Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 1 of 13
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`LTVN HOLDINGS, LLC
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`NADER ANTHONY ODEH
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No. CCB-09-789
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`MEMORANDUM
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`Now pending before the court is a motion to dismiss or for judgment filed by defendants
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`Nader Anthony Odeh and his company, Claims Consulting LLC (“Claims Consulting”)
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`(collectively “defendants”). Plaintiffs LTVN Holdings, LLC (“LTVN”) and Irwin R. Kramer have
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`sued Mr. Odeh and Claims Consulting, asserting violations of federal and state copyright law and
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`the Lanham Act, as well as various state law causes of action, including breach of contract,
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`conversion, and invasion of privacy. The issues in this motion have been fully briefed and no oral
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`argument is necessary. For the reasons stated below, defendants’ motion will be granted in part and
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`denied in part.
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`BACKGROUND
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` LTVN is a Maryland company that produces, presents, and distributes videos on various
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`legal, consumer, and business issues on CLIENTELEVISION.com. Mr. Kramer, a former law
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`professor who has appeared on various televised legal programs, founded LTVN and serves as the
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`company’s managing member. LTVN first published the videos on its website on July 2, 2007. (See
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`Compl. Ex. C.) Mr. Kramer created the videos and assigned his rights to them to LTVN, which
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`secured a Certificate of Registration from the Register of Copyrights on March 16, 2009. LTVN
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`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 2 of 13
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`allows others to post its videos on their websites by licensing topical CLIENTELEVISION
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`“channels” to them through basic and premium service plans. Under the basic service plan,
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`individuals or companies may register as “network affiliates” on CLIENTELEVISION.com and
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`access codes for embedding channels containing a limited selection of videos for use on their own
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`websites. Each video is followed by a seven-second message promoting CLIENTELEVISION.com
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`as the source of its content. Although LTVN does not charge affiliates for the basic service plan, it
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`only grants access codes to those affiliates that accept LTVN’s Network Affiliation Agreement,
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`which prohibits affiliates from tampering with the videos through editing. In addition, the
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`Agreement prohibits affiliates from presenting the videos as their own and requires them to
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`“stipulate that the Content is supplied by LTVN and is protected by copyright and owned by
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`LTVN.” (See Compl. Ex. B at 2.)
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`LTVN’s premium service plan offers affiliates customized channels for an annual license
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`fee. Premium service affiliates may select any video within the CLIENTELEVISION library and
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`present the videos without promotional messages, taglines, or advertising. LTVN also offers these
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`affiliates services such as co-branding the channel by superimposing the affiliate’s name or logo on
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`the video player screen, customizing videos to promote the affiliate’s services, or running the
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`affiliate’s own promotional message within the channel. Premium service affiliates must agree to
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`display the videos in accordance with LTVN’s Network Affiliation Agreement.
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`Mr. Odeh, the managing member of the Louisiana company Claims Consulting, works as a
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`public adjuster and markets his services through Claims Consulting’s website. In January 2009, Mr.
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`Odeh contacted LTVN and expressed interest in licensing a customized channel to display videos
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`dealing with property insurance claims on the Claims Consulting website. Mr. Odeh repeatedly
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`spoke with and emailed Mr. Kramer, inquiring about the details of customizing LTVN’s videos for
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`Case 1:09-cv-00789-CCB Document 32 Filed 06/25/10 Page 3 of 13
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`his own website and, at one point, emailing Mr. Kramer graphics to use for superimposing his
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`company’s name on the video player screen. On or about February 2, 2009, Mr. Kramer emailed
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`Mr. Odeh a price quote for the services he had requested. Mr. Odeh initially failed to respond to the
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`email, and when Mr. Kramer reached him, Mr. Odeh explained that he was no longer interested in
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`Mr. Kramer’s services. On or about February 5, 2009, Mr. Odeh registered as a network affiliate on
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`LTVN’s website.
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`Mr. Odeh posted 12 LTVN videos related to filing insurance claims on his website on
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`March 12, 2009. (See Def.’s Mot. to Dismiss Ex. 1.) Claims Consulting presented the videos as its
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`own by removing references to LTVN and CLIENTELEVISION.com, deleting LTVN’s animations
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`that appeared at the beginning and end of each video, and removing LTVN’s seven-second
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`promotional video. Claims Consulting also referred to the videos as “our information videos” and
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`displayed them in its own flash video player. (See Compl. Ex. E.) Furthermore, on the bottom of the
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`page displaying the videos, Claims Consulting posted the following notice: “Copyright © 2009
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`Claims Consulting, LLC. All Rights Reserved.” (Compl. Ex. F.)
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`LTVN and Mr. Kramer filed suit against Claims Consulting and Mr. Odeh on March 30,
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`2009, asserting claims arising under both federal and state copyright and trademark law, as well as
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`various state common law actions. On November 5, 2009, this court denied the defendants’
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`previous motion to dismiss for lack of personal jurisdiction and improper venue. Defendants have
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`now filed another motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
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`ANALYSIS
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`A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted only if the
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`“material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter
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`of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks and
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`citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists.
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`Piney Run Pres. Ass’n v. County Commissioners of Carroll County, 523 F.3d 453, 459 (4th Cir.
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`2008). When considering a Rule 12(b)(1) motion, the court should “regard the pleadings as mere
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`evidence on the issue, and may consider evidence outside the pleadings without converting the
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`proceeding to one for summary judgment.” Evans, 166 F.3d at 647 (internal quotation marks and
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`citation omitted).
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`“[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve
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`contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v.
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`City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations
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`omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling
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`on such a motion, the court must “accept the well-pled allegations of the complaint as true,” and
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`“construe the facts and reasonable inferences derived therefrom in the light most favorable to the
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`plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). “Even though the
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`requirements for pleading a proper complaint are substantially aimed at assuring that the defendant
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`be given adequate notice of the nature of a claim being made against him, they also provide criteria
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`for defining issues for trial and for early disposition of inappropriate complaints.” Francis v.
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`Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to dismiss, the factual
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`allegations of a complaint “must be enough to raise a right to relief above the speculative level, ...
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`on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted).
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`Thus, the plaintiff’s obligation is to set forth sufficiently the “grounds of his entitlement to relief,”
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`offering more than “labels and conclusions.” Id. (internal quotation marks and alterations omitted).
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`“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to
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`relief.’” Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).
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`Copyright Claims (Counts I & II)
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`The plaintiffs sue for copyright infringement under both the federal Copyright Act, 17
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`U.S.C. § 101, et seq., (Count I) and state copyright law (Count II). As these two claims are
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`substantively identical, the court will dismiss the claim based on state copyright law because it is
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`preempted by the Copyright Act. See 17 U.S.C. § 301. Under the Copyright Act, statutory damages
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`and attorney’s fees are unavailable because the plaintiffs did not register their copyright prior to the
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`alleged infringement or within three months of the first publication. See 17 U.S.C. § 412. The
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`defendants argue that the videos were posted to the Claims Consulting website on March 12, 2009,
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`but not registered with the Copyright Office until March 16, 2009. In addition, the plaintiffs first
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`published the videos on July 2, 2007 by posting them to the LTVN website. Thus statutory damages
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`are not available to Mr. Kramer and LTVN. See Bouchat v. Bon-Ton Dep’t Stores, Inc, 506 F.3d
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`315, 330 (4th Cir. 2007).
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`In addition, punitive damages are not available under the Copyright Act. See Christopher
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`Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 545 (4th Cir. 2007). Although the plaintiffs cite
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`Blanch v. Koons, 329 F. Supp. 2d 568, 569 (S.D.N.Y. 2004) and TVT Records v. Island Def Jam
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`Music Group, 262 F. Supp. 2d 185, 186 (S.D.N.Y. 2003) for the proposition that punitive damages
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`are permitted when statutory damages cannot be pursued, these cases remain outliers and Judge
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`Stanton, who decided Blanch, has since declared Blanch “no longer good law.” See Viacom Int’l
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`Inc. v. YouTube, Inc., 540 F. Supp. 2d 461, 463 (S.D.N.Y. 2008); see also 4-14 Nimmer on
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`Contracts § 14-02[C][2] (referring to TVT Records as a “rogue decision [that] should not be
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`followed”).
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`The defendants also dispute the plaintiffs’ claim for compensatory damages of $250,000.
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`The plaintiffs assert that the $250,000 represents their “actual damages” because this was the cost of
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`creating the videos, which the defendants avoided paying by posting LTVN’s videos as its own.
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`Copyright infringers are liable for “the actual damages suffered by [the copyright owner] as a result
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`of the infringement.” 17 U.S.C. § 504(b). Although the Copyright Act does not define “actual
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`damages,” several courts have interpreted the term to allow recovery for the fair market value the
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`infringer would have paid to use the copyrighted material. See Polar Bear Prods., Inc. v. Timex
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`Corp., 384 F.3d 700, 709 (9th Cir. 2004) (holding that the fair market value license fee for use of
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`film footage constituted an appropriate award of actual damages); On Davis v. The Gap, Inc., 246
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`F.3d 152, 166 (2d Cir. 2001) (noting that “[i]n order to make out his claim that he has suffered
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`actual damage because of the infringer’s failure to pay the fee, the owner must show that the thing
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`taken had a fair market value”); Deltak, Inc. v. Advanced Sys., Inc., 767 F.2d 357, 363 (7th Cir.
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`1985) (calculating actual damages by determining the value of use of the copyrighted material, as
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`evidenced by its fair market value).
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`Although the plaintiffs agree with this fair market value approach to calculating actual
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`damages, they argue that it should be awarded the costs of producing the videos, rather than the cost
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`of posting the videos pursuant to a licensing agreement. The present case is similar to Polar Bear, in
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`which the defendant used the plaintiff’s film footage without authorization, after the plaintiff quoted
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`the defendant a $37,500 licensing fee for use of the film. See 384 F.3d at 704, 709. Rather than
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`award the plaintiff the cost of producing the footage itself, the court held that an award of $37,500
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`in lost licensing fees was appropriate. See id. at 709. Other courts, in determining actual damages,
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`also have looked to licensing fees rather than costs of production. See On Davis, 246 F.3d at 172
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`(holding that a copyright owner may recover actual damages “for the fair market value of a license
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`covering the defendant’s infringing use"). Thus, if LTVN and Mr. Kramer establish copyright
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`liability, they may seek actual damages for any fair market licensing fee they would have charged
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`the defendants for use of their videos. At this stage in the litigation, however, it is not necessary to
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`determine the precise amount of actual damages. As the plaintiffs may seek actual damages for lost
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`licensing fees, Count I states a claim upon which relief can be granted.1
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`Lanham Act Claim (Count IV)
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`The plaintiffs claim that by removing designations of the source of the videos and
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`identifying the videos as their own, the defendants violated the Lanham Act, 15 U.S.C. § 1125.2 Yet
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`in Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court held that such claims are
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`not actionable under the Lanham Act. See 539 U.S. 23 (2003). Noting the difficulty of establishing
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`the “origin” of communicative products, the Court in Dastar held that the phrase “origin of goods”
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`in the Lanham Act “refers to the producer of the tangible goods that are offered for sale, and not to
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`the author of any idea, concept, or communication embodied in those goods.” Id. at 37. The Court
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`reasoned that holding otherwise would create a “species of perpetual patent and copyright.” Id.
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`In Dastar, the defendant copied a television series, made some edits, changed the title, and
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`sold the series under its own name, with no attribution to the original creator. See id. at 26-27. The
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`Court concluded that the defendant, as the producer of the copied series, was the “origin” for
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`1 The defendants challenge the plaintiffs’ claim for injunctive relief in Count I. It is not clear the plaintiffs requested
`injunctive relief in their complaint, however, and they have not addressed the defendants’ arguments in their opposition
`brief. Therefore, the court will not interpret the complaint as requesting injunctive relief.
`2 15 U.S.C. § 1125 imposes liability on any person who uses “any false designation of origin,” which is likely to cause
`confusion as to the “origin, sponsorship, or approval of his or her goods, services, or commercial activities by another
`person” or “misrepresent the nature, characteristics, qualities, or geographic origin of his or her or another person’s
`goods, services, or commercial activities” in commercial advertising or promotion. 15 U.S.C. § 1125(a)(1)(A)-(B).
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`purposes of the Lanham Act and thus the original creators of the series could not state a claim under
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`the Act for false designation of origin. See id. at 38. Instead, the Court reasoned that copyright law
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`was designed “to protect originality or creativity.” Id. at 37; see also Vogel v. Wolters Kluwer
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`Health, Inc., 630 F. Supp. 2d 585, 590 (M.D.N.C. 2008) (holding that, under Dastar, a claim
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`against a textbook publisher that plagiarized an author’s work was actionable as a copyright claim
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`rather than as a Lanham Act claim). Similarly, the defendants in the present case are the “origin” of
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`the videos, as they published them on their website, and the Lanham Act does not protect the
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`creators of the intangible video content. The content creators are instead protected by the Copyright
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`Act. Therefore, the defendants did not falsely designate the origin of the videos and are not liable
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`under the Lanham Act. Accordingly, Count IV of the complaint will be dismissed.
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`Remaining State Law Claims (Counts III, V, VI, VII, & VIII)
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`The plaintiffs’ remaining claims all arise under state common law: breach of contract (Count
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`III), reverse passing off (Count V), unjust enrichment (Count VI), conversion (Count VII), and
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`invasion of privacy (Count VIII). The defendants argue that these claims are all preempted by
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`federal law. The Fourth Circuit has articulated a two-step test for determining when state law claims
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`are preempted by federal copyright law. See United States v. Berge, 104 F.3d 1453, 1463 (4th Cir.
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`1997). First, the work must fall “within the scope of the subject-matter of copyright as specified in
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`17 U.S.C. §§ 102, 103.” Id. (internal quotation marks omitted). The videos in this case fall within
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`the scope of the Copyright Act because they are “original works of authorship fixed in any tangible
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`medium of expression” and qualify as “motion pictures and other audiovisual works” category. 17
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`U.S.C. § 102(a).
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`Second, “the rights granted under state law must be equivalent to any exclusive rights within
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`the scope of federal copyright as set out in 17 U.S.C. § 106.” Berge, 104 F.3d at 1463 (internal
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`quotation marks omitted). Section 106 grants copyright owners the exclusive right to (1) “reproduce
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`the copyrighted work”; (2) prepare derivative works based upon the copyrighted work”; (3)
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`distribute copies of the work; (4) perform the work publicly; and (5) display the work publicly. See
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`Fischer v. Viacom Int’l, Inc., 115 F. Supp. 2d 535, 541 n.4 (D. Md. 2000). Therefore, a state law
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`right that is infringed by “the mere act of reproduction, performance, distribution, or display” will
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`be preempted by the Copyright Act. See id. at 541. The Fourth Circuit has noted that a state law
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`claim avoids preemption when it contains an “extra element that changes the nature of the state law
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`action so that it is qualitatively different from a copyright infringement claim.” Berge, 104 F.3d at
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`1463 (internal quotation marks omitted) (emphasis in original).
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`The plaintiffs’ breach of contract claim is based on the defendants’ unauthorized display of
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`the videos on their website. Although the defendants may have breached the Network Affiliation
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`Agreement by displaying the videos without complying with the contract’s conditions for such use,
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`this alleged wrong is already part of the plaintiffs’ copyright claim. This court previously has noted
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`that “[a] breach of contract claim will survive preemption only when the cause of action is based
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`upon provisions of the contract outside the subject matter of copyright.” The Nichols Agency, Inc. v.
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`Enchanted Child Care, Inc., 537 F. Supp. 2d 774, 783 (D. Md. 2008) (citing Acorn Structures, Inc.
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`v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988)). As the breach of contract claim contains no extra
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`element that would differentiate it from the copyright claim, it is preempted by the Copyright Act.
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`See Madison River Mgmt. Co. v. Business Mgmt. Software Corp., 351 F. Supp. 2d 436, 444
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`(M.D.N.C. 2005) (holding the plaintiff’s breach of contract claims to be preempted because all
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`“emanate[d] from the alleged wrongful reproduction and distribution” of the copyrighted work);
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`Fischer, 115 F. Supp. 2d at 542 (finding a breach of contract claim preempted by copyright law
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`where the basis of the claim was that the defendant took the plaintiff’s ideas and “used them without
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`proper compensation or attribution”).
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`Similarly, the plaintiffs’ claims for reverse passing off, unjust enrichment, and conversion
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`are also preempted by the Copyright Act because all are predicated on the defendants’ unauthorized
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`use of the videos. The reverse passing off claim asserts that the defendants improperly displayed the
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`videos on their website and tried to pass them off as their own by removing references to the
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`plaintiffs’ website. These facts are similar to those of Costar Group Inc. v. Loopnet, Inc., in which
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`the defendant copied the plaintiff’s photographs and displayed them on its website as its own. See
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`164 F. Supp. 2d 688, 714 (D. Md. 2001). The court in Costar described such reverse passing off as
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`a “disguised copyright claim” because the underlying act of copying photographs without
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`authorization was the same for both the plaintiff’s copyright and reverse passing off claims. Id.
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`(internal quotation marks omitted); see also Rutledge v. High Point Regional Health Sys., 558 F.
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`Supp. 2d 611, 621 (M.D.N.C. 2008) (holding that “[w]hen predicated on the facts underlying a
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`claim of copyright infringement, reverse passing off fails to constitute the extra element necessary
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`to avoid preemption by the Copyright Act”). In the present case, the act of displaying the videos on
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`the defendants’ website forms the basis for both claims. Therefore, the reverse passing off claim is
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`preempted by the Copyright Act.
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`The plaintiffs’ unjust enrichment and conversion claims also lack an extra element that
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`would distinguish them from claims arising under the Copyright Act. The unjust enrichment claim
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`alleges that the defendants profited by using the plaintiffs’ videos without authorization. The claim
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`for conversion alleges that the defendants’ took the videos from the plaintiffs’ possession without
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`permission. Both claims merely reiterate the alleged facts underlying the plaintiff’s copyright claim.
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`Although “a state law action for conversion will not be preempted if the plaintiff can prove the extra
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`element that the defendant unlawfully retained the physical object embodying plaintiff’s work,” the
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`unlawful retention of intellectual property rights is the domain of copyright law. Berge, 104 F.3d at
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`1463 (internal quotation marks omitted). By allegedly copying and displaying the plaintiffs’ videos,
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`the defendants did not take any tangible property from the plaintiffs. Accordingly, the Copyright
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`Act preempts the unjust enrichment and conversion claims. See Madison River Mgmt. Co., 351 F.
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`Supp. 2d at 445 (holding a conversion claim preempted by the Copyright Act where the claim
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`involved the unauthorized use of an intangible software program); Costar, 164 F. Supp. 2d at 714
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`(finding a claim for unjust enrichment preempted by the Copyright Act).
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`The defendants also claim that the plaintiffs’ invasion of privacy claim is preempted by the
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`Copyright Act. Under Maryland law, the right of privacy is invaded when an individual’s name or
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`likeness is appropriated for the use or benefit of another. See Lawrence v. A.S. Abell Co., 475 A.2d
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`448, 451 (Md. 1984). An invasion of privacy claim protects an individual’s persona, rather than an
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`“original work[] of authorship fixed in any tangible medium of expression,” as protected by the
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`Copyright Act. See 17 U.S.C. § 102(a). Indeed the Copyright Act specifies that any “idea” or
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`“concept” embodied in such tangible work is not protected by the Act. See § 102(b). Thus invasion
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`of privacy claims are not preempted by the Copyright Act as they concern an individual’s likeness,
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`which does not fall within the scope of the Act. See also Downing v. Abercrombie & Fitch, 265
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`F.3d 994, 1004-05 (9th Cir. 2001) (holding that “[a] person's name or likeness is not a work of
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`authorship within the meaning of 17 U.S.C. § 102”); Brown v. Ames, 201 F.3d 654, 658 (5th Cir.
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`2000).
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`Nevertheless, Mr. Kramer fails to state an actionable claim for invasion of privacy.3 A
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`plaintiff pursuing an invasion of privacy claim must demonstrate that the use of his likeness was not
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`“merely incidental,” but that it was appropriated for some economic gain. Lawrence, 475 A.2d at
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`453 (internal quotation marks omitted). Thus there must be some special value associated with the
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`individual’s name or likeness. See id. In Lawrence, for example, the court denied an invasion of
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`privacy claim where the individuals whose images were used in newspaper ads were neither famous
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`nor professional models. See id. at 453; see also Barnhart v. Paisano Publ’ns, L.L.C., 457 F. Supp.
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`2d 590, 596 (D. Md. 2006) (holding that the plaintiff failed to state an invasion of privacy claim
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`because there was no evidence that “the plaintiff is famous or a professional model or that there is
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`any special value associated with her likeness”). In the present case, the plaintiffs have not alleged
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`that Mr. Kramer’s appearance in the videos conferred any extra value upon them. Although Mr.
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`Kramer has appeared on several television programs regarding legal issues, there is no allegation
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`that the defendants posted the videos believing viewers would recognize Mr. Kramer and assume he
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`endorsed Claims Consulting. Instead, based on the plaintiffs’ allegations, it appears Mr. Kramer was
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`simply the conduit for the information disseminated in the video. As the plaintiffs have failed to
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`allege that Mr. Kramer’s presence in the videos was anything more than incidental, the invasion of
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`privacy claim will be dismissed.
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`3 Aside from the preemption issue, the plaintiffs have not responded in their opposition brief to the defendants’
`arguments regarding this claim.
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`CONCLUSION
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`For the foregoing reasons, the defendants’ motion to dismiss will be granted in part and
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`denied in part. A separate Order follows.
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` /s/
`Catherine C. Blake
`United States District Judge
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`June 25, 2010
`Date
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`13