Copyright and Trademark

We are known for our success litigating high-stakes cases and counseling our clients on their most significant matters, particularly where technology intersects with entertainment.

Many of the disputes we handle involve cutting-edge copyright law cases and questions of first impression, frequently dealing with the latest licensing, streaming and distribution issues. Munger, Tolles & Olson also represents clients in amicus filings in some of the major copyright cases in the country. We counsel clients regarding various copyright issues, including online distribution of content and other new means of distribution.

Copyright

We have defended infringement cases brought by both competitors and non-practicing entities, for clients such as:

• The Walt Disney Company, in successfully litigating claims brought against Inside Out, Frozen and other hit properties, including helping clarify the law on substantial similarity in the Ninth Circuit.
• The Walt Disney Company, in defending against and ultimately settling litigation with two screenwriters over the Pirates of the Caribbean film franchise. The matter threatened to offer copyright protection to common elements of genre films.
• Disney, Fox and Paramount in lawsuits alleging the studios are liable for copyright infringement allegedly committed by a third-party vendor for using motion capture software it did not own. The plaintiff is suing for hundreds of millions of dollars in film profits.
• Recording Industry Association of America (RIAA), in dismissing claims for defamation and damages filed by Yout, a streamripping service, after RIAA informed YouTube that the service circumvents its rolling cipher copyright protection technology.
• National Fire Protection Association, in litigation challenging whether standards lose their copyright protection when government bodies incorporate them by reference.
• Sony Music Entertainment, EMI Group and Universal Music Group, in gaining a permanent injunction to shut down LimeWire, one of the most pervasive online file-copying services, and obtaining a $105 million settlement,

Trademarks

While our trademark work is most often behind the scenes and includes providing counseling and representation in pre-litigation disputes, we also have experience litigating high-stakes trademark matters in court, including:

• Netflix, in trademark and copyright litigation related to using the Bridgerton brand to commercialize fan-created music based on the hit series.
• Versace, in winning summary judgement in infringement litigation brought against Versace 19.69 Abbigliamento Sportivo SRL.
• Lucasfilm, in developing strategies to protect the studio’s intellectual property.
• Quince, an online retailer, as a defendant in various trademark and copyright matters.
• Verizon, in a cybersquatting and trademark infringement lawsuit alleging that defendants had used an automated process to register hundreds of domain names that were confusingly similar to Verizon’s trademarks.
• Life is Beautiful music festival, in obtaining summary judgement in a trademark and copyright infringement suit over rights to the phrase “Life is Beautiful” and “splashed paint heart designs.”
• An Italian high-fashion brand, in strategizing a potential trademark action adverse to a rival brand using trade dress featuring design elements resembling our client’s marks.

• The Walt Disney Company: Clarifying “substantial similarity” copyright law

Munger, Tolles & Olson scored an important victory in defending The Walt Disney Company and Pixar against copyright infringement claims related to the motion picture Inside Out. The lawsuit, Daniels v. Walt Disney Co., was brought by a child development expert alleging that her characters, The Moodsters, were infringed by the central characters in Inside Out – anthropomorphized emotions that reside in the mind of an eleven-year-old girl.

Days after partner Erin J. Cox argued the merits of Disney’s motion to dismiss before the U.S. District for the Central District of California, the court granted the motion and dismissed the infringement claims, ruling that the plaintiff’s little-known set of characters do not meet the Ninth Circuit test for independent copyright protection of a character, and that the plaintiff’s public disclosure of her idea for the characters prevented the formation of any implied contract to support an idea theft claim. Unlike especially distinctive characters worthy of copyright protection, the court ruled that The Moodsters were not sufficiently delineated or recognizable as the same characters wherever they appeared.

After the plaintiff filed an amended complaint reasserting the copyright claims, the court granted Disney-Pixar’s second motion to dismiss, this time dismissing the case with prejudice. The plaintiff appealed to the Ninth Circuit, where Ms. Cox led the written briefing before the appellate court.

The Ninth Circuit affirmed the decision in March 2020. Writing for the court, Judge Margaret M. McKeown explained that The Moodsters, unlike Godzilla, James Bond or the Batmobile, lacked “identifiable and consistent character traits and attributes across iterations” were “not especially distinctive,” and had no “unique elements of expression.” A leading treatise on copyright has described the decision as “a master class in character copyright law.”

After the Ninth Circuit denied plaintiff’s petition for rehearing en banc, plaintiff filed a petition for certiorari to the U.S. Supreme Court, joined by two amici. In January 2021, the court denied certiorari.

Media Coverage: 9th Circ. Says Disney Copyright Accuser Is No Godzilla

• Multiple Film Studios: Shutting down an illegal streaming service

Munger, Tolles & Olson represents the Alliance for Creativity and Entertainment (ACE) and its members, Disney, Warner Bros. Sony Pictures, Paramount, NBCUniversal, Netflix and Amazon in a massive copyright infringement and breach of contract lawsuit filed in July 2021 against a recidivist infringer Jason Tusa, for running serial infringing subscription streaming platforms: Area 51, Singularity Media, Digital Unicorn Media, and Altered Carbon. After settling with ACE and agreeing to never again launch an infringing streaming service, Tusa did just that, seeking to conceal his involvement.

The new lawsuit, filed in the U.S. District Court for Central California, took aim at Tusa personally for direct copyright infringement, knowingly and materially contributing to the infringement of copyrighted works, intentional copyright infringement, and breach of contract, and sought preliminary and permanent injunctions to shut down the streaming services. This included taking control of the Altered Carbon’s domains and impounding Tusa’s hardware and any documents related to the infringement, as well as statutory damages of up to $150,000 per infringed work.

The Court granted the motion for a preliminary injunction in August 2021 and awarded default judgment and damages shortly thereafter.

Media Coverage: Amazon, Netflix, And Major Hollywood Studios File Massive Suit Against Rogue Copyright Infringer Jason Tusa

Contact:

Rose Leda Ehler
Kelly M. Klaus
Glenn D. Pomerantz