Creative Protection

Righthaven LLC v. Hoehn

The panel affirmed the dismissal for lack of standing of two copyright infringement suits and vacated the portion of the district court’s order granting summary judgment on fair use in one of the suits.

The panel held that agreements assigning plaintiff Righthaven LLC the bare right to sue for infringement of newspaper articles, without the transfer of any associated exclusive rights in the articles, did not confer standing to sue. The panel held that the district court therefore lacked jurisdiction to rule in the alternative on the fair use defense.

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B & B Hardware v. Hargis Industries, et al

Following our prior remand, B&B Hardware, Inc. v. Hargis Industries, Inc., 569 F.3d 383 (8th Cir. 2009), the district court conducted a seven-day jury trial on B&B Hardware’s (“B&B”) claim of trademark infringement and unfair competition and on Hargis Industries’ (“Hargis”) counterclaims of false advertising and false designation of origin. The jury returned a verdict which rejected B&B’s claims but found in favor of Hargis on its counterclaims. After the district court entered judgment on the jury’s verdict, it awarded attorney fees and costs to Hargis. B&B now appeals, arguing that the district court should have given preclusive effect to the Trademark Trial and Appeal Board’s (“TTAB”) findings concerning the likelihood of confusion of the two companies’ tradmarks. B&B also appeals the award of attorney fees and costs. We affirm the decision of the district court except as to attorney fees. On the matter of attorney fees, we remand for recalculation of those fees.

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Magi XXI, Inc. v. Stato della Citta del Vaticano

Sublicensee to an agreement allowing reproductions of the Vatican library collection brought action against the licensee, the licensee’s president, and the Vatican State, alleging breach of contract and related torts. The United States District Court for the Eastern District of New York (Mauskopf, J.) dismissed the claims against the Vatican State based on forum selection clauses contained in sublicense agreements. We hold the Vatican State may invoke the forum selection clauses in the sublicense agreements because the licensee and the Vatican State were “closely related” parties and it was foreseeable that the Vatican State would enforce the forum selection clauses. Accordingly, the judgment of the district court is AFFIRMED.

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Bridgeport Music, Inc. v. Smith

In 1974, songwriter, recording artist, producer, and performer Abrim Tilmon, Jr. (“Tilmon”), composed the song “You’re Getting a Little Too Smart” (“Smart”). In 1976, Tilmon assigned all of his rights to the song to Plaintiff Bridgeport Music, Inc. (“Plaintiff”). In 1997, Defendant rapper Rashaam A. Smith a/k/a Esham A. Smith released the song “You & Me,” which, according to Plaintiffs Bridgeport, Southfield Music Inc., and Westbound Records, Inc. (“Plaintiffs”), unlawfully contained samples of the composition “Smart.” In 2003, Plaintiffs sued Defendants Esham Smith; Overture Music, LLC; Psychopathic Records, Inc.; Red Music Distribution; Reel Life Productions, Inc.; and Scott Santos (“Defendants”) for copyright infringement. In 2004, Plaintiffs obtained default judgments against Defendants. In 2005, Plaintiffs recorded the judgments with the United States Copyright Office.

In 2011, Janyce Tilmon-Jones (“Tilmon-Jones”), Tilmon’s widow and a nonparty to this lawsuit, filed a motion under Federal Rule of Civil Procedure 60(b) in the action, asking the district court to set aside the default judgments because she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed. The district court denied the motion, as well as her motion for reconsideration. Tilmon-Jones appeals both of those rulings. For the reasons discussed below, we AFFIRM the judgment of the district court.

Plaintiffs have filed a motion for damages and costs pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912, which we GRANT.

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Cariou v. Prince

Appeal from a judgment of the United States District Court for the Southern District of New York (Batts, J.), on Plaintiff-Appellee Patrick Cariou’s claim that Defendant-Appellant Richard Prince’s artworks infringe on Cariou’s registered copyrights in certain photographs. We conclude that the district court applied the incorrect standard to determine whether Prince’s artworks make fair use of Cariou’s copyrighted photographs. We further conclude that all but five of Prince’s works do make fair use of Cariou’s copyrighted photographs. With regard to the remaining five Prince artworks, we remand to the district court to consider, in the first instance, 25 whether Prince is entitled to a fair use defense.

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