United States v. Kim, 07-15925, 2009 WL 59151 (11th Cir. Jan 12, 2009).

Back story on this case can be found here.  This past Monday, an 11th Circuit panel affirmed the conviction of Steve Kim, and his father, Muza Kim, for criminal copyright infringement.  The Kims were convicted for the production and distribution of shirts that included depictions of “Fat Albert,” without the permission of Bill Cosby, in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1).

The defendants argued that no reasonable jury could reach the finding that they were guilty beyond a reasonable doubt, given the insufficient evidence presented at trial.  The Kims forwarded that the images at issue were too dissimilar with those of “Fat Albert”: the image on their shirts wore a dew rag, jewelry, and “portray[ed] a persona very different than the clean-cut, friendly Fat Albert persona.”  The Court rejected the argument stating that the jury could find infringement even if the images differed, and the fact that Cosby was unlikely to grant the Kims a license was not a “legal-bar.”

The Kims also argued that the evidence presented at trial was insufficient to show that their infringement was “willful.”  The Panel rejected this argument, and cited the defendants’ positions in their company, Steve was Vice President and Art Director, and Muza was President, Chief Executive Officer and Chief Financial Officer.  The DOJ had also presented evidence of Steve’s 1999 conviction on criminal trademark counterfeiting, under Federal Rule of Evidence 404(b), and evidence of statements Muza made to buyers showing his awareness of the “unlawfulness” of the images.

Finally, Muza Kim forwarded that the district court abused its discretion when it refused to grant his mid-trial motion to sever his trial from that of his son.  Muza’s counsel argued that the Rule 404(b) evidence of his son’s earlier conviction for trademark counterfeiting “constituted specific and compelling prejudicial evidence that prevented the jury from making a reliable judgment about [his] guilt or innocence.”  The panel rejected the argument, stating that the motion was “untimely.” According to the Circuit, Muza was on notice of the Government’s intent to introduce the evidence of his son’s prior conviction and he couldn’t provide any reason for why he waited until the trial was three days in before he brought the motion for severance.

I’m not a criminal attorney, but given Steve Kim’s earlier conviction for counterfeiting, and the fact that, you know, Muza and Steve are father and son, how does Muza’s trial counsel not file earlier to sever?  It should be noted, lest there be any confusion, that Muza was represented by a different court-appointed attorney at trial (not the counsel listed below who conducted the appeal).

Documents:

• United States v. Kim, 07-15925, 2009 WL 59151 (11th Cir. Jan 12, 2009).