CD Cal rejects In re GNC for all the right reasons

Posted on July 16, 2015 by rtushnet
Zakaria v. Gerber Products Co., No. 15-cv-00200 (C.D. Cal.
July 14, 2015)
 
Zakaria sued Gerber, bringing the usual California claims, based
on Gerber’s alleged misrepresentations that Good Start Gentle infant formula
reduces the risk to infants of developing atopic dermatitis, a form of eczema,
and that the FDA endorsed these false health claims. The court denied Gerber’s
motion to dismiss, holding that Zakaria adequately alleged falsity, in part
based on Zakaria’s allegations about a study that concluded there was no
evidence that the consumption by an infant of partially hydrolyzed whey formula
(like Good Start Gentle) reduced the risk of allergic reactions, including
eczema.
 
Gerber moved to reconsider based on In re GNC.  Here, the court
nails the problems with In re GNC,
which I hope will be corrected on rehearing. 
The Fourth Circuit held that, “so long as there is a ‘reasonable difference
of scientific opinion’ as to the merits of a manufacturer’s health claim, the
alleged actual falsehood of that health claim cannot be the basis for a cause
of action under several consumer protection laws, including the California UCL
and CLRA.”  The In re GNC complaint failed to
allege that no reasonable expert could support defendant’s statements, so it
was dismissed.
 
The court here began by noting that In re GNC contained “little analysis” of the relevant California
laws, relying instead on the Lanham Act. 
But Zakaria’s claims were based on California law.  There were no California cases consistent
with In re GNC.  California law bars representations that are
false or true but misleading.  The
complaint here met that standard as it has been interpreted by federal district
courts.  See, e.g., Hesano v. Iovate
Health Sciences, Inc., 2014 WL 197719, at *3 (S.D. Cal. Jan. 15, 2014) (actual
falsehood may be pleaded by “alleging studies showing that a defendant’s
statement is false”); Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 995 (E.D.
Cal. 2012) (denying motion to dismiss based on “clinical cause and effect
studies [that] have found no causative link” between the supplement at issue
and the defendants’ health claim); Fraker v. Bayer Corp., 2009 WL 5865687, at
*8 (E.D. Cal. Oct. 6, 2009) (“To successfully allege a claim for false
advertising, Plaintiff has the burden to plead and prove facts that show that
the claims that Defendant made in connection with product are false or
misleading.”).  By contrast, the
California case cited by In re GNC
involved a complaint that didn’t
allege any scientific authority contradicting the defendant’s health claims.  Requiring some factual support for falsity
allegations isn’t the same as requiring a plaintiff to allege that all studies
and experts are in accord.
 
Second, “the falsehood alleged by Plaintiff is not that all
experts agree that Defendant’s product lacks a health benefit, but rather that
the product in fact lacks that benefit… If some reasonable experts incorrectly
had opined that Good Start Gentle had this health benefit, this would not
necessarily bar the claim.” Gerber’s knowledge could be at issue (for the
claims that require intent).  Also, inconclusive
scientific evidence may mean the plaintiff fails to carry her burden, since
mere lack of substantiation is insufficient for a private claim.  “However, these issues may not always be
resolved without the development of some factual record, which would preclude
their resolution on a motion to dismiss.” 
Yes!
 
Third, Zakaria’s theories went beyond knowing falsity. She
also alleged that Gerber misstated the FDA’s support of the health claims of
Good Start Gentle.  Even In re GNC “left open the possibility
that a false advertising claim could be brought where a manufacturer made
representations that implied greater support for its health claims than were
present.”

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CD Cal rejects In re GNC for all the right reasons

Posted on July 16, 2015 by rtushnet
Zakaria v. Gerber Products Co., No. 15-cv-00200 (C.D. Cal. July 14, 2015)
 
Zakaria sued Gerber, bringing the usual California claims, based on Gerber’s alleged misrepresentations that Good Start Gentle infant formula reduces the risk to infants of developing atopic dermatitis, a form of eczema, and that the FDA endorsed these false health claims. The court denied Gerber’s motion to dismiss, holding that Zakaria adequately alleged falsity, in part based on Zakaria’s allegations about a study that concluded there was no evidence that the consumption by an infant of partially hydrolyzed whey formula (like Good Start Gentle) reduced the risk of allergic reactions, including eczema.
 
Gerber moved to reconsider based on In re GNC.  Here, the court nails the problems with In re GNC, which I hope will be corrected on rehearing.  The Fourth Circuit held that, “so long as there is a ‘reasonable difference of scientific opinion’ as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws, including the California UCL and CLRA.”  The In re GNC complaint failed to allege that no reasonable expert could support defendant’s statements, so it was dismissed.
 
The court here began by noting that In re GNC contained “little analysis” of the relevant California laws, relying instead on the Lanham Act.  But Zakaria’s claims were based on California law.  There were no California cases consistent with In re GNC.  California law bars representations that are false or true but misleading.  The complaint here met that standard as it has been interpreted by federal district courts.  See, e.g., Hesano v. Iovate Health Sciences, Inc., 2014 WL 197719, at *3 (S.D. Cal. Jan. 15, 2014) (actual falsehood may be pleaded by “alleging studies showing that a defendant’s statement is false”); Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 995 (E.D. Cal. 2012) (denying motion to dismiss based on “clinical cause and effect studies [that] have found no causative link” between the supplement at issue and the defendants’ health claim); Fraker v. Bayer Corp., 2009 WL 5865687, at *8 (E.D. Cal. Oct. 6, 2009) (“To successfully allege a claim for false advertising, Plaintiff has the burden to plead and prove facts that show that the claims that Defendant made in connection with product are false or misleading.”).  By contrast, the California case cited by In re GNCinvolved a complaint that didn’tallege any scientific authority contradicting the defendant’s health claims.  Requiring some factual support for falsity allegations isn’t the same as requiring a plaintiff to allege that all studies and experts are in accord.
 
Second, “the falsehood alleged by Plaintiff is not that all experts agree that Defendant’s product lacks a health benefit, but rather that the product in fact lacks that benefit… If some reasonable experts incorrectly had opined that Good Start Gentle had this health benefit, this would not necessarily bar the claim.” Gerber’s knowledge could be at issue (for the claims that require intent).  Also, inconclusive scientific evidence may mean the plaintiff fails to carry her burden, since mere lack of substantiation is insufficient for a private claim.  “However, these issues may not always be resolved without the development of some factual record, which would preclude their resolution on a motion to dismiss.”  Yes!
 
Third, Zakaria’s theories went beyond knowing falsity. She also alleged that Gerber misstated the FDA’s support of the health claims of Good Start Gentle.  Even In re GNC “left open the possibility that a false advertising claim could be brought where a manufacturer made representations that implied greater support for its health claims than were present.”
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False establishment claims not actionable under consumer protection law

Posted on July 14, 2015 by rtushnet
Aloudi v. Intramedic Research Group, LLC, 2015 WL 4148381,
No. 15-cv-00882 (N.D. Cal. Jul. 9, 2015)
 
Aloudi brought the usual California/warranty claims against
IRG for its claims about its JavaSLIM product, a “green coffee bean extract
weight loss formula.” The label says that JavaSLIM is “Clinically Proven” to
cause “significant reduction in actual body mass index (BMI).” Aloudi alleged
that the only “active” ingredients in the Product “are chlorogenic acids and
caffeine, neither of which are effective treatments for weight loss,” but that
IRG advertised that the product “helps consumers achieve ‘safe, effective,
RAPID weight loss,” and “also cited and continues to cite a ‘clinical trial’
purportedly proving that [the Product’s] ingredients provide a ‘significant
reduction in both body weight and all important Body Mass Index (BMI) in just a
few short weeks.’”
 
Aloudi alleged that “there are no clinical trials or
scientific studies showing that the Product or its ingredients are safe and
effective for weight loss or that the Product or its ingredients cause a
significant reduction in body weight and BMI.”  IRG’s failure to provide “adequate
‘substantiation’ that these statements are truthful and not misleading” allegedly
violated the Dietary Supplement Health Education Act of 1994 (“DSHEA”) and
therefore was unlawful under the UCL. Plus, Aloudi alleged falsity under the
UCL because “chlorogenic acids have never been shown to be an effective
treatment for weight control.”  Further,
he alleged, the FDA determined that “there is ‘inadequate data to establish the
general recognition of the safety and effectiveness’ of caffeine for the specified
use of ‘weight control,’” and “there is a scientific consensus that ‘magic
pills’ containing caffeine and green coffee extract, such as [the Product], do
not and cannot provide significant reductions in weight loss alone.”
 
The court kicked out the lack of substantiation allegations
because “[i]t is well settled that private litigants may not bring claims on
the basis of a lack of substantiation.” Aloudi argued that IRG’s claims were
establishment claims, which could thus be falsified by showing that the
evidence didn’t support them.
 
First, the court ruled, that didn’t support the UCL “unlawful”
claim, based entirely on IRG’s lack of substantiation as required by
DSHEA.  RT: But that seems mistaken.  True, the UCL in general doesn’t allow
consumers to bring lack of substantiation claims as falsity claims—but if the underlying
law does require substantiation, the UCL is designed to create private
plaintiff authority to act under the “unlawful” prong.  There might be preemption issues, but there’s
a lot of law on how to manage that.
 
Second, Aloudi’s argument relied on Lanham Act precedent,
and California law didn’t make that “establishment claim” distinction.  (It’s notable that courts usually analyze the
Lanham Act and state law in pari materia when competitors are suing; why they
should do that when consumers are suing, especially after Lexmark, is less clear. 
Compare also the 4th Circuit’s In re GNC case, which imports explicit/implicit falsity with
absolutely no analysis or argument.  This
is the court’s best reason, it seems to me, but weakened by its reliance on the
idea that there’s just no precedent out there supporting Aloudi’s argument.  It would be better to think about the purposes
of state consumer protection laws and whether they’re well served by some kind
of establishment claim doctrine.)
 
The court concluded that “[t]he California legislature
delegated the authority to demand substantiation for advertising claims to
prosecuting authorities alone.” Thus, “as a matter of law, Plaintiffs cannot
bring consumer protection claims solely on the basis of a lack of
substantiation.” The court therefore disagreed with McCrary v. Elations Co.,
No. 13–cv–00242, 2013 WL 6403073 (C.D.Cal. July 12, 2013) (“Since Defendant’s
advertising expressly states that it has clinical proof to support [its
product’s] effectiveness, Plaintiff plausibly alleges falsity when he contends
that there is an absence of such proof.”).
 
RT: McCrary was
right.  “Substantiation” is when the
regulator says, “you say your product causes weight loss. Please prove it.”  But the advertiser here didn’t make that
claim.  It made a different, stronger
claim: that it’s clinically proven to cause weight loss.  If you show that the product is not clinically proven to cause weight
loss, you’ve falsified—proved false—the claim the advertiser actually made,
even if you’ve also incidentally shown that a different claim (this product
causes weight loss) is unsubstantiated.  The
instant ruling is a license to deceive, especially in the supplement space
where there’s too much going on for regulators to go after everyone and too
many competitors for a Lanham Act suit to be worthwhile for any given
competitor.  This result is particularly
bad because claims to have empirical proof are more powerful than straight-up
claims.  Nor would a ruling the other way
eviscerate the no-substantiation rule: it would still bar a consumer plaintiff
from prevailing when the advertising claim does not invoke empirical proof and
the plaintiff only attacks the reliability of the studies allegedly behind the
claim.  (Note the separate issue: there
are two ways to attack the studies. 
Either they’re just not reliable to prove the claim made, which is a
substantiation argument, or they actually show the opposite (that the product
doesn’t work), which is a falsity argument. Aloudi’s first set of allegations
goes to the first line of attack, but there might be the second lurking in
them.)
 
Then the court made short work of the falsity allegations.  The allegation that there was a “scientific
consensus that ‘magic pills’ containing caffeine and green coffee extract, such
as [the Product], do not and cannot provide significant reductions in weight
loss alone” was purely conclusory, and the remaining facts alleged were
insufficient to show falsity, based on general statements by politicians and
the FDA that weren’t tied to this particular product or these specific representations.
Nor was Aloudi’s anecdotal experience that JavaSLIM didn’t work sufficient.
 
Finally, Aloudi failed to identify specific actionable
omissions.
 
The warranty claims failed for the same reasons.

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Dastar-barred claims can’t be repled as false advertising claims

Posted on July 14, 2015 by rtushnet
Friedman v. Zimmer, No. 15-502 (C.D. Cal. Jul. 10, 2015)
 
Richard Friedman sued Hans Zimmer and others, alleging that
the score to 12 Years a Slave
infringed his copyright to a composition, To
Our Fallen.  Friedman also alleged
violation of the Lanham Act through misrepresentation of the score’s authorship
in advertising and promotion.  He further
asserted claims for violation of his moral rights under the German Copyright
Statute of 1965, which provides that an “author shall have the right of
recognition of his authorship of the work,” and under the French Code of
Intellectual Property of 1992, which provides “the right of respect for the
name of the author.”
 
The court first rejected defendants’ argument that the
complaint wasn’t specific enough about who did what in terms of copyright
infringement, alleging that they all “produced and distributed” the Film “in
the United States and throughout the world,” even though the Copyright Act does
not apply extraterritorially and even though some of the defendants might not
have made reproductions of or distributed the score. “Before discovery,
Plaintiff has no reasonable means of determining the roles that the Moving
Defendants played in producing and distributing the Film.”  If some of the defendants lacked a role in
reproducing/distributing the score, they could put that in their answers and
the issue could be resolved on summary judgment.
 
The Lanham Act claim, however, failed.  Friedman alleged that defendants falsely
advertised the film as featuring “Music by Hans Zimmer.” This claim would
plainly be Dastar-barred had it been
brought under §43(a)(1)(A), and you can’t get around that bar, which is based
on concern for avoiding a perpetual copyright/patent, by pleading a violation
of §43(a)(1)(B) instead but based on the same operative facts.
 
Yes, the Supreme Court mentioned §43(a)(1)(B) in dicta,
hypothesizing that a producer who gave consumers “the impression that the video
was quite different from [the other] series” might be guilty of false
advertising.  But that just means that a
misrepresentation that led consumers “to believe they were buying one product
when they were really buying another” could be actionable. “[G]iven the Court’s
concerns about creating overlap between the Lanham Act and other intellectual
property regimes, it would have made little sense for the Supreme Court to
reject the Dastar plaintiff’s claim
under 15 U.S.C. § 1125(a)(1)(A) but permit the same sort of claim to be
asserted under a different prong of the same statute.”
 
The Ninth Circuit already reasoned this way in Sybersound
Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008), which held that
alleged misrepresentations about the licensing status of karaoke songs didn’t
implicate the “nature, characteristics, or qualities” of the products, which
would have to be “characteristics of the good itself, such as the original song
and artist of the karaoke recording, and the quality of its audio and visual
effects.”  Friedman argued that Sybersound’s reference to the “artist”
made his claim viable, but that wouldn’t avoid the Lanham/Copyright Act
overlap.  The court elaborated: Sybersound’s discussion
 
means only that a seller cannot
falsely advertise a recording as being performed by one artist when it is
really performed by another.  For
instance, a seller cannot advertise a CD as containing “All Along the
Watchtower” sung by Jimi Hendrix when it actually contains a recording of Bob
Dylan singing the same song.  That would
give consumers the impression that the CD they were buying was “quite
different” from what it actually was, which would be a misrepresentation of the
nature, characteristics, or qualities of the good.  Those are not the facts alleged here. 
 
Query: Suppose Friedman really did write the full score and
the CD says Zimmer did.  Nonetheless, the
score itself is the same—it’s just the attribution that’s wrong.  But if the performer is different, the court
seems to be saying, the performance is different too, and therefore the proper
subject of a false advertising claim. 
But what if this had been a Milli Vanilli type lawsuit, where some
performer alleged that he was the stunt double voice for the performer whose
name is on the record?  I think this
court would have wanted to kick that claim out too.  Is it because the performance would be no
different, it’s just got the wrong name on it? 
Is it because of materiality?
 
Friedman argued that the Ninth Circuit approved a similar
claim in Photomedex, Inc. v. Irwin, 601 F.3d 919 (9th Cir. 2010), in which the
plaintiff alleged that the defendants violated the Lanham Act and California
unfair competition laws by representing that one of the defendants invented a
medical device when he had not.   The Ninth Circuit found that the defendant was
not the sole inventor, and thus held
that the claim might have been misleading. However, the Dastar issue wasn’t raised either at the district court or on
appeal, which explains why the court didn’t cite or discuss Dastar or Sybersound—the court was only asked about misleadingness and didn’t
assess “whether [the] statement, misleading or not, related to a nature,
characteristic, or quality of a good.” 
To the extent that Photomedex
allowed a Dastar claim under
§43(a)(1)(B), it was inconsistent with Dastar
and Sybersound and not controlling.

The court also dismissed claims relating to moral rights under German and
French law.  Friedman might be able to
assert those rights with respect to infringing conduct that occurred in France
or Germany, but US courts aren’t compelled to entertain such claims.  The court here wasn’t going to do so given
the fact that moral rights had “no clear parallel” in US law. There is also
authority for declining jurisdiction.  “American
courts should be reluctant to enter the bramble bush of ascertaining and
applying foreign law without an urgent reason to do so”:
 
Enforcing foreign laws that are
materially different from U.S. laws raises public policy and separation of
powers concerns.  These concerns are
particularly salient in the context of moral rights.  When Congress enacted the Berne Convention
Implementation Act of 1988, it had the opportunity to broadly grant authors the
same moral rights that they would enjoy in any other nation in accordance with
the terms of the treaty. But faced with “an avalanche of opposition to moral
rights” from even “the bill’s most vociferous advocates,” Congress expressly
declined to enact that aspect of the treaty.   
We think it prudent to decline to exercise supplemental jurisdiction
where Plaintiff seeks to enforce rights that Congress has clearly and
deliberately decided not to provide under U.S. law.
 
Also, judicial economy favored declining supplemental
jurisdiction, since a US court would have to consume far more resources
figuring out moral rights law than French or German courts, familiar with those
rights, would.  Also, “the significant
risk of jury confusion in a trial involving both domestic and foreign law
copyright claims may require us to conduct a separate trial for Plaintiff’s
moral rights claims.”  So the court
kicked them out instead.
 
 

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Is it awful of me to want a Downfall remix featuring historians reacting?

Posted on July 14, 2015 by rtushnet

Historians react with anger to Goebbels copyright ruling.

H/T Zach Schrag.

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False establishment claims not actionable under consumer protection law

Posted on July 14, 2015 by rtushnet
Aloudi v. Intramedic Research Group, LLC, 2015 WL 4148381, No. 15-cv-00882 (N.D. Cal. Jul. 9, 2015)
 
Aloudi brought the usual California/warranty claims against IRG for its claims about its JavaSLIM product, a “green coffee bean extract weight loss formula.” The label says that JavaSLIM is “Clinically Proven” to cause “significant reduction in actual body mass index (BMI).” Aloudi alleged that the only “active” ingredients in the Product “are chlorogenic acids and caffeine, neither of which are effective treatments for weight loss,” but that IRG advertised that the product “helps consumers achieve ‘safe, effective, RAPID weight loss,” and “also cited and continues to cite a ‘clinical trial’ purportedly proving that [the Product’s] ingredients provide a ‘significant reduction in both body weight and all important Body Mass Index (BMI) in just a few short weeks.’”
 
Aloudi alleged that “there are no clinical trials or scientific studies showing that the Product or its ingredients are safe and effective for weight loss or that the Product or its ingredients cause a significant reduction in body weight and BMI.”  IRG’s failure to provide “adequate ‘substantiation’ that these statements are truthful and not misleading” allegedly violated the Dietary Supplement Health Education Act of 1994 (“DSHEA”) and therefore was unlawful under the UCL. Plus, Aloudi alleged falsity under the UCL because “chlorogenic acids have never been shown to be an effective treatment for weight control.”  Further, he alleged, the FDA determined that “there is ‘inadequate data to establish the general recognition of the safety and effectiveness’ of caffeine for the specified use of ‘weight control,’” and “there is a scientific consensus that ‘magic pills’ containing caffeine and green coffee extract, such as [the Product], do not and cannot provide significant reductions in weight loss alone.”
 
The court kicked out the lack of substantiation allegations because “[i]t is well settled that private litigants may not bring claims on the basis of a lack of substantiation.” Aloudi argued that IRG’s claims were establishment claims, which could thus be falsified by showing that the evidence didn’t support them.
 
First, the court ruled, that didn’t support the UCL “unlawful” claim, based entirely on IRG’s lack of substantiation as required by DSHEA.  RT: But that seems mistaken.  True, the UCL in general doesn’t allow consumers to bring lack of substantiation claims as falsity claims—but if the underlying law does require substantiation, the UCL is designed to create private plaintiff authority to act under the “unlawful” prong.  There might be preemption issues, but there’s a lot of law on how to manage that.
 
Second, Aloudi’s argument relied on Lanham Act precedent, and California law didn’t make that “establishment claim” distinction.  (It’s notable that courts usually analyze the Lanham Act and state law in pari materia when competitors are suing; why they should do that when consumers are suing, especially after Lexmark, is less clear.  Compare also the 4th Circuit’s In re GNC case, which imports explicit/implicit falsity with absolutely no analysis or argument.  This is the court’s best reason, it seems to me, but weakened by its reliance on the idea that there’s just no precedent out there supporting Aloudi’s argument.  It would be better to think about the purposes of state consumer protection laws and whether they’re well served by some kind of establishment claim doctrine.)
 
The court concluded that “[t]he California legislature delegated the authority to demand substantiation for advertising claims to prosecuting authorities alone.” Thus, “as a matter of law, Plaintiffs cannot bring consumer protection claims solely on the basis of a lack of substantiation.” The court therefore disagreed with McCrary v. Elations Co., No. 13–cv–00242, 2013 WL 6403073 (C.D.Cal. July 12, 2013) (“Since Defendant’s advertising expressly states that it has clinical proof to support [its product’s] effectiveness, Plaintiff plausibly alleges falsity when he contends that there is an absence of such proof.”).
 
RT: McCrary was right.  “Substantiation” is when the regulator says, “you say your product causes weight loss. Please prove it.”  But the advertiser here didn’t make that claim.  It made a different, stronger claim: that it’s clinically proven to cause weight loss.  If you show that the product is not clinically proven to cause weight loss, you’ve falsified—proved false—the claim the advertiser actually made, even if you’ve also incidentally shown that a different claim (this product causes weight loss) is unsubstantiated.  The instant ruling is a license to deceive, especially in the supplement space where there’s too much going on for regulators to go after everyone and too many competitors for a Lanham Act suit to be worthwhile for any given competitor.  This result is particularly bad because claims to have empirical proof are more powerful than straight-up claims.  Nor would a ruling the other way eviscerate the no-substantiation rule: it would still bar a consumer plaintiff from prevailing when the advertising claim does not invoke empirical proof and the plaintiff only attacks the reliability of the studies allegedly behind the claim.  (Note the separate issue: there are two ways to attack the studies.  Either they’re just not reliable to prove the claim made, which is a substantiation argument, or they actually show the opposite (that the product doesn’t work), which is a falsity argument. Aloudi’s first set of allegations goes to the first line of attack, but there might be the second lurking in them.)
 
Then the court made short work of the falsity allegations.  The allegation that there was a “scientific consensus that ‘magic pills’ containing caffeine and green coffee extract, such as [the Product], do not and cannot provide significant reductions in weight loss alone” was purely conclusory, and the remaining facts alleged were insufficient to show falsity, based on general statements by politicians and the FDA that weren’t tied to this particular product or these specific representations. Nor was Aloudi’s anecdotal experience that JavaSLIM didn’t work sufficient.
 
Finally, Aloudi failed to identify specific actionable omissions.
 
The warranty claims failed for the same reasons.
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Dastar-barred claims can’t be repled as false advertising claims

Posted on July 14, 2015 by rtushnet
Friedman v. Zimmer, No. 15-502 (C.D. Cal. Jul. 10, 2015)
 
Richard Friedman sued Hans Zimmer and others, alleging that the score to 12 Years a Slaveinfringed his copyright to a composition, To Our Fallen.  Friedman also alleged violation of the Lanham Act through misrepresentation of the score’s authorship in advertising and promotion.  He further asserted claims for violation of his moral rights under the German Copyright Statute of 1965, which provides that an “author shall have the right of recognition of his authorship of the work,” and under the French Code of Intellectual Property of 1992, which provides “the right of respect for the name of the author.”
 
The court first rejected defendants’ argument that the complaint wasn’t specific enough about who did what in terms of copyright infringement, alleging that they all “produced and distributed” the Film “in the United States and throughout the world,” even though the Copyright Act does not apply extraterritorially and even though some of the defendants might not have made reproductions of or distributed the score. “Before discovery, Plaintiff has no reasonable means of determining the roles that the Moving Defendants played in producing and distributing the Film.”  If some of the defendants lacked a role in reproducing/distributing the score, they could put that in their answers and the issue could be resolved on summary judgment.
 
The Lanham Act claim, however, failed.  Friedman alleged that defendants falsely advertised the film as featuring “Music by Hans Zimmer.” This claim would plainly be Dastar-barred had it been brought under §43(a)(1)(A), and you can’t get around that bar, which is based on concern for avoiding a perpetual copyright/patent, by pleading a violation of §43(a)(1)(B) instead but based on the same operative facts.
 
Yes, the Supreme Court mentioned §43(a)(1)(B) in dicta, hypothesizing that a producer who gave consumers “the impression that the video was quite different from [the other] series” might be guilty of false advertising.  But that just means that a misrepresentation that led consumers “to believe they were buying one product when they were really buying another” could be actionable. “[G]iven the Court’s concerns about creating overlap between the Lanham Act and other intellectual property regimes, it would have made little sense for the Supreme Court to reject the Dastar plaintiff’s claim under 15 U.S.C. § 1125(a)(1)(A) but permit the same sort of claim to be asserted under a different prong of the same statute.”
 
The Ninth Circuit already reasoned this way in Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008), which held that alleged misrepresentations about the licensing status of karaoke songs didn’t implicate the “nature, characteristics, or qualities” of the products, which would have to be “characteristics of the good itself, such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects.”  Friedman argued that Sybersound’s reference to the “artist” made his claim viable, but that wouldn’t avoid the Lanham/Copyright Act overlap.  The court elaborated: Sybersound’s discussion
 
means only that a seller cannot falsely advertise a recording as being performed by one artist when it is really performed by another.  For instance, a seller cannot advertise a CD as containing “All Along the Watchtower” sung by Jimi Hendrix when it actually contains a recording of Bob Dylan singing the same song.  That would give consumers the impression that the CD they were buying was “quite different” from what it actually was, which would be a misrepresentation of the nature, characteristics, or qualities of the good.  Those are not the facts alleged here. 
 
Query: Suppose Friedman really did write the full score and the CD says Zimmer did.  Nonetheless, the score itself is the same—it’s just the attribution that’s wrong.  But if the performer is different, the court seems to be saying, the performance is different too, and therefore the proper subject of a false advertising claim.  But what if this had been a Milli Vanilli type lawsuit, where some performer alleged that he was the stunt double voice for the performer whose name is on the record?  I think this court would have wanted to kick that claim out too.  Is it because the performance would be no different, it’s just got the wrong name on it?  Is it because of materiality?
 
Friedman argued that the Ninth Circuit approved a similar claim in Photomedex, Inc. v. Irwin, 601 F.3d 919 (9th Cir. 2010), in which the plaintiff alleged that the defendants violated the Lanham Act and California unfair competition laws by representing that one of the defendants invented a medical device when he had not.   The Ninth Circuit found that the defendant was not the sole inventor, and thus held that the claim might have been misleading. However, the Dastar issue wasn’t raised either at the district court or on appeal, which explains why the court didn’t cite or discuss Dastar or Sybersound—the court was only asked about misleadingness and didn’t assess “whether [the] statement, misleading or not, related to a nature, characteristic, or quality of a good.”  To the extent that Photomedexallowed a Dastar claim under §43(a)(1)(B), it was inconsistent with Dastarand Sybersound and not controlling.
The court also dismissed claims relating to moral rights under German and French law.  Friedman might be able to assert those rights with respect to infringing conduct that occurred in France or Germany, but US courts aren’t compelled to entertain such claims.  The court here wasn’t going to do so given the fact that moral rights had “no clear parallel” in US law. There is also authority for declining jurisdiction.  “American courts should be reluctant to enter the bramble bush of ascertaining and applying foreign law without an urgent reason to do so”:
 
Enforcing foreign laws that are materially different from U.S. laws raises public policy and separation of powers concerns.  These concerns are particularly salient in the context of moral rights.  When Congress enacted the Berne Convention Implementation Act of 1988, it had the opportunity to broadly grant authors the same moral rights that they would enjoy in any other nation in accordance with the terms of the treaty. But faced with “an avalanche of opposition to moral rights” from even “the bill’s most vociferous advocates,” Congress expressly declined to enact that aspect of the treaty.    We think it prudent to decline to exercise supplemental jurisdiction where Plaintiff seeks to enforce rights that Congress has clearly and deliberately decided not to provide under U.S. law.
 
Also, judicial economy favored declining supplemental jurisdiction, since a US court would have to consume far more resources figuring out moral rights law than French or German courts, familiar with those rights, would.  Also, “the significant risk of jury confusion in a trial involving both domestic and foreign law copyright claims may require us to conduct a separate trial for Plaintiff’s moral rights claims.”  So the court kicked them out instead.
 
 
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Is it awful of me to want a Downfall remix featuring historians reacting?

Posted on July 14, 2015 by rtushnet

Historians react with anger to Goebbels copyright ruling.

H/T Zach Schrag.

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Quote of the day: on trademark harm

Posted on July 13, 2015 by rtushnet

Ralph Sharp Brown knew his stuff with respect to trademark theories of harm that go beyond lost sales: “Judge Frank has already pointed out that the defendant ought to have an opportunity to prove that he will not harm the plaintiff’s fair name. Good repute may be beyond price; but it is not beyond cross-examination.”
Ralph S. Brown Jr., Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165, 1194 (1948)
(footnotes omitted).  Brought to you by summer research projects!

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Quote of the day: on trademark harm

Posted on July 13, 2015 by rtushnet

Ralph Sharp Brown knew his stuff with respect to trademark theories of harm that go beyond lost sales: “Judge Frank has already pointed out that the defendant ought to have an opportunity to prove that he will not harm the plaintiff’s fair name. Good repute may be beyond price; but it is not beyond cross-examination.” Ralph S. Brown Jr., Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165, 1194 (1948) (footnotes omitted).  Brought to you by summer research projects!

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