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IP/Entertainment Case Law Updates

Valley Entertainment, Inc. v. Friesen, et al.

District court grants defendants’ motion for summary judgment and motion to strike newly disclosed copyright registration where plaintiff record label initially relied on a copyright registration covering only the words and arrangement of sheet music in its infringement claim premised on the copying of sound recordings, and first disclosed that it obtained a copyright registration for sound recordings at issue in response to defendants’ motion for summary judgment.

Plaintiff Valley Entertainment, a record label and music publishing company, filed suit for copyright infringement and various state law claims against defendants, the producers and distributors of CDs entitled “Happy Tummy” and “Zen of Thin Weight Release Program” that allegedly contained sound recordings of plaintiff’s copyrighted songs without permission. Plaintiff’s complaint, and subsequent discovery responses, identified only one copyright, a class “PA” registration.

After a lengthy discovery period, which was extended at plaintiff’s request, defendants moved for summary judgment and pointed out that the “PA” classification applies to words and arrangements of sheet music, not to sound recordings. In plaintiff’s response to defendants’ summary judgment motion, plaintiff disclosed, for the first time, that it obtained a copyright registration in the sound recordings that defendants allegedly used without permission (a class “SR” registration).

As an initial matter, the court held that plaintiff’s case is premised upon the copying of the sound recordings of the copyrighted songs, not the sheet music, and that plaintiff failed to point to sufficient evidence to show an infringement of the PA registration.

Faced with plaintiff’s new contention that defendants infringed the SR registration that it also owned, the court then granted defendants’ motion to strike the newly disclosed registration because plaintiff failed to identify the registration in a timely manner, through supplemental discovery responses or otherwise; such failure was not harmless; and “to allow Valley to alter its case at this juncture would prejudice Defendants.” The court rejected plaintiff’s numerous arguments for allowing it to alter its case to include the sound recording copyright registration. Plaintiff asked the court to take judicial notice of the SR registration “since it is a matter of public record and since it is accessible by all parties,” stating that the fact the copyright is in the public record or available to the public is immaterial and that defendants “had no duty to try to guess which copyright, out of all the copyrights in the public record, formed the basis of Valley’s copyright infringement claims.”

The court also rejected plaintiff’s argument that Federal Rule of Civil Procedure 26(e) allows it to supplement its discovery responses in the midst of summary judgment briefing. The court pointed out that the rule allows a party to supplement its responses, but only if done in a “timely manner.” The court found plaintiff’s arguments based on the fact that it did not have physical possession of the copyright registration until after the motion for summary judgment misplaced, noting that plaintiff did not provide any reasons why it could not have notified defendants during discovery that its infringement claim was based on the copyright registration for the sound recording. Plaintiff also argued that under the notice pleading standard, it is not required to plead all of the facts for its claims and plaintiff contended that it pled sufficient facts to state a copyright infringement claim. The court disagreed and held that defendants were not placed on adequate notice of plaintiff’s reliance on the sound recording copyright as the basis of its infringement claim and that “we are no longer at the pleadings stage[;] Valley must present sufficient evidence to support its copyright infringement claims at the summary judgment stage and cannot rely on the notice pleading standard to defeat Defendants’ motions for summary judgment.”

The court also rejected plaintiff’s argument that defendants failed to show how they were prevented from preparing an adequate defense due to the untimely disclosure of the sound recording copyright. As the court explained, “[c]ontrary to Valley’s contention, Defendants have explained why they will be prejudiced. Due to Valley’s late disclosure of Copyright No. SR 107-850, Defendants were deprived of the opportunity to conduct discovery and prepare defenses that would specifically pertain to Copyright No. SR 107-850. Defendants also reasonably focused on defenses relating to Copyright No. PAu 937-523, based on Valley’s representations. Copyright No. SR 107-850 was not a minor or trivial fact that Valley neglected to bring to the attention of Defendants. Rather, by failing to disclose Copyright No. SR 107-850, Valley failed to identify one of the most important facts relating to its copyright infringement claims.” Based on these findings, the court granted defendants summary judgment on the federal copyright infringement claims.

Having resolved the only federal claims in the case, the court declined to exercise supplemental jurisdiction over the remaining state law claims, dismissed such claims without prejudice and denied defendants’ motion for summary judgment as to those claims without prejudice.

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