Copyright Cases Filed in Texas (October 2007)

by Tamera H. Bennett and Stephanie PrinceNovember 5, 2007

With the assistance of a wonderful law student, our blog will be bringing you a monthly update on copyright cases filed in Texas courts. The report is organised by Federal District.

Northern District of Texas

UMG Recordings, Inc. v. Akinpelu (3-07cv1679-O) UMG Recordings, Inc, Capitol Recordings Inc, Interscope Records, Laface Records LLC and others filed suit on October 2, 2007 against Idris Olalekan Akinpelu. UMG pleads Akinpelu was downloading and distributing Plaintiffs’ copyrighted music files over the internet in violation of Plaintiff’s exclusive rights. The music files in question include songs by Blink-182, Ja Rule, Usher, City High and Sammie. The Plaintiffs seek injunctive relief, monetary damages and attorneys’ fees.

Apogee Software, Ltd v. Polgardy (3-07cv1756-G) Apogee Software Ltd is a developer and producer of video games. One of their latest, “Earth No More,” is a video game that departs from the traditional alien attack theme to target the consequences of humankind’s mistreatment of Earth’s environment and resources. Apogee filed suit against Cinemagraphix Entertainment, Pat Heptig, Edward Polgardy and Darin Scott on October 18, 2007.

This dispute began when Edward Polgardy and Darin Scott, through their attorney, sent a letter to Apogee asserting that “Earth No More” infringed on their trademark rights and copyrights. Plaintiff Apogee seeks a declaratory judgment affirming their trademark rights and copyright in the video game.

Warner Bros. Records, Inc. v. Does 1-3 (4-07cv622-Y) Arista Records, LLC, Atlantic Recording Corporation, BMG Music, Capital Records, Inc., Maverick Recording Company, Sony BMG Music Entertainment, UMG Recordings, Virgin Records America, Inc, Warner Bros. Records Inc. and others filed suit on October 18, 2007 against Does 1-3. The complaint alleges Does 1-3 were downloading and distributing Plaintiffs’ copyrighted music files over the internet in violation of Plaintiff’s exclusive rights.

The music files in question include songs from artists such as native Texans the Dixie Chicks, Santana, Marc Anthony, Justin Timberlake, Nirvana, Dido, Coldplay, Eve 6, Culture Club, Quiet Riot, Red Hot Chili Peppers, MC Hammer, and many others. The Plaintiffs seek injunctive relief, monetary damages and attorneys’ fees.

Mattress Giant Corp. v. Motor Adv. & Design, Inc. (3-07cv1728-D) Mattress Giant Corporation, famous for “ that oooh ahhh feel” departed from reliance on the jingle in 2002 by hiring Motor Advertising & Design Inc. to devise a new advertising plan. Motor ultimately developed an advertising campaign around the phrase “catch some z’s.”

When Mattress Giant advised Motor it would consider bids from new advertising partners in 2007, Motor asserted ownership of the “catch some z’s” phrase. Mattress Giant had obtained copyright registrations for the first four “catch some z’s” commercials, and had obtained “irrevocable, exclusive and royalty-free license[s] for the use of intellectual property” for the remaining commercials and advertisements.

Mattress Giant maintains it has ownership over the “catch some z’s” design concept and derivative materials, and the right to use the derivative works and to create new derivative materials without any further payments to Defendants. Mattress Giant seeks a declaratory judgment of ownership of rights, a declaratory judgment of non-infringement, attorneys’ fees and reasonable costs.

Southern District of Texas

Warner Bros Records Inc. v. Trevino Arista Records, LLC, Atlantic Recording Corporation, BMG Music, Sony BMG Music Entertainment, Interscope Records, Warner Bros. Records Inc. and others filed suit on October 2, 2007 against Ashley Trevino. The complaint alleges Trevino was downloading and distributing the Plaintiffs’ copyrighted music files over the internet in violation of Plaintiff’s exclusive rights.

The music files in question include songs from artists such as Madonna, Smash Mouth, Journey, Lonestar, All-4-One, El Simbolo, native Texan Jessica Simpson and others. The Plaintiffs seek injunctive relief, monetary damages and attorneys’ fees.

Blackmer v. La Centerra at Cinco Ranch Ltd. (4-07cv03370) John Blackmer d/b/a John Blackmer Photography filed a complaint against La Centerra, Pegasus Design, Inc., Pixel Creative Group, Inc. and others on October 12, 2007. Blackmer asserts La Centerra, a real estate developer, through Pixels, an advertising agency, and through Pegasus, an advertising agency and its principals, used the Plaintiff’s copyrighted photographic works in their advertising brochures and on their websites without permission. Blackmer seeks statutory damages and actual damages for copyright infringement, as well as court costs and attorneys’ fees.

Western District of Texas Moss v. Allen (5-07cv00809-FB-JWP) John Moss’ professional relationship with David Allen began when Moss hired Allen to work as a draftsman in Moss’ home design firm. This conflict began when Allen informed Moss of his plans to strike out on his own, and to use the designs made while under Moss’ tutelage as his portfolio of work. Later, Allen did use Moss’ designs, both in competition, and in home design work.

Moss asserts these designs are a part of the “Moss Design Collection,” and are owned by Moss and Associates. Moss filed this action on October 9, 2007 for copyright infringement, unfair competition under the Lanham Act, misappropriation of trade secrets and conversion. He seeks a temporary restraining order, injunctive relief, an order requiring Allen to return all blueprints, computer files, artistic renderings, concept drawings, and other physical materials of designs taken from the Moss Design Collection, statutory damages and actual damages.