Monthly Archives: August 2012

Is a Broadcast Television Network Liable When it Broadcasts an Alleged False Story about Someone Without Verifying the Validity of the Statements?

According to a pending California lawsuit, the  American Broadcasting Companies (“ABC”) published an allegedly false depiction of Colorado resident David Williams’ (“Williams”) online relationship with former lover Kelley Cahill (“Kelley”) on its news show “20/20”.  Williams filed a lawsuit in the beginning of 2012 claiming defamation.

Williams filed that suit in Orange County California Superior Court and named as defendants ABC, Kelley, “20/20” presenter Christopher Cuomo (“Cuomo’) and “20/20” editor Jack Pyle (“Pyle”). Williams’ complaint stated that ABC failed to “engage in any, or any meaningful, research to determine whether [Kelley] was being truthful, and failed to give Williams any, or any adequate, opportunity to rebut [Kelley’s] allegations treating her story objectively.”  Williams requested a jury trial for libel and he claimed a publication of private facts, intrusion and intentional infliction of emotional distress.

“20/20” aired the show entitled “Blinded by Love: Kelley Cahill’s Ordeal” on June 24, 2011, and Williams claimed the show falsely portrayed him as an online dating predator and a villain, and portrayed Kelley as a victim.  Specifically, the show mentioned that Williams lied to Kelley about his marital status, and that Kelley had incurred increasing debt because of all the gifts she gave to Williams.  Further, the show mentioned that Williams preyed on a massive amount of women.

Kelley posted similar statements on different websites and ABC made the show continuously available to the public online at the network.  Williams contended that Kelley knew that he was separated from his wife during the time they were dating, and that he bought Kelley lavish gifts. It was alleged that Kelley chose to broadcast a fictitious version of their relationship to promote, Kelley’s business that enables subscribers to obtain a background check of people they meet online.

The complaint also stated that Cuomo falsely mentioned on the show that Williams declined to comment.  Williams asserted that when he was first contacted by ABC he told them to look at public records to uncover the truth.  Williams also claimed that he did not offer a statement to ABC because he did not have enough time to consult with his attorney before the show aired.

What the outcome of the dispute will be is unknown.


© 2012 Nissenbaum Law Group, LLC

Does Selling a Grey Market Goods In New York Confer Individual Jurisdiction Over the Trademark Infringer?

In Chloe v. Queen Bee of Beverly Hills, L.L.C., No. 09-cv (2d Cir. Aug. 5, 2010), the court was presented with a novel issue: whether a New York court would have jurisdiction over a California resident who was alleged to have engaged in one act of trademark infringement by sale of product to a Bronx resident.

In that case, Simone Ubaldelli (“Simone”), a California resident, was the owner of a California company that sold knock-off Padington bags by Chloé . These bags were  misrepresented as being products manufactured by Chloé.  The issue was whether Simone could be sued as an individual in New York for trademark infringement by her company, Queen Bee.

The New York court determined that it had jurisdiction over Simone because, although the she had only engaged in one transaction with a New York resident, her company had made at least fifty (50) sales of merchandise in New York that infringed on Chloé’s trademark.  As a result, there were enough contacts such that suit could proceed against Simone individually.


© 2012 Nissenbaum Law Group, LLC

Will the Request for a Poster’s Real Name When Logging Onto YouTube Begin to Remedy the Problem of Internet Defamation?

YouTube is aware that its user anonymity allows for an array of hurtful, judgmental, sexist and racist trolls. The site is now attempting to make users more accountable for their posts and prompting commenters to use their real names when logging in.

This policy change was initiated on June 29, 2012, and gives users the option of using a pseudonym or their real name.  However, this is not a mandatory policy, as users can simply elect not to switch to their real name or simply maintain their YouTube handle.  If a user decides to remain anonymous by clicking a button saying “I don’t want to use my full name,” that user will be directed to a dialogue box that asks them to explain why they do not want to display their real name.  Among the options a user can select for their explanation is “My channel is for personal use but I cannot use my real name,” or “I’m not sure, I’ll decide later.”

Even if a user decides to keep their pseudonym when initially prompted, the site allows users to change their settings at any time if it is eventually decided that they want to use their full name.  However, it is not clear whether new users will have the option of using a pseudonym or if they will be forced to use their real names when registering.

This new policy is part of Google’s (which owns YouTube) attempt at improving Internet posting. 


© 2012 Nissenbaum Law Group, LLC

May The Look and Feel of the Tetris Video Game be Protected by The Copyright Act?

Is the look and feel of the Tetris video game distinguishable from the ideas of the game and therefore protectable? In Tetris Holding, LLC v. XIO Interactive, Inc., No. 09-6115 (D.N.J. May 30, 2012), the United States District Court for the District of New Jersey answered this question in the affirmative.

In that case, Plaintiff, Tetris Holdings, LLC sued XIO Interactive, Inc. (“Defendant”) for the Defendant’s marketing of the game called “Mino.”  Plaintiff alleged among other things, copyright infringement and trade dress infringement because the game copied many copyrightable aspects of its Tetris game.  Tetris identified the following fourteen (14) elements that were allegedly copied:

  1. Seven Tetrimino playing pieces made up of four  equally-sized square joined at their sides;
  2. The visual delineation of individual blocks that comprise each Tetrimino piece and the display of their borders;
  3. The bright, distinct colors used for each of the Tetrimino pieces;
  4. A tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall;
  5. The appearance of Tetriminos moving from the top of the playfield to its bottom;
  6. The way the Tetrimino pieces appear to move and rotate in the playfield;
  7. The small display near the playfield that shows the next playing piece to appear in the playfield;
  8. The particular starting orientation of the Tetriminos, both at the top of the screen and as shown in the “next piece” display;
  9. The display of a “shadow” piece beneath the Tetriminos as they fall;
  10. The color change when the Tetriminos enter lock-down mode;
  11. When a horizontal line fills across the playfield with blocks, the line disappears, and the remaining pieces appear to consolidate downward;
  12. The appearance of individual blocks automatically filling in the playfield from the bottom to the top when the game is over;
  13. The display of “garbage lines” with at least one missing block in random order; and
  14. The screen layout in multiplayer versions with the player’s matrix appearing most prominently on the screen and the opponents’ matrixes appearing smaller than the player’s matrix and to the
    side of the player’s matrix.

Id. at 5.

Defendant conceded that it blatantly copied the look and feel of Tetris so that it could make a similar game for the iPhone.  However, Defendant alleged that it was careful not to copy protectable aspects of the game.  Instead, it copied unprotectable elements such as the “rules, function, and expression essential to the game play.” Id. at 7.  Defendant argued that “not only are the ideas of Tetris (or the rules of the game) not protectable, but neither re the ‘functional aspects’ of the game or expressive elements relating to the game’s function or play.” Id. at 17.  However, the Court disagreed and stated that Defendant “cannot protect expression inseparable from either game rules or game function.” Id.

In its holding, the Court noted that the Plaintiff was conflating the doctrine of merger and the related doctrine known as “scenes à faire.”  The Court explained that merger exists when an idea and the expression of that idea become inseparable. Id. at 14.  In that situation, copying is allowed to prevent a copyright holder from obtaining a monopoly over that idea.  The Court went on to discuss how expressions that are so associated with a particular idea (scenes à faire) are also unprotectable by copyright law.  Id. at 15.  In Tetris, the Court felt that neither doctrine applied.

Evaluating screenshots of both games side by side revealed just how similar the two games appeared.
The Court stated:

Without being told which is which, a common user could not decipher between the two games.  Any differences between the two are slight and insignificant.  If one has to find
distinctions only at a granular level, then the works are likely to be substantially similar.
Reviewing the videos of the game play bolsters this conclusion as it is apparent that the overall look and feel of the two games is identical. There is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying.

Id. at 26-27.

Ultimately, the Court granted summary judgment for Tetris Holding, LLC, as to the copyright infringement and trade dress infringement claims.