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IP/Entertainment Case Law Updates

Timpco, LLC v. Implementation Services, LLC

Court grants in part plaintiff’s motion for partial summary judgment on its copyright infringement claim, holding that making available plaintiff’s copyrighted work at a trade show amounts to copyright infringement.

On November 30, 2005, plaintiff Timpco, LLC (doing business as Kaufman Global, LLC) purchased certain business assets of a subsidiary of defendant Implementation Services, LLC. Among the assets were items of intellectual property, including The Carrot Story, plaintiff’s registered copyrighted publication. Pursuant to the parties Asset Purchase Agreement (“APA”), plaintiff granted a non-exclusive license to defendant to use some of its copyrighted materials for a specified period of time that expired on August 9, 2006. The APA prohibited defendant from using any of the materials after the license period expired. Following the expiration of the license period, defendant continued to use The Carrot Story by affixing its own logo on a copy of The Carrot Story, distributing copies for a sales presentation, including a copy in a package of information for a trade show, translating The Carrot Story into Russian, and sending a copy to a prospective client. Plaintiff subsequently filed claims for copyright infringement and breach of contract.

Because defendant conceded that translating The Carrot Story into Russian and sending it to a prospective client in Russia are copyright infringement, the court only discussed the alleged acts of distributing copies for a sales presentation and including a copy in a package of information for a trade show. In applying circuit precedent, the court found that defendant’s actions of making available The Carrot Story in packets of information at a trade show and for its clients and/or prospective clients constituted infringement.

To prove copyright infringement, explained the court, plaintiff must establish (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. For purposes of copyright law, the court further noted, a person “copies” another’s work if he or she “distributes copies without the copyright owner’s authorization.”

In opposition to plaintiff’s motion for summary judgment, defendant argued that there was no evidence that it actually distributed copies of The Carrot Story to third parties. The district court disagreed, emphasizing that the Seventh Circuit, among other courts, has held that merely making copyrighted material available to others is an act of distribution, citing Capitol Records, Inc. v. Koyate, 2008 WL 2857237 (N.D. Ind. July 22, 2008), Capitol Records v. Mattingly, 461 F.Supp.2d 846 (S.D. Ill. 2006), and Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997). The court further noted that the Copyright Act gives the copyright holder the exclusive right to display publicly the copyrighted work. Thus, the court held that defendant infringed plaintiff’s copyright in The Carrot Story simply by displaying it on the table at the trade show.

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