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Copyright

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  1. Infringement Defense.
    Successfully defended MasterCard and its agency, McCann-Erickson USA, by obtaining a summary judgment against claim that commercials featuring two friends visiting all Major League Baseball ballparks infringed a documentary showing visits to three ballparks to illustrate their economic benefits to a community that builds a downtown baseball stadium. Hoch v. Mastercard Int'l Inc., 284 F. Supp. 2d 1217 (D. Minn. 2003). <.ol>

Motion Pictures

  1. Infringement Defense.
    In a case that began in 2002 and was appealed to the Second Circuit twice, obtained summary judgment in favor of our clients Universal Pictures, Imagine Entertainment and Eddie Murphy that their 1999 film Life did not infringe any protectable elements of a play entitled No Harm, No Foul. Hudson v.Universal Pictures Corp., 89 U.S.P.Q. 2d 1132 (S.D.N.Y. 2008).
  1. Ownership Defense.
    Represented Russian state animation studio as third party plaintiff in dispute over copyright ownership in library of animated films produced during Soviet era. Films by Jove, Inc. v. Berov, 154 F. Supp. 2d 432 (E.D.N.Y. 2001).
  1. Ownership Defense.
    Successfully defended film studio against claim of copyright ownership by heir of deceased screenwriters. Affirmed by Second Circuit on opinion below. Niss v. Columbia Pictures Indus., 57 U.S.P.Q. 2d 1346 (S.D.N.Y. 2000), aff'd, 25 Fed. Appx. 76 (2d Cir. 2002).

Music

  1. Ownership and Infringement Claims.
    Service as Special Master in five consolidated cases, to make report and recommendation to United States District Court for the resolution of numerous conflicting claims with respect to 468 musical compositions on issues of copyright ownership and infringement. Latin-American Music Co., Inc. v. Archdiocese of San Juan, 194 F. Supp. 2d 30 (D.P.R. 2001).
  1. Infringement Claim.
    Successfully represented defendant Uptown Records in a copyright infringement suit brought by the estate of the late jazz artist, Charles Mingus. Settled. Jazz Workshop, Inc. v. Uptown Records, No. 01 Civ. 3029 (S.D.N.Y 2001).
  1. Infringement Claim.
    Successfully represented Recording Industry of America and all major record companies in copyright infringement case against major MP3 link site on the Internet. The case represented the recording industry's first effort to sue the owner of a website that provided links to sites from which users could download infringing copies of sound recordings. Settled in 2001. Arista Records, Inc. v. MP3Board, Inc., No. 00 Civ. 4660 (S.D.N.Y. 2000).

Oriental Carpets

  1. Infringement Claim.
    On appeal, obtained unanimous reversal establishing that a modified version of antique Persian and Indian design elements in an oriental-style carpet were protectable and infringed. Tufenkian v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003).

Publishing

  1. Infringement Defense.
    Obtained decision by the New York Court of Appeals on a question certified to it by the Second Circuit Court of Appeals: The Court held that “in copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet,” the place of the “injury” for purposes of determining personal jurisdiction over non-residents under New York’s long-arm statute, CPLR 302(a)(3)(ii), is the “location of the principal place of business of the copyright holder,” not the location of the out-of-state infringing action. Penguin Group (USA) Inc. v. American Buddha, 2011 WL 1044581 (NY Court of Appeals, March 24, 2011), question certified, Penguin Group (USA) Inc. v. American Buddha, 609 F. 3d 30 (2d Cir. June 15, 2010).
  1. Termination Defense.
    In an important copyright case, we persuaded the Second Circuit Court of Appeals to reject the claim of John Steinbeck's son and granddaughter that they had terminated the publishing rights of our client, Penguin Group, under a 1938 publishing agreement. The Circuit Court reversed because it found that the 1938 agreement had been 'cancelled and superseded' by a 1994 agreement providing substantially improved economic benefits and controls to the author's wife (since deceased), so there was no existing pre-1978 agreement subject to the Section 304(d) termination right. Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), cert. denied, 2009 WL38199 (U.S. Sup. Ct. 2009).
  1. Infringement Defense.
    Successfully defended as fair use a book publisher accused of infringing the copyrights in Grateful Dead Posters by including reduced-size images of them scattered among hundreds of other images in 480 page volume. Affirmed on appeal. Bill Graham Archives, LLC v. Dorling Kindersley Ltd., 78 U.S.P.Q. 2d 1764 (2d Cir. 2006), Affirming; 2005 WL 1137878 (S.D.N.Y. 2005).
  1. Royalty Defense.
    Obtained affirmance of a summary judgement for publisher dismissing authors' breach of contract complaint, holding that publisher's transfer of software agreement with third party to produce electronic version of authors' tax treatise was not transfer of 'right in the work' triggering royalty under publishing agreement. Postlewaite v. McGraw-Hill, 2004 WL 414832 (S.D.N.Y. 2004), aff'd 411 F.3d 63 (2d Cir. 2005).
  1. Infringement Defense.
    Obtained a decision vacating a permanent injunction against publisher's distribution of Dorothy Parker: Complete Poems, reversing summary judgment, and remanding to deistrict court, holding that plaintiff's creativity, if any, in compilation of Parker's previously-uncollected poems was too slight, under any circumstances, to support copyright injunction against publisher's complete-poems compilation that included a separate section of the uncollected poems. Silverstein v. Penguin Putnam, Inc., 368 F.3d 77 (2d Cir. 2004).
  2. On remand, the District Court found for publisher on all claims, dismissed the complaint, and entered judgment in favor of defendant, holding that plaintiff's selection process lacked protectable creativity. Silverstein v. Penguin Putnam, Inc., No. 01 Civ. 309 (S.D.N.Y. 2007).
  1. Infringement Claim.
    Successfully represented publisher of UK based newsletter, Clinica Medical Device and Diagnostic News, in a copyright infringement action claiming that a competing US newsletter, Medical Device Daily, substantially copied more than 75 articles and misappropriated 'hot news' from our client's publication. Settled in 2003 after several weeks of arbitration. PJB Publications, Inc. v. American Health Consultants and Thomson Corporation, No. 02 Civ. 4637 (S.D.N.Y. 2002).
  1. Infringement Claim.
    Successfully represented the copyright owner of English translations of Hebrew Prayers in a copyright infringement action. Plaintiff secured a preliminary injunction, affirmed on appeal. Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94 (2d Cir. 2002) Thereafter, on plaintiff's motion, the court held defendant in contempt and awarded plaintiff $120,000 in attorney's fees. Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 01 CV 7406, 2004 U.S. Dist. LEXIS 22637 (E.D.N.Y. 2000). Ultimately, the court entered a Final Judgment on Consent enjoining defendant from reproducing the copyrightable elements of plaintiff's prayer books.
  1. Counterfeiting Claim.
    Successfully represented publisher of religious works in claim of copyright infringement against counterfeiters. Obtained preliminary and permanent injunctive relief and seizure of over 20,000 infringing volumes. Merkos L'Inyonei Chinuch, Inc. v. John Does Nos. 1-25, 172 F. Supp. 2d 383 (E.D.N.Y. 2001).
  1. Breach of Contract; Infringement Claim.
    Successfully represented a book publisher against an author for breach of an author/publisher agreement and for copyright infringement based upon the author's unauthorized publication of a book. A jury trial resulted in a verdict for injunctive relief and damages. Regnery Publ. v. Ellison, 1996 U.S. App. LEXIS 34018 (2d Cir. 1996).
  1. Infringement Defense.
    Obtained summary judgment dismissing complaint in copyright infringement suit against author and publishers of books Princess and Princess Sultana’s Daughters, including recovery of full amount of attorney’s fees for successful defense of copyright claim. Adsani v. Miller, 1996 WL 194326 (S.D.N.Y. 1996) and 1996 WL 531858 (S.D.N.Y. 1996).
  1. Infringement Defense.
    Successfully defended copyright infringement suit against the book and movie Jurassic Park. Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996), aff’d, 860 F. Supp. 158 (S.D.N.Y. 1994).
  1. Infringement Defense.
    Successfully defended copyright infringement suit in leading Second Circuit case on defense of “fact” estoppel. Arica Inst., Inc. v. Palmer and Harper & Row Publishers, 970 F.2d 1067 (2d Cir. 1992).
  1. Infringement Defense.
    Successfully defended against copyright infringement claim under compilation copyrights in classified telephone directories. BellSouth Advertising & Publ’g Corp. v. Donnelley Info. Publ’g, Inc., 999 F.2d 1436 (11th Cir. 1993).

Software

  1. Fair Use Claim.
    Counsel to plaintiff videogame producer in action for copyright infringement based on defendant's intermediate copying of computer software for reverse engineering. Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), cert. denied, 531 U.S. 871 (2000).
  1. Infringement Defense.
    Successfully represented defendant, a Canadian software company, against a preliminary injunction motion in action for copyright infringement based upon the look and feel of computer screen displays. Settled. Blue Ocean Software, Inc. v. Track Man Help Desk Software, Inc. and Help Star.com, Inc., No. 8:01CV1365 T 24 (M.D. Fla. 2002).
  1. Infringement Defense.
    Successfully represented defendant in an action for copyright infringement and breach of a software license agreement involving a license for a software toolkit used for creating digital images captured on a personal computer from a television input. Settled. Accusoft Corp. v. Hauppauge Digital, Inc., No. 01 Civ. 40101 (D. Mass. 2001).

Toys

  1. Infringement Defense.
    Successfully defended a toy company in a copyright infringement action concerning the design of a dinosaur board game. Defendant’s motion for summary judgment was granted and affirmed on appeal. Hofmann v. Pressman Toy Corp., 790 F. Supp. 498 (D.N.J. 1990), aff’d, 947 F.2d 935 (3d Cir. 1991), cert. denied, 503 U.S. 963 (1992).


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