In a later opinion, one of the defendants, Techny Advisors, moved to dismiss the
plaintiff’s claims for copyright infringement and for removal of and use of false CMI in
connection with Techny’s gift product titled “On Your Confirmation Day,” which the plaintiff
alleged copied a one sentence verse from one of its products reading, “May the strength of the
Holy Spirit be with you, guiding you every day of your life.” The court dismissed the copyright
infringement claim on the ground that the verse was not copyrightable.^1382 With respect to its
CMI claims, the plaintiff identified three purported CMI that Techny removed when it copied the
verse: the http://www.poetrygift.com name affiliated with the poems on the plaintiff’s site, the title of
the work (“On Your Confirmation Day”), and the copyright notice on every page of the
plaintiff’s web site. The court ruled that none of these three elements constituted CMI for very
similar reasons as in the earlier opinion – the http://www.poetrygift.com was merely the name of the
seller of the product and conveyed nothing about the copyright status of the product; the title of
the work was not CMI because it was not the same as the title of the registered work in which the
plaintiff claimed a copyright; and the copyright notice on each page of the plaintiff’s web site
was not within the body of or around the copyrighted verses so as to clearly pertain to the
plaintiff’s poems, rather than the web site itself.^1383
The court also dismissed the plaintiff’s claim of false CMI against Techny. The plaintiff
based the false CMI claim on the allegation that Techny posted a notice attributing copyright
ownership in the infringed works to http://www.giftsforyounow.com or some other web sites as the
copyright claimant. The court noted, however, that such copyright notice was not close to the
poems on Techny’s web site, but rather was at the bottom of every page of the web site in the
generic web site footer. It was therefore not “conveyed with” the poems that were allegedly
copied and could therefore not constitute false CMI with respect to the poems.^1384 “Even if
Techny were guilty of copying, it would not be liable for displaying false CMI for placing a
generic copyright notice on the bottom of its webpage and not on each individual short
phrase.”^1385
l. Frost-Tsuji Architects v. Highway InnIn Frost-Tsuji Architects v. Highway Inn, Inc.,^1386 the plaintiff Frost-Tsuji Architects
(FTA) was hired by Highway Inn to design and oversee the development of a restaurant in
Honolulu. Highway Inn terminated its relationship with FTA and hired another architect.
Another contractor, Bargreen Ellingson, was the kitchen equipment designer and contractor for
Highway Inn’s restaurant. FTA prepared a design for the kitchen of the restaurant and
transmitted a CAD file for the kitchen to Highway Inn. Bargreen Ellingson used this CAD file to
create at least 12 versions of CAD drawings. FTA alleged that Bargreen Ellingson intentionally
(^1382) Personal Keepsakes, Inc. v. Personalizationmall.com, Inc., 975 F. Supp. 2d 920, 922 & 924-25 (N.D. Ill. 2013).
(^1383) Id. at 928-29.
(^1384) Id. at 929.
(^1385) Id.
(^1386) 2014 U.S. Dist. LEXIS 157560 (D. Haw. Nov. 7, 2014).