise the infringing activity.

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