Citation Edit

Montgomery v. Noga, 168 F.2d 1282 (11th Cir. 1999) (full-text).

Factual Background Edit

Plaintiff, Robert Montgomery, is the author of VPIC, a computer program that displays pictures on a computer screen. He did not register his copyright when he marketed the early versions of VPIC and did not affix a copyright notice when he marketed the early versions on computer bulletin boards.

Defendants, Florida Lion's Den, Inc. ("FLD") and Rebecca L. Noga (FLD's president and sole shareholder), manufactured CD-ROM discs that are largely pornographic. In 1992, the defendants and FLD vice-president Blaine Richard downloaded VPIC version 4.3 and copied it onto their CD-ROMs – without obtaining a license from Montgomery.

When Montgomery learned of the defendants’ unauthorized use of his program, he and his licensing agent sent a letter demanding that they cease and desist from using VPIC on FLD products, that they recall all unsold products containing VPIC, and that they pay damages for their unauthorized use.

However, the defendants did not respond to Montgomery’s demands, so Montgomery filed a complaint against them in the district court in October 1993. The complaint sought (1) damages and (2) injunctive relief for infringement of Montgomery’s copyright and (3) violation of section 43(a) of the Lanham Act, 15 U.S.C. §1125(a).

In November 1993, Montgomery obtained a preliminary injunction against the defendants, enjoining them from using VPIC in FLD products. In March 1995, the case went to trial before a jury. The jury found in favor of Montgomery on both claims.

The district court entered judgment against the defendants because the jury found them liable for infringing the plaintiff’s copyright in the computer program and for violating section 43(a) of the Lanham Act. The defendants appealed.

Appellate Court Proceedings Edit

For a copyright infringement claim, the plaintiff must prove two elements in order to prevail: (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original (Feist v. Rural Telephone). Montgomery succeeded on showing both elements.

(1) On appeal, the defendants argued against the appropriateness of Montgomery’s copyright infringement claim on two grounds: (a) that Montgomery did not own a valid copyright in VPIC 2.9a and (b) that the scope of his copyright registration for VPIC does not extend to support the commencement of an action for infringement of his unregistered copyright in the version of VPIC that the defendants incorporated. The district court rejected both of these arguments.
(2) The second element of copying was not in dispute.

Furthermore, the defendants were not able to meet their burden of showing that “the work in which copyright is claimed is unprotectable (for lack of originality) or, more specifically, to prove that… the copyrighted work actually taken is unworthy of copyright protection.” (Bateman v. Mnemonics).

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