Monday, August 29, 2011

Hell's Angels Sues T-Shirt Maker For Copyright Infringement

The term "damages" has new meaning when it's being sought by the Hell's Angels. CBS is reporting that T-Shirt maker Wildfox Couture has been sued for copyright infringement by the Hell's Angels motorcycle club over a t-shirt made by the company that reads: "My Boyfriend s A Hells Angel."
Wildfox T-shirt that is subject of suit by Hells Angels
The club's lawyer says that even the Hell's Angels don't put their name on T-shirts, so certainly no on else can. The club wants all the T-shirts destroyed, which seems a waste. Shouldn't they at least be given to charity or something?
The Hell's Angels are no strangers to the legal system either. Apparently, they are quite litigious when it comes to protecting their intellectual property. They sued Disney for allegedly exploiting the Hell's Angels image in the move "Wild Hogs,' and they sued the Alexander McQueen fashion house for allegedly using the Hell's Angels 'winged skull' logo. Good for them.
The report says copyright infringement when I believe that the real cause of action is actually trademark infringement. If it really is a copyright case and not a trademark case, then I think the Hell's Angels were poorly advised. The maker would have a pretty decent fair use defense, although I don't really see a defense to trademark infringement. No matter, it still makes for an interesting story.

Monday, August 22, 2011

Comcast Says Copyright Infringement: What do I do about this letter?

I've already discussed the letters that many people are getting now. The ones where you are accused of having illegally downloaded a movie because someone says your I.P. address was used to do so. As I said earlier, it means that some rights-holder (like Sony or Universal Studios, for example) has filed suit against your I.P. address claiming copyright infringement. OK, you say, but what do I do? Here is some advice.
Do I fight the subpoena?
Probably not. Most people want to fight the subpoena based on a visceral reaction to the invasion of their privacy. But the legal standard for defeating a subpoena is very high, and it would be expensive to fight it. My guess is it would be more expensive to fight the subpoena than just letting the process play out. Understand that at this stage, the only thing that is happening is your ISP is giving your name to the entity who claims that you infringed. This is not an admission of guilt.
That said, if you really just want to fight the subpoena, and you believe you have good grounds for doing so (e.g., you didn't even have an account with that ISP at the relevant time), then what you need to file is called a "motion to quash" the subpoena. You shouldn't take on this task without at least some advice from an attorney.
Do I mail in the letter they ask for?
Sometimes your ISP will block your service and notify you in the letter that you can respond with your own letter admitting several things in order to have your service re-established. Usually, you are asked to say things like (1) you have deleted the downloaded work from your computer, (2) you didn't know what you did constituted copyright infringement, (3) you promise you won't do it again, and/or (4) you consent to jurisdiction somewhere, like your hometown or where the suit was filed. You have to understand that if you send in this notice, it will do almost nothing for you. I will explain more in another post, but the only entity that benefits from you sending in that letter is your ISP, not you. Unlike above, this notice would be an admission of guilt and would seriously compromise your rights.
Do I fight the suit?
Whether you choose to fight the suit depends on how certain you are that you did not do what you are accused of doing. If you are completely certain you did nothing wrong, then you may want to fight the suit. There are several grounds upon which these suits can be defeated. For example, if you can prove that you were on vacation when the alleged download happened, and there was no one at your house, then you would more probably be able to defeat their case. There are other reasons you could win too, like your ISP was wrong about what I.P. address your house was using at the time. These things change all the time, and maybe they got their records wrong. Or maybe the person who first identified your I.P. address got it wrong. Maybe some numbers got transposed. Maybe your wi-fi network was not secured and someone else was surreptitiously using your Internet service without your knowledge. Who knows? The point is, if you are certain you did not do what you are accused of doing, consider fighting it.
What if I win, so what?
The good news is "what's good for the goose, is good for the gander." If you are at the point where you have been personally accused of infringement, then undoubtedly you were informed that the rights-owner can also seek an award of attorneys fees against you. These can easily be in the low hundreds of thousands of dollars. But they would have to win first. If you win, guess what? Yes, you get that same award of attorneys fees against them for bringing the case. They didn't tell you that, did they?
But again, whether you choose to fight the case should turn on how certain you are that you can prove it wasn't you who downloaded or uploaded the copyrighted work. If you are certain it wasn't you, and you can prove it, then you should consider fighting the case. If you can find a contingent fee lawyer (like us) who will take the case, then you could potentially turn a bad thing into a good thing.

Monday, August 15, 2011

How Much Is My Copyright Case Worth?

I frequently hear this question. Because of the nature of my practice (contingent fee), I am usually just as interested as the copyright owner about the answer. While I can’t tell you exactly what your case is worth unless you tell me about it, here are several of the things I consider.
  • Was the work registered before infringement began? Hopefully, yes. If your work was registered before the infringement commenced, then there are several additional damages options available to you, namely statutory damages and attorneys fees. Statutory damages are like liquidated damages. They are an amount of money that you can be awarded without having to prove anything else. If you work was already registered, you can also get an award of reasonable attorneys fees if you prevail.
  • What would you have charged for the infringing use of your work? You can always get an award of what's called “actual damages” for infringement. In essence, this means the amount of money that you would have charged for the type of conduct that constituted the infringement. Someone sold 500 copies of your book without your permission? What would you have charged for those 500 copies of the book? That’s your actual damages.
  • How much money did the infringer make distributing your work? You can also get an award of the infringer’s profits resulting from the infringement. This means regardless of what you yourself would have made on the sale of your work, if the infringer made money, you can get it. Someone sold 500 copies of your book without your permission and made $500,000? You could be entitled to an award of that $500,000 even if you yourself would have only charged $500.
  • How much money did the infringer make selling its own products in connection with your work? Sometimes you can even get an infringer’s profits from the sales of its own product if those sales can be tied to your infringement. "Big Company" gave away 500 copies of your book without your permission, and those giveaways resulted in $5 million in sales of Big Company's own product? You could be entitled to an award of that whole $5 million. This would be the extreme case, but it is not unheard of.

What Does This Letter I Got From Comcast Mean?

Right now, a lot of people are getting letters from their Internet Service Providers, like Comcast, informing them of something like this:
You have been identified via your assigned Internet Protocol address in <some lawsuit> for allegedly infringing <someone else’s> copyrights on the Internet by uploading and/or downloading a movie using a computer assigned the Internet Protocol address X.X.X.X on <some date>.
Sometimes people get this letter at the same time their Internet service is suspended. I frequently get people asking: “what does this mean?” Basically, it means this. You have been sued. More specifically, a lawsuit, like this one, was filed against your I.P. address. The letter you got from your ISP is letting you know that the entity that sued your I.P. address wants your name, and your ISP is planning to give it to them unless you stop it.
Does this mean you are going to lose your house? No. Although it is true that sometimes these lawsuits are legitimate, sometimes they are not. Some of these are just shakedown cases where a company buys the enforcement rights of unknown movies, frequently porn, and files suit against a thousand or more I.P. addresses expecting a quick and easy settlement. A lawyer named John Steele is notorious for exactly these types of suits.
So if you get a letter from your ISP like the one mentioned above, and you know you did not do what you are being accused of, consider contacting an attorney before responding to the letter in any way. I will cover what else you should do, and maybe should not do, in another post.

Tuesday, August 2, 2011

Taea Thale sues Apple for Copyright Infringement

Professional photographer Taea Thale has sued Apple, Inc. for copyright infringement. Taea took several photographs of the popular indie band SHE AND HIM. Ms. Thale authorized limited use of the photographs to promote the band. There were several provisions attached to the use of Taea's photographs, including that they would only be used in print, would not be used in conjunction with an album release, and Taea would receive attribution for her work.
Lo and behold, one of those photographs made its way into an Apple advertisement to promote the iPhone, not the band, and in conjunction with SHE AND HIM's second album release. Taea never received any attribution for her work, nor did she ever provide anyone with the authority to use her work this way.
Recently, Taea filed a lawsuit against Apple for copyright infringement over Apple's unauthorized use of her photograph. The Whitaker Law Group, the Mann Law Group, and Katharine Livingston represent Taea Thale.