I've been meaning to post this for a while, but I haven't got around to it.



Law360, Los Angeles (April 23, 2015, 6:53 PM ET) -- A California federal judge on Thursday trimmed a toymaker’s suit alleging Viacom Inc. and toy manufacturer Spin Master Ltd. stole his idea for a team of talking rescue dogs with their “Paw Patrol” cartoon, saying federal copyright law preempted a Florida state law misappropriation claim against the toy company.

At a hearing in Los Angeles, U.S. District Judge George Wu issued a written tentative ruling indicating he would toss plaintiff Richard Postman’s Florida claim against Canadian toy maker Spin Master Ltd. on two grounds — the first, that Postman had only alleged infringement of his actual copyrighted material, not the underlying idea, and second, that Florida law now requires a misappropriation of idea claim to be backed up by evidence of a written agreement between the parties about the use of the idea, which Postman failed to provide.

Postman brought the Florida claim against Spin Master only, and Judge Wu's ruling did not affect Postman's federal copyright infringement claims against Spin Master and Viacom.

Judge Wu did, however, acknowledge that it appeared feasible for Postman to allege that Spin Master stole the underlying idea of a team of talking rescue dogs — which he had pitched to the company — that exists outside of his copyright, if he could show the parties had a written agreement the toy company wasn’t living up to.

Eileen M. Ahern of Willenken Wilson Loh & Delgado LLP, representing Postman, told Judge Wu that, after having deposed some of the individuals involved in Postman’s pitch, the plaintiff would be able to show that Spin Master had agreed not to use his work without paying him.

Judge Wu noted that the set of emails with Spin Master that were attached to Postman’s complaint had not sufficed to show an agreement, but offered Postman one more shot at the misappropriation claim and granted leave to amend.

“It’s either sufficient next time or not sufficient next time,” he said. “I’ll give plaintiffs one more opportunity… you either have it or you don’t.”

Postman sued in July 2014, alleging he had years earlier pitched an idea to Spin Master envisioning a cartoon based on a group of anthropomorphic dogs — including a fire dog, police dog and search dog — called “K-9 Heroes” that would also be sold as plush toys. Postman alleges that he shared the idea with Spin Master and Matthew Wexler, co-head of Spin Master’s production studio subsidiary, but that they eventually stopped returning his calls.

Postman claimed he came up with the idea for “K-9 Heroes” after watching bomb-sniffing dogs work at Ground Zero following the terrorist attacks on the World Trade Center. He devised a team of dogs representing firefighters, police, emergency medical services workers, the military, and search and rescue teams. The dogs used various gadgets, including radio collars, to talk to a central command center, according to the complaint.

After selling stuffed animals of the characters, which he copyrighted and trademarked, Postman allegedly approached Spin Master to distribute the toys and later suggested developing a cartoon show to boost sales. Postman pitched the idea to Wexler in 2006, sending detailed drawings and scripts, but was told to check back in a year, the complaint said.

In 2013, six years after Postman last spoke with Spin Master, Viacom unit Nickelodeon aired the first episode of “Paw Patrol,” which was produced by Spin Master and Wexler, according to the suit.

Like Postman’s pitch, “Paw Patrol” centers on a team of heroic, anthropomorphic dogs led by a tech-savvy human boy, according to the suit. Some of the characters are “near mirror images” of Postman’s, the suit said, referring to the police and fire dogs on both teams.

The suit seeks unspecified damages, along with a judicial order barring “Paw Patrol” and its associated toys.

Postman is represented by Eileen M. Ahern, William A. Delgado, Jason Wilson and Rebecca T. Green of Willenken Wilson Loh & Delgado LLP and Ekwan E. Rhow, Paul S. Chan and Scott L. Goldman of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC.

Spin Master is represented by Bobby Ghajar, Carolyn S. Toto and Kelly W. Craven of Pillsbury Winthrop Shaw Pittman LLP. Viacom is represented by Philip M. Kelly and Richard M. Simon of Kendall Brill & Klieger LLP.

The case is Richard Postman v. Spin Master Ltd. et al., case number 2:14-cv-05516, in the U.S. District Court for the Central District of California.

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