Hackett v. Feeney

District court denies defendants’ motions to dismiss copyright infringement claims where one defendant’s involvement in the alleged infringement was limited to operating the hotel that served as a venue for the allegedly infringing performances of plaintiff’s play and the other defendant’s involvement was limited to providing advertising, marketing, and booking support for the alleged infringement.

In 2001, plaintiff Sandy Hackett wrote a play based on the personalities of Frank Sinatra, Dean Martin, Sammy Davis, Jr., and Joey Bishop titled “The Tribute to Frank, Sammy, Joey and Dean,” or alternatively “The Rat Pack is Back” (hereinafter “The Show”). In 2002, Hackett, Richard Feeney, and Arthur Petrie created The Rat Pack Entertainment, LLC (“TRP”) to produce and market The Show. Hackett applied for copyright registration for The Show’s manuscript in 2005, listing himself as the sole author.

On September 9, 2009, Feeney and Petrie, alleging that Hackett was an at-will employee of TRP pursuant to a 2006 transfer of Hackett’s membership interest to Feeney and Petrie, purported to fire Hackett. At that time, The Show was being booked through Broadway Booking Office (“Broadway”) and was being performed at the Plaza Hotel and Casino (the “Plaza”) in Las Vegas, Nevada. Defendant PlayLV Gaming Operation, LLC (“PlayLV”) operates the Plaza. On September 10, 2009, Hackett sent letters to Feeney, Petrie, Broadway, and the Plaza invoking his copyright and demanding a stop to production and further performances of The Show. When production, performance, advertising, marketing, and booking of The Show continued, Hackett brought suit against Feeney, Petrie, TRP, PlayLV, and Broadway for copyright infringement.

PlayLV moved to dismiss Hackett’s infringement claim for failure to state a claim. The court analyzed Hackett’s claim against PlayLV as a claim for vicarious copyright infringement. “[T]o state a claim for vicarious copyright infringement, the plaintiff must allege: (1) he owns a valid copyright; (2) the defendant enjoyed a direct financial benefit from another’s infringing activity; and (3) the defendant had the right and ability to supervise the infringing activity.” First, the court noted that Hackett had alleged that he holds a valid copyright in The Show and that, after his demand that production end, TRP’s continued production infringed his copyright. Second, the court found that the “financial benefit” element of vicarious infringement had been sufficiently pleaded where the allegedly infringing performances could reasonably act as a draw for customers to the Plaza’s “various restaurants, bars, gaming operations, and hotel accommodations.” See A&M Records, Inc. v. Napster, 239 F.3d 1004, 1023 (9th Cir. 2001). Third, the court found that Hackett had sufficiently alleged that PlayLV had the “right and ability to supervise” TRP’s infringing activity by virtue of the Plaza’s host contract with TRP. Here, the court disagreed with PlayLV’s argument that “the host venue is generally not responsible” for infringing activities and instead stated that “the Ninth Circuit has held that a host venue does have the right to block infringing activities.” Accordingly, the court denied PlayLV’s motion to dismiss.

Broadway also moved to dismiss Hackett’s infringement claim for failure to state a claim. The court analyzed Hackett’s claim against Broadway as a claim for contributory copyright infringement. “To state a claim for contributory copyright infringement, the plaintiff must allege: (1) he owns a valid copyright; (2) the defendant had knowledge of infringing activity; and (3) the defendant either induced, caused, or materially contributed to the infringing conduct of another.” The court found that the first and second elements of Hackett’s claim were satisfied because Hackett had alleged that he held a valid copyright, that he notified Broadway of TRP’s infringing activity, and that Broadway knew of TRP’s continued infringement. As to the third element – material contribution – the court stated that this element is satisfied where “the infringing activity would not have continued but for the party’s support services.” The court found that Hackett had alleged that, without Broadway’s ongoing advertising, marketing, and booking support, the infringing performances would not have continued. Having found that Hackett had stated a valid claim for contributory infringement, the court denied Broadway’s motion to dismiss.