Virginia IP Law : Virginia Intellectual Property Lawyer & Attorney : Troutman Sanders Law Firm : Technology & Patent Litigation

While defendants have succesfully used the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombley, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) to challenge factually unsupported complaints in other types of litigation, “Twiqbal’s” more rigorous pleading standards have not posed a significant hurdle to plaintiffs in intellectual property litigation. See our earlier posts on Twombley and Iqbal in patent litigation here and here.

A similarly low threshold appears to apply in copyright infringement litigation. In a recent decision, Judge James C. Cacheris of the Eastern District of Virginia denied a motion to dismiss a copyright infringement claim for failing to meet the requirements of Twombley and Iqbal. Judge Cacheris ruled that to state a claim for copyright infringement, a plaintiff must allege only the ownership of a valid copyright and copying of the original elements of the material by the defendant. Softech Worldwide, LLC v. Internet Tech. Broadcasting Corp., 2010 U.S. Dist. LEXIS 86389 (E.D. Va. Aug. 23, 2010) (citing Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).

Softech may not be the best example of the application of Twombley and Iqbal in the copyright context because the Complaint detailed the plaintiff’s development of its copyrighted software and the defendant’s alleged misappropriation of the software. Moreover, the motion to dismiss was a scattershot assertion of virtually every available threshold objection to a complaint – including personal jurisdiction, venue and an alleged violation of the “short and plain statement” rule in Fed. R. Civ. P. 8(a) –which the Court uniformly rejected. Regardless, it appears that a Complaint for copyright infringement, like patent infringement, need only provide bare-bones factual allegations to survive a motion to dismiss.

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Colleagues in our Internet, E-Commerce, and Information Technology group have published an article of interest to those in the IP world.  In it they discuss the Copyright Office's recent ruling that removing restrictions built into mobile device software does not violate the Digital Millennium Copyright Act.  The ruling is certainly a significant development in a hot technology and IP area, and it may carry more general implications for software development.  The article, which includes a link to the ruling, is here:

http://www.troutmansanders.com/tonight-theres-gonna-be-a-jailbreak-of-your-software-07-30-2010/

(And if, like me, you have not been blessed with familiarity with Thin Lizzy, take heart:  you are not alone, and Wikipedia is always there to help.)

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Chambers and Partners' 2010 Edition of Chambers USA gives Troutman Sanders a top-level ranking for Intellectual Property in Southern Virginia, stating that the group "continues to garner praise for its litigation expertise." Virginia IP Law bloggers Robert Angle, Rob Brooke and Dabney Carr are also ranked individually in intellectual property.  A full list of Troutman Sanders' rankings can be found here.

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In a June 3, 2010 opinion, Judge Hudson denied summary judgment of copyright noninfringement in the case of The Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, Civil Action No. 3:09cv358 (E.D. Virginia).  Plaintiff Commonwealth Architects claimed that Rule Joy Trammell + Rubio LLC (“Rule Joy”) infringed its copyright held in a set of architectural drawings involving the John Marshall Hotel in Richmond, Virginia.  Specifically, Commonwealth Architects alleged that Rule Joy violated its copyright by (1) making wholesale copies of the drawings by scanning them in a .PDF file and (2) incorporating particular aspects of the drawings into Rule Joy’s own drawings prepared for the Hotel after Commonwealth Architects was replaced on the renovation project. 

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“Dreamgirls” fans and entertainment execs, breathe easy.  On Monday, Chief U.S. District Judge James R. Spencer granted a motion to dismiss a case brought by a pro se litigant alleging that the film infringed upon his copyright.  In Bailey v. Black Entertainment Television, Inc. et al (Eastern District of Virginia case no. 3:09-cv-00787), Plaintiff James R. Bailey sued BET, Paramount, and Viacom, asserting that the 2006 film infringed upon a screenplay he had written in 1992 named “Poison Passion.”

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This post continues a roundup of recent Eastern District of Virginia decisions in IP cases, covering an opinion dealing with fees and costs in a copyright infringement case.

In Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp., case no. 1:07-cv-491, 2009 U.S. Dist. LEXIS 98742 (E.D. Va. Oct. 16, 2009), District Judge Liam O’Grady issued an opinion regarding a prior attorney’s fees and costs award that had been remanded in an unpublished opinion by the Fourth Circuit for reconsideration in accordance with Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994) and Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 234 (4th Cir. 1993) (endorsing and requiring, respectively, the consideration in making fees and costs awards of the following non-exclusive factors: (1) “the motivation of the parties”; (2) “the objective reasonableness of the legal and factual positions advanced”; and (3) “the need in particular circumstances to advance considerations of compensation and deterrence”). 

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The Virginia State Bar Intellectual Property Law Section will be holding its Twenty-First Annual Fall Weekend CLE on October 2-3, 2009, at the Omni Hotel in Downtown Richmond, Virginia. It will be begin on Friday, October 2, 2009 at 1:30 pm and finish around 1:00 pm on Saturday, October 3, 2009.

The featured topics and speakers include:

• Use of Surveys in Trademark Disputes, presented by Hal Poret, Guideline Market Research

• Patent Reform Status Report, presented by Hon. Q. Todd Dickinson, Executive Director, American Intellectual Property Law Association

• Fraud Standards at the Trademark Office, presented by Linda McLeod, Finnegan Henderson Farabow Garrett & Dunner LLP

• Hot Topics in Patent Law, presented by Stephen Kunin, Oblon Spivak McClelland Maier & Neustadt

• Electronic Copyright Applications, presented by John Jennison, Jennison & Schultz

• Ethics in IP, presented by Deborah Jeffrey, Zuckerman Spaeder

• Bankruptcy and Intellectual Property, presented by Matthew Cheney and Karen Hermann, Crowell & Moring

• Google Adwords/Online Advertising, presented by Brad Newberg, Holland & Knight LLP

For a PDF brochure and full details, please visit: http://www.vsb.org/sections/ip/2009-Fall-CLE.pdf

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One of the most common IP misconceptions is the "work for hire" doctrine.  Under that doctrine, an employer automatically owns the copyright for work product created by an employee within the scope of his or her employment.  The employer does not, however, own the copyright for work product created by an independent contractor, such as a graphic artist, website designer or advertising agency, UNLESS the client obtains a written agreement with the independent contractor acknowledging that the work product is "work for hire," and preferably assigning the copyright to the client if, for any reason, the work is not deemed to be "work for hire."

This is a very common misconception!  I constantly have clients who are forced to pay twice for work product: once when the work product is initially developed by independent contractors, and again when the client has to pay the independent contractor to assign its copyright rights when the client learns the work product is being used for a competitor, or gets a nastygram (cease and desist letter) from the independent contractor.  The key is to negotiate ownership of the work product at the beginning of the relationship - independent contractors want work, and they want to be paid, so they will agree to virtually anything up front. 

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