DIGITAL CONCEALMENT SYSTEMS LLC v. HYPERSTEALTH BIOTECHNOLOGY CORP, No. 4:2011cv00195 - Document 70 (M.D. Ga. 2013)

Court Description: ORDER denying 34 Motion for Summary Judgment; terminating as moot 63 Motion to Exclude. Ordered by U.S. District Judge Clay D. Land on 11/19/2013 (jcs)

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DIGITAL CONCEALMENT SYSTEMS LLC v. HYPERSTEALTH BIOTECHNOLOGY CORP Doc. 70 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION DIGITAL LLC, CONCEALMENT SYSTEMS, * * Plaintiff, * CASE NO. 4:11-CV-195 (CDL) vs. * HYPERSTEALTH CORP., BIOTECHNOLOGY * * Defendant. O R D E R This Systems, action LLC’s Biotechnology After arises alleged Corp.’s receiving a from Plaintiff infringement copyrights in cease-and-desist of Digital Concealment Defendant its HyperStealth camouflage letter from patterns. HyperStealth, Digital filed this action seeking a declaratory judgment that its “A-TACS FG HyperStealth’s copyright Camo” pattern copyrights. infringement of does not infringe HyperStealth ten of its on any counterclaimed patterns. Digital filed a motion for summary judgment as to these claims. of for has With the exception of the claim that HyperStealth has abandoned, the Court denies Digital’s Motion for Summary Judgment (ECF No. 34).1 In reaching this decision, the Court did not rely on the 1 HyperStealth abandoned one claim of infringement of its pattern “Eurospec-Omni6-4C-F-60.” Def.’s Resp. to Pl.’s Statement of Material Facts ¶ 4, ECF No. 58-1. Therefore, the Court grants summary judgment in favor of Digital as to this claim. Dockets.Justia.com opinions of HyperStealth’s expert. Therefore, Digital’s motion to exclude that evidence (ECF No. 63) is terminated as moot. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Civ. P. 56(a). In determining whether a genuine Fed. R. dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. FACTUAL BACKGROUND Digital creates and licenses tactical camouflage patterns and is co-owned by its only employees, Philip Duke and Steve Hanks. business. founders, HyperStealth is also in the tactical camouflage HyperStealth uses patterns developed by one of its Guy Cramer. Digital developed the camouflage pattern described as “A-TACS FG Camo.” design for a HyperStealth contends that this pattern infringes on nine of its copyrighted patterns. Fabric swatches for each of the patterns are included 2 in the present record and described as follows: Digital’s “A-TACS FG Camo,” Pl.’s Mot. for Summ. J. Ex. C, ECF No. 34-2; HyperStealth’s “CAMOPAT,” HyperStealth’s “CAMOPAT HyperStealth’s “Eurospec35,” “Ghostex Alpha-3,” id. id. at Ex. Advanced at id. Ex. J, Recon,” at M; ECF id. Ex. L; No. at 34-4; Ex. K; HyperStealth’s HyperStealth’s “Ghostex Delta-1,” id. at Ex. N; HyperStealth’s “Ghostex Delta-6,” id. at Ex. O; HyperStealth’s “Polecam,” id. at Ex. P; HyperStealth’s “SOPAT,” Ex. R. 2 his id. at Ex. Q; and HyperStealth’s “SpecAM,” id. at Cramer identifies all nine of HyperStealth’s patterns in video similarities deposition he sees and during points a side to by and side describes comparison the of Digital’s A-TACS FG Camo and each of HyperStealth’s patterns as follows. 3 2 Digital has filed Exhibits J-R manually with the Court. While HyperStealth objects to nearly all of these exhibits because it has not received copies of this physical evidence, the Court notes that Exhibits J-R appear to represent the same patterns identified by Cramer, HyperStealth’s pattern developer, in his video deposition. Cramer Dep. 104:3-107:2, 114:16-115:10, 121:6-14, 128:23-129:9, 134:16-24, 158:23-159:2, 174:8-11, 189:10-20, 198:12-19, 205:15-17, 210:19-21, 215:17-24, 220:13-20, 225:14-24, ECF No. 36; accord Cramer Video Dep. Discs 4-5, filed manually with the Court. Therefore, despite HyperStealth’s protestations, the Court finds that Exhibits J-R undisputedly represent the respective patterns. 3 Digital generally disputes that Cramer’s testimony points out areas of the patterns that are actually similar. See Cramer Dep. 229:9-17 (stating that he cannot say which of the nine patterns Digital copied). However, Cramer also states that A-TACS FG Camo is similar enough to all nine of HyperStealth’s patterns, despite some modifications, to “cause some to perceive an almost identical pattern.” Id. at 78:2-8. 3 A. SOPAT Cramer identifies the following as similarities between SOPAT, Ex. Q, and A-TACS FG Camo, Ex. C: the light area being next to the second-lightest area; the geometry in the tan, beige, and brown areas; the horizontal flow of dark areas; the shadowing in a green area; four specific areas with similar sizes and shapes; the color combinations, despite no exact color matches; the soft edges of the shapes; and the density (described as the relative amount of filled versus open space) of the pattern overall. Cramer Dep. 158:23-172:7. Digital points out the following as differences: SOPAT uses five solid colors and has more dark brown to green than A-TACS FG Camo’s 12-color blend from light to dark green/brown; SOPAT has hard edges but uses pixels to create rounder shapes while A-TACS FG Camo uses soft and blended round shapes; SOPAT is more closed in with greater density than A-TACS FG Camo; and SOPAT has a more even distribution of horizontal and vertical A-TACS FG Camo’s horizontal orientation. elements than Pl.’s Mot. for Summ. J. Ex. B, Duke Aff. ¶¶ 49-59, ECF No. 34-2. B. SpecAm Cramer identifies the following as similarities between SpecAm, Ex. R, and A-TACS FG Camo, Ex. C: the light area being next to the second-brightest area; a big vertical pattern of similar geometry; the way three areas with bright colors and 4 shadow elements are configured; one more area that looks like a mirror image in one pattern compared to the other; and similar coloration. Cramer Dep. 174:8-184:25. Digital points out the following as differences: SpecAm uses four solid colors and has more dark brown to green than A-TACS FG Camo’s 12-color blend from light to dark green/brown; SpecAm has hard edges but uses pixels to create rounder shapes while A-TACS FG Camo uses soft and blended round shapes; SpecAm is more closed in with greater density than A-TACS FG Camo; and SpecAm has a more even distribution of horizontal and vertical elements than A-TACS FG Camo’s horizontal orientation. C. Duke Aff. ¶¶ 60-70. Polecam Cramer identifies the following as similarities between Polecam, Ex. P, and A-TACS FG Camo, Ex. C: the brightest areas being next to the second-brightest areas; three lighter areas of open space and two darker areas with similar patterns; an area appearing to mirror a configuration in the other pattern; and overall pattern density. Cramer Dep. 189:10-20, 193:10-194:11. Digital points out the following as differences: Polecam uses four solid colors and has more dark brown to green than A-TACS FG Camo’s 12-color blend from light to dark green/brown; Polecam uses pixilation, angular shapes, and dark green/brown outlining in contrast to A-TACS FG Camo’s softer and blended round shapes; Polecam is more closed in with greater density than A-TACS FG 5 Camo; and Polecam has horizontal and vertical elements stretched out to appear more horizontal horizontal orientation. D. compared to A-TACS FG Camo’s Duke Aff. ¶¶ 104-14. Eurospec35 Cramer identifies the following as similarities between Eurospec35, Ex. L, and A-TACS FG Camo, Ex. C: an area of blended colors with shadowing behind the green color; seven other areas with similar shapes and colors; and a density within 5% between the two patterns. Cramer Dep. 198:12-204:7. Digital points out the following as differences: Eurospec35 uses five solid colors and has more green than A-TACS FG Camo’s 12-color blend from light to dark green/brown; Eurospec35 uses pixilation unlike A-TACS FG Camo’s softer and blended round shapes; Eurospec35 is more closed in with greater density than A-TACS FG Camo; and Eurospec35 has a more even distribution of horizontal and vertical elements than A-TACS FG Camo’s horizontal orientation. Duke Aff. ¶¶ 71-81. E. CAMOPAT Cramer CAMOPAT, identifies Ex. horizontal J, flow, and the following A-TACS shading in FG the as similarities Camo, bright Ex. green arrangement of a darker horizontal region. 208:1. C: between density areas, and and the Cramer Dep. 206:6- Digital points out the following as differences: CAMOPAT uses four solid colors and has more dark brown to green than 6 A-TACS FG Camo’s 12-color blend from light to dark green/brown; CAMOPAT uses pixilation, angular shapes, and beige and light green outlining in contrast to A-TACS FG Camo’s softer and blended round shapes; CAMOPAT is more closed in with greater density than vertical A-TACS elements FG Camo; stretched and out CAMOPAT to has appear horizontal and more horizontal compared to A-TACS FG Camo’s horizontal orientation. Duke Aff. ¶¶ 93-103. F. CAMOPAT Advanced Recon Cramer CAMOPAT identifies Advanced the Recon, following Ex. K, and as similarities A-TACS FG Camo, between Ex. C: density and horizontal flow; dark areas with a shadowing effect; a macro pattern interspersed with thinner parts; and three other regions with similar arrangements. Digital points out the Cramer Dep. 210:19-213:19. following as differences: CAMOPAT Advanced Recon uses five 4 colors and has a more even green to brown ratio than A-TACS FG Camo’s 12-color blend from light to dark green/brown; angular A-TACS shapes, Advanced FG and Camo’s Recon CAMOPAT is Advanced dark and softer and more light Recon outlining blended closed in uses with round in pixilation, contrast shapes; greater to CAMOPAT density than A-TACS FG Camo; and CAMOPAT Advanced Recon’s horizontal elements 4 The Court acknowledges that Cramer points out seven different colors in this pattern in his video deposition. Cramer Dep. 212:16-213:3. 7 are less noticeable orientation. G. compared to A-TACS FG Camo’s horizontal Duke Aff. ¶¶ 115-25. Ghostex Delta-6 Cramer identifies the following as similarities between Ghostex Delta-6, Ex. O, and A-TACS FG Camo, Ex. C: four regions with similar arrangement of shapes and similar shadowing between dark and light areas. Cramer Dep. 217:6-219:4, 215:17-24. Digital points out the following as differences: Ghostex Delta-6 uses four grey tones and one green color compared to A-TACS FG Camo’s 12-color blend from light to dark green/brown; Ghostex Delta-6 has hard edges but uses pixels to create rounder shapes while A-TACS FG Camo uses soft and blended round shapes; Ghostex Delta-6 is more closed in with greater density than A-TACS FG Camo; and Ghostex horizontal and Delta-6 vertical horizontal orientation. H. has a more elements even than distribution A-TACS of FG Camo’s similarities between Duke Aff. ¶¶ 82-92. Ghostex Delta-1 Cramer identifies the following as Ghostex Delta-1, Ex. N, and A-TACS FG Camo, Ex. C: an area where the brightest color is next to the second-brightest color with the darkest color creating a shadow; two areas with the secondbrightest color next to the third-brightest color; an area with the same configuration; an area with the macro pattern bending down at an angle with different shadows; an area with a dominant 8 leaf color next to a dark color with a shadow; three other areas with similar configurations, and density within 5-10%. Dep. 220:13-224:22. Digital points out the Cramer following as differences: Ghostex Delta-1 uses four solid colors with fader pixels and has more dark brown to green than A-TACS FG Camo’s 12-color blend from light to dark green/brown; A-TACS FG Camo has softer edges and more blended round shapes; Ghostex Delta-1 is more closed in with greater density than A-TACS FG Camo; and Ghostex Delta-1 has a more even distribution of horizontal and vertical elements than A-TACS FG Camo’s horizontal orientation. Duke Aff. ¶¶ 38-48. I. Ghostex Alpha-3 Cramer identifies the following as similarities between Ghostex Alpha-3, Ex. M, and A-TACS FG Camo, Ex. C: horizontal flow; density within 5-10%; areas where the lightest color is “feathered” so that colors flow together; areas with dark areas being shadowed by the darkest area; two areas with bright area transitions down to dark areas; and some soft blended edges. Cramer Dep. 225:14-228:1. differences: Ghostex Digital points out the following as Alpha-3 uses six colors blended with dithering effects and has closer tones of green, brown, and tan compared to A-TACS FG Camo’s 12-color blend with broader contrast from light to dark green/brown; Ghostex Alpha-3 uses pixilation and circular swirled distortion in contrast to A-TACS 9 FG Camo’s soft and round edged shapes; Ghostex Alpha-3 is more closed in with greater density than A-TACS FG Camo; and Ghostex Alpha-3 has a more even distribution of horizontal and vertical elements than A-TACS FG Camo’s horizontal orientation. Duke Aff. ¶¶ 126-36. DISCUSSION To establish copyright infringement, HyperStealth must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Absent direct proof of copying, HyperStealth may prove copying by demonstrating that (1) Digital had access to HyperStealth’s patterns and (2) Digital’s pattern is substantially similar to HyperStealth’s patterns. Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008). summary judgment, Digital maintains In its motion for that no reasonable factfinder could conclude that its A-TACS FG Camo pattern is substantially similar to any of HyperStealth’s copyrighted patterns. Because the substantial similarity issue often involves subjective determinations, summary judgment is not appropriate unless (1) “the similarity between two works concerns only noncopyrightable instructed, elements” could find or (2) that “no the 10 reasonable two works are jury, properly substantially similar.” Peter Letterese & Assocs., Inc. v. World Inst. of Scientology (internal Enters., quotation 533 F.3d marks 1287, omitted); 1302 (11th accord Beal Cir. v. 2008) Paramount Pictures Corp., 20 F.3d 454, 459, 460 n.4 (11th Cir. 1994). In identifying non-copyrightable elements from those protected by copyright, “copyright protection does not extend to ideas but only to particular expressions of ideas.” 1224 (citing 17 U.S.C. § 102(b)). similarity test, “whether an Oravec, 527 F.3d at Therefore, the substantial average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work,” is applied only to elements of protectable expression. 1308, Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1315-16 (11th Cir. 2010) (internal quotation marks omitted). The Court has thoroughly reviewed Digital’s A-TACS FG Camo pattern side by side with each of HyperStealth’s nine patterns as well as pointing to the video specific deposition parts of testimony both depicting parties’ describing what he finds similar about them. comparisons, the Court has separated elements from the protected ones. out Cramer patterns and In making its the unprotected Based on these comparisons, the Court finds that a genuine factual dispute exists as to whether substantial similarity in 11 protected expression exists between pattern. HyperStealth’s patterns and Digital’s A-TACS FG Camo Therefore, summary judgment must be denied. In its reply brief, Digital argues for the first time that even if HyperStealth raises a genuine issue of material fact as to substantial similarity, Digital would still be entitled to summary judgment based on its evidence of independent creation. “[P]roof of access and substantial similarity raises only a presumption of copying,” and that presumption can be rebutted “with evidence of independent creation.” Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982). party When evidence of independent creation is presented, the claiming infringement copying in fact occurred. has the burden of proving that Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1375 (5th Cir. 1981). 5 In support of its independent creation defense, Digital relies upon Duke’s testimony and a video reenactment purportedly showing the steps Duke took to create the pattern. Duke Aff. ¶ 11-34, ECF No. 42; Duke Dep. 16:13-16, ECF No. 38; Pl.’s Mot. for Summ. J. Ex. I, Duke’s Video, ECF No. 34-4, filed manually with the Court. HyperStealth evidence that This evidence, however, is not uncontested. disputes Digital Duke’s in testimony fact 5 copied with the circumstantial patterns from In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 12 HyperStealth’s website. Digital’s IP address is a “top 30 visitor” of HyperStealth’s website, totaling 124 visits and 61 megabytes of information downloaded, for the three months prior to Digital’s 2011. creating its A-TACS FG Camo pattern in October Cramer Decl. ¶ 14, ECF No. 55; Def.’s Resp. in Opp’n to Pl.’s Mot. for Summ. J. Ex. K, Email Hargrove (Feb. 14, 2013), ECF No. 58-12. from S. Werner to T. Duke admits to having seen a page of HyperStealth’s website in 2010 when his partner Hanks showed it to him, Duke 30(b)(6) Dep. 66:19-67:24, ECF No. 39, and Hanks admits to having visited the website on a daily basis since 2010 for market research, Pl.’s Mot. for Summ. J. Ex. A, reasonable Hanks Aff. inferences ¶ in 10, ECF No. HyperStealth’s 34-2. Construing favor as required all at this stage of the proceedings, the Court finds that a jury could disbelieve Duke and/or Hanks and reasonably conclude that Duke saw HyperStealth’s patterns on its website and copied them. A jury could also conclude that Hanks saw HyperStealth’s patterns and used his “market A-TACS FG Camo pattern. research” in the creation of Digital’s Genuine factual disputes exist on these issues. HyperStealth proves Duke also disputes independently that created the video Digital’s reenactment pattern. HyperStealth argues that a reasonable jury could find that Duke missed several steps in his demonstration 13 and that these omissions cast doubt upon his contentions regarding independent creation. For example, superimposed images and Duke dropped did out not show backgrounds before putting the processed pictures together. the in way he Photoshop Def.’s Resp. in Opp’n to Pl.’s Mot. for Summ. J. Ex. G, Duke 30(b)(6) Dep. 220:24-221:15, ECF No. 58-8. Nor did he show the several steps he went through to apply filters, select image sizes, or select how layers overlapped. in the evidence Id. at 222:16-223:10. further demonstrate that These conflicts genuine factual disputes exist regarding Digital’s independent creation defense. Accordingly, summary judgment is not appropriate. CONCLUSION For the reasons explained in this Order, Digital’s Motion for Summary Judgment (ECF No. 34) is denied. IT IS SO ORDERED, this 19th day of November, 2013. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 14

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