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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Copyright

Copyright lawsuit to test transformative use defense for digitally manipulated images

05 Tuesday Jun 2018

Posted by Kenan Farrell in Artists, Copyright, Indiana, Intellectual Property, Litigation, Southern District of Indiana

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Copyright Infringement, Doris L. Pryor, Fair Use, Robert L. Miller, Transformative Use

First, go scroll through Exhibit A to the Complaint for this copyright lawsuit (starts at page 13 of Complaint, below). Besides displaying beautiful artwork, it also provides a nice visual set-up for what should be a really interesting case involving digital manipulation and transformative use.

The Plaintiff is a prominent visual artist primarily known for her original abstract art and mixed media paintings. She has sold over 1,500 original paintings worldwide.

The Defendant is an artist who creates his works by digitally manipulating existing images through computer programs such as Photoshop. Defendant sells his digitally manipulated artwork via the same online retailers as Plaintiff. 

Plaintiff made contact with Defendant, who had been provided as a reference by an online distributor, for the first time in 2014. Defendant responded with a pleasant “I just took a look at your art – wow! You have a new fan.” Apparently he wasn’t kidding. 

In 2017, Plaintiff discovered that 22 works for sale by Defendant were digitally manipulated derivatives of her own artwork. Photoshop had been used by Defendant to rotate, invert, stretch, filter, all the tricks…anyway, you can view the final results in Exhibit A, where Plaintiff sets forth a side-by-side comparison for all 22 works.

In a phone call between Plaintiff and Defendant, Defendant stated that his intent was not to “copy anyone’s work in a fashion where it would be confused and cost another person a sale.”

Based on a review of Exhibit A, this blog post is going to assume that Defendant did in fact digitally manipulate Plaintiff’s images. The question then becomes whether the digital manipulation and subsequent commercial use was an infringing use or a fair use.

Defendant’s entire art style seems to heavily rely upon digital manipulation of other people’s artwork, so I would expect him to present a strong, well-reasoned argument for “transformative use.” Transformative uses take the original copyrighted work and transform its appearance or nature to such a high degree that the use no longer qualifies as infringing.

Arguing a “transformative use” defense will involve answering the following two questions in the context of Defendant’s style of digital manipulation:

  • Has the material taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

It will be interesting to see how both parties answer these questions as the lawsuit proceeds. Stay tuned for updates. 

Keck v. Lawrence et al.

Court Case Number: 2:18-cv-00250-RLM-DLP
File Date: Friday, June 1, 2018
Plaintiff: Michel Keck
Plaintiff Counsel: Matthew K. Higbee, Ryan E. Carreon of Higbee & Associates
Defendant: John Mark Lawrence dba Mark Lawrence Art Gallery; Does 1-25
Cause: Copyright Infringement
Court: Southern District of Indiana
Judge: Robert L. Miller
Referred To: Doris L. Pryor

Complaint: 

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Jewelry Designer sues for copyright infringement of Hearty Love Pendant Design

23 Wednesday May 2018

Posted by Kenan Farrell in Artists, Copyright, Indiana, Intellectual Property, Litigation, Southern District of Indiana

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Contributory Copyright Infringement, Federal Copyright Infringement, Matthew P. Brookman, Richard L. Young, Vicarious Copyright Infringement

This copyright infringement action involves a copyrighted jewelry design, specifically Plaintiff’s “Hearty Love” Design and the associated “Heartlines Love Pendant.”

The parties have several years of history working together, as detailed in the Complaint (below). While Plaintiff was working with Defendant Droste, a jeweler, to create her Heartlines Love Pendant, Droste allegedly took her design and had it made by Defendant Shah, a jewelry manufacturer. The Defendants’ allegedly infringing design is now widely sold.

Corlinea, LLC v. Drostes Jewelry Shoppe et al.

Court Case Number: 3:18-cv-00099-RLY-MPB
File Date: Tuesday, May 22, 2018
Plaintiff: Corlinea, LLC
Plaintiff Counsel: C. Richard Martin of Martin IP Law Group, PC
Defendant: Drostes Jewelry Shoppe Inc., Shah Diamonds, Inc. d/b/a Shah Luxury
Cause: Federal Copyright Infringement, Contributory Copyright Infringement, Vicarious Copyright Infringement
Court: Southern District of Indiana
Judge: Richard L. Young
Referred To: Matthew P. Brookman

Complaint:

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Vera Bradley sues numerous eBay sellers over counterfeit goods

27 Tuesday Mar 2018

Posted by Kenan Farrell in Copyright, Fashion, Indiana, Intellectual Property, Litigation, Northern District of Indiana, Trademark

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Common Law Unfair Competition, Copyright Infringement, Counterfeiting, eBay, False Designation of Origin, Trademark Infringement, Unfair and Deceptive Trade Practices, Unfair Competition, Unjust Enrichment

The defendants in this lawsuit are alleged to have sold counterfeit Vera Bradley products on eBay since as early as January 2016.

Vera Bradley Designs, Inc. v. Denny et al.

Court Case Number: 1:18-cv-00070
File Date: Monday, March 26, 2018
Plaintiff: Vera Bradley Designs, Inc.
Plaintiff Counsel: Mark D. Scudder of Barnes & Thornburg LLP, Michael R. Gray of Gray, Plant, Mooty, Mooty & Bennett, P.A.
Defendants: Jennifer Denny, Austin Devin 2 Denny Boys, LLC, Darlene Nicholas, Amanda Whitfield, and Ilene Simpson
Cause: Trademark Infringement, Copyright Infringement, False Designation of Origin, Unfair Competition, Unfair and Deceptive Trade Practices, Common Law Unfair Competition, Unjust Enrichment
Court: Northern District of Indiana
Judge: TBD
Referred To: TBD

Complaint:

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Copyright lawsuit over movie script removed to Northern District of Indiana

06 Monday Nov 2017

Posted by Kenan Farrell in Copyright, Indiana, Intellectual Property, Litigation, Northern District of Indiana

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Breach of Contract, Intentional Infliction of Emotional Distress, Removal, Unjust Enrichment

This lawsuit was removed from St. Joseph Circuit Court, Indiana, to the Northern District of Indiana, South Bend Division based on copyright preemption.

The Plaintiff alleges that he sent an original script and revisions to Defendant, which they used to create and sell a motion picture.

Jones v. Brioche and Mayo, LLC

Court Case Number: 3:17-cv-00289
File Date: Friday, November 3, 2017
Plaintiff: William Jones
Plaintiff Counsel: Andrew B. Jones, Margaret Marnocha of Jones Law Office LLC
Defendant: Brioche and Mayo, LLC
Cause: Breach of Contract, Intentional Infliction of Emotional Distress, Unjust Enrichment
Court: Northern District of Indiana
Judge: TBD
Referred To: TBD

Notice of Removal:

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STOP THE DROP: Cell Phone Case vs. Seat Gap Filler…are you confused?

09 Wednesday Aug 2017

Posted by Kenan Farrell in Copyright, Indiana, Intellectual Property, Litigation, Northern District of Indiana, Trademark

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Andrew P. Rodovich, Declaratory Judgement of Trademark Non-Infringement, Declaratory Judgment of Copyright Non-Infringement, Joseph S. Van Bokkelen

This a declaratory judgment action for both non-infringement of trademark and copyright. The declaratory judgment Plaintiff is Loopy, which sells cell phone cases that include a finger grip on the back of the case.  Loopy uses the trademark STOPTHEDROP in association with its cell phone cases, which you can see have a finger loop to prevent drops.

The Defendant, Drop Stop LLC of Los Angeles, California (as seen on Shark Tank), has a U.S. trademark registration for STOP THE DROP in connection with “IC 12 – Automobile interior accessory, namely, durable and flexible wedge, which can be expanded or contracted, to fill gap between front seat and center console of an automobile preventing objects from dropping into gap.” In other words, a seat gap filler.

Drop Stop sent a trademark cease-and-desist letter demanding that Loopy stop all use of STOPTHEDROP. Instead, Loopy has filed the action in the Northern District of Indiana for a declaratory judgment of non-infringement of Drop Stop’s trademark and copyrights. Stay tuned for updates.

While researching, I spotted a few other interesting uses of STOP THE DROP in the USPTO database:

Loopy Cases LLC v. Drop Stop, LLC

Court Case Number: 2:17-cv-00331-JVB-APR
File Date: Friday, August 4, 2017
Plaintiff: Loopy Cases LLC, John Wangercyn
Plaintiff Counsel: Peter J. Shakula of Wood Phillips
Defendant: Drop Stop, LLC
Cause: Declaratory Judgement of Trademark Non-Infringement, Declaratory Judgment of Copyright Non-Infringement
Court: Northern District of Indiana
Judge: Joseph S. Van Bokkelen
Referred To: Andrew P. Rodovich

Complaint: 

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