This document is a memorandum in support of a motion to dismiss a copyright infringement lawsuit. The defendants argue that the plaintiff's complaint should be dismissed because the plaintiff does not have standing to bring a copyright infringement claim under the Copyright Act. Specifically, the plaintiff has not received notice of approval or refusal from the Copyright Office regarding his application for registration of the work in question, which is a requirement to have standing under the Act. The defendants ask the court to adopt the view that registration is not complete until the Copyright Office examines and approves or denies the application.
Dismissal of Power.com's Suit Against FacebookEric Eldon
This order grants Facebook's motion to dismiss Power Ventures' counter-complaint and strike affirmative defenses. The court found Power Ventures' pleading lacked specificity and factual allegations to support its antitrust and other claims. Power Ventures is given 30 days leave to amend its pleading. The hearing on the motions is vacated.
Stern Response to motion to dismiss 8-20-10JRachelle
This document is the Executor's response in opposition to a motion to dismiss filed by Susan M. Brown and The Law Offices of Susan M. Brown. The Executor argues that the motion to dismiss should be denied for three reasons: 1) Brown is raising the same arguments that the court already rejected in granting leave to amend the complaint, 2) the Executor has properly stated claims for both statutory and common law misappropriation of publicity rights, and 3) even if the motion to dismiss is granted, there are six other valid causes of action against Brown that would remain in the case.
This document is a petition for a change of name filed in a California superior court. It requests that the court change the names listed in item 2 to the proposed names. It also requests that the court issue an order directing interested parties to appear and show cause why the name changes should not be granted. Additional information about each person whose name is to be changed must be attached using form NC-110.
The petition provides basic information about the petitioner and the name changes being requested. It confirms the number of people under 18 whose names are being changed and identifies the relationship of the petitioner to those individuals (e.g. parent or guardian).
Order Granting Addition Of Susan Brown As DefendantJRachelle
This order grants the plaintiff's motion to amend his complaint to add new parties and factual allegations learned during discovery. The plaintiff seeks to add three individuals ("Doe defendants") identified during depositions as being involved in removing property from the estate. The plaintiff also seeks to add an attorney and her law firm who received estate property from one of the defendants. The only opposition comes from the attorney and law firm, but the court finds that allowing the amendments would not be prejudicial or futile. Therefore, the plaintiff's motion to amend is granted.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
This document summarizes a court case regarding a dispute over land use jurisdiction between the City of Tontitown, Arkansas and landowners Jay and Connie Potter. The Potters purchased 19 acres outside Tontitown city limits and sought approval to build an RV park. They withdrew their application to Tontitown and received approval from the Washington County Planning Board, but the approval stated it would be void if Tontitown had jurisdiction. Tontitown claimed jurisdiction and sought an injunction to stop construction, arguing it had properly designated its planning area boundaries. The circuit court granted the injunction, finding Tontitown likely to succeed on the merits. The Potters appealed.
Do Pictures belong in Judicial Opinions or Law Briefs?Lawrence Berezin
What does a circuit court of appeals judge, lawyers for the Dallas Mavericks and Manny Pacquiao have in common? All included images in their opinion and briefs.
Do pictures belong in these type of law documents?
Dismissal of Power.com's Suit Against FacebookEric Eldon
This order grants Facebook's motion to dismiss Power Ventures' counter-complaint and strike affirmative defenses. The court found Power Ventures' pleading lacked specificity and factual allegations to support its antitrust and other claims. Power Ventures is given 30 days leave to amend its pleading. The hearing on the motions is vacated.
Stern Response to motion to dismiss 8-20-10JRachelle
This document is the Executor's response in opposition to a motion to dismiss filed by Susan M. Brown and The Law Offices of Susan M. Brown. The Executor argues that the motion to dismiss should be denied for three reasons: 1) Brown is raising the same arguments that the court already rejected in granting leave to amend the complaint, 2) the Executor has properly stated claims for both statutory and common law misappropriation of publicity rights, and 3) even if the motion to dismiss is granted, there are six other valid causes of action against Brown that would remain in the case.
This document is a petition for a change of name filed in a California superior court. It requests that the court change the names listed in item 2 to the proposed names. It also requests that the court issue an order directing interested parties to appear and show cause why the name changes should not be granted. Additional information about each person whose name is to be changed must be attached using form NC-110.
The petition provides basic information about the petitioner and the name changes being requested. It confirms the number of people under 18 whose names are being changed and identifies the relationship of the petitioner to those individuals (e.g. parent or guardian).
Order Granting Addition Of Susan Brown As DefendantJRachelle
This order grants the plaintiff's motion to amend his complaint to add new parties and factual allegations learned during discovery. The plaintiff seeks to add three individuals ("Doe defendants") identified during depositions as being involved in removing property from the estate. The plaintiff also seeks to add an attorney and her law firm who received estate property from one of the defendants. The only opposition comes from the attorney and law firm, but the court finds that allowing the amendments would not be prejudicial or futile. Therefore, the plaintiff's motion to amend is granted.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
This document summarizes a court case regarding a dispute over land use jurisdiction between the City of Tontitown, Arkansas and landowners Jay and Connie Potter. The Potters purchased 19 acres outside Tontitown city limits and sought approval to build an RV park. They withdrew their application to Tontitown and received approval from the Washington County Planning Board, but the approval stated it would be void if Tontitown had jurisdiction. Tontitown claimed jurisdiction and sought an injunction to stop construction, arguing it had properly designated its planning area boundaries. The circuit court granted the injunction, finding Tontitown likely to succeed on the merits. The Potters appealed.
Do Pictures belong in Judicial Opinions or Law Briefs?Lawrence Berezin
What does a circuit court of appeals judge, lawyers for the Dallas Mavericks and Manny Pacquiao have in common? All included images in their opinion and briefs.
Do pictures belong in these type of law documents?
Establishing violations of Computer Fraud and Abuse ActDavid Sweigert
This document is a court opinion from the Ninth Circuit Court of Appeals regarding David Nosal's appeal of his criminal convictions. The court affirmed Nosal's convictions under the Computer Fraud and Abuse Act for unauthorized access to his former employer's computer system after his credentials were revoked. It also affirmed his convictions for trade secret theft under the Economic Espionage Act. However, the court vacated part of the restitution order and remanded for reconsideration of the attorneys' fees award.
Appeals: Rules 61, 62 and 63, Rules of Civil Procedure, RRO 1990, Reg 194Evelyn Perez Youssoufian
This document provides an overview of the rules and procedures for appeals to the Court of Appeal for Ontario and the Divisional Court. It discusses where to find relevant rules and guidelines, how to determine the appropriate appeal route, requirements for filing motions for leave to appeal, and procedures for compiling motion records and factums. The key points are that appeals require adhering to strict timing requirements and filing procedures set out in the Courts of Justice Act and Rules of Civil Procedure, and that leave to appeal is needed for some appeal routes but not others.
This summary provides the essential information from the appellant's brief in 3 sentences:
The appellant, Michael North, appealed the denial of his motion to suppress evidence obtained during a search of his home. North argued the search violated the Fourth Amendment because the officers relied on an invalid warrant that did not sufficiently describe the place to be searched. The brief asserts the trial court incorrectly applied the good faith exception to the exclusionary rule, as the officers should have reasonably known the warrant was insufficient for the search conducted of North's separate residence.
This document is a civil cover sheet for a case filed in federal court. It provides basic information about the case such as the parties involved, the basis for jurisdiction, citizenship of the parties, the nature of the suit, and the cause of action. The civil cover sheet standardizes the information provided at the beginning of a case and is used by court clerks to initiate the case docket.
This document is the Defendant's response to the Plaintiff's motion for summary judgment in a FOIA case. It argues that the Plaintiff's motion should be denied for the following reasons: 1) the records sought were compiled for a law enforcement purpose by the FBI; 2) Exemption 7(A) applies because disclosure of the records could reasonably interfere with an ongoing law enforcement investigation by another agency; 3) affidavits submitted by the FBI are presumed to be made in good faith and the FBI's invocation of exemptions is entitled to deference. The response provides undisputed facts and arguments supporting the application of Exemption 7(A) to withhold the requested records.
The document is an order from a United States Bankruptcy Court case dismissing an adversary proceeding with prejudice. The order approves a stipulation between the plaintiff Virgie Arthur and defendant Bonnie Gayle Stern to dismiss the adversary proceeding, with each party bearing their own costs and fees. The court retains jurisdiction over the interpretation and enforcement of the order.
This document contains motions and affidavits in support of changing the venue for an immigration hearing. Specifically:
- The respondent is requesting to change the venue from Houston, Texas to Memphis, Tennessee due to financial hardship of traveling over 500 miles from their home in Fort Smith, Arkansas.
- An affidavit from the respondent's attorney details the respondent's family and financial situation, including caring for two US citizen children while working minimum wage jobs. It argues that Memphis is a more convenient location that would allow family support.
- A motion for change of venue reiterates the respondent's residence and financial limitations, and requests the venue be changed to Memphis for these reasons.
- A witness list provides details on two witnesses
This document is a memorandum of law submitted in Bronx Family Court in opposition to a final order of protection pursuant to F.C.A. § 1056(4). The memorandum argues that under the plain language of F.C.A. § 1056(4), the court cannot issue an order of protection against the respondent, Jorge Limardo, to remain in effect until one of the child's 18th birthdays. This is because Mr. Limardo is related by blood to two members of the child's household, which is explicitly excluded by the statute. The memorandum analyzes the statutory language and legislative intent to argue the court's jurisdiction over Mr. Limardo must be limited to concurrent with other orders as described
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that they have properly responded to all of the plaintiff's discovery requests. They assert that the purpose of the motion to compel is to compel responses when the other side has not responded, which is not the case here. The defendants believe the plaintiff is trying to force them to change their discovery answers to ones more favorable to the plaintiff through this motion. They request that the court deny the plaintiff's motion.
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that their discovery responses have been timely and proper. They assert that the plaintiff's motion is an attempt to argue the merits of the case rather than the sufficiency of the discovery responses. The defendants request that the plaintiff's motion be denied and sanctions be awarded against the plaintiff.
Patent amendment before the Federal Court in AustraliaWayne Condon
This document discusses a 2012 Federal Court of Australia case (Bayer v Generic Health) regarding a patent amendment application under Section 105 of the Patents Act. In the case, Bayer sought to amend claims in its oral contraceptive (Yazmin) patent related to dosage, form, and dissolution testing after commencing infringement proceedings against Generic Health. The Court allowed the amendments, finding that Bayer did not improperly delay amendment, assert claims it knew needed amending ("covetous claiming"), or gain unfair advantage from the unamended claims. The discretion under Section 105 favors patentees as long as they have not engaged in blatantly disentitling conduct regarding the Australian patent.
The motion seeks partial summary judgment on the following grounds:
1) St. Paul breached its insurance contracts by refusing to defend Anderson against the EPA's 104(e) Request, as it constituted a "suit" under the policies.
2) St. Paul breached its contracts by refusing to defend against the General Notice Letter, which also constituted a "suit."
3) Anderson is entitled to a declaratory judgment that St. Paul has a continuing duty to defend Anderson against the 104(e) Request, General Notice Letter, and ongoing alternative dispute resolution process.
The grievance concerns a Postal Service policy requiring letter carriers in Frankfort, KY to provide verification of medical appointments for all scheduled sick leave requests of less than 3 days. The arbitrator found that the policy violated the Employee and Labor Relations Manual (ELM) which only allows supervisors to request verification for absences of 3 days or less on a case-by-case basis if the employee is on restricted sick leave or if verification is deemed necessary to protect the employer's interests. The blanket policy constituted an unreasonable and arbitrary application of the ELM. As such, the grievance was sustained.
1. Gawker Media and its counsel Gregg Thomas filed a motion for summary judgment against the FBI and EOUSA in order to compel the release of records related to the FBI's 2012 investigation into a sex tape involving Hulk Hogan.
2. The FBI investigation looked into the source and distribution of the sex tape, including a Los Angeles lawyer who tried to sell the tape to Hogan. However, no one was ever prosecuted related to the investigation.
3. Gawker requested the records under FOIA to aid in its defense against Hogan's $100 million lawsuit over Gawker's reporting on the sex tape. The EOUSA did not respond to the request, while the FBI denied it,
Judicial Watch, Inc. filed a complaint against the U.S. Department of Defense and U.S. Department of State for failing to comply with Freedom of Information Act requests. Judicial Watch submitted FOIA requests to both agencies seeking records related to briefings about activities in Benghazi, Libya between 2011-2014. The agencies did not issue a determination or provide responsive records within the required 20-day period. Judicial Watch is suing to compel the agencies to search for and release responsive records.
This is a summary of the document in 3 sentences:
The United States Court of Appeals for the Federal Circuit is reviewing a district court decision granting summary judgment that Mark Bruckelmyer's patents for thawing frozen ground are invalid due to obviousness in light of prior art. The prior art at issue is Canadian Patent 1,158,119, specifically figures 3 and 4 from the patent application, which illustrate using flexible hoses to thaw frozen ground. Bruckelmyer stipulated that if figures 3 and 4 were considered a "printed publication" under U.S. patent law, they would render his patents invalid as obvious, so the sole legal issue in this appeal is whether figures 3 and 4 qualify
Ms. Randolph is appealing her conviction and sentence. She filed an emergency motion for release pending appeal after the district court denied her request. She argues that she meets the criteria for release: (1) she does not pose a risk of flight or danger; and (2) her appeal raises substantial questions that could result in reversal or a new trial. Specifically, she cites issues with the sufficiency of evidence, discovery violations, and errors in the government's billing spreadsheets presented at trial. She requests that the court grant her release pending resolution of her appeal.
Can my employer fire me for no reason?
an “at-will” employment state. This means that in most cases, your employer can fire you at any time for any reason, for a bad reason, or for no reason at all. So your employer can fire you for complaining about your boss’s lack of
Can my employer retaliate against me?
Generally, yes. Most retaliation is not illegal. You should contact Heins & Minko Employment Attorneys to find out if you case has merit.
Are there exceptions to employment at-will?
employment contract, it may contain language that says your employer can only fire you “for cause” (i.e., a good reason). Additionally, if your employer made an oral or written statement (including pre-employment statements) that tends to limit its ...
Am I eligible for unemployment if my employer fired me for a bad reason or no reason?
Yes. Even if your situation does not fall into one of the exceptions of employment at will listed here, you may still be eligible for unemployment benefits if your employer did not terminate you for misconduct.
What is illegal discrimination?
Discrimination is treating someone differently based on his/her membership in a “protected class.” Protected classes include race, color, creed, religion, national origin, gender, sexual orientation, marital status, physical or mental disability, receipt of public assistance, and age. ...
What is illegal harassment?
(see the preceding paragraph for a list of protected classes) that creates a hostile environment or adversely affects the individual’s employment. Most harassment claims are for sexual harassment. While morally wrong, harassment is not legally wrong unless the reason you are ...
Can I take medical or parental leave?
State and federal laws require some employers to provide eligible employees with leave for the birth, adoption, or foster care of a child, and to care for a serious health condition of the employee or his/her close relative. Eligible employees may sue for damages if their employer denies or ...
Is my employer required to accommodate my disability?
Employers must reasonably accommodate a qualified employee’s disability, unless the accommodation imposes an undue hardship on the employer.
Act 10 continues to cause controversy in Wisconsin
the law unconstitutional in Sept. 2012 and a stay was put on enforcing
Prison guard union vote allowed by state
On behalf of Heins Law Office LLC posted in Employment Disputes on Thursday, May 30, 2013.
President Obama praises Gap for raising wages
behalf of Heins & Minko posted in Employment Disputes on Friday, February 28, 2014. Wisconsin residents may be interested in recent comments by President Obama on a newly announced plan by Gap Inc. to raise its minimum wage. On Feb. 19, President Obama praised the ...
Wisconsin equal rights claim results in settlement
attorney who has
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
This order grants the defendants' motion to dismiss the plaintiff's complaint. The court found that the plaintiff did not adequately define the elements of its claimed trade dresses for essential oils and hair care products. Specifically, the plaintiff's use of the word "including" when listing elements suggested the dresses were not limited to what was listed. As the exact scope of the claimed dresses was uncertain, the plaintiff failed to give the defendants fair notice of the nature and basis of the trade dress claims against them. The court dismissed the plaintiff's three causes of action for trademark infringement, common law trademark infringement, and unfair business practices.
The court denied the State's motion to dismiss, finding that: 1) Constitutional challenges to ballot access laws require a fact-intensive analysis, not an automatic ruling; 2) While a 1985 case found Indiana's 2% requirement valid, the current challenge considers multiple requirements together rather than in isolation; and 3) Dismissing part of the claim regarding the 2% rule alone would be improper, as it is intertwined with the broader challenge to the scheme as a whole.
Establishing violations of Computer Fraud and Abuse ActDavid Sweigert
This document is a court opinion from the Ninth Circuit Court of Appeals regarding David Nosal's appeal of his criminal convictions. The court affirmed Nosal's convictions under the Computer Fraud and Abuse Act for unauthorized access to his former employer's computer system after his credentials were revoked. It also affirmed his convictions for trade secret theft under the Economic Espionage Act. However, the court vacated part of the restitution order and remanded for reconsideration of the attorneys' fees award.
Appeals: Rules 61, 62 and 63, Rules of Civil Procedure, RRO 1990, Reg 194Evelyn Perez Youssoufian
This document provides an overview of the rules and procedures for appeals to the Court of Appeal for Ontario and the Divisional Court. It discusses where to find relevant rules and guidelines, how to determine the appropriate appeal route, requirements for filing motions for leave to appeal, and procedures for compiling motion records and factums. The key points are that appeals require adhering to strict timing requirements and filing procedures set out in the Courts of Justice Act and Rules of Civil Procedure, and that leave to appeal is needed for some appeal routes but not others.
This summary provides the essential information from the appellant's brief in 3 sentences:
The appellant, Michael North, appealed the denial of his motion to suppress evidence obtained during a search of his home. North argued the search violated the Fourth Amendment because the officers relied on an invalid warrant that did not sufficiently describe the place to be searched. The brief asserts the trial court incorrectly applied the good faith exception to the exclusionary rule, as the officers should have reasonably known the warrant was insufficient for the search conducted of North's separate residence.
This document is a civil cover sheet for a case filed in federal court. It provides basic information about the case such as the parties involved, the basis for jurisdiction, citizenship of the parties, the nature of the suit, and the cause of action. The civil cover sheet standardizes the information provided at the beginning of a case and is used by court clerks to initiate the case docket.
This document is the Defendant's response to the Plaintiff's motion for summary judgment in a FOIA case. It argues that the Plaintiff's motion should be denied for the following reasons: 1) the records sought were compiled for a law enforcement purpose by the FBI; 2) Exemption 7(A) applies because disclosure of the records could reasonably interfere with an ongoing law enforcement investigation by another agency; 3) affidavits submitted by the FBI are presumed to be made in good faith and the FBI's invocation of exemptions is entitled to deference. The response provides undisputed facts and arguments supporting the application of Exemption 7(A) to withhold the requested records.
The document is an order from a United States Bankruptcy Court case dismissing an adversary proceeding with prejudice. The order approves a stipulation between the plaintiff Virgie Arthur and defendant Bonnie Gayle Stern to dismiss the adversary proceeding, with each party bearing their own costs and fees. The court retains jurisdiction over the interpretation and enforcement of the order.
This document contains motions and affidavits in support of changing the venue for an immigration hearing. Specifically:
- The respondent is requesting to change the venue from Houston, Texas to Memphis, Tennessee due to financial hardship of traveling over 500 miles from their home in Fort Smith, Arkansas.
- An affidavit from the respondent's attorney details the respondent's family and financial situation, including caring for two US citizen children while working minimum wage jobs. It argues that Memphis is a more convenient location that would allow family support.
- A motion for change of venue reiterates the respondent's residence and financial limitations, and requests the venue be changed to Memphis for these reasons.
- A witness list provides details on two witnesses
This document is a memorandum of law submitted in Bronx Family Court in opposition to a final order of protection pursuant to F.C.A. § 1056(4). The memorandum argues that under the plain language of F.C.A. § 1056(4), the court cannot issue an order of protection against the respondent, Jorge Limardo, to remain in effect until one of the child's 18th birthdays. This is because Mr. Limardo is related by blood to two members of the child's household, which is explicitly excluded by the statute. The memorandum analyzes the statutory language and legislative intent to argue the court's jurisdiction over Mr. Limardo must be limited to concurrent with other orders as described
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that they have properly responded to all of the plaintiff's discovery requests. They assert that the purpose of the motion to compel is to compel responses when the other side has not responded, which is not the case here. The defendants believe the plaintiff is trying to force them to change their discovery answers to ones more favorable to the plaintiff through this motion. They request that the court deny the plaintiff's motion.
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that their discovery responses have been timely and proper. They assert that the plaintiff's motion is an attempt to argue the merits of the case rather than the sufficiency of the discovery responses. The defendants request that the plaintiff's motion be denied and sanctions be awarded against the plaintiff.
Patent amendment before the Federal Court in AustraliaWayne Condon
This document discusses a 2012 Federal Court of Australia case (Bayer v Generic Health) regarding a patent amendment application under Section 105 of the Patents Act. In the case, Bayer sought to amend claims in its oral contraceptive (Yazmin) patent related to dosage, form, and dissolution testing after commencing infringement proceedings against Generic Health. The Court allowed the amendments, finding that Bayer did not improperly delay amendment, assert claims it knew needed amending ("covetous claiming"), or gain unfair advantage from the unamended claims. The discretion under Section 105 favors patentees as long as they have not engaged in blatantly disentitling conduct regarding the Australian patent.
The motion seeks partial summary judgment on the following grounds:
1) St. Paul breached its insurance contracts by refusing to defend Anderson against the EPA's 104(e) Request, as it constituted a "suit" under the policies.
2) St. Paul breached its contracts by refusing to defend against the General Notice Letter, which also constituted a "suit."
3) Anderson is entitled to a declaratory judgment that St. Paul has a continuing duty to defend Anderson against the 104(e) Request, General Notice Letter, and ongoing alternative dispute resolution process.
The grievance concerns a Postal Service policy requiring letter carriers in Frankfort, KY to provide verification of medical appointments for all scheduled sick leave requests of less than 3 days. The arbitrator found that the policy violated the Employee and Labor Relations Manual (ELM) which only allows supervisors to request verification for absences of 3 days or less on a case-by-case basis if the employee is on restricted sick leave or if verification is deemed necessary to protect the employer's interests. The blanket policy constituted an unreasonable and arbitrary application of the ELM. As such, the grievance was sustained.
1. Gawker Media and its counsel Gregg Thomas filed a motion for summary judgment against the FBI and EOUSA in order to compel the release of records related to the FBI's 2012 investigation into a sex tape involving Hulk Hogan.
2. The FBI investigation looked into the source and distribution of the sex tape, including a Los Angeles lawyer who tried to sell the tape to Hogan. However, no one was ever prosecuted related to the investigation.
3. Gawker requested the records under FOIA to aid in its defense against Hogan's $100 million lawsuit over Gawker's reporting on the sex tape. The EOUSA did not respond to the request, while the FBI denied it,
Judicial Watch, Inc. filed a complaint against the U.S. Department of Defense and U.S. Department of State for failing to comply with Freedom of Information Act requests. Judicial Watch submitted FOIA requests to both agencies seeking records related to briefings about activities in Benghazi, Libya between 2011-2014. The agencies did not issue a determination or provide responsive records within the required 20-day period. Judicial Watch is suing to compel the agencies to search for and release responsive records.
This is a summary of the document in 3 sentences:
The United States Court of Appeals for the Federal Circuit is reviewing a district court decision granting summary judgment that Mark Bruckelmyer's patents for thawing frozen ground are invalid due to obviousness in light of prior art. The prior art at issue is Canadian Patent 1,158,119, specifically figures 3 and 4 from the patent application, which illustrate using flexible hoses to thaw frozen ground. Bruckelmyer stipulated that if figures 3 and 4 were considered a "printed publication" under U.S. patent law, they would render his patents invalid as obvious, so the sole legal issue in this appeal is whether figures 3 and 4 qualify
Ms. Randolph is appealing her conviction and sentence. She filed an emergency motion for release pending appeal after the district court denied her request. She argues that she meets the criteria for release: (1) she does not pose a risk of flight or danger; and (2) her appeal raises substantial questions that could result in reversal or a new trial. Specifically, she cites issues with the sufficiency of evidence, discovery violations, and errors in the government's billing spreadsheets presented at trial. She requests that the court grant her release pending resolution of her appeal.
Can my employer fire me for no reason?
an “at-will” employment state. This means that in most cases, your employer can fire you at any time for any reason, for a bad reason, or for no reason at all. So your employer can fire you for complaining about your boss’s lack of
Can my employer retaliate against me?
Generally, yes. Most retaliation is not illegal. You should contact Heins & Minko Employment Attorneys to find out if you case has merit.
Are there exceptions to employment at-will?
employment contract, it may contain language that says your employer can only fire you “for cause” (i.e., a good reason). Additionally, if your employer made an oral or written statement (including pre-employment statements) that tends to limit its ...
Am I eligible for unemployment if my employer fired me for a bad reason or no reason?
Yes. Even if your situation does not fall into one of the exceptions of employment at will listed here, you may still be eligible for unemployment benefits if your employer did not terminate you for misconduct.
What is illegal discrimination?
Discrimination is treating someone differently based on his/her membership in a “protected class.” Protected classes include race, color, creed, religion, national origin, gender, sexual orientation, marital status, physical or mental disability, receipt of public assistance, and age. ...
What is illegal harassment?
(see the preceding paragraph for a list of protected classes) that creates a hostile environment or adversely affects the individual’s employment. Most harassment claims are for sexual harassment. While morally wrong, harassment is not legally wrong unless the reason you are ...
Can I take medical or parental leave?
State and federal laws require some employers to provide eligible employees with leave for the birth, adoption, or foster care of a child, and to care for a serious health condition of the employee or his/her close relative. Eligible employees may sue for damages if their employer denies or ...
Is my employer required to accommodate my disability?
Employers must reasonably accommodate a qualified employee’s disability, unless the accommodation imposes an undue hardship on the employer.
Act 10 continues to cause controversy in Wisconsin
the law unconstitutional in Sept. 2012 and a stay was put on enforcing
Prison guard union vote allowed by state
On behalf of Heins Law Office LLC posted in Employment Disputes on Thursday, May 30, 2013.
President Obama praises Gap for raising wages
behalf of Heins & Minko posted in Employment Disputes on Friday, February 28, 2014. Wisconsin residents may be interested in recent comments by President Obama on a newly announced plan by Gap Inc. to raise its minimum wage. On Feb. 19, President Obama praised the ...
Wisconsin equal rights claim results in settlement
attorney who has
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
This order grants the defendants' motion to dismiss the plaintiff's complaint. The court found that the plaintiff did not adequately define the elements of its claimed trade dresses for essential oils and hair care products. Specifically, the plaintiff's use of the word "including" when listing elements suggested the dresses were not limited to what was listed. As the exact scope of the claimed dresses was uncertain, the plaintiff failed to give the defendants fair notice of the nature and basis of the trade dress claims against them. The court dismissed the plaintiff's three causes of action for trademark infringement, common law trademark infringement, and unfair business practices.
The court denied the State's motion to dismiss, finding that: 1) Constitutional challenges to ballot access laws require a fact-intensive analysis, not an automatic ruling; 2) While a 1985 case found Indiana's 2% requirement valid, the current challenge considers multiple requirements together rather than in isolation; and 3) Dismissing part of the claim regarding the 2% rule alone would be improper, as it is intertwined with the broader challenge to the scheme as a whole.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
Plaintiff Phillip Lee Walters filed a motion to remand a negligence lawsuit back to state court that was removed to federal court by defendants Samuel Patterson and Keen Transport based on diversity jurisdiction. The plaintiff argues that removal was improper because the defendants did not establish that the amount in controversy exceeds $75,000, as is required for diversity jurisdiction. The plaintiff notes that the complaint does not specify a damages amount and contends that the defendants rely only on unsupported assumptions to claim the threshold is met rather than providing evidence, as is required. The plaintiff requests that the case be remanded back to state court due to lack of federal jurisdiction.
This motion seeks to disqualify the law firm Wilson & Varner and attorney Rodney Varner from representing David Nance in litigation against the debtors Introgen Therapeutics, Inc. and Introgen Technical Services, Inc. Varner previously served as general counsel for the debtors from 1993 to 2009. The debtors have filed an adversary proceeding against Nance alleging fraudulent transfers and other claims. Wilson & Varner is now representing Nance in that proceeding and in related bankruptcy matters. The motion argues that Varner's prior representation of the debtors is substantially related to the current matters, and there is a risk that confidential information may be disclosed, in violation of ethical rules regarding conflicts of interest with former clients. The
RK Associates, Raanan Katz Were Alleged In Unlawful Ejectment In Miamirkcenters
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Defendants dismas charities,inc.,ana gispert,derek thomas and adams leshota's...Cocoselul Inaripat
1) The document is a motion to dismiss a complaint filed by Traian Bujduveanu against Dismas Charities Inc., Ana Gispert, Derek Thomas, and Adams Leshota.
2) The motion argues that the complaint should be dismissed for failing to state any valid causes of action. It does not provide specific facts or legal elements to support the ten alleged legal violations or theories of recovery.
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2) The motion argues that the complaint should be dismissed for failing to state any valid causes of action. It does not provide specific facts or legal elements to support the ten alleged legal violations or theories of recovery.
3) The complaint also fails to delineate which defendant is being sued for each specific cause of action. The motion asserts that the complaint does not give the defendants proper notice of the reasons they are being sued.
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This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
1) Plaintiff Global Merchant filed a complaint and application for pre-arbitral attachment and stay of proceedings pending arbitration against Defendant Agri Feed for breach of contract and fraud related to the sale and delivery of hay.
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This letter requests a pre-motion conference regarding an anticipated motion to dismiss an amended complaint filed against Digicel Haiti. It summarizes that the amended complaint should be dismissed for failing to meet pleading standards under FRCP 8(a), 9(b), and 12(b)(6), and based on the act-of-state doctrine and forum non conveniens. Specifically, the letter argues that the amended complaint does not provide a short, plain statement of claims, engages in impermissible group pleading, lacks specific allegations of fraud, and requires invalidating acts of the Haitian government.
Sample motion to strike alter ego allegations in californiaLegalDocsPro
This document is a notice of motion and motion to strike portions of a complaint filed in California Superior Court. It gives notice that the defendant will move to strike several specific portions of the plaintiff's complaint, including the entire complaint on the grounds that it is a sham pleading. It also seeks to strike portions that allege alter ego liability and request punitive damages and attorney fees. The motion argues that the complaint fails to allege sufficient facts for punitive damages or attorney fees and that the alter ego allegations are merely boilerplate.
GS Holistic Court Opinion in Trademark DisputeMike Keyes
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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CA.docxjoyjonna282
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
------------------------------------------------------X
DOUGLAS SMITH,
Plaintiff
Against DECISION
ON MOTION TO
DISMISS
JANE JOHNSON,
PISSEDPRODUCER.COM, INC,
Defendants
------------------------------------------------------X
Haas, J.,
Defendant Jane Johnson (“Johnson”) lives in Portland, Oregon, and operates
defendant corporation, pissedproducer.com (the “website”). The website is devoted to
allowing service providers to complain about actions of consumers. According to the
website’s terms, business owners or service providers are allowed to post feedback about
consumers “that other producers should be wary of.” The website also allows aggrieved
producers to publish the names, addresses and other personal information about
consumers, along with audio and video files that relate to the transaction.
On June 12, YR-01, Brenda James (“James”) posted a story regarding plaintiff,
Douglas Smith (“Smith”) in which she accused him of, inter alia, lying about his
conversations with her, behaving antagonistically towards her and unjustifiably
complaining about her business. She also posted information about Smith’s name,
address and license plate number and a video that showed a confrontation between her
and Smith.
Johnson knowingly allowed this information to remain on her site in spite of
Smith’s protest.
2
Smith brought the present action against Johnson and the corporation that holds
the website alleging defamation, invasion of privacy for intrusion upon seclusion,
invasion of privacy for misappropriation of name and likeness and intentional infliction
of emotional distress against all three defendants.
Subject matter jurisdiction is established under 28 U.S.C. § 1332 (diversity
jurisdiction) because plaintiff is a resident of California and defendants are residents of
Oregon and the amount in controversy is more than $75,000. This is undisputed.
Johnson and the website have moved to dismiss the complaint based on FRCP
Rule 12(b)(2), alleging that this court does not have personal jurisdiction over her and
under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted
with respect to each of the four counts of the complaint.
For the reasons set forth below, I deny the defendant’s motion to dismiss with
respect to each count.
Personal Jurisdiction
Defendant argues that this court lacks personal jurisdiction over Johnson and the
website because they operate exclusively in the state of Oregon and have insufficient
contacts with California to subject them to personal jurisdiction in the state of California.
Under the due process clause of the 14th amendment to the United States
Constitution, a state may exercise long arm jurisdiction over an out-of-state defendant
only if the defendant has “certain minimum contacts with it s ...
Anhing v. Viet Phu - Order denying defendant's motion for attorney's feesRobert Scott Lawrence
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This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
This document examines the different legal responsibilities faced by art dealers in old masters versus contemporary art. For old masters dealers, acquisition involves business transactions, while contemporary art dealers must consider contractual relationships with living artists. Contracts are important to define representation rights and financial arrangements. Export laws also differ, with some countries like Italy strictly regulating cultural exports and empowering authorities like the Carabinieri police to enforce patrimony laws.
This document provides a valuation report for artworks in a portfolio between 1996-2005. It analyzes the performance of three sectors: Modern US Paintings (1945-75), Rare Books/Manuscripts, and their individual artists. For Modern US Paintings, it finds the sector highly volatile but outperforming other markets like stocks and gold. The three artists—Josef Albers, Alexander Calder, Cy Twombly—in the portfolio significantly outperformed inflation, the sector as a whole, and other markets. Rare Books/Manuscripts are also analyzed for performance.
The document examines blockbuster museum exhibitions and the debate around their role. It provides background on how blockbuster exhibitions began in the 17th century with displays of Old Masters works. Today, blockbusters are major undertakings that tour globally and are produced by "superstar" museums. They attract many visitors and boost museums' profiles and local economies. However, critics argue they prioritize spectacle over education. The document outlines both the economic benefits blockbusters provide but also acknowledges criticisms of the phenomenon.
This document provides background information on UNESCO and the establishment of the World Heritage Convention and List. It discusses how UNESCO was formed after WWII to help prevent conflict and protect cultural heritage. It outlines key events like the rescue of Abu Simbel that demonstrated the need for further international cooperation. The 1972 World Heritage Convention established the idea that some sites are so valuable they belong to all humanity. It created the World Heritage List and 10 criteria for inclusion focusing on outstanding natural and cultural significance. The goal is international recognition and protection of irreplaceable sites for future generations.
This document summarizes a presentation by Bedford Square Associates to the Committee of Fellows of Porterhouse College regarding a valuation of the college's art collections. It includes:
1) An introduction and overview of the valuation methodology used by Bedford Square Associates.
2) A discussion of legal and ethical concerns regarding bequests, provenance, and conservation issues.
3) Highlights of increases in value since 1999 for pieces from the college's collections of Old Masters, post-war art, Chinese art, English furniture, and music manuscripts.
4) Financial details on the increased total valuation from £8.4 million in 1999 to £23.6 million in 2006, with 50% of the current
This document discusses the artist resale right, which entitles artists to receive a royalty each time their work is resold by an art market professional. The artist resale right was adopted in the UK but not in the US despite two attempts at legislation. The document outlines criticisms of the resale right, such as potential economic and legal issues, and argues they are unwarranted. It concludes the resale right could be implemented in the US without problems and would help afford artists continued benefits from their works.
This brief argues that the sworn testimony of a public employee should be considered protected free speech under the First Amendment, even if it is made pursuant to the employee's official duties. It summarizes a case where a police officer, Rhett Darcy, was terminated after providing sworn testimony to a grand jury about corruption in his department. Darcy filed a lawsuit alleging retaliation for his protected speech. The lower courts dismissed the case, finding his testimony was not protected under Garcetti, but the appeals court reversed. This brief asks the Supreme Court to uphold that decision and distinguish sworn testimony as a special category of protected speech.
COMPARATIVE INTERNATIONAL LAW SEMINAR PAPERMichael Nabors
This document provides an overview and analysis of artist resale rights in the United Kingdom and United States. It begins with introductions to copyright law and the concept of droit de suite/artist resale right. It then examines the implementation of artist resale rights in the UK according to the EU Resale Rights Directive and its effect on the UK art market. It also discusses attempts to establish artist resale rights in the US, including the California Resale Royalties Act. The author argues that given the rationales for artist resale rights and its minimal impact on the UK art market, the US should adopt a similar federal law to protect artists.
1. IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARKANSIPPI
)
DEVIN VASSAR, )
)
Plaintiff, )
) Case No. 16-CV-9013-ODW-JML
vs. )
)
MATT MCCARTER, CONRAD POLZ )
AND STAGE TWO RECORDS, LLC, )
)
Defendants. )
)
DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants McCarter, et al.
hereby move this Court to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief may
be granted. Plaintiff’s complaint should be dismissed because none of the statements on which it relies in
its claims of violating the Copyright Act of 1976 (“Act”), 17 U.S.C. §§ 101-1332 (West 2010), are
actionable because Plaintiff does not have standing to bring suit under § 411(a) of the Act. Under the
requirements set forth in the Act, Plaintiff has not received notice of an affirmative action from the
Copyright Office regarding his application for registration, thus disallowing Plaintiff to bring a cause of
action for an alleged infringement by Defendants. In support of its motion, Defendants McCarter, et al.
file concurrently their Memorandum of Law in Support of its Motion to Dismiss.
STATEMENT OF FACTS
Defendants Matt McCarter and Conrad Polz are currently the frontmen for a Memphis-based
breakout musical act with the name of Avon Dale, performing alongside bandmates Andrew Allen and
Alec Heist. (Compl. ¶ 11.) Plaintiff is also currently an act in the regional music scene, performing with
his group Pedestrians On A Cliff (“Cliff”). (Compl. ¶ 13.)
2. 2
Over the years, Avon Dale and Cliff have toured extensively promoting themselves and their
music. (Compl. ¶ 11.) During this time, both bands only performed at the same venue on four distinct
occasions; firstly, at two concerts between November 2012 and February 2013 (Compl. ¶ 21.); secondly,
at a scouting show hosted by talent promoter Sarah Whitmer, in October 2012 (Compl. ¶¶ 19-20.); and
lastly, at a Memphis music festival in May 2013. (Compl. ¶ 24). As a result of this scouting show
performance, Avon Dale was quickly awarded a recording contract with co-Defendant Stage Two
Records, LLC (“STR”). (Compl. ¶ 20.) Plaintiff did not secure a recording contract as a result of this
performance; however, both Avon Dale and Plaintiff entered into management agreements with Redlight
Management, LLC contemporaneously. (Compl. ¶¶ 19-20.)
In keeping with the momentum generated by their new recording contract, Avon Dale released its
album, Dress It Up, on the STR label in January 2015. (Compl. ¶ 30.) Included on this album was the
song “Mila”, a composition Avon Dale had been performing at its live shows for two years prior to the
album’s release. (Id.) Due to the popularity of “Mila” with fans and the producers, it was chosen as the
first single to be released. (Id.)
The release of “Mila” saw Avon Dale’s popularity and presence reach a nation-wide audience.
(Compl. ¶¶ 23, 29-31.) Avon Dale has also garnered critical acclaim for its work with numerous industry
accolades and awards. (Compl. ¶ 31.) “Mila” has also peaked at number 50 on the Billboard charts, not
an insignificant feat for a first release. (Id.) Avon Dale has also been honored with a licensing agreement
with NBC TV for use of its recording in an upcoming show, Game of Silence. (Id.)
Plaintiffs filed a Complaint alleging copyright infringement with the United States District Court,
Sixteenth District, claiming that Avon Dale’s current hit single, “Mila”, infringes on Plaintiff’s alleged
copyright in Cliff’s song, “Rise and Shine” under 17 U.S.C. §§ 106 and 501. (Compl. ¶¶ 41-44.) This
Complaint has no standing before this Court under 17 U.S.C. § 411(a) as Plaintiff does not meet the
statutory requirements required of a party seeking relief for copyright infringement. Defendants therefore
file this brief in support of their Motion to Dismiss for Failure to State a Claim in accord with Federal
Rule of Civil Procedure 12(b)6.
3. 3
LEGAL ARGUMENT
The present case is one of first impression before this Court and at present, there is no controlling
authority from the Supreme Court regarding the exact requirements that must be met before a claimant
may bring a cause of action regarding alleged copyright infringement. Looking to the circuit courts
produces a split of opinion about those requirements.
Both the Tenth and Eleventh Circuits have held that registration is not completed solely by
submitting a copyright application; the Copyright Office must examine and register or deny the work in
question. These sister Courts found the statute unambiguous and opaque, with the plain language of the
Act mandating the predetermination of whether a work is copyrightable or not prior to a plaintiff bringing
forth an infringement action in federal court. See, La Resolana Architects, PA v. Clay Realtors Angel
Fire, 416 F.3d 1195 (10th Cir. 2005); see also M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d
1486 (11th Cir. 1990).
Furthermore, "registration" was held to be effectuated with only the Register's approval and not
necessarily the issuance or possession of a certificate, although a certificate had evidentiary value in an
infringement case. 416 F.3d at 1207-08. In La Resolana, the Copyright Office had actually approved the
registration but had not yet issued a certificate when the suit was filed. In the present case, Plaintiff has
not received any notification from the Copyright Office regarding his application for copyright. He has
no certificate of registration nor any notice of approval.
These holdings are not without detractors. The Fifth Circuit has held that "[i]n order to bring
suit for copyright infringement, it is not necessary to prove possession of a registration certificate. One
need only prove payment of the required fee, deposit of the work in question, and receipt by the
Copyright Office of a registration application."); Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.
1991) citing Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984) . Additionally, the
Seventh Circuit seems to concur with this sentiment. See Chicago Bd. of Educ. v. Substance, Inc., 354
F.3d 624, 631 (7th Cir. 2003) ("[A]n application for registration must be filed before the copyright can be
4. 4
sued upon."). This rejection of the plain language in 17 U.S.C. §§ 411(a)-(b) is puzzling due to the above
discussed registration definition which is handily discernable with a plain meaning reading of the text.
When ruling on a Rule 12(b)(6) motion to dismiss, the Court must take the facts alleged in the
complaint as true and draw all reasonable inferences in favor of the plaintiff. Mosley v. Klincar, 947 F.2d
1338, 1339 (7th Cir. 1991). Factual allegations in the complaint must be sufficient to raise the possibility
of relief above a speculative level assuming that all of the allegations in the complaint are true. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Detailed factual allegations are not required, but the
plaintiff must allege facts that state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
In the present case, Plaintiff readily admits it has not received a notice of approval from the
Copyright Office nor has its application for copyright been refused. Plaintiff therefore has no standing to
bring suit for copyright infringement under the Act. See 17 U.S.C. § 411(a). Defendants therefore ask for
this Court to adopt the holdings of the Tenth and Eleventh Circuits and hold that a cause of action for
copyright infringement may only be brought by a claimant who has either preregistered a copyright (an
action not applicable in the instant case), attained a valid registered copyright (complete with certificate of
registration or even simple notice of approval from the Copyright Office), or been refused an attempt at
registration of his work.
Congressional legislation must be interpreted by the courts by viewing the whole of the relevant
statute. See John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 114 S. Ct. 517, 523 (1993);
see also Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120, 123-24 (1989). Sections and
subsections are not to be construed in isolation from one another; the entirety of the statute must be
analyzed to best determine its meaning. See Smith v. United States, 508 U.S. 223, 233 (1993); see also
United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).
In this instance, 17 U.S.C. § 106(1) provides the basis for an alleged infringement by enumerating
the various works that are applicable for copyright protection. 17 U.S.C. § 501(b) provides that “The
legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of
5. 5
section 411, to institute an action for any infringement of that particular right committed while he or she
is the owner of it.”
(a) Except for an action brought for a violation of the rights of the author under section
106A(a), and subject to the provisions of subsection (b), no civil action for infringement
of the copyright in any United States work shall be instituted until preregistration or
registration of the copyright claim has been made in accordance with this title. In any
case, however, where the deposit, application, and fee required for registration have been
delivered to the Copyright Office in proper form and registration has been refused, the
applicant is entitled to institute a civil action for infringement . . .
(b) (1) A certificate of registration satisfies the requirements of this section . . .
17 USCS § 411(a)-(b) (emphasis added).
In looking at the statue as it is written as a whole and culminating in above section, this Court
should find that a cause of action may only be brought when an affirmative action by Copyright Office
has happened regarding a claimant’s application. Only then may relief from an alleged infringement be
sought.
I. THE PLAIN LANGUAGE OF THE COPYRIGHT ACT STATES THAT AN INFRINGEMENT
ACTION MAY ONLY BE BROUGHT ONCE THE COPYRIGHT OFFICE HAS TAKEN AN
AFFIRMATIVE ACTION REGARDING THE WORK APPLYING FOR COPYRIGHT
PROTECTION.
When the subject matter of interpretation is a federal statute like The Copyright Act, courts have
an abundance of tools available to help construe a statute. The common law has established a definite
sequence by which judges are to utilize them. The Supreme Court unmistakably directs courts to first
approach statutory interpretation rather mechanically by simply examining the text of the statute. "We
begin with the familiar canon of statutory construction that the starting point for interpreting a statute is
the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that
language must ordinarily be regarded as conclusive." Consumer Product Safety Commission et al. v. GTE
Sylvania, Inc. et al., 447 U.S. 102, 108 (1980). This mandate is commonly referred to as the "plain
meaning" rule and can be described as follows: "The meaning of a statute must, in the first instance, be
sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is
to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917); see also Lake
6. 6
County v. Rollins, 130 U.S. 662, 670 (1889) ("If the words convey a definite meaning, which involves no
absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face
of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or
take from it.").
With regard to the Act, the plain language of the statute encourages this Court to adopt the
position that a claimant may only bring suit for infringement once registration has been effectuated or
denied. See, e.g., La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195 (10th Cir.
2005); see also M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990) The issue
before this Court is defining the boundaries of the claimant who wishes to bring suit for infringement in
the interim period between application and the ultimate determination of the status of the work in
question. From an examination of the process of registration and the clear distinction made between
application and the process of registration, infringement may only be addressed upon affirmative action
by the Copyright Office. The mere act of application does not suffice.
A. The process of registration is delineated in the Act, with registration deemed complete upon
receipt of either approval of registration or notice of refusal from the Copyright Office.
The term “registration” is not defined in the Copyright Act as to what the action of registration
itself actually entails. “"Registration", for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and
506(e), means a registration of a claim in the original or the renewed and extended term of copyright.” 17
U.S.C. § 101. However, the plain language of the rest of the Act is telling. Registration of a copyright
occurs only after the Copyright Office first determines the validity of an application.
When, after examination, the Register of Copyrights determines that, in accordance with
the provisions of this title, the material deposited constitutes copyrightable subject matter
and that the other legal and formal requirements of this title have been met, the Register
shall register the claim and issue to the applicant a certificate of registration under the
seal of the Copyright Office.
17 USC § 410(a).
7. 7
In this section, Congress demonstrated that registration is not completed solely by submitting a
copyright application; the Copyright Office must examine and register the work in question. Id.
Furthermore, the statute is unambiguous and opaque, with the plain language of the Act mandating the
predetermination of whether a work is copyrightable or not prior to a plaintiff bringing forth an
infringement action in federal court.
Two United States Courts of Appeal and several district courts support the above reading of the
Act - that copyright "registration" is effectuated when the Copyright Office has affirmatively approved
the applicant's copyright. See, e.g., La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d
1195 (10th Cir. 2005); see also M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir.
1990); see also Mays & Assocs., Inc. v. Euler, 370 F. Supp. 2d 362 (D. Md. 2005); see also Strategy
Source, Inc. v. Lee, 233 F. Supp. 2d 1 (D.D.C. 2002); see also Int'l Trade Mgmt., Inc. v. United States,
553 F. Supp. 402, 403 (Ct. Cl. 1982) ("A suit for copyright infringement is conditioned on obtaining (or
being denied) a certificate of registration.").
The Tenth Circuit held for this approach in La Resolana, 416 F.3d 1195, a case in which a group
of architects discovered that a competitor had sold homes that "looked strikingly similar" to those in
renderings previously produced by the architects. Id. at 1197. The group of architects applied for
copyright registration and sued for copyright infringement. Id. However, The District Court of the
District of New Mexico dismissed the action, because the firm had not yet received its registration
certificate. Id. at 1197-98. On appeal, the Tenth Circuit affirmed the dismissal. Id. at 1207. The court
held that registration of a copyright under § 411(a) occurs only when the Copyright Office approves the
application. Id. at 1203. In addition, mere notice of approval by the Copyright Office is sufficient to bring
a cause of action; actual delivery of the approval to the claimant of the registration is not required. Id. If a
party could file an infringement suit merely upon filing his application for registration, there would be no
need to include a provision stating that a suit can be maintained after the application is refused. A party
could simply file suit when he filed his application for registration and it would make no difference
whether the application was granted or refused in terms of satisfying the condition precedent.
8. 8
The Eleventh Circuit addressed the issue in M.G.B. Homes, Inc. v. Ameron Homes, Inc. 903 F.2d
1486 (11th Cir. 1990). Plaintiff developer alleged that the defendant, a competitor, copied one of its floor
plans from one of the plaintiff's advertising brochures. 903 F2d at 1486. Although the plaintiff had filed
an application for copyright registration, the district court dismissed the initial case due to the plaintiff's
"failure to satisfy the condition precedent of having registered its copyright before initiating the
infringement action." Id. at 1488-89. The District Court for the Southern District of Florida allowed the
plaintiff to amend its complaint and proceed once the Copyright Office issued the certificate. Id. at 1489.
The Eleventh Circuit approved the district court's actions, noting that the registration requirement is a
prerequisite to an infringement suit, and generally equating "registration" with the issuance of a
certificate. Id. at 1488.
Both the Tenth and Eleventh Circuits looked to the text of the Act and found that application and
registration were two entirely distinct actions. Application was taken to be merely a step on the road to
registration and did not provide sufficient standing for a claimant to bring a cause of action for
infringement.
B. Read in its entirety, the Copyright Act makes a succinct distinction between application and
registration.
When considering the Copyright Act in its entirety, mere application for copyright does not
automatically confer registration upon the work. Pursuant to section 410(a) of the Act, “[w]hen, after
examination, the Register of Copyrights determines that . . . the material deposited constitutes
copyrightable subject . . . the Register shall register the claim and issue to the applicant a certificate of
registration under the seal of the Copyright Office.” 17 USC § 410(a).
Section 408(a) tells the US Copyright Office to first examine the application prior to issuing a
certificate of registration. Id. § 408(a). By implication, registration is not simply accomplished by the
preliminary submission application alone. See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612
(9th Cir. 2010) (holding that Section 410(a) "places an active burden of examination and registration upon
the Register, suggesting that registration is not accomplished by application alone" (citing Loree Rodkin
9. 9
Mgmt. v. Ross-Simmons, 315 F. Supp. 2d 1053, 1055 (C.D. Cal. 2004))). Moreover, section 410(b)
corroborates the distinction between application and registration.
In any case in which the Register of Copyrights determines that, in accordance with the
provisions of this title, the material deposited does not constitute copyrightable subject
matter or that the claim is invalid for any other reason, the Register shall refuse
registration and shall notify the applicant in writing of the reasons for such refusal.
17 USC § 410(b).
Both of these sections indicate a distinct difference between the acts of application and the subsequent
affirmative actions taken by the copyright office.
Furthermore, section 410(d) states
The effective date of a copyright registration is the day on which an application, deposit,
and fee, which are later determined by the Register of Copyrights or by a court of
competent jurisdiction to be acceptable for registration, have all been received . . . . "
17 U.S.C. § 410(d).
This section reads that "the effective date" is the date of receipt for the application. It follows that
registration occurs after the Register of Copyrights examines the application and subsequently "the
registration is backdated to the time the application was received." La Resolana, 416 F.3d at 1203. This
further bolsters the contention that application is not enough to allow for a claimant to pursue an
infringement action. Something more is needed. This something more is spoken of directly by Congress
in the background leading up to a crucial amending of the US Copyright Act in 1988, the Berne
Convention. See TreadmillDoctor.com, Inc. v. Johnson, 2011 U.S. Dist. LEXIS 34652, at *12.
If a party could file an infringement suit merely upon filing his application for registration, there
would be no need to include a provision stating that a suit can be maintained after the application is
refused. A party could simply file suit when he filed his application for registration and it would make no
difference whether the application was granted or refused. In adopting the rule that a cause of action for
infringement may only be brought upon registration (either via notice or issuance of a certificate of
registration), this Court will follow the plain meaning of the statute as written by Congress. Although not
10. 10
necessary to reach that conclusion, the case disallowing mere application to suffice in an infringement
action is bolstered by looking to Congress’ intent when creating the statute in the first place.
II. IT WAS THE INTENTION OF CONGRESS TO ONLY ALLOW FOR AN INFRINGEMENT
ACTION TO PROCEED ONLY ONCE A COPYRIGHT APPLICATION HAD BEEN
REGISTERED OR REFUSED.
In addition to the overwhelming support for the above approach regarding when a claimant may
bring a cause of action for infringement, the meaning of the Act may be derived from an examination of
Congressional intent. By looking to this intent, this Court will carry out the will of the legislature. See
e.g. Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 215 (1962) ("Where congressional intent is discernible . .
. . [the Court] must give effect to that intent."); see also Johnson v. Southern Pacific Co. 196 U.S. 1
(1904).
In determining legislative intent courts turn to a variety of sources: the language of the statute
itself; the legislative history of prior enactments on a similar subject; the proceedings surrounding the
passage of the law, including debates and committee reports; and, if they are available, interpretations of
the law by administrative officials. In this instance, an examination of Congressional and Senatorial
records regarding the Copyright Act and the actual language of the statute give this Court reason to hold
that registration of a copyright is only effectuated upon affirmative action by the US Copyright Office
subsequent to an application for copyright protection, thus allowing for a claimant to pursue a cause of
action for infringement. See 17 U.S.C. §§ 410(a) and 411(a).
A. The Congressional Record indicates that application for copyright protection is not sufficient
for a claimant to bring suit for infringement in their discussions leading up to the
implementation of the Berne Convention into the Copyright Act.
The Copyright Act of 1976 was amended in 1988 by enacting the Berne Convention
Implementation Act. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat.
2853. To comply with the Berne Convention, the Act exempts "certain foreign works from the
registration requirement . . . . " La Resolana Architects, 416 F.3d at 1205. In response, the Senate
attempted to eliminate registration formalities by entirely removing the registration statute from the Act,
11. 11
which failed. 132 CONG. REC. 27,686 (1986) (introduced by Sen. Mathias). Disagreeing with this
attempt by the Senate, Congress opined "[t]he House would have preferred to make no change in section
411." 134 CONG. REC. 30,100, 30,105 (1988) (statement of Rep. Kastenmeier). Congress, however,
compromised by creating an exception for foreign works while leaving untouched the copyright
registration requirement for United States derived works. See Berne Convention Implementation Act of
1988, Pub. L. No. 100-568, 102 Stat. 2853.
Congress justified upholding within the Act the registration requirement over United States works
by expressly stating that "registration should be attempted and granted or denied by the Copyright Office
before suit for copyright infringement can be maintained." 134 CONG. REC. 30,100, 30,105 (1988)
(statement of Rep. Kastenmeier). The Senate echoed this requirement. "The fact remains that . . . a
review by the Register of Copyrights of the validity of a [copyright] claim is a necessary precondition for
enforcement of copyright protection . . . . " S. REP. NO. 100-352, at 14 & n.2 (1988). Congress intended
for the Register of Copyrights to have an active role in the issuance of copyright registration. This active
role is nullified if mere application for copyright is sufficient under the act to bring suit for infringement.
H.R. Rep. No. 94-1476. Both houses of the US Congress concurred in their intentions in the deliberations
leading up to adopting the Berne Convention into law; registration is effectuated by affirmative action on
the part of the US Copyright Office regarding the receipt of an application for copyright protection.
Again, application is simply a step in this process and does not lead to the ability to file a claim for
infringement.
B. The intent of Congress is expressed in the language of the US Copyright Act itself in its
requirements to be an action for infringement.
Congressional intent is no more apparent than their own words in the language of the statute
itself, which expressly requires the Copyright Office to first pass on the vitality of an application prior to
the initiation of an infringement action.
(a) Except for an action brought for a violation of the rights of the author under section
106A(a), and subject to the provisions of subsection (b), no civil action for infringement
of the copyright in any United States work shall be instituted until preregistration or
12. 12
registration of the copyright claim has been made in accordance with this title. In any
case, however, where the deposit, application, and fee required for registration have been
delivered to the Copyright Office in proper form and registration has been refused, the
applicant is entitled to institute a civil action for infringement . . .
17 U.S.C. § 411(a)(emphasis added).
When implementing provisions of the Berne Convention, Congress did not remove the registration
requirement from the 1976 Copyright Act. Id. Congress left the registration requirement of section 411(a)
intact and, moreover, particularly amplified an expression of its intent behind section 410(a).
Congressional intent is blatantly on view; a claimant must have applied and then have his material
approved or rejected for copyright protection before any cause of action for infringement may be started.
III. MCCARTER, ET AL.’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
SHOULD BE GRANTED BY THE COURT BECAUSE THE REQUIREMENT FOR
SUCCESSFUL REGISTRATION EMBODIED IN THE COPYRIGHT ACT IS NOT MET,
THUS PRECLUDING PLAINTIFF FROM FILING SUIT FOR INFRINGEMENT.
This court should dismiss Plaintiff’s Complaint for failure to state a claim that is actionable under
the US Copyright Act as Plaintiff’s claim is not ripe. Plaintiff alleges that McCarter, Ponz, and Stage One
Records, LLC infringed on his copyright and prays to this Court for relief. (Compl. ¶¶ 41-44.) There is no
basis for their complaint. Plaintiff has not received notice of registration or notice of refusal from the
Register of Copyrights. (Compl. ¶ 41.) Additionally, this Court would subvert Congress’ intentions in
enacting the legislation within the Act.
A. The Copyright Office has not performed an affirmative action regarding Plaintiff’s attempt to
register his material for copyright.
The Act imposes an affirmative duty on the Register of Copyrights to first make a determination
and then "register the claim" or "refuse registration." See 17 U.S.C. § 410(a)-(b). This fact is the sine qua
non of registration because the capacity of "the Register's discretion to refuse copyright registration drives
an iron wedge between mere application and actual registration." La Resolana, 416 F. 3d at 1202 (quoting
Loree Rodkin Mgmt., 315 F. Supp. 2d at 1056). No implication exists in the plain language of the Act
reflecting that copyright registration occurs immediately upon the mere act of depositing an application
13. 13
with the Copyright Office. Plaintiff only submitted application to the Register of Copyrights a full three
years after their composition was created, with no determination issued. (Compl. ¶¶ 15, 17.) The
Copyright Office must either approve the material submitted and subsequently register it, or deny
copyright in the material submitted. See Specific Software Sols., LLC v. Inst. Of WorkComp Advisors,
LLC, 615 F.Supp. 2d 708, 713 (M.D. Tenn. 2009) (“[I]f a party could file an infringement suit merely
upon filing his application for registration, there would be no need to include a provision [in the Act]
stating that suit could be maintained after the application is refused.”) The copyright office has not issued
any determination regarding Plaintiff’s application, therefore disallowing any cause of action for
infringement in the present case, following the lead of the Tenth and Eleventh Circuits’ holdings. See La
Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195 (10th Cir. 2005); see also M.G.B.
Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990).
B. Holding for Plaintiff would send an unwelcome message to Congress regarding their
construction and intentions regarding the US Copyright Act.
Allowing for Plaintiff’s Complaint to proceed into litigation would give small credit to Congress's
drafting prowess. Had Congress intended an infringement action to be able to be instituted when the
Copyright Office received the appropriate application, fees, and deposit, it could have clearly written the
statute as such. Indeed, it did so when describing what to do when a registration was refused. See 17
U.S.C. 411(a) ("where the deposit, application, and fee required for registration have been delivered to the
Copyright Office in proper form and registration has been refused"). The process envisioned by Congress
seems clear: the Register will receive the materials, examine them, and then either register or refuse the
claim. Fewer definitional acrobatics are needed when § 411(a) is read under the approach Defendants
McCarter, et al. ask for this Court to apply to the instant case.
Congress has had multiple opportunities to amend the statute to eliminate or modify their
requirement for affirmative action by the Copyright Office, but has instead chosen to leave the substantive
language of § 411(a) intact.
14. 14
If Congress found affirmative action by the Copyright Register prior to the institution of an
infringement suit to be a "needless formality," they could have eliminated it. Cosmetic Ideas, 606 F.3d at
620. To date, they have not. Instead, Congress has decided that in order for a U.S. copyright holder to
gain the benefit of copyright registration regarding a alleged cause of action for infringement, the holder
must observe defined formalities, one of which is the Register's approval or rejection of a registration
application. As Plaintiff has not received either, to allow for the present cause of action to proceed would
defeat this now long standing Congressional dictate.
CONCLUSION
For the foregoing reasons, this Court should grant Defendants’ Motion to Dismiss for Failure to
State a Claim.
________________________________
L.M. Student 6538
Attorney for Defendants
Levenson & Osario, LLC
1815 Gordon Street, Suite 614
Springcrest, AS 40538
915.867.2797
LMstudent6538@landolaw.com
15. 15
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon opposing counsel by placing
same in the United States mail, postage prepaid, on April 24, 2016.
________________________________
L.M. Student 6538
Attorney for Defendants
Levenson & Osario, LLC
1815 Gordon Street, Suite 614
Springcrest, AS 40538
915.867.2797
LMstudent6538@landolaw.com
16. 16
TABLE OF AUTHORITIES
CASES
Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................................................ 4
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)............................................................................................... 4
Caminetti v. United States, 242 U.S. 470, 485 (1917)............................................................................................... 5
Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al., 447 U.S. 102, 108 (1980)...... 5
Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010) .............................................8, 14
Int'l Trade Mgmt., Inc. v. United States, 553 F. Supp. 402, 403 (Ct. Cl. 1982)................................................. 7
John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 114 S. Ct. 517, 523 (1993) .......................... 4
Johnson v. Southern Pacific Co. 196 U.S. 1 (1904)...................................................................................................10
La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195 (10th Cir. 2005)...............passim
Lake County v. Rollins, 130 U.S. 662, 670 (1889) ...................................................................................................... 5
Loree Rodkin Mgmt. v. Ross-Simmons, 315 F. Supp. 2d 1053, 1055 (C.D. Cal. 2004) ................................ 9
M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990) .................................................. 7
Mays & Assocs., Inc. v. Euler, 370 F. Supp. 2d 362 (D. Md. 2005)........................................................................ 7
Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991) ...................................................................................................... 4
Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120, 123-24 (1989)......................................... 4
Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 215 (1962)..........................................................................................10
Smith v. United States, 113 S. Ct. 2050, 2057 (1993)............................................................................................... 4
Specific Software Sols., LLC v. Inst. Of WorkComp Advisors, LLC, 615 F.Supp. 2d 708, 713 (M.D.
Tenn. 2009).........................................................................................................................................................................13
Strategy Source, Inc. v. Lee, 233 F. Supp. 2d 1 (D.D.C. 2002) ................................................................................ 7
TreadmillDoctor.com, Inc. v. Johnson, 2011 U.S. Dist. LEXIS 34652, at *12.................................................... 9
United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)............................ 4
STATUTES
Berne Convention Implementation Act of 1988............................................................................................... 10, 11
Copyright Act of 1976, 17 U.S.C. §§ 101-1332..................................................................................................passim
OTHER AUTHORITIES
132 CONG. REC. 27,686 (1986) .......................................................................................................................................11
134 CONG. REC. 30,100, 30,105 (1988).......................................................................................................................11
H.R. Rep. No. 94-1476..........................................................................................................................................................11
S. REP. NO. 100-352, at 14 & n.2 (1988)......................................................................................................................11
RULES
Fed.R.Civ.P. 12(b)6..............................................................................................................................................................1, 2