Facts
The plaintiffs, Karen Dudnikov and Michael Meadors, were “power sellers” on eBay, dealing in a variety of fabrics and handmade crafts. One of the fabrics they listed for auction made a play upon famous works by the artist Erté titled Symphony in Black and Ebony on White (sic). The original artwork portrayed an elegant woman with a sleek dog upon a leash. The fabric sold by Dudnikov portrayed Betty Boop with her dog, “Pudgy,” in a similar pose. Defendant Chalk & Vermilion Fine Arts, Inc. is the American Agent for British corporation SevenArts, who owns the copyright for the Erte works of interest. Upon discovering the sale of the Betty Boop fabric, Chalk & Vermilion filed a request with eBay through their Verified Rights Owner Program (“VeRO”) for a notice of claimed infringement. Under this program, eBay will terminate an item’s auction when it receives such a notice from a VeRO member, who certifies under penalty of perjury that it believes an item infringes its copyright. After receiving the NOCI notice from eBay canceling the auction, Dudnikov contacted Chalk & Vermilion and SevenArts to request that the NOCI be withdrawn, offering to refrain from relisting the disputed item. She was concerned that an NOCI filing would leave a black mark on her eBay reputation. SevenArts refused to withdraw the notice, prompting Dudnikov to challenge SevenArts’ copyright claim with eBay. SevenArts responded by notifying Dudnikov that it intended to file a federal court action within ten days. Before SevenArts took the legal action they threatened, the plaintiffs in this case filed for a declaratory judgment that the contested fabric portraying Betty Boop did not infringe upon SevenArts’ copyright.
Read more about this topic: Dudnikov V. Chalk & Vermilion
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