James H. Fischer v. Sandra F. Forrest
968 F.3d 216
2d Cir.2020Background
- Fischer invented "Fischer’s Bee-Quick," a non‑toxic honey‑harvesting aid sold from ~2000 and advertised with distinctive brochure copy.
- Brushy Mountain (owned/operated by the Forrests and Gebauer) carried Bee‑Quick in its catalogue from 2002, using substantially similar advertising language.
- In late 2010 Brushy Mountain stopped offering Bee‑Quick and began selling its own "Natural Honey Harvester," using nearly identical ad copy in a catalogue mailed Jan. 21, 2011 and on its website as early as Dec. 26, 2010.
- Fischer registered the Bee‑Quick.com website (including the brochure text) with the Copyright Office effective Feb. 7, 2011, then sued for copyright infringement and DMCA CMI removal.
- The district court granted summary judgment to the defendants, holding § 412 barred statutory damages because alleged infringement began before registration, and that the removal of "Fischer’s" as part of the product name did not amount to removal of copyright management information under § 1202.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 412 precludes statutory damages because alleged infringement began before registration | Fischer: No pre‑registration infringement; alternatively, defendants had (or license was revoked) so timing disputed | Defendants: First infringing acts (catalogue/website use) pre‑date Feb. 7, 2011, so § 412 bars statutory damages | Court: Held § 412 bars statutory damages; no genuine dispute that first infringing acts occurred before registration and Fischer failed to present admissible evidence of a license or later first‑infringement date |
| Whether removal of "Fischer’s Bee‑Quick" from ad copy violates DMCA § 1202 (CMI removal) | Fischer: "Fischer’s" is CMI (author/owner identifying information); removing it was intentional deletion of CMI | Defendants: "Fischer’s" is merely part of a product name in third‑party ads, not identifying CMI for the copyrighted text | Court: Held no § 1202 violation—context shows "Fischer’s" functioned as a product name, not as CMI identifying the author or copyright owner of the advertising text |
Key Cases Cited
- FTC v. Moses, 913 F.3d 297 (2d Cir. 2019) (standard of review on summary judgment)
- Alabama v. North Carolina, 560 U.S. 330 (U.S. 2010) (summary judgment standards and Celotex discussion)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment principle on movant's burden)
- Pan Am. World Airways, Inc. v. Int’l Bhd. of Teamsters, 894 F.2d 36 (2d Cir. 1990) (permitting district court discretion to decline new theories raised late)
- Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (context for DMCA and its aims)
- Cifarelli v. Village of Babylon, 93 F.3d 47 (2d Cir. 1996) (mere speculation insufficient to defeat summary judgment)
- Fischer v. Forrest, 286 F. Supp. 3d 590 (S.D.N.Y. 2018) (district court opinion analyzing § 412 and § 1202 issues)