Copyright, Trademark, Patent Dispute – Rearden LLC v. Twentieth Century Fox et al.

Spooled Up – Dave Fancher

Feature productions have a way of transporting viewers to an alternate reality. Whether it’s watching a superhero transform or immersing yourself in outer space, motion pictures have continuously been able to suspend our imagination, thanks in part to evolving technology like MOVA. MOVA Contour Facial Capture is a highly advanced technology that converts images of human movement into realistic computer-generated images to be used for motion pictures and video games.¹

Rearden LLC, owner of MOVA technology, recently filed suit against major powerhouse studios Twentieth Century Fox, Paramount Pictures, and Walt Disney Company claiming violations in copyright, trademark and patent for the alleged unauthorized use of MOVA technology.² Rearden claims that Fox used MOVA for multiple films that have been publicly released including “Deadpool” and “Fantastic Four,” and likewise that Paramount used MOVA for “Terminator: Genysis.”³  Rearden has sought an injunction to stop the studios from producing and distributing these films as well as the destruction of all known copies.⁴

Since its public release in 2006, MOVA technology has been used in major films such as “The Curious Case of Benjamin Button” and “Gravity.”⁵ Rearden claims that a former employee purportedly transferred confidential MOVA technology to other companies.⁶ This, Rearden claims, resulted in Fox, Paramount and Disney contracting with entities that were illegitimately using MOVA technology.⁷

Rearden’s copyright infringement claim is based on an argument that the author of software retains ownership of the output files.⁸ Fox, Paramount and Disney rebut this argument stating that the unique human input invested in the software, which includes direction from film producers, creates a work that Rearden does not own or have control over and therefore there is no infringement.⁹ If the court in this case remains consistent with previous holdings from similar disputes, there is a good chance that the studios will prevail on this argument.¹⁰ For example, in the preceding case, Burrow Giles Lithographic Co. v. Sarony, the court agreed with the defendant’s position that, “a person who arranges the pictures, not the creator of the recording equipment, is the author of the resulting fixed images.”¹¹

In addition to copyright infringement, Rearden also makes trademark and patent infringement arguments.¹² Rearden states that the aforementioned studios used MOVA technology in their films but did not give MOVA recognition during film credits.¹³ Instead of crediting the registered trademark MOVA, credit was given to Digital Domain.¹⁴ The final claim Rearden makes revolves around its patents.¹⁵ In particular, Rearden asserts that Disney knew that Rearden owned the patents to MOVA and contracted with companies who were illegitimately using MOVA anyway.¹⁶ Under § 271(b), a patent owner can recover from a party for indirect infringement if the party knew the patent existed prior and contributed to another’s infringement.¹⁷ In this case, Rearden would bear the burden of proving that Disney had knowledge that the patent for MOVA belonged to Rearden and that the patent had not been licensed to any other entity.

Although it may take time to see the results of this lawsuit, it will be interesting to see the implications it has on intellectual property law, especially with regard to the copyright argument regarding software output and authorship.