Non-alphanumeric logo isn’t CMI

CoStar Group, Inc. v. Commercial Real Estate Exchange Inc., No.
CV 20-8819 CBM(ASx), 2021 WL 3566415 (C.D. Cal. Jun. 9, 2021)

CoStar owns a number of digital marketplaces containing listings
of real estate for sale and for lease. Its LoopNet is allegedly “the leading
digital marketplace for commercial real estate,” and contains CoStar’s
copyrighted images, data from the CoStar database, and edits made by CoStar to
“improve marketability.” Defendant CREXi is trying to build its own online
commercial real estate marketplace and auction platform. It allegedly CREXi
“harvest[ed] content, including broker directories, from CoStar’s subscription
database without authorization by using passwords issued to other companies.” This
opinion addresses only CoStar’s CMI claims.

The court agreed with CREXi’s argument that CoStar’s watermark
wasn’t CMI. It didn’t include the copyright symbol (©) or any identifying
information about the author of the work, such as a web address or company name.
Its logo “can be described as five small light grey parts that form a circle.” (Interestingly,
it doesn’t seem to use grey for its regular logo—perhaps black disappeared into
too many photos.)

One version of CoStar logo (which is elsewhere usually accompanied by its name)

Although CoStar alleged that this identified its ownership
of the image, that was a legal conclusion; the logo itself didn’t contain any
identifying information about the author of the work as required by § 1202(c). McGucken
v. DMI Holdings, CV 18-4837, 2019 U.S. Dist. LEXIS 60852 (C.D. Cal. Apr. 9,
2019), accepted “45SURF” superimposed onto a photo as CMI because “it
identified plaintiff and his brand as the author and owner of the photographs”;
he used that as his professional name. But CoStar’s logo “does not include the
author’s name, title, an alphanumerical designation, or identifying symbols
referring to such information.” See also Maule v. Anheuser Busch, LLC, No.
17-00461, 2018 U.S. Dist. LEXIS 125805 (E.D. Pa. July 27, 2018) (“Visit Philly
Skyline Dot Com” superimposed on picture was not CMI: it “did not contain
Maule’s name or any identifying information about him as the author of the
photograph or owner of the copyright to that work … nor does it inform the
public that something is copyrighted [or] prevent infringement.”)

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