Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...
Oct. 3 — Noted magician Teller of the duo Penn and Teller secured a default judgment Sept. 30 against a Belgium-based magician who posted a video of a trick online that was similar to one of Teller's signature illusions—“Shadows”—and offered to sell the secrets.
Although, the U.S. District Court for the District of Nevada granted Teller's motion for the default judgment, it also significantly cut down his requested statutory damages and attorneys' fees.
Teller (born Raymond J. Teller in 1948) is a magician who, along with Penn F. Jillette, performs in the Las Vegas-based duo Penn and Teller.
In 1976, Teller created his signature trick, “Shadows,” which involves a rose in a vase, and is still part of Penn and Teller's on-stage repertoire. In 1983, Teller registered “Shadows” as a creative work with the Copyright Office.
Gerard Dogge, p/k/a Gerard Bakardy, is a Belgium-based performer who began performing a work called “The Rose and Her Shadow.”
Dogge posted two videos on YouTube of him performing this trick and offered to sell the props associated with the trick. The metadata for the videos included “Penn” and “Teller” as keywords for online searching.
Teller sued Dogge, alleging copyright infringement. The court noted that Dogge had been uncooperative during the progress of the proceeding and imposed sanctions.
In March, the court granted summary judgment of copyright infringement in favor of Teller. Teller then moved for default judgment on the issues of willful infringement and unfair competition and sought $150,000 in statutory damages, a permanent injunction and an award of attorneys' fees and costs.
Applying a four-factor test set forth in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1980), the court concluded that default judgment was appropriate.
However, turning to the question of statutory damages, the court noted that Dogge's videos had been viewed on YouTube less than 15 times each before YouTube took them down, and there was no evidence that he had sold the props. Thus, the court awarded $15,000 to Teller instead of his request of $150,000.
The court also acceded to Teller's request for a permanent injunction prohibiting Dogge from performing his “Shadows” act. However, the court declined to enjoin Dogge's sale of the rose-flower prop, noting that it could be used for purposes other than infringement of Teller's copyright interests.
Finally, the court awarded Teller attorneys' fees and costs of $530,000, approximately half the nearly $1 million that Teller had sought.
The court's opinion was issued by Judge James C. Mahan. Teller was represented by Greenberg Traurig LLP, Las Vegas. Dogge represented himself.
To contact the reporter on this story: Anandashankar Mazumdar in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Tom Taylor at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)