Mullen v. Society of Stage Directors & Choreographers, No. 06 C 6818, 2007 WL 2892654 (N.D. Ill. Sep. 30, 2007) (Coar, J.).
Judge Coar granted in part defendant United Scenic Artists’ (“USA”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiffs’ declaratory judgment (“DJ”) claims and denied all defendants’ motions seeking dismissal of plaintiffs’ defamation claim. Plaintiffs are the various production heads of the Chicago production of the musical “Urinetown!” (“Chicago Production”). The Chicago Production was performed pursuant to a license from Blue Dog Entertainment, LLC. But despite that license, plaintiffs each received a cease and desist letter from counsel for defendants (the heads of production of the Broadway Urinetown! production (“Broadway Production”) and their unions USA and the Society of Stage Directors & Choreographers (“SSDC”). The letter warned that plaintiffs willfully copied copyrighted aspects of the Broadway Production and attempted to pass off the Chicago Production as the award-winning Broadway Production. Defendants demanded an accounting of revenues from the Chicago Production in order to calculate damages. Defendants also held a press conference during which they publicly stated that the plaintiffs “plagiarized” the Broadway Production. Plaintiffs responded by filing suit seeking declaratory judgments that the Chicago Production did not infringe any of plaintiffs’ copyrights and that it was not Lanham Act passing off. And based upon the press conference, plaintiffs included a defamation claim.
The Court dismissed plaintiffs’ copyright infringement DJ claim against USA because USA held no copyrights related to Urinetown! or the Broadway Production. So, USA could not have filed a copyright infringement action against plaintiffs. The Court also dismissed plaintiffs’ Lanham Act DJ claim against USA. While USA may have been able to show the generalized harm necessary for prudential standing based upon the alleged harm to its members who produced the Broadway Production, it could not show the specific injury required for Article III standing, because that alleged injury was to its members not USA.
The Court, however, denied the defendants’ Rule 12(b)(6) motion to dismiss and Fed. R. Civ. P. 12(c) motion for judgment on the pleadings regarding plaintiffs’ defamation claim. First, defamation claims do not trigger the Fed. R. Civ. P. 9(b) heightened pleading standards because they do not involve fraud or mistake. Second, defendants’ alleged wrongful accusation that plaintiffs plagiarized the Broadway Production is defamation per se because originality and integrity are core values of theatre:
It is beyond doubt that statements consisting of false accusations of plagiarism against professionals in industries where the measure of the quality of work centers on creativity, originality and integrity (i.e. – authors, journalists, artists, thespians, publishers, producers and directors of fine arts productions, etc.) are capable of imputing such persons lack ability or otherwise prejudice such persons in their professions.
Furthermore, the Court held that it was “absurd” to argue that “plagiarism” had an innocent meaning:
[Plagiarism] is not capable of any meaning that would not impugn Plaintiffs’ ability or not prejudice them in their profession.

Continue Reading Plagiarism is Defamation Per Se

Black & Decker, Inc. v. Robert Bosch Tool Corp., No. 06 C 4440, 2007 WL 1232089 (N.D. Ill. Apr. 25, 2007) (Manning, J.).
Judge Manning granted defendant’s, Robert Bosch Tool Corp. (“Bosch”) Fed. R. Civ. P. 12(c) motion for judgment on the pleadings, holding that plaintiff’s, Black & Decker (“B&D”), patent infringement claims against Bosch’s new product regarding B&D’s previously asserted patents were barred by res judicata. In the prior case before Judge St. Eve (you can see numerous prior opinions in the Blog’s archives), B&D asserted that two models of Bosch’s Power Box radio (the “Old Power Box”) infringed B&D’s two patents (the “Old Patents”). Shortly before trial, B&D brought the instant suit against Bosch asserting that Bosch’s new model of its Power Box radio (the “New Power Box”) infringed a third patent (the “New Patent”). At about the same time, B&D sought to be able to present evidence at trial before Judge St. Eve that the New Power Box infringed the Old Patents. Judge St. Eve, however, held that B&D had not disclosed the New Power Box as an accused product and that Bosch would be prejudiced by adding it immediately before trial. In St. Eve’s case, the jury returned a verdict that the Old Power Boxes willfully infringed certain claims of the Old Patents.

Continue Reading Infringement Verdict on Old Product Precludes Suit on New Product