Archives for posts with tag: motorcyle

In this 2006 decision, another murder conviction habeas petition involving yet another “ninja-type” motorcycle.

John F. Zaffino, Petitioner
v.
Khelleh Konteh, Warden, Respondent

Case No. 5:05CV1485
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

Decided, July 27, 2006, the opinion by Magistrate Judge David Perelman begins:

In this action in habeas corpus, 28 U.S.C. ยง 2254, petitioner challenges the constitutionality of his March 13, 2003 conviction pursuant to a jury trial of one count of aggravated murder with a firearm specification, upon which he is currently serving a sentence of life imprisonment for aggravated murder and three years incarceration on the firearm specification, to be served consecutively.

Petitioner’s conviction arose consequent to a love triangle, which culminated with Mr. Jeff Zack being fatally shot in the face.

The decision then quotes from the fact findings of the state appellate court review:

The key question for the jury in this case was the identity of the person who rode the motorcycle towards the victim’s automobile and fired the shot, killing him. The state sought to establish that Appellant was the assailant in several ways. First, they established that the motorcycle they were able to recover from Appellant’s ex-wife was, in fact, the motorcycle purchased by Appellant just before the murder.

Next, they produced five individuals who witnessed the motorcycle and rider on the day of the murder. The witnesses all described the motorcycle as being dark, or green and black with some white. According to these witnesses, the motorcycle was consistent with the motorcycle that was admitted into evidence, which was a “ninja-type” motorcycle. The rider was described as wearing dark clothing and a dark helmet with a face-shield.

This decision was adopted (petition dismissed) by US District Judge Peter Economius on August 15, 2006.

Recall other NinjaLaw cases about ninja motorcycles and ninja murderers.

This 2004 case is about copyright of the design elements of miniature motorcycles.

KIKKER 5150 and KELLY KIKKERT, Plaintiffs, v. KIKKER 5150 USA, LLC, et al., Defendants.
No. C 03-05515 SI

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 16859; Copy. L. Rep. (CCH) P28,895

Decided – August 13, 2004
Opinion by district Judge Susan Illston:

This case concerns copyrights in miniature working motorcycles. Plaintiffs Kikker 5150 and Kelly Kikkert filed their complaint on December 8, 2003 against Kikker 5150 USA, Mark Gholson, and others (defendants or counterclaimants).

At issue is the design element of miniature motorcycles. Not toys, miniature-sized, functional motor vehicles.

defendants argue that “a Formula One race car is no more copyrightable than a Ford Escort and plaintiffs’ miniature motorcycles are no more copyrightable than a Harley-Davidson Heritage Softail or a Kawasaki Ninja.” As useful articles, defendants argue, plaintiffs’ miniature motorcycles are precluded from copyright protection.

The Court mostly agrees:

The Court finds that the miniature motorcycles are useful articles and therefore not eligible for copyright protection as such.

But,

The Court also finds, however, for the reasons discussed below, that there are genuine issues of fact concerning whether various “design elements” of the motorcycles “can be identified separately and are capable of existing independently as a work of art.”

The Court cites Fabrica Inc. v. El Dorado Corp., 697 F2d 890, 893 (9th Cir. 1983) which is a case about competing carpet companies and the potentially unfair use of a similar sales system, though the functional elements of are not copyrightable some aesthetic aspects may still be protected.

Therefore,

For this reason, defendant’s motion for summary judgment must be denied.

Summarizing:

Defendants argue that the motorcycles at issue are not copyrightable and ask the Court to issue a preliminary injunction or an order to show cause why a preliminary injunction should not issue. The Court finds that the motorcycles themselves are not copyrightable, since the motorcycles are useful articles and are not subject to copyright protection. However, since the Certificates of Copyright described the nature of the works as “three-dimensional, sculptural features and design elements of miniature motorcycles,” and since the Court cannot say as a matter of law that the design elements of the motorcycles are not severable and original, the Court declines to grant the motion to summarily adjudicate the copyrights’ invalidity.

No restraining orders where issued and so the case continued, presumably to be settled because I see no subsequent published case history.

Here the Court is quoting the defendant’s reply brief to mention the Ford Escort, the Harley-Davidson Heritage Softail and the Kawasaki Ninja. And we’ve seen mentions of the Kawasaki Ninja already in the NinjaLaw Court record . The Heritage Softail appears is four Federal Opinions and the Kikker 5150 case is its second appearance, the prior also being an intellectual property case. In contrast this is the first use of the Kawasaki Ninja in an IP case and the prior cases were all mentions of the actual bike. And the Ford Escort appears in over 300 cases beginning in the early 80s.

Note: here’s a warning about the dangers of Kikker bikes

Ultimately, this Kikker 5150 case stands for principles of copyright in toys – that is, that toys are copyrightable as to the aspects that are not part of the usable functions specifically. So it is fitting that “ninja” is mentioned here, because as we know from ninja law, “ninja” is strongly related to toys.