Monday, November 5, 2012, 2:12 PM

October Copyright Cases Filed in the Northern and Middle Districts of GA

Abstracted below are four copyright cases filed in the U.S. District Courts for the Northern and Middle Districts of Georgia in October 2012 - one in the Middle District, and three in the Northern District. 

In Effort to Not Blend In with Competition, Jordan Outdoor Enterprises Ltd. Brings Copyright Action in Middle District Over Camouflage Patterns

Jordan Outdoor Enterprises Ltd. (“JOEL”), based in Columbus, Georgia, sued three competitors for copyright infringement of various camouflage designs.  The suit, filed in the Columbus Division of the U.S. District Court for the Middle District of Georgia, alleges that Hubei LLC (“Hubei”), a Chinese exporter of camouflaged goods, Wildfowler, a Minnesota-based importer, and Thatchreed Ltd. d/b/a Jack Pyke of England, have repeatedly manufactured, exported, imported, and offered for sale products with camouflage patterns infringing several proprietary designs held by JOEL.

The complaint, filed October 30th, asserts that the defendants sold counterfeit versions of two well-known camouflage designs developed by JOEL and known as Realtree® and Advantage®.  Copyright registrations for those patterns issued in 2001.

According to the complaint, “Hubei exports into the United States camouflage products with counterfeit versions of JOEL’s patterns thereon.”  The complaint alleges: “The Wild Trees pattern contains numerous elements copied from the Realtree Hardwoods pattern with additional elements layered thereon.”  The complaint also alleges that Hubei's "Wild Trees Grasslands" jacket is "a counterfeit version of the Advantage Max-4 pattern."  Side-by-side comparisons of the asserted and accused works appear below.
Asserted Realtree® pattern vs. Hubei's accused Wild Trees® jacket 

Asserted Advantage® Max-4 pattern vs. Hubei's accused Wild Trees® Grasslands jacket 

The jackets and other products manufactured by Hubei are made available for purchase in the United States by the other two defendants, according to the complaint, which also alleges that none of the defendants are, or have ever been, licensed distributors of JOEL products. 

The complaint asserts counts against the defendants for copyright infringement; unfair competition under federal law, Georgia statutory law, and Georgia common law; and cancellation of Hubei’s Wild Trees® copyright registrations.  JOEL seeks injunctive relief, awards of actual, statutory, and punitive damages, profits, trebling of the monetary award due to alleged willful conduct, attorneys’ fees, interest, and costs.

The case is Jordan Outdoor Enterprises Ltd. v Hubei Wild Trees Textiles Co., Ltd., Wildfowler Outfitter Inc., and Thatchreed Ltd. d/b/a Jack Pyke of England, No. 4-12-cv-297 (CDL) filed 10/30/12 in the U.S. District Court for the Middle District of Georgia, Columbus Division, assigned to U.S. District Judge Clay D. Land.

Note:  The author gratefully acknowledges the assistance of Mr. Nick Vaughan, a paralegal at Womble Carlyle, in the preparation of the foregoing summary.
 
Copyright Action Brought Over Chattanooga Aerial Photograph

Ronald Lowery, according to a complaint he filed in the Atlanta Division on October 23, 2012, "is a professional photographer who specializes in low-altitude photographs of Chattanooga, Tennessee, and the Tennessee Valley."  He makes his photographs available for purchase or license on his website, the home page of which bears the caption "All images © Ron Lowery."  Mr. Lowery obtained U.S. Copyright Registration No. Vau 563-707 ("the '707 Registration") on November 25, 2002 for eight prints.  His complaint alleges that an aerial photograph of the Chattanooga riverfront ("the Chattanooga Photo") is one of the registered photographs covered by the '707 Registration.

Defendant, Eagle Eye Surveillance Systems, Inc. ("Eagle Eye") has a principal place of business in Locust Grove, Georgia, according to the complaint.  Its website states that Eagle Eye "specializes in 'live' video monitoring services that are extremely affordable for all businesses."  According to the complaint, another Eagle Eye website, www.videomonitoring.co/chattanooga-video-monitoring, which advertises Eagle Eye's services for the Chattanooga area, used one of Mr. Lowery's registered photographs.  Exhibits C to D to the complaint purport to include a screen capture of that website made earlier, showing the Chattanooga Photo.  (Currently, however, that Eagle Eye website no longer appears to be using that photograph.)

The complaint alleges that after discovering Eagle Eye's use of the Chattanooga Photo around December 2011, Mr. Lowery sent a letter to Eagle Eye demanding a retroactive non-exclusive license fee, but that Eagle Eye failed to respond to the letter and refused to pay the fee demanded.  The complaint alleges willful copyright infringement, and seeks an award of either, at Mr. Lowery's election: (1) actual damages and profits, or (2) statutory damages.  The complaint additionally seeks awards of attorneys' fees, costs, and interest.

The case is Ronald Lowery v. Eagle Eye Surveillance Systems, Inc., No. 1:12-cv-3697, filed 10/23/12 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, assigned to Senior Judge Orinda D. Evans.


Roswell, GA Artist Files Copyright Lawsuit Against 25 Defendants Over "Piano No. 9" Painting

On October 10, 2012, Zheng Li, an artist based in Roswell, Georgia, sued 25 defendants, including J.C. Penney, Kohl's Department Stores, and Z Gallerie, accusing them of infringing his claimed copyright in the oil painting titled "Piano No. 9."

"Zheng Li's high quality original paintings are often sold to patrons and clients for five figure sums," states the complaint.  Describing what he calls "a classic case of intellectual property theft," Mr. Li accuses all defendants of infringing his copyright by having made and sold artwork, such as posters, titled "Piano Coloratura," pictured below in juxtaposition to a representation of his work.

Excerpt from Paragraph 3 of Complaint, identifying "Piano No. 9" (left) and "Piano Coloratura" (right).

The complaint describes several purported similarities between the accused work and Mr. Li's oil painting, "including but not limited to, its combination of realism and abstractionism, classical inspiration and modern idea, and multi-color conflict of bold green and red against a contrasting black and green background."

Mr. Li, according to the complaint, created "Piano No. 9" in 2004 as one of 17 piano-themed original oil paintings, and registered his copyright in that work on August 31, 2012 as U.S. Copyright Registration No. VA-1-827-430.  The complaint identifies a 2005 publication called "Zheng Li: The Paintings," written in both English and Chinese, depicting "Piano No. 9" on its cover.

In addition to copyright infringement claims asserted against all defendants, the complaint separately recites a declaratory judgment action solely against defendant Somerset Studios, Inc. ("Somerset").  According to the complaint, Somerset obtained its own copyright registration for "Piano Coloratura," reciting a creation year of 2008.  The declaratory judgment count characterizes that registration as "fraud on the U.S. Copyright Office" and on that basis, seeks cancellation of Somerset's registration.

The case is Zheng Li v. The Affordable Art Company, et al., No. 1:12-cv-3523-RLV, filed 10/10/12 in the U.S. District Court for the Northern District of Georgia, Atlanta Division.  The case has been assigned to U.S. District Judge Robert L. Vining, Jr.


Copyright Declaratory Judgment Action Filed in Rome Division Over Wood Flooring Product

On October 8, 2012, Home Legend, LLC ("Home Legend"), based in Adairsville, Georgia, filed a declaratory judgment action against Mannington Mills, Inc. ("Mannington"), alleged to have a principal place of business in Calhoun, Georgia.  The lawsuit, filed in the Rome Division of the Northern District, seeks a declaration that a copyright purportedly owned by Mannington is not infringed by Home Legend, is invalid, and is unenforceable.
"Distressed Maple Mendocino"

Home Legend manufactures and sells a wood flooring product known as "Distressed Maple Mendocino," depicted on the right.  U.S. Copyright Registration No. VA-1-176-071 ("the '071 Registration") recites Mannington as the author of a work titled "Glazed Maple" and described as "2-D artwork."

Included among Home Legends' allegations regarding the copyright of the '071 Registration are that: (1) "the contents of the work purported to be registered are in the public domain"; (2) any similarities between Home Legend's product and "Glazed Maple" are: (a) de minimis; (b) regarding elements that are not protectible as comprising "natural wood grain designs not authored by Mannington"; and (c) fair use; (3) Mannington "misused its copyright, to the extent, if at all, that its copyrighted work is entitled to any legal protection"; and (4) Mannington acquiesced in Home Legend's manufacture and sale of its "Distressed Maple Mendocino" product.

Not counting the declaratory judgment count pleaded in the Zheng Li case summarized above, this is the second copyright declaratory judgment action filed in the Northern District in less than a month.  We covered the action filed on September 17 in a
prior post.

The case is Home Legend, LLC v. Mannington Mills, Inc., No. 4:12-cv-0237-HLM, filed 10/08/12 in the U.S. District Court for the Northern District of Georgia, Rome Division.  The case has been assigned to U.S. District Judge Harold L. Murphy.


UPDATE:   The copyright cases summarized above are in addition to the "copyright troll" cases separately covered in our November 6 post.

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