Vondran Legal® - Copyright Infringement Litigation Updates - Fireworks packaging.  If you or your company are involved in a copyright dispute, mediation, arbitration or litigation, call us at (877) 276-5084.  

Introduction

Copyright protects images, cartoons, artwork, illustrations and other creative works of authorship. In this Vondran Legal® copyright case brief we discuss a federal court case in the Middle District of Pennsylvania involving a fireworks company accused of using really cool and creative artwork for product packaging used to sell their products online.

QUICK SUMMARY: Plaintiff Flyland Designs, Inc., has brought suit in the Northern District of Georgia for violations of exclusive rights under the Copyright Act, 17 U.S.C. §§ 106 and 1202, in relation to Defendant Jake's Fireworks, Inc.'s packaging. Flyland Designs, Inc., is the exclusive licensee of freelance graphic artist Brian Allen, who creates artworks for various businesses. Plaintiff accuses Defendant of importing, distributing, selling, displaying, and creating derivative works of Mr. Allen's copyrighted designs on fireworks packaging and on other merchandise, including tee-shirts. The Complaint brings counts for copyright infringement and removal of copyright management information, and seeks injunction, statutory damages or profits, fees, costs, and interest.

Allegations in complaint

SUMMARY OF THE ACTION

1. Plaintiff FLYLAND DESIGNS, INC. (“Flyland”) brings this action for violations of exclusive rights under the Copyright Act, 17 U.S.C. §§ 106 and 1202, to copy and distribute Flyland's original copyrighted Works of authorship.

2. Plaintiff Flyland is a Pennsylvania based graphic artist studio founded in 2006 by Brian Allen. Allen is a freelance artist, illustrator and creative director who has worked with a variety of brands such as Metallica, Hulk Hogan, and Activision. Allen's artwork contains both light and dark themes. Brian Allen creates artworks for advertising agencies, music bands, apparel companies, restaurants, motorcycle graphic distributors, packaging design firms, startups, magazines, and publishers. Allen artwork has been featured in Out of Step Books, Showcase 100 art book and exhibit 2015, and has won awards such as, Little Chimp Coin for Excellence 2015 and Claire Dahlia Art Award of Excellence.

3. Defendant Bigg Daddy's Fireworks, Inc. (“Bigg Daddy”) is a fireworks store located in New Milford, PA.

4. Defendant Garrett's Worldwide Enterprises, LLC (“GWE”) is a wholesale importer and distributor of fireworks from China to the U.S., located in Osage City, KS.

5. GWE is owned and operated by its president Eric Garrett.

6. Defendants imported, distributed, sold, displayed and created derivative works of Flyland's copyrighted designs on the defendants' fireworks packaging without authorization from Flyland.

7. Defendants committed the violations alleged in connection with Defendants' business for purposes of advertising and promoting sales to the public in the court and scope of Defendants' businesses.

23. Defendants have never been licensed to import, use, publicly display or distribute
reproductions of the Works at issue in this action for any purpose.

24. On a date after the Works at issue in this action were created, but prior to the
filing of this action, Defendants copied, reproduced, imported, publicly displayed and/or
distributed the Works.

25. Bigg Daddy sells fireworks from its store in this district at 1615 Oliver Road,
New Milford, PA 18834 and on its internet website located at the URL
https://www.biggdaddysfireworks.com/.

26. Garrett and GWE imported fireworks from China into the U.S. that used, publicly
displayed, reproduced, and incorporated derivatives of Flyland's copyrighted works on the
fireworks packaging.

27. GWE and Garret sold, displayed, and distributed the fireworks that reproduced
Flyland's copyrighted works on the fireworks packaging from its locations in Kansas to Bigg
Daddy in Pennsylvania for resale in the State of Pennsylvania.

28. Bigg Daddy advertised, promoted, and resold the fireworks that reproduced
Flyland's copyrighted works on the fireworks packaging to third-parties.

29. The fireworks that reproduced Flyland's copyrighted works on the fireworks
packaging do not contain Flyland's copyright management information.

30. On or about January 10, 2023, Allen discovered the unauthorized use of Flyland's
Works on Bigg Daddy's website at https://bigg-daddys-fireworks.square.site/.

31. On or about January 21, 2023, Flyland caused test purchases to be made of
fireworks that reproduced Flyland's copyrighted works on the fireworks packaging at Bigg
Daddy's store in Pennsylvania.

32. Thereafter, Flyland discovered fireworks that reproduced Flyland's copyrighted
works on the fireworks packaging advertised and promoted for sale on GWE's website at
https://www.garrettsfireworks.com/.

33. Defendants committed copyright infringement of the Works as evidenced by the
documents attached hereto as Exhibit 4.

34. Flyland never gave Defendants permission or authority to import, publicly display
or distribute the Works at issue in this case.

35. When the Defendants copied and displayed the Works, they stripped Flyland's
copyright management information from the Works.

36. Flyland never gave any of the Defendants permission or authority to remove the
copyright management information from the Works.

COUNT I
COPYRIGHT INFRINGEMENT

37. Flyland incorporates the allegations of paragraphs 1 through 36 of this Complaint
as if fully set forth herein.

38. Flyland owns valid copyrights in the Works at issue in this case.

39. Flyland registered the Works at issue in this case with the Register of Copyrights
pursuant to 17 U.S.C. § 411(a).

40. Defendants copied, displayed and distributed the Works at issue in this case
without Flyland's authorization in violation of 17 U.S.C. § 501.

41. Defendants imported products containing infringing reproductions and derivatives
of the Works in violation of 17 U.S. Code § 602(a).

42. Defendants performed the acts alleged in the course and scope of its business
activities.

43. Defendant's acts were willful.

44. Flyland has been damaged.

45. The harm caused to Flyland has been irreparable.

COUNT II
REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION

46. Flyland incorporates the allegations of paragraphs 1 through 36 of this complaint
as it fully set forth herein.

47. The Works at issue in this case contain copyright management information
(“CMI”).

Exclusive Copyright Assignment Agreement

There was a copyright assignment agreement set forth in one of the exhibits to the complaint

EXCLUSIVE LICENSE AGREEMENT FOR THE ARTWORK 

This Exclusive Licensing Agreement (this “Agreement”) is made effective as of April 1,
2017, by and between Brian Michael Allen (“Artist”) and Flyland Designs, Inc. (hereinafter
referred to as “Licensee”). Artist and Licensee shall each be considered a “Party” to this
Agreement, and collectively, the “Parties” to this Agreement.

WHEREAS, Artist has created, and continues to create, illustrations, designs and other
artwork (the “Artwork”);
WHEREAS, Artist has registered and continues to register the Artwork with the US
Copyright Office under his name as artist and claimant.
WHEREAS, Artist operated under a sole proprietorship doing business as Flyland Designs
starting on or around March 1, 2012;
WHEREAS, Licensee is a Pennsylvania corporation that was organized for the primary
purpose of being the exclusive licensee of the Artwork and the successor of Artist's former sole
proprietorship; and
WHEREAS, Artist will continue to create Artwork as an individual, but wishes for
Licensee to be the exclusive licensee of all Artwork he has created and will create.

NOW, THEREFORE, in consideration of the mutual promises contained herein, the
receipt of which are hereby acknowledged and accepted, the Parties hereto agree as follows:

1. Grant of Exclusive License. Artist hereby appoints Licensee as Artist's sole and exclusive
licensee, as well as Artist's sole and exclusive agent and representative with respect to the
use and licensing of the Artwork. As such, Artist hereby grants to Licensee an unrestricted,
exclusive, worldwide license in and to the Artwork, with such license to include the
exclusive right to exercise all of Artist's rights under 17 U.S. Code § 106, including, but not
limited to:

a. The right to reproduce the Artwork in copies;
b. The right to prepare derivative works based upon the Artwork;
c. The right to distribute copies of the Artwork to the public by sale or other transfer
of ownership, or by rental, lease, or lending;
d. in the case of literary, musical, dramatic, and choreographic works, pantomimes,
and motion pictures and other audiovisual works, the right to perform the Artwork publicly;
and
e. in the case of literary, musical, dramatic, and choreographic works, pantomimes,
and pictorial, graphic, or sculptural works, including the individual images of a motion
picture or other audiovisual work, the right to display the Artwork publicly.

2. Exclusive Right to Sublicense. Licensee shall have the unrestricted, exclusive right to
distribute, license, and/or exploit the Artwork as Licensee may so decides in its best
judgement and in the best interest of the Artwork without first seeking special permission
from Artist to do so.

3. Restriction on Artist.
a. For the Term of this Agreement, Artist may not exercise any of the rights granted
to Licensee herein without Licensee's express permission and must otherwise refer all thirdparty opportunities to Licensee.
b. As between Artist and Licensee, only Licensee may authorize third parties to
exercise any of the rights granted to Licensee herein. All such authorizations must be in a
signed license agreement executed by Licensee.

4. Public Representations. Licensee may represent to third parties that it is the exclusive
Licensee of the Artwork and that it has the exclusive rights from Artist to sublicense its
rights to third parties.

5. Infringement Claims. The rights granted herein include all right, interest, and benefit of
Artist to enforce the copyrights in the Artwork in any claims of infringement or violation of
Artist's rights in the Artwork.

6. Term – the Term of this Agreement shall commence on the Effective Date and continue
until December 31, 2025. Thereafter, this Agreement shall automatically renew for
successive one (1) year terms (all part of the “Term” of this Agreement), until either Party
provides written notice at least thirty (30) days prior to the next renewal date.

7. Compensation. Licensee agrees to make payments to Artist in connection with the rights
granted herein as the Parties may agree to from time to time.

8. Representations and Warranties. Artist represents and warrants that, except as qualified
in the recitals, he owns the rights granted herein unencumbered by the claims of any third
party and no consents of any other parties are necessary or appropriate under any agreements
concerning any of the Artwork in order for the grant of rights under this Agreement to be
legally effective.

9. Choice of Law. This Agreement shall be governed by, and construed in accordance with,
United States and when applicable the law of the state of Pennsylvania. The parties
designate the State of Pennsylvania as the forum for resolution of all disputes between the
parties and grant the courts therein jurisdiction over themselves for these purposes.

10. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto together
with their respective legal representatives, successors, and assigns.

Contact a Federal Copyright Law Firm

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