Devoted to Corporate Attorneys, Corporate Lawyers, and Corporate Counsel

The First Circuit today issued an amusing opinion in Cipes v. Mikasa, Inc., a copyright infringement case. Cipes, a photographer, took pictures that Mikasa used in advertisements. He copyrighted his photographs. Mikasa paid a flat fee in addition to a reuse fee, if it placed a photograph in a national publication.

When a  dispute arose between the parties over the reuse fees, Cipes sent Mikasa a letter that eliminated the reuse fees for photographs taken in 1999. Mikasa never responded, but kept buying Cipes' photographs. The parties decided to part company, after Cipes demanded reuse fees for 2000 and 2001 and Mikasa refused to pay them. After Mikasa continued  to use Cipes' photographs, Cipes filed a lawsuit alleging copyright infringement and breach of contract.

The jury found in Cipes' favor on the copyright infringement, but against him on the contract claim. Mikasa moved for judgment as a matter of law or, in the alternative, for a new trial. It asserted various claims of error, arguing, among other things, that the copyright infringement award was inconsistent with the jury's findings on the contract claim. The district court denied the motion. Mikasa appealed. In its opening brief, Mikasa asserted several claims of error. After reviewing Cipes' response to its brief, Mikasa identified two new errors. Then, at oral argument, Mikasa gave up on all but one of its claims of error. It focused on a minor procedural error committed by the district court--an error to which Mikasa failed to object at trial.

Needless to say, the appeal didn't go well for Mikasa. The opinion makes interesting reading, though. I especially like the line that starts, "Straining at gnats while asking us to swallow a camel, Mikasa's appellate counsel also hypothesizes . . ."