OAKLAND, Calif. (CN) — Disney still faces potential liability in another lawsuit from a tech company that claims the entertainment giant used motion capture technology leaked by a former employee to help make more than one film in their Marvel film franchise.
U.S. District Judge Jon Tigar said in a 17-page order Thursday that the plaintiff’s claim for vicarious and contributory copyright infringement fails because it did not prove that Disney’s animation of the character Thanos used Reardon's MOVA Contour “facial performance motion capture” technology in a secondary copyright infringement.
Tigar has dismissed a number of similar claims brought by San Francisco based tech company Rearden against Disney since 2017, when Rearden first accused Disney of using the tech in their "Avengers" movies, though the judge allowed Thursday for the plaintiffs’ claims of patent infringement to stand based on the evidence.
Rearden claims that Disney got access to the facial performance motion capture tech — which involves using phosphorescent makeup on actors’ faces and synchronized cameras and software to transform the curves, expressions and movements of human faces into lifelike animations — by contracting a company, DD3, that employed former Rearden employee Greg LaSalle.
LaSalle is accused of having illegally sold the technology to a Chinese company in 2012 before he left to work for DD3 in 2013. Disney contracted with DD3 to create lifelike animated characters for hit films including “Avengers: Age of Ultron” in 2015 and “Guardians of the Galaxy” in 2014.
Rearden asserts secondary infringement in "Avengers: Infinity War" and "Avengers: Endgame," which both began filming after Tigar preliminarily prevented DD3 from using MOVA. It also claims Disney is secondarily liable for copyright infringement because DD3 purportedly smuggled MOVA software files into its post-capture animation work.
Tigar said that Rearden’s new claims regarding the "Ruffalo Maya File" and the "Ebony Maw Screenshot" are insufficient to hold up its claim of DD3’s direct copyright infringement “beyond a speculative level.”
“Allegations that a Maya file of the Ebony Maw character used the word ‘mova’ in its naming conventions, without more, is insufficient to establish a reasonable inference that the file itself contained MOVA source code, or that DD3’s Masquerade software copied ‘substantial amounts’ of MOVA source code,” Tigar said.
Tigar, however, allowed the claim for patent infringement to stand.
He cited Rearden’s amended claim which now specified terms such as “correspond to similar facial expressions of a performer’s face from a second facial performance” in the patent that it was referring to in order to show how its patent may have been infringed upon.
He said Disney's argument that pixel-wise cross-correlation algorithms are well-known in the industry, and Rearden's argument that its patented technology specifically applied these algorithms to the field of facial motion capture, "cannot be resolved on a motion to dismiss."
However, the judge added that he was not convinced that it would be futile to allow Rearden to try to amend its copyright infringement claim one more time. He noted that Disney did not dispute that “Rearden still has not received documents in DD3’s possession from the Ownership Litigation that could show additional relevant acts of direct infringement.”
Attorneys for Disney did not immediately respond to requests for comment. Rearden attorney Josh Masur declined to comment.
Rearden has 21 days to file an amended complaint to improve its copyright infringement claim, and stipulate to get additional information DD3 if needed.
In January 2023, the judge was asked to determine if the case would go to trial, but he instead granted Disney’s motion to dismiss Rearden’s prior amended complaint without prejudice — leaving the case open for amending claims.
Later that year, the judge handled a separate case pertaining only to the use of MOVA technology to make the 2017 film “Beauty and the Beast.” Following a trial, an Oakland jury decided that Disney owed Rearden $596,000 over the vicarious liability copyright breach.
Follow @nhanson_reports
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Southern California bird smuggler sentenced to time served April 12, 2024 -
Libel liability April 12, 2024