DIGITAL CONCEALMENT SYSTEMS LLC v. HYPERSTEALTH BIOTECHNOLOGY CORP
Filing
70
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DIGITAL
LLC,
CONCEALMENT
SYSTEMS, *
*
Plaintiff,
*
vs.
CASE NO. 4:11-CV-195 (CDL)
*
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
1
reaching
this
decision,
the
Court
did
not
rely
on
the
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.
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.
Pl.’s
creating
its
A-TACS
FG
Camo
pattern
in
October
Cramer Decl. ¶ 14, ECF No. 55; Def.’s Resp. in Opp’n to
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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