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Tuesday, October 18, 2011

Stay On Track

Before filing a lawsuit, consider the possible ramifications and what victory or loss will accomplish

Even if you’re not going to pursue litigation, a timely registration can prove invaluable because of the potential penalties that an infringer will face. While there’s no guarantee that a judge or jury will award the maximum statutory award (either for ordinary or willful infringement)—as demonstrated by Schmitt’s case—and no guarantee that attorney’s fees will be awarded, the mere threat of those sorts of awards are generally enough to encourage a business to cease infringing, and more often than not, also pay a reasonable settlement. I’ve encountered numerous instances where a reasonable demand, accompanied by a timely registration, were sufficient to settle claims without protracted and costly litigation. Sadly, I’ve also seen businesses be penny-wise and pound-foolish.

Make the relatively minimal investment so that your business will be in the best possible position should it need to address an instance of infringement. But, above all, establish reasonable business priorities, and be sure to avoid emotional decisions. Doing so will permit you to stay focused on what really matters.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Fla., and a professional photographer who has covered sporting events for more than a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Foreshadowing The Future Of LaChapelle’s Case?

On July 20, 2011, David LaChapelle’s case against Rihanna and others involved with her S&M music video suffered something of a setback when U.S. District Judge Shira Scheindlin issued a 29-page opinion dismissing two of LaChapelle’s claims. The judge dismissed LaChapelle’s claim for trade dress infringement in which he claimed damages between $1 million and $3 million, and his claim for unfair competition in which he claimed damages of $1 million together with punitive damages. Fortunately, for LaChapelle, the judge permitted LaChapelle to proceed on his copyright infringement claim.

Judge Scheindlin also refused to rule on the fair-use defense asserted by Rihanna and the other defendants, even going so far as to characterize the central fair-use argument as being “misguided.” Having rejected the fair-use defense, the judge ruled that LaChapelle’s amended complaint “alleged a plausible claim for copyright infringement,” which is all that it needed to do in order to avoid dismissal at that early stage in the case.

The judge’s decision may also foreshadow how some of the copyright issues may play out as the case proceeds. Recognizing limitations in what a copyright protects, such as the limitations that precluded Bill Diodato from prevailing on his copyright-infringement claim against Kate Spade, the judge went so far as to state that “[e]lements of leather- or latex-clad women, whips, ball gags, people in restraints, men on leashes, and other aggressive, sexually-charged motifs common to both [the S&M music video] and [LaChapelle’s photographs] are not, as subjects, protectable elements.” Nonetheless, the judge also recognized that “[a] photograph may be original in the rendition of a subject,” with the originality being not “what is depicted, but rather how it is depicted. Originality in rendition may reside in the photographer’s selection of lighting, shade, lens, angle, depth of field, composition, and other choices, such as manipulation of color balance, saturation, or contrast, that have an aesthetic effect on the final work.” According to the decision, originality may also exist “when the photographer orchestrates the situation that is photographed, rather than simply photographing a ready-made scene or thing.”

Given the potential long-term impact a case like LaChapelle’s may have, it’s worth keeping an eye on the case as it develops.


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