Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
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`MARQUIS MODELS, INC.,
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`Plaintiff,
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`v.
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`GREEN VALLEY RANCH GAMING,
`LLC,, et al.,
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`Defendants.
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`Case No. 2:05-CV-01400-KJD-PAL
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`ORDER
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`Presently before the Court is Defendant Green Valley Ranch Gaming, LLC’s Motion for
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`Summary Judgment (#112). Plaintiff filed a response in opposition (#119) to which Defendant
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`Green Valley replied (#126).
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`I. Facts
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`Plaintiff Marquis Models, Inc. (“Marquis”) is an Internet-based service that charges a
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`monthly fee to view photographs of models. Soon after Marquis was formed it approached David
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`Mecey and Mecey Photographic (“Mecey”) to take photographs of various models to display on
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`Marquis’ website. After being contacted by Marquis, Mecey provided a written offer to provide
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`enumerated photographic services in exchange for payment of a sum specified by Marquis. Mecey’s
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`offer unequivocally provided that “The photographer retains copyright of images[.]” See (Exhibit B,
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 2 of 8
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`Defendant’s Motion for Summary Judgment Doc. No. 112). “Usage rights” were transferred to
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`purchaser, Marquis. Mecey also retained the right use the images in his portfolio and for self-
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`marketing, but agreed not to sell the images without permission from Marquis. The offer was
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`accepted by Paul Thomas, Marquis’ President. Mecey completed his services in April or May 2003.
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`The photograph of Chera Pollins (“the Pollins Image”), at issue in this lawsuit, was taken during this
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`shoot.
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`In 2005, Defendant Green Valley Ranch, LLC (“Green Valley”) was hosting a series of pool
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`parties intended to promote The Pond located in the Whiskey Beach pool area. These Nir-va-na
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`Pool Parties were hosted by Defendant Garrick Entertainment, LLC (“Garrick”) and Defendant John
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`Lewis Promotions, LLC (“Lewis”) on Sunday afternoons. Lewis mentioned to his friend, Pollins,
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`that the photos of the current model appearing in promotions for the pool parties were overused.
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`Pollins then volunteered photos of herself, including the Pollins Image.
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`Lewis then used the Pollins Image to create advertisements in print ads for the Las Vegas
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`Weekly, for distribution on flyers, and in email sent to potential party goers. Green Valley Ranch
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`had final approval of the advertisements, and did, in fact, approve and consent to the use of the
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`Pollins Image in the advertisements. Those advertisements began running in June 2005, and
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`appeared for at least two weeks.
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`On November 22, 2005, Plaintiff filed the present action for copyright infringement alleging
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`that it owned the Pollins Image and that Defendants had infringed its rights when it was used for the
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`Nir-va-na advertisements. The complaint alleges that Marquis had entered into a “work made for
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`hire” agreement with Mecey in June 2003, and thus that it owned the right, title and interest in the
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`copyright of the Pollins Image. This contradicted the copyright registration that Marquis had filed
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`with the United States Copyright Office dated October 12, 2005 for the Pollins’ Image. The
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`Certificate disclosed that the Pollins Image was taken in 2003 by David Mecey, was not a work made
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`for hire, and that the copyright was claimed via transfer of all rights by the author through written
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 3 of 8
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`assignment. Mecey testified that he believed that statement to be untrue when it was made on
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`October 12, 2005.
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`On or about April 21, 2006, Marquis and Mecey executed an Affirmation of Copyright which
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`states in pertinent part:
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`1. Affirmation of Ownership: Mecey hereby affirms that Marquis owns all
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`right, title and interest in and to the copyrights in the Photographs as of the
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`date on which the Photographs were fixed in a tangible medium of expression.
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`Marquis affirms that Mecey retains the right of attribution as the author of the
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`Photographs and the right to use the Photographs in his portfolio[.]
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`On February 26, 2007, Defendant Green Valley Ranch, LLC filed the present motion for summary
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`judgment alleging that Plaintiff lacks standing, because it did not own the copyright on the day the
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`complaint was filed. Plaintiff replied arguing that the April 21, 2006 Affirmation cures any
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`deficiency or question regarding its right, title and interest in the Pollins Image.
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`II. Standard for Summary Judgment
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`Summary judgment may be granted if the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine
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`issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
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`See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
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`party bears the initial burden of showing the absence of a genuine issue of material fact. See
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`Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts
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`demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio
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`Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(e).
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`All justifiable inferences must be viewed in the light must favorable to the nonmoving party.
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`See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere
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`allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit
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`or other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial.
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 4 of 8
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`See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual
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`issues of controversy in favor of the non-moving party where the facts specifically averred by that
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`party contradict facts specifically averred by the movant. See Lujan v. Nat’l Wildlife Fed’n., 497
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`U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345
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`(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine
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`issue of fact to defeat summary judgment). Evidence must be concrete and cannot rely on “mere
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`speculation, conjecture, or fantasy. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th
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`Cir. 1986). “[U]ncorroborated and self-serving testimony,” without more, will not create a “genuine
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`issue” of material fact precluding summary judgment. Villiarimo v. Aloha Island Air Inc., 281 F.3d
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`1054, 1061 (9th Cir. 2002).
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`Summary judgment shall be entered “against a party who fails to make a showing sufficient
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`to establish the existence of an element essential to that party’s case, and on which that party will
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`bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted
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`if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.
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`III. Analysis
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`A. Copyright Infringement Claims
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`Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for
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`ingringement of a copyright:
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`The legal or beneficial owner of an exclusive right under a copyright is
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`entitled, subject to the requirements of section 411, to institute an
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`action for an infringement of that particular right committed while he
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`or she is the owner of it.
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`17 U.S.C. § 501(b). Therefore, to be entitled to sue for copyright infringement, the plaintiff must be
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`the “legal or beneficial owner of an exclusive right under a copyright.” See Silvers v. Sony Pictures
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`Enter., Inc., 402 F.3d 881, 884 (9th Cir. 2005). If the plaintiff “is not a proper owner of copyright
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`rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 5 of 8
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`the owner, including infringement of the copyright.” Id.(quoting 4 Business and Commerical
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`Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig ed.). Therefore in this case, in
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`order for Plaintiff to be entitled to institute an action, “the infringement must be committed while [it]
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`is the owner of the particular exclusive right allegedly infringed.” Id. at 885(quoting 17 U.S.C. §
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`501(b))(internal quotations omitted).
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`A threshold issue is whether Plaintiff holds a valid copyright to the Pollins Image, and
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`whether it held it on the date of the alleged infringement. A certificate of registration will raise the
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`presumption of valid copyright ownership. See 17 U.S.C. § 410(c); Micro Star v. Formgen Inc., 154
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`F.3d 1107, 1109-10 (9th Cir. 1998). Plaintiff has submitted a certificate of registration that raises a
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`presumption of valid copyright ownership. However, “the presumptive validity of the certificate may
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`be rebutted and defeated on summary judgment.” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1086
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`(9th Cir. 1989)(citing Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1322 (9th Cir. 1986).
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`Plaintiff has submitted adequate evidence that as of April 21, 2006, Mecey exchanged all
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`exclusive copyrights in the Pollins Image for ten percent of the proceeds of any infringement action.
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`However, despite the language of the Affirmation which suggests that the exclusive rights under the
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`copyright transferred to Marquis “as of the date on which the Photographs were fixed in a tangible
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`medium of expression”, the Affirmation is silent as to whether accrued causes of action are included
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`in the transfer of rights. This post-Complaint Affirmation raises several issues questioning the
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`standing of Marquis to bring this action.
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`First, it is clear that on the date the Complaint was filed, November 22, 2005, Mecey held
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`exclusive copyrights. Although the United States Copyright Act grants exclusive jurisdiction for
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`infringement claims to federal courts, those courts construe copyrights as contracts and turn to the
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`relevant state law to interpret them. See Automation By Design v. Raybestos Products Co., 463 F.3d
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`749, 753 (7th Cir. 2006). The question of the interpretation of the contract is a question of law. See
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`Shelton v. Shelton, 78 P.3d 507, 510 (Nev. 2003). A contract is ambiguous if it is reasonably
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`susceptible to more than one interpretation. Id. A contract may be ambiguous if the paragraphs in
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 6 of 8
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`question are reasonably susceptible to different constructions or interpretations. See Agric. Aviation
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`Eng’g Co. v. Board of Clark County Com’rs, 794 P.2d 710, 712 (Nev. 1990).
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`In this case, the Court finds that the express contract term: “The photographer retains
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`copyright of images” is not ambiguous. (Exhibit B, Defendant’s Motion for Summary Judgment
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`Doc. No. 112). This finding by the Court harmonizes with the policy of the Copyright Act which
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`requires transfers of copyrights to be in writing and to be clear. See 17 U.S.C. § 204(a)(“[a] transfer
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`of copyright ownership...is not valid unless [it]...is in writing...and signed[.]”); Konigsberg Int’l, Inc.
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`v. Rice, 16 F.3d 355, 357 (9th Cir. 1994)(writing requirement protects authors from fraudulent
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`claims and “enhances predictability and certainty of ownership-‘Congress’s paramount goal’ when it
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`revised the Act in 1976”)(internal citations omitted); Bieg v. Hovnanian Enterprises, Inc., 157 F.
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`Supp.2d 475, 480 (E.D. Penn. 2001)(‘terms...must be clear’). Requiring a transfer of copyright
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`ownership to be in writing and clear, “forces a party who wants to use the copyrighted work to
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`negotiate with the creator to determine precisely what rights are being transferred and at what price.”
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`Effects Assocs. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990). The burden clearly lies on the party
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`seeking to obtain the transfer: “The rule is quite simple: If the copyright holder agrees to transfer
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`ownership to another party, that party must get the copyright holder to sign a piece of paper saying
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`so.” Id. Thus, on the date the lawsuit was filed, the copyright for the Pollins Image was owned by
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`the photographer, Mecey.
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`Perhaps realizing this problem, Plaintiff began seeking to have Mecey execute an
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`“Affirmation” that in effect backdated a purchase of the copyrights. Such a transfer does not violate
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`the Copyright Act and could potentially give Marquis standing. See Silvers, 402 F.3d at 890 n.1.
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`However, such a transaction requires simultaneous conveyance of both the copyright and accrued
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`claims. See id. Furthermore, such a transfer requires “the accrued causes of action” to be “expressly
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`included” in the assignment. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980
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`(2nd Cir. 1991)(cited approvingly by the Ninth Circuit Court of Appeals, Silvers, 402 F.3d at 889-
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`90). The Affirmation does not expressly transfer “accrued causes of action”, but merely states that
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 7 of 8
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`Mecey will be paid on any prospective recovery for infringement of the copyright. Therefore, the
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`Affirmation fails to establish that on the date the complaint was filed that Marquis had standing to
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`bring the action.
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`Since Plaintiff has failed to establish that it was the legal or beneficial owner of the copyright
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`when it was infringed, the Court grants Defendant Green Valley’s motion for summary judgment.
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`B. Marquis’ Right of Publicity Claim
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`Because Marquis does not own an exclusive right to Pollins’ identity or persona, it is seeking
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`to protect its right in the photograph. This claim rests upon “legal or equitable rights that are
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`equivalent to any of the exclusive rights within the general scope of copyright as specified in Section
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`106.” 17 U.S.C. § 301(a). Therefore, this claim is preempted. See Laws v. Sony Music Entm’t, 448
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`F.3d 1134, 1145 (9th Cir. 2006).
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`Furthermore, a district court has discretion to decline to exercise supplemental jurisdiction
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`over a claim if all claims over which it has original jurisdiction have been dismissed or if the claim
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`raises a novel or complex issue of state law. See 28 U.S.C. § 1367(c). Since the Court has dismissed
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`all claims over which it has original jurisdiction, the Court would decline to exercise supplemental
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`jurisdiction over Plaintiff’s state law claim if it was not preempted.
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`C. Other Defendants
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`Plaintiff also brought causes of action against John Lewis Promotions, LLC, Garrick
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`Entertainment, LLC, and Swurvdigital.com. Having found that Plaintiff lacks standing, the Court
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`must dismiss the claims against these parties on the same basis. See Davis v. National Mortgage
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`Corp., 349 F.2d 175, 178 (2d Cir. 1965); 10A Charles Alan Wright & Arthur R. Miller, Federal
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`Practice and Procedure § 2690 (1998).
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`IV. Conclusion
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`Accordingly, IT IS HEREBY ORDERED that Defendant Green Valley Ranch Gaming,
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`LLC’s Motion for Summary Judgment (#112) is GRANTED;
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`Case 2:05-cv-01400-KJD-PAL Document 137 Filed 09/30/07 Page 8 of 8
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`IT IS FURTHER ORDERED that Plaintiff Marquis’ Motion for Summary Judgment (#113)
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`is DENIED as moot;
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`IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants
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`and against Plaintiff Marquis.
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`DATED this 30 day of September 2007.
`th
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`_____________________________
`Kent J. Dawson
`United States District Judge
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