Chikezie Ottah (herein “Ottah”) appeals the decision of the United States District Court for the Southern District of New York.1 The district court granted summary judgment of non-infringement to several defendant automobile companies with respect to U.S. Patent No. 7,152,840 (“the ’840 Patent”), and dismissed the complaint with prejudice as to several other automobile companies. We have reviewed, and now affirm, the district court’s rulings.
When the owner of a foreign website, acting abroad, uploads video content in which another party holds exclusive United States public performance rights under the Copyright Act and then directs the uploaded content to United States viewers upon their request, does it commit an infringing “performance” under the Act? If so, is it protected from liability by the principle—unquestioned here—that the Act has no extraterritorial application? Answering these questions “yes” and “no,” the district court concluded that Polish broadcaster Telewizja Polska was, by transmitting fiftyone episodes of certain Polish-language television programs into the United States via its online video-on-demand system, liable for infringing copyrights held by a company, Spanski Enterprises, Inc., that enjoys exclusive North and South American performance rights in the episodes. Telewizja Polska appeals this determination, as well as the district court’s imposition of statutory damages of $60,000 per episode, for a total of $3,060,000. For the reasons that follow, we affirm as to both liability and damages.
Appellant Knowles Electronics, LLC (“Knowles”) appeals the inter partes reexamination decision on appeal of the U.S. Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”) affirming an examiner’s rejection of claims 1−4 of U.S. Patent No. 6,781,231 (“the ’231 patent”) for anticipation and proposed claims 23−27 for lack of an adequate written description. Cirrus Logic, Inc. v. Knowles Elecs. LLC (Cirrus I), No. 2015-004342, 2015 WL 5272691, at *2−3 (P.T.A.B. Sept. 8, 2015); see Cirrus Logic, Inc. v. Knowles Elecs. LLC (Cirrus II), No. 2015-004342, 2016 WL 1378707, at *1−2 (P.T.A.B. Apr. 5, 2016) (denying request for rehearing).
Knowles appeals. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A) (2012). We affirm.
The panel affirmed the district court’s dismissal of a copyright infringement action brought by photographer Jacobus Rentmeester against Nike, Inc. Rentmeester alleged that Nike infringed his copyright in a photograph of Michael Jordan when it commissioned its own photograph of Jordan and then used that photo to create its “Jumpman” logo.
The panel held that Rentmeester plausibly alleged the first element of his copyright claim—that he owned a valid copyright in his photo. He also plausibly alleged the “copying” component of the second element because Nike’s access to Rentmeester’s photo, combined with the obvious conceptual similarities between the two photos, was sufficient to create a presumption that the Nike photo was the product of copying rather than independent creation.
Rentmeester did not, however, plausibly allege that Nike copied enough of the protected expression from his photo to establish unlawful appropriation. The panel held that Rentmeester could not copyright the pose in the photograph, and he was entitled to protection only for the way the pose was expressed, including the camera angle, timing, and shutter speed he chose. The panel explained that a photographer’s copyright is limited to the particular selection and arrangement of the elements expressed in the copyrighted image. The panel held that Rentmeester’s photo was entitled to broad rather than thin protection because the range of creative choices open to him in producing the photo was exceptionally broad. Nonetheless, Rentmeester did not plausibly allege that his photo and the Nike photo were substantially similar under the extrinsic test because there were differences in selection and arrangement of elements, as reflected in the photos’ objective details. The panel concluded that, therefore, the Jumpman logo also was not substantially similar to Rentmeester’s photo.
Concurring in part and dissenting in part, Judge Owens agreed with most of the majority’s analysis, and with its holding that Rentmeester could not prevail on his Jumpman logo copyright infringement claim. Judge Owens disagreed with the majority’s conclusion as to the Nike photo on the basis that questions of substantial similarity are inherently factual and should not have been resolved at the dismissal stage.
Nalco Company (“Nalco”) appeals from the district court’s decision dismissing its Fourth Amended Complaint (“4AC”) with prejudice for failure to state a claim upon which relief can be granted. The 4AC alleged infringement of U.S. Patent No. 6,808,692 (“the ’692 patent”) by Appellees Chem-Mod, LLC, Arthur J. Gallagher & Co., Gallagher Clean Energy, LLC, AJG Coal, Inc., and various Refined Coal LLCs (collectively, “Defendants”). Nalco Co. v. Chem-Mod, LLC (Nalco 4AC Order), No. 14- cv-2510, 2016 WL 1594966 (N.D. Ill. Apr. 20, 2016), reconsideration denied, Nalco Co. v. Chem-Mod, LLC (Nalco 4AC Reconsideration Order), No. 14-cv-2510, 2016 WL 4798950 (N.D. Ill. Sept. 14, 2016). We conclude that the district court erred in dismissing Nalco’s direct infringement claims and, thus, reverse the district court’s order as to those claims. We also reverse the district court’s dismissal of Nalco’s doctrine of equivalents, indirect, and willful infringement claims. We remand for further proceedings in this matter.