An Indiana copyright lawsuit has been filed by Taylor Shaye Designs, a jewelry designer and retailer/wholesaler from Louisiana.
The defendant, located in Whitestown, Indiana, is the apparent U.S. sales and distribution arm of the global Shein conglomerate, a Chinese online fast fashion retailer that is known for selling inexpensive apparel, jewelry, and other accessories.
The defendant is accused of copying the plaintiff’s registered “Let’s Go Girls” jewelry design.
The standard for determining whether the reproduction right in a copyrighted work has been infringed is “substantial similarity.” Blog readers can judge for themselves whether the above designs have substantial similarity. Hopefully the lawsuit will see an argument that the designs are not substantially similar but I anticipate either a jurisdictional challenge or a discrete settlement as the most likely outcomes. Either way, stay tuned to this blog for updates.
Taylor Shaye Designs LLC v. Shein Distribution Corp.
Court Case Number: 1:23-cv-00624-SEB-TAB File Date: April 11, 2023 Plaintiff: Taylor Shaye Designs LLC Plaintiff Counsel: Bradley M. Stohry of Reichel Story Dean LLP Defendant: Shein Distribution Corp. Cause: Direct Copyright Infringement, Vicarious Copyright Infringement Court: Southern District of Indiana Judge: Sarah Evans Barker Referred To: Tim A. Baker
Here’s another copyright lawsuit that supports the argument for a copyright small claims court.
The plaintiff is a New York-based professional photographer who owns the registered copyright in a photograph of Lauren Miranda, a New York teacher fired over a topless selfie. Mrs. Miranda was subsequently awarded $3 million in a gender discrimination lawsuit over the firing.
The defendant, Chicks on the Right, an Indianapolis-based politically conservative online news radio show and website, allegedly used the plaintiff’s photograph of Mrs. Miranda in an April 2019 blog post reporting on the teacher’s gender discrimination lawsuit (note: the plaintiff filed for registration of the photograph on June 30, 2019, almost 3 months after the blog post). While the defendant might be hoping to rely on a “news reporting” fair use defense, unfortunately there’s really no “fair use” reason to use the plaintiff’s specific photograph. Numerous images of Mrs. Miranda exist that could have been used (with proper authorization), and the Chicks on the Right blog post isn’t commenting, criticizing, or reporting on the plaintiff’s actual image. Having an online “news blog” isn’t a free pass to use any photograph you find on Google Images.
The reality is that professional photographers take lots of photos for a living, and sell only few. Perhaps political differences kept this dispute from reaching a simple non-litigious monetary resolution. Now, we can expect technicalities about the actual photograph’s ownership, registration or use to be explored in the defendant’s response or discovery.
On one hand, the Chicks on the Right, who likely use photographs for news articles on a daily basis, should be in the habit of verifying the source of every photograph they post on their blog. Presumably, in this specific instance two years ago, someone just got lazy or quick and grabbed the wrong photograph off the internet.
On the other hand, there’s simply no reason a U.S. Federal Court and esteemed judges like Jane Magnus-Stinson and Debra McVicker Lynch, already overloaded with significant legal disputes, should be dealing with a copyright lawsuit over one photograph (of a person most people have never heard of) used on a single “news” blog post. Statutory damages for a single non-willful infringement would be $750, almost certainly less than the plaintiff spent on preparing and filing this lawsuit, and definitely less than the Court has to expend in processing the dispute. You can’t blame the plaintiff though; currently, they have no other alternative legal option than federal court for a photography copyright dispute. Time will tell if there’s better way to handle such disputes.
Note that the allegedly infringing image no longer appears on the defendant’s website as of the posting of this blog (11/29/21).
By the way, go do a Google search for Lauren Miranda’s attorney. Sharp dresser. So much so, I’m giving this post a “Fashion” tag.
Stay tuned for updates.
Alcorn v. COTR, LLC
File Date: November 22, 2021 Plaintiff: Victor Alcorn Plaintiff Counsel: Craig B. Sanders, Esq. Defendant: COTR, LLC Cause: Direct Copyright Infringement Court: Southern District of Indiana Judge: Jane Magnus-Stinson Referred To: Debra McVicker Lynch
This copyright lawsuit involves a painter attempting to stop an online merchandise platform from using his artwork on customizable products. The Defendant t-shirt website, like thousands of other sites, sells blank apparel that can be customized with a user-uploaded image or text.
Per the Complaint (below), the John Doe defendants (1-11) have, via separate registered accounts, been uploading a digital copy of one of Plaintiff’s paintings since 2018 and using the online platform to create unauthorized products which they presumably then sell elsewhere. Plaintiff’s counsel first contacted the Defendant website in April 2020 about the unauthorized use of Plaintiff’s artwork, seemingly with no acceptable resolution or cessation.
In lawsuits such as this with numerous John Doe defendants, the first and most difficult hurdle for the Plaintiff will be to discover the identity of the John Does. The similarity in the John Doe’s account names on the t-shirt platform seem to indicate that it’s just one source (an individual or small group) that is repeatedly ordering new product. I wouldn’t expect any response to be filed by the John Doe Defendants, who will likely disappear altogether, and probably a long road of discovery for the Plaintiff perhaps eventually leading to a default judgment against the determined “guilty” party.
The vicarious infringement and contributory infringement claims against the online t-shirt website will be interesting to follow. Presumably, having been put on notice of the unauthorized use in April 2020, the t-shirt website might be expected to take more action to prevent future infringements of the same image. But how closely do they (or should they be expected to) patrol user-submitted images for infringement? It seems like the t-shirt printing and shipping process would be almost completely automated following the user submission, with no copyright verification step in between.
Stay tuned for updates.
Thomas v. ooShirts, Inc. et al.
Case Number: 1:21-cv-02519-TWP-MJD File Date: Friday, September 24, 2021 Plaintiff: Andrew “Andy” Thomas Plaintiff Counsel: Sean J. Quinn of SouthBank Legal: LaDue | Curran | Kuehn, Oliver Maguire of Evans & Dixon, LLC Defendant: ooShirts, Inc., John Does 1-11 Cause: Direct Copyright Infringement, Vicarious Infringement, Contributory Infringement Court: Southern District of Indiana Judge: Tanya Walton Pratt Referred To: Mark J. Dinsmore
The plaintiff in this copyright infringement lawsuit is a professional photographer from Nashville, Tennessee. In March 2019, the plaintiff took a photograph of Ray Luzier, drummer for the band Korn. The photograph was immediately registered with the U.S. Copyright Office.
The Defendant, which sells acoustical products from Indianapolis, Indiana, allegedly used the plaintiff’s photograph on its website without authorization, on a page about “famous users” of the Defendant’s products. The photograph was also allegedly posted on the Defendant’s Facebook and Instagram accounts.
Stay tuned for updates.
Berman v. Auralex Acoustics, Inc.
Case Number: 1:21-cv-02090-JMS-TAB File Date: Thursday, July 22, 2021 Plaintiff: Sayre Berman Plaintiff Counsel: Craig B. Sanders, Esq. of Barshay Sanders, PLLC Defendant: Auralex Acoustics, Inc. Cause: Direct Copyright Infringement, Falsification, Removal and Alteration of Copyright Management Information Court: Southern District of Indiana Judge: Jane Magnus-Stinson Referred To: Tim A. Baker
The Plaintiff in this copyright lawsuit is an infant photographer who uses photo editing software to add teeth to her infant subjects. Depending on your aesthetic tastes, the resulting photographs range somewhere between cute and horrifying.
The Defendant sells teeth whitening and oral care products and allegedly used one of the Plaintiff’s photographs in a Facebook advertisement in August 2019. The photograph was altered to whiten the teeth and remove the Plaintiff’s watermark. The advertisement (below) included a link to the Defendant’s website and a “Shop Now” button.
It’s hard to see this lawsuit going very far; it’s slightly ridiculous it had to be filed at all. This situation seems like it would be a perfect fit for a small claims copyright court. Hopefully the parties can soon find an amicable resolution, like an appropriate license fee, for the (possibly) 4one-time use of Plaintiff’s photograph. If the Defendant somehow determines it would make more sense to litigate, we might see them challenge jurisdiction in Indiana.
Stay tuned for updates.
Haehl v. Dr. Brite, LLC
Case Number: 1:21-cv-02072-JPH-MJD File Date: Wednesday, July 21, 2021 Plaintiff: Amy Haehl Plaintiff Counsel: Bradley M. Stohry of Reichel Stohry Dean LLP Defendant: Dr. Brite, LLC Cause: Direct Copyright Infringement, Vicarious Copyright Infringement, Removal or Alteration of Copyright Management Information Court: Southern District of Indiana Judge: James Patrick Hanlon Referred To: Mark J. Dinsmore
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