July 19, 2019

Archives for December 31, 2012

Tenth Circuit: No Copyright Infringement Without Substantial Similarity

The Tenth Circuit published its opinion in Blehm v. Jacobs on Thursday, December 27, 2012.

Gary Blehm brought a copyright infringement action against Albert and John Jacobs and the Life is Good Company (collectively “Life is Good”). Blehm is the creator of copyrighted posters featuring cartoon characters called “Penmen.” He alleged that numerous Life is Good depictions of a cartoon character called “Jake” infringed on his copyrighted works. The district court granted Life is Good’s motion for summary judgment, holding that no infringement occurred because the accused works were not substantially similar to the legally protectable elements of the copyrighted Penmen works.

The Tenth Circuit first discussed the idea/expression distinction required by the § 102(b) of the Copyright Act. Because the Act protects expression, not ideas, the court looks at only the protected elements, the expression, to determine if there are substantial similarities to an accused work. The test is “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s . . . expression by taking material of substance and value.” After comparing the images, the court found them “so dissimilar as to protectable expression that the substantial similarity question need not go to a jury” and affirmed summary judgment for the defendants.

Tenth Circuit: 28 U.S.C. § 1447(d) Prohibits Review of Remand Order Based on Lack of Subject Matter Jurisdiction

The Tenth Circuit published its opinion in Hill v. Vanderbilt Capital Advisors, LLC on Thursday, December 27, 2012.

Plaintiffs filed an action against Vanderbilt Capital Advisors, LLC and others in New Mexico state court. The suit was removed to federal court. The district court remanded the entire case back to state court, concluding that it lacked subject matter jurisdiction because Plaintiffs did not have standing to sue. 28 U.S.C. § 1447 governs cases removed from state court and § 1447(d) prohibits appellate review of remand orders where the remand was based on lack of subject matter jurisdiction. Because a dismissal for lack of standing “can be at least colorably characterized as a dismissal for lack of subject matter jurisdiction,” the Tenth Circuit held that under 28 U.S.C. § 1447(d), it had no jurisdiction to hear an appeal of the remand order.