Cameo Clips

But in Blagman v. Apple Inc., 12 Civ. 5453, District Judge Andrew L. Carter found: 'As the proposed class is limited to owners whose copyrighted works 'have been reproduced, distributed, or sold by Defendants,' the alleged system of infringement would affect them. At this point, the class allegations, though sparse, adequately state a claim on behalf of the putative class.'

Judge Carter distinguished the Football Association Premier League decision by observing: 'Although superficially compelling, Football is easily distinguishable from the current posture of this case. First, it was decided at the time of a class certification motion whereas this case has not yet been given the benefit of discovery.' In addition, Judge Carter noted, 'the Football defendants are YouTube, Inc. and YouTube LLC (collectively, 'YouTube') and Google, whose business models as relevant to that suit are different from the allegedly infringing business model disputed before this Court. Specifically, in Football, the challenge against YouTube and Google arose because those sites allow users to post content, some of which is infringing. Thus, they were not direct infringers, which cannot be said here.'

Trademark Infringement/Fictional Products

The U.S. District Court for the Northern District of Indiana decided that references to a fictional 'clean slate' software in the 2012 Batman film The Dark Knight Rises didn't infringe on the trademark for the plaintiff software maker's 'Clean Slate' software. Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 3:12-cv-535. Chief U.S. District Judge Philip P. Simon initially noted of the issue in the case 'that it's somewhat surprising that this is a relatively uncharted territory of trademark law.' But he observed: 'I think the fatal flaw in Fortres Grand's case has to do with correctly identifying the exact product that Warner Bros. has introduced to the market ' a film, not a piece of software.'

Chief Judge Simon added: 'There's an obvious problem with Fortres Grand's argument that this is a worst-case scenario of [trademark] reverse confusion: Warner Bros. 'clean slate' software only exists in the fictional world of Gotham; it does not exist in reality.' The district judge also found no infringement in Warner Bros.' use of 'clean slate' in its websites for the Batman movie.

Meanwhile, the U.S. District Court for the Eastern District of Michigan found no trademark infringement in defendants' use of the word 'Rebellion' in the video game Sins of a Solar Empire: Rebellion. The plaintiffs operated the Rebellion video-game development company. District Judge Victoria A. Roberts noted: 'The Court agrees with Defendants that the word REBELLION has some artistic relevance to Defendants' computer game because within the game, players may choose to align with 'loyalist' or 'rebel' factions in the context of a civil war.' Rebellion Developments Ltd. v. Stardock Entertainment Inc., 12-12805. Judge Roberts agreed in considering Stardock's motion to dismiss on the pleadings: 'Although the Court has not found a case directly on point, it concludes that the First Amendment should be considered an appropriate affirmative defense,' even if not specifically raised in a defendant's answer to such a trademark case.

True-Life Depictions/In TV Programs

The U.S. District Court for the Northern District of Illinois dismissed claims brought by an individual portrayed in a TV show that reenacted a deadly pipe-bombing incident. Butler v. Discovery Communications LLC, 12 cv 6719. Alphonso Butler was depicted in the 'Lust for Life' episode of the Wicked Attraction series on Discovery's Investigation Network. The show was about an incident in which Butler's close friend Marcus Toney died after a mail package that Toney was opening exploded. Toney's estranged wife and her boyfriend later were convicted of the murder. The producers of 'Lust for Life' used Butler's testimony in the criminal trial as a source for its program.

Butler sued the network for false light invasion of privacy, defamation and negligent infliction of emotional distress. On the first claim (the program showed Butler urging Toney to open the package), District Judge Sharon Johnson Coleman noted: '[T]here is no suggestion in the allegations in the complaint or in the reenactment that Discovery portrayed Butler as being aware of the threat posed by the package. Without such knowledge of the danger or involvement in the plot to kill Toney, Butler's appearance of encouraging or goading Toney into opening the package is benign.' District Judge Coleman similarly found on Butler's defamation claim, 'the portrayal of him as cajoling Toney into opening the package cannot reasonably be interpreted that Butler in any way caused Toney's death.'

As for the emotional distress claim, the district judge wrote: 'There is no real distinction between the court record and the reenactment other than which of the friends initiated the conversation about opening the box. ' Further investigation by Discovery, would not have materially altered that depiction. Therefore, this Court finds that Discovery had no reason to doubt the accuracy of the portrayal and owed no duty to further investigate the incident by directly contacting Butler.'

Online Infringement/Class Action Issues

In separate rulings, one judge for the U.S. District Court for the Southern District of New York denied class certification to a sports league and music publishers who sued YouTube over content postings by YouTube users, while another Southern District judge allowed a class action to move forward that alleges digital music retailers failed to obtain mechanical licenses for songs in the recordings they distribute.

In The Football Association Premier League Ltd. v. YouTube Inc., 07 Civ. 3582, District Judge Louis L. Stanton explained: 'Plaintiffs offer no explanation of how the worldwide members of this proposed class are to be identified, how they are to prove copyright ownership by themselves or by their authorized agent, or how they will establish that defendants became aware of the specific video clips which allegedly infringed each of the potentially tens of thousands of musical compositions incorporated into specific videos.'

But in Blagman v. Apple Inc., 12 Civ. 5453, District Judge Andrew L. Carter found: 'As the proposed class is limited to owners whose copyrighted works 'have been reproduced, distributed, or sold by Defendants,' the alleged system of infringement would affect them. At this point, the class allegations, though sparse, adequately state a claim on behalf of the putative class.'

Judge Carter distinguished the Football Association Premier League decision by observing: 'Although superficially compelling, Football is easily distinguishable from the current posture of this case. First, it was decided at the time of a class certification motion whereas this case has not yet been given the benefit of discovery.' In addition, Judge Carter noted, 'the Football defendants are YouTube, Inc. and YouTube LLC (collectively, 'YouTube') and Google, whose business models as relevant to that suit are different from the allegedly infringing business model disputed before this Court. Specifically, in Football, the challenge against YouTube and Google arose because those sites allow users to post content, some of which is infringing. Thus, they were not direct infringers, which cannot be said here.'

Trademark Infringement/Fictional Products

The U.S. District Court for the Northern District of Indiana decided that references to a fictional 'clean slate' software in the 2012 Batman film The Dark Knight Rises didn't infringe on the trademark for the plaintiff software maker's 'Clean Slate' software. Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 3:12-cv-535. Chief U.S. District Judge Philip P. Simon initially noted of the issue in the case 'that it's somewhat surprising that this is a relatively uncharted territory of trademark law.' But he observed: 'I think the fatal flaw in Fortres Grand's case has to do with correctly identifying the exact product that Warner Bros. has introduced to the market ' a film, not a piece of software.'

Chief Judge Simon added: 'There's an obvious problem with Fortres Grand's argument that this is a worst-case scenario of [trademark] reverse confusion: Warner Bros. 'clean slate' software only exists in the fictional world of Gotham; it does not exist in reality.' The district judge also found no infringement in Warner Bros.' use of 'clean slate' in its websites for the Batman movie.

Meanwhile, the U.S. District Court for the Eastern District of Michigan found no trademark infringement in defendants' use of the word 'Rebellion' in the video game Sins of a Solar Empire: Rebellion. The plaintiffs operated the Rebellion video-game development company. District Judge Victoria A. Roberts noted: 'The Court agrees with Defendants that the word REBELLION has some artistic relevance to Defendants' computer game because within the game, players may choose to align with 'loyalist' or 'rebel' factions in the context of a civil war.' Rebellion Developments Ltd. v. Stardock Entertainment Inc., 12-12805. Judge Roberts agreed in considering Stardock's motion to dismiss on the pleadings: 'Although the Court has not found a case directly on point, it concludes that the First Amendment should be considered an appropriate affirmative defense,' even if not specifically raised in a defendant's answer to such a trademark case.

True-Life Depictions/In TV Programs

The U.S. District Court for the Northern District of Illinois dismissed claims brought by an individual portrayed in a TV show that reenacted a deadly pipe-bombing incident. Butler v. Discovery Communications LLC, 12 cv 6719. Alphonso Butler was depicted in the 'Lust for Life' episode of the Wicked Attraction series on Discovery's Investigation Network. The show was about an incident in which Butler's close friend Marcus Toney died after a mail package that Toney was opening exploded. Toney's estranged wife and her boyfriend later were convicted of the murder. The producers of 'Lust for Life' used Butler's testimony in the criminal trial as a source for its program.

Butler sued the network for false light invasion of privacy, defamation and negligent infliction of emotional distress. On the first claim (the program showed Butler urging Toney to open the package), District Judge Sharon Johnson Coleman noted: '[T]here is no suggestion in the allegations in the complaint or in the reenactment that Discovery portrayed Butler as being aware of the threat posed by the package. Without such knowledge of the danger or involvement in the plot to kill Toney, Butler's appearance of encouraging or goading Toney into opening the package is benign.' District Judge Coleman similarly found on Butler's defamation claim, 'the portrayal of him as cajoling Toney into opening the package cannot reasonably be interpreted that Butler in any way caused Toney's death.'

As for the emotional distress claim, the district judge wrote: 'There is no real distinction between the court record and the reenactment other than which of the friends initiated the conversation about opening the box. ' Further investigation by Discovery, would not have materially altered that depiction. Therefore, this Court finds that Discovery had no reason to doubt the accuracy of the portrayal and owed no duty to further investigate the incident by directly contacting Butler.'