Is it possible that some of the entertainment industry's biggest blockbusters from the past decade — Guardians of the Galaxy, Avengers: Age of Ultron and Deadpool, among others — could be wiped from this Earth? That might sound an outlandish and alarmist prospect, but one VFX firm is alleging that Hollywood has used "stolen" facial motion-capture technology and is demanding that these motion pictures literally be impounded and destroyed. On Monday, a federal judge gave this plaintiff a green light to go after Disney, Paramount and Fox for vicarious and contributory copyright infringement.
"Here, the Studios are more similarly situated to the swap meet operator and Napster," writes Tigar in his order Monday. "Rearden alleges that DD3 provided services pursuant to contracts that gave each studio 'the unrestricted right to cancel any portion of the Services.' Thus, Rearden alleges that the Studios had the right to prevent DD3 from engaging in the infringing activity because they had the unrestricted right to cancel the use of the MOVA Contour program. Unlike in Amazon.com, where Google only had the right to terminate the Adsense partnership — which would not have stopped direct infringement by third parties — the studios could have ended the direct infringement by cancelling the use of the MOVA Contour program."
The judge also says that Rearden has, at least at this stage, made a plausible showing that the studios received direct financial benefit in exploitation of Rearden's copyright in the Contour program.
The decision represents a blow to the studios, which had warned the judge of consequences. Repeatedly throughout the litigation, for instance, defendants' attorney highlighted how under plaintiff's theories, Microsoft could be deemed the owner of what authors create in Word. The use of technology shouldn't add up to infringement, argued Kelly Klaus of Munger Tolles & Olson.
