Rob Smeltzer, a partner in Lowis & Gellen's Chicago office, and Deb O'Brien of the firm's Orlando office, along with the support of associate Ethan Hayward, recently obtained a not guilty verdict defending a surgeon in a highly publicized copyright claim in the U.S. District Court for the Middle District of Florida. The hotly contested case involved a multiple-count complaint concerning the ownership of an internet domain name and of web site content written by our client during his employment in a medical facility.
After leaving the medical facility to start his own business, the surgeon transferred the domain name and modified the content of the website to promote his new practice. Mr. Smeltzer and Ms. O’Brien contended that the surgeon had not created the website content "in the scope of his employment" with the medical facility and that, as the original registrant of the domain name, the surgeon owned it.
Mr. Smeltzer and Ms. O'Brien successfully dismissed two of the ten counts in the complaint before the trial, and another two after the jury verdict. And although the jury originally found that the medical facility (and not the surgeon) had owned and paid for the domain name and copyrighted web site content, the jury ultimately found for the surgeon on the basis that Plaintiff's copyright registration in the web site was invalid because it had been obtained fraudulently from the Copyright Office. Obtaining a verdict on this basis is extremely rare and resulted in a winning verdict for our client on the key copyright count at issue.
Although the jury did find in Plaintiff's favor on several other counts of the complaint, Mr. Smeltzer and Ms. O'Brien were able to manage the surgeon's risk by attacking Plaintiff's damages claims and the importance of the website in driving patients to the client's cosmetic surgery practice.
In the end, the jury awarded Plaintiff only $90,000 of the more than $5 million dollars sought. Significantly, however, due to the prevailing party attorneys' fees provisions of the Copyright Act, as well as our lawyers’ pre-trial use of the federal offer of judgment statute (Federal Rule of Civil Procedure 68), we are now pursuing a net recovery in the surgeon's favor. Moreover, the extremely favorable result was obtained at a cost that was less than one-third of Plaintiff's costs. For further information about the case, or Lowis & Gellen's national intellectual property practice, please contact Rob Smeltzer (rsmeltzer@lowis-gellen.com)
