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The Forensics of Infringement

By Senior Copyright Counsel, Google Inc.

Motion picture companies, record labels, and famous entertainers of all kinds face, on a regular basis, baseless suits that not only drive up the cost of doing business (including through increased insurance premiums), but also waste human resources. Some of these baseless suits cross the line from delusional complaints into fraudulent ones. The Second Circuit recently dealt with one, Shangold v. Walt Disney Co., 2008 WL 1908908 (2d Cir. April 18, 2008), in which the court found:

Here, the defendants established, by clear and convincing evidence, that Shangold and Niederman submitted fraudulent evidence to the district court in order to bolster their claim of copyright infringement. The ?T1a treatment? that Shangold and Niederman submitted to the district court, and claimed to have written in the spring of 1995, was shown to be fraudulent. The treatment contained various references to a character's ?Palm Pilot,? a handheld computing device. The defendants established that palmOne, Inc., the company that manufactures the Palm Pilot, did not itself refer to the device by that name, even for internal corporate purposes, until late 1995. The name was not known to the public until early 1996-months after Shangold and Niederman claimed to have written the treatment. Both Shangold and Niederman offered testimony that the district court properly found to be false, at their respective depositions, in order to bolster their claims and continue the fraud.

J.K. Rowling was the victim of such a claim, Scholastic, Inc. v. Stouffer, 221 F.Supp.2d 425 (S.D.N.Y. 2002) in which there seemed to be striking similarities over the use of a ?muggles? character. Great detective work by the law firm of O?Melveny & Myers came up with this finding by the court (note plaintiff is the declaratory judgment plaintiff, ordinarily the defendant; Stouffer is the party claiming infringement):

In connection with this litigation, Stouffer has produced booklets entitled The Legend of Rah and the Muggles that were allegedly created by Andé in the 1980's?.. However, plaintiffs have submitted expert testimony indicating that the words ?The Legend of? and the words ?and the Muggles,? which appear on the title pages of these booklets, could not have been printed prior to 1991. According to plaintiffs' expert witness-whose testimony Stouffer does not rebut-the printing technology employed in the application of those words to the title pages was invented in 1985; however, because the specific printer used to print those words was between six and ten years old at the time the words were printed, ?The Legend of? and ?and the Muggles? could not have been placed on the title pages before 1991 (i.e. four years after Andé's bankruptcy). Stouffer concedes that these additional words were added to the title pages of the booklets after the booklets were originally printed, although she does not know exactly when the words were added or by what printing method.

Another example occurred in 1992 case in a Maryland involving a soft-drink company in which super-lawyer and Christopher Reeves look-alike Chuck Ossola (now of Dickstein Shapiro in DC) revealed fraudulent claims based on careful forensic study. The moral is that if a claim seems too good to be true, it probably is, but it will take a lot of skilled work to prove it so.

Full post as published by The Patry Copyright Blog on May 20, 2008 (boomark / email).