APPENDIX
`APPENDIX
`
`
`APPENDIX
`
`
`
`i
`APPENDIX
`TABLE OF CONTENTS
`Appendix A Opinion in the United States Court of
`Appeals for the Sixth Circuit
`(September 21, 2022) . . . . . . . . . . App. 1
`Appendix B Memorandum Opinion in the United
`States District Court Eastern District
`of Tennessee at Knoxville
`(October 20, 2021). . . . . . . . . . . . App. 19
`Appendix C Judgment Order in the United States
`District Court Eastern District of
`Tennessee at Knoxville
`(October 20, 2021). . . . . . . . . . . . App. 33
`Appendix D Order Denying Rehearing in the
`United States Court of Appeals for the
`Sixth Circuit
`(November 4, 2022). . . . . . . . . . . App. 35
`Appendix E Statutory Provisions Involved . . . App. 37
`17 U.S.C. § 101 . . . . . . . . . . . . . . App. 37
`17 U.S.C. § 102 . . . . . . . . . . . . . . App. 50
`17 U.S.C. § 106 . . . . . . . . . . . . . . App. 51
`17 U.S.C. § 201 . . . . . . . . . . . . . . App. 52
`17 U.S.C. § 411 . . . . . . . . . . . . . . App. 53
`17 U.S.C. § 501 . . . . . . . . . . . . . . App. 55
`
`
`
`ii
`Appendix F Distribution Agreement
`(August 30, 2021) . . . . . . . . . . . . App. 59
`Appendix G Commercial Licensing Agreement
`(August 30, 2021) . . . . . . . . . . . . App. 70
`Appendix H Agreement
`(August 30, 2021) . . . . . . . . . . . . App. 94
`
`
`
`App. 1
`
`APPENDIX A
`
`RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
`File Name: 22a0217p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`No. 21-6088
`[Filed: September 21, 2022]
`_______________________________________
`JOE HAND PROMOTIONS, INC.,
`)
`Plaintiff-Appellant,
`
`v.
`
`))
`
`))
`
`)
`JAMES H. GRIFFITH, JR., dba CJ’s
`)
`Sports Bar; LISA LESLEY,
`)
`Defendants-Appellees.
`_______________________________________)
`Appeal from the United States District Court for the
`Eastern District of Tennessee at Knoxville.
`No. 3:20-cv-00382—Travis Randall McDonough,
`District Judge.
`Argued: August 10, 2022
`Decided and Filed: September 21, 2022
`
`
`
`App. 2
`Before: CLAY, ROGERS, and STRANCH, Circuit
`Judges.
`COUNSEL
`ARGUED: Jamie King, JAMIE KING, P.C., Kingwood,
`Texas, for Appellant. John T.D. Bathke, PHILLIPS &
`BATHKE, P.C., Chicago, Illinois, for Appellees. ON
`BRIEF: Brian L. Yoakum, EVANS PETREE, PC,
`Memphis, Tennessee, for Appellant. John T.D. Bathke,
`PHILLIPS & BATHKE, P.C., Chicago, Illinois,
`Jonathan LA Phillips, PHILLIPS & BATHKE, P.C.,
`Peoria Heights, Illinois, for Appellees.
`OPINION
`CLAY, Circuit Judge. Plaintiff Joe Hand
`Promotions, Inc. (“JHP”) appeals the district court’s
`grant of summary judgment in favor of Defendants
`James H. Griffith and Lisa Lesley (collectively,
`“Defendants”) in this copyright infringement suit
`brought under the Copyright Act, 17 U.S.C. §§ 106,
`501. See Joe Hand Promotions, Inc. v. Griffith, No.
`20-cv-382, 2021 WL 4899466, at *5 (E.D. Tenn. Oct. 21,
`2021). For the reasons set forth below, we REVERSE
`the district court’s order granting Defendants’ motion
`for summary
`judgment and REMAND with
`instructions to grant Plaintiff’s motion for partial
`summary judgment as to copyright standing and for
`further proceedings consistent with this opinion.
`
`
`
`App. 3
`I. BACKGROUND
`A. Factual Background
`On August 26, 2017, a world famous boxer, Floyd
`Mayweather, and a famous mixed martial arts fighter,
`Conor McGregor, entered the ring to face one another
`in what has become one of the most legendary fights of
`all time (“the Fight”). See John Eligon & Victor Mather,
`Mayweather v. McGregor: Highlights From Every
`Round, N.Y. Times, Aug. 26, 2017. Showtime, Inc.
`produced the Fight, and it allowed individual viewers
`to livestream the Fight from Showtime’s website. Joe
`Hand Promotions, Inc., 2021 WL 4899466, at *1.
`Showtime charged individuals $99.99 for these
`personal use licenses (i.e., to watch the Fight on a
`personal device in a non-commercial setting). Showtime
`also partnered with event promoters to
`issue
`commercial streaming licenses to public establishments
`(i.e., bars, movie theaters, and restaurants). On June
`20, 2017, Showtime contracted with Mayweather
`Promotions, LLC (“Mayweather”) to “arrange for,
`present and promote” the Fight on August 26, 2017.
`(Distribution Agreement, R. 40-4, Page ID #348.) In
`this contract (the “Distribution Agreement”), Showtime
`“grant[ed] to [Mayweather] exclusively, the right to
`exhibit and distribute, and authorize the exhibition and
`distribution of, the [Fight] in the Territory live via the
`Internet.”
`(Id. at Page ID #357.) Defendants
`erroneously denied the existence of this contract
`between Showtime and Mayweather. (See Defs. Br. at
`
`
`
`App. 4
`14 (“[T]here are no agreements in the record between
`Showtime and [Mayweather].”).)1
`Mayweather, in turn, enlisted smaller distributors
`to go out and issue commercial licenses and collect fees.
`JHP was one of these distributors. On August 1, 2017,
`JHP entered into a Commercial Licensing Agreement
`with Mayweather. In that contract, Mayweather gave
`JHP “the sole and exclusive third party license . . . to
`distribute . . . and authorize the public exhibition of the
`[Fight]” in a designated geographic area. (Id.)
`Accordingly, in the weeks leading up to the Fight, JHP
`promoted the event, sold commercial licenses to
`broadcast the event at bars and restaurants, and
`collected fees from those establishments. JHP charged
`hefty commercial licensing fees to air the Fight,
`ranging from $3,700 to $15,700 based on the
`establishment’s occupancy limits.
`The Fight was not registered as a copyrighted work
`when it first aired on August 26, 2017. Around two
`months later, Showtime applied to register its
`copyright in the Fight, which the United States
`Copyright Office issued on October 26, 2017 (the
`“Copyright Registration”). The Copyright Registration
`listed Showtime as the sole author and claimant of the
`copyright. On November 21, 2017, three months after
`the Fight but less than a month after the Copyright
`Registration, Showtime signed a contract with JHP
`(the “Copyright Agreement”). Although not a party to
`the Copyright Agreement, Mayweather also signed the
`
`1 Defendants filed a motion following oral argument seeking to
`rescind their contention that this agreement did not exist.
`
`
`
`App. 5
`agreement. The Copyright Agreement gave JHP “the
`exclusive right to distribute and publicly perform the
`[Fight]
`live on August 26, 2017.”
`(Copyright
`Agreement, R. 40-2, Page ID #262.) It further gave JHP
`“the exclusive right . . . to take enforcement actions
`with respect to any unauthorized exploitation of the
`Commercial Rights in the [Fight].” (Id.) Specifically,
`Showtime gave JHP “the right and standing, as
`exclusive assignee, to assert independent claims, solely
`in the name of JH[P], for copyright infringement under
`the copyright laws of the United States . . . solely
`relating to the unauthorized exploitation of the
`Commercial Rights in the [Fight].” (Id. at Page ID
`#263.) That is, Showtime gave JHP the exclusive right
`to sue anyone who livestreamed the Fight on August
`26, 2017, without paying the required licensing fee.
`Accordingly, JHP began suing several restaurants and
`bars that aired the Fight without paying. See, e.g., Joe
`Hand Promotions, 2021 WL 4899466, at *1.
`At this stage, Defendants do not dispute that they
`livestreamed the Fight on August 26, 2017, on a TV
`screen at their bar, CJ’s Bar & Grill (“CJ’s”), without
`purchasing a commercial license. As a commercial
`establishment, CJ’s was required to pay a fee based on
`its occupancy limits in order to legally air the Fight on
`the bar’s TVs. Rather than pay for a commercial
`license, Defendants paid around $99 for a personal
`license using Showtime’s website. Defendants then
`used an HDMI cable to connect a personal device to the
`TV at CJ’s and broadcast the Fight throughout the bar.
`Defendants advertised the event on CJ’s Facebook
`page, and they charged patrons $6 for entry to the bar
`to watch the Fight.
`
`
`
`App. 6
`B. Procedural Background
`After discovering that Defendants livestreamed the
`Fight without paying for a commercial license, JHP
`sued them for copyright infringement under the
`Copyright Act, 17 U.S.C. §§ 106, 501.2 After discovery,
`the parties filed cross motions for summary judgment.
`The district court granted Defendants’ motion after
`finding that JHP did not own the copyright to the Fight
`on the day it aired. See Joe Hand Promotions, 2021 WL
`4899466, at *2. The district court found that the
`Copyright Agreement between Showtime purported to
`give JHP an exclusive right in the copyrighted work
`retroactively. See id. at *5. However, the district court
`concluded that such retroactive transfers were
`essentially worthless. See id. It therefore concluded
`that the Copyright Agreement merely gave JHP the
`right to sue for past copyright infringement. See id. at
`*4–*5. According to the district court, to have a cause
`of action under Copyright Act, plaintiffs must own
`some exclusive right beyond the right to sue. Id. at *4
`(citing John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d
`394 (2d Cir. 2018)). Believing that Showtime merely
`gave JHP a right to sue, the district court concluded
`that JHP did not have a cause of action for copyright
`infringement because it “did not own the copyright to
`the [Fight] when it was displayed at [CJ’s].” Id. at *2.
`The court therefore granted Defendants’ motion for
`
`2 JHP also brought a claim for internet piracy under the
`Communications Act of 1934, 47 U.S.C. §§ 553, 605. This claim
`was dismissed by the district court before summary judgment, and
`it is not at issue in this appeal. See Joe Hand Promotions, 2021 WL
`4899466, at *2.
`
`
`
`App. 7
`summary judgment. Id. at *5. JHP timely appealed and
`this Court heard oral arguments on August 10, 2022.
`II. DISCUSSION
`A. Standard of Review
`“The Court reviews a district court’s grant of
`summary judgment de novo.” Clabo v. Johnson &
`Johnson Health Care Sys., Inc., 982 F.3d 989, 992 (6th
`Cir. 2020) (citing Rocheleau v. Elder Living Const.,
`LLC, 814 F.3d 398, 400 (6th Cir. 2016)). Summary
`judgment is proper “if the movant shows that there is
`no genuine dispute as to any material fact and the
`movant is entitled to judgment as a matter of law.”
`Fed. R. Civ. P. 56(a). “A dispute of a material fact is
`genuine so long as ‘the evidence is such that a
`reasonable jury could return a verdict for the
`non-moving party.’” Kirilenko-Ison v. Bd. of Edu. of
`Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020)
`(quoting Jackson v. VHS Detroit Receiving Hosp., Inc.,
`814 F.3d 769, 775 (6th Cir. 2016)).
`B. Analysis
`The issue in this appeal is whether JHP has a cause
`of action against Defendants for livestreaming the
`Fight without a commercial license. The Copyright Act
`creates a federal cause of action for copyright
`infringement. See 17 U.S.C. § 501. It provides that
`“[t]he legal or beneficial owner of an exclusive right
`under a copyright is entitled . . . to institute an action
`for any infringement of that particular right.” Id.
`§ 501(b). Therefore, to sue Defendants for copyright
`infringement, JHP must own some interest in the
`copyright. See Bridgeport Music. WM Music Corp., 508
`
`
`
`App. 8
`F.3d 394, 398 (6th Cir. 2007) (“Copyright infringement
`has two elements: ‘(1) ownership of a valid copyright;
`and (2) copying of constituent elements of the work
`that are original.’” (quoting Stromback v. New Line
`Cinema, 384 F.3d 283, 293 (6th Cir. 2004))).
`The author of a protected work is considered the
`original owner of a copyright. 17 U.S.C. § 201(a). The
`owner holds certain “exclusive rights” in the work. Id.
`§ 106. Those “exclusive rights” are listed in § 106 of the
`Copyright Act, and they include the right to reproduce,
`distribute, perform, and display the work. Id. There is
`some dispute over whether the list of exclusive rights
`extends beyond those enumerated in § 106. Relevant to
`this appeal, the Second and Ninth Circuits have held
`that possessing a bare right to sue, without any
`additional exclusive right, does not amount to
`ownership of a copyrighted work. See John Wiley, 882
`F.3d at 410 (“[T]he [Copyright] Act does not permit a
`plaintiff assignee to bring a claim for infringement
`without also having or having had a legal or beneficial
`ownership in some exclusive right under part of the
`allegedly infringed copyright.”); Silvers v. Sony Pictures
`Ent., Inc., 402 F.3d 881, 883 (9th Cir. 2005) (same).
`This Court has not weighed in on this issue.
`The exclusive rights in a copyrighted work are
`freely alienable. “[T]he ownership of a copyright may be
`transferred in whole or in part by any means of
`conveyance or by operation of law.” 17 U.S.C.
`§ 201(d)(1). Each exclusive right can be transferred
`individually, and each right can be further subdivided
`and owned separately by different parties. Id.
`§ 201(d)(1)–(2); see also id. § 101 (defining “[c]opyright
`
`
`
`App. 9
`owner” as “the owner of that particular right”
`(emphasis added)). Owners may transfer their
`exclusive rights “by any means of conveyance”
`including by assigning the right to a third party or by
`giving that party an exclusive license. Id. § 201(d)(1);
`see also id. § 101 (defining “transfer of copyright
`ownership”). “The owner of any particular exclusive
`right is entitled, to the extent of that right, to all of the
`protection and remedies accorded to the copyright
`owner by this title,” including the right to sue for
`infringement of the owner’s rights. Id. §§ 201(d)(2),
`501(b).
`Thus, copyright ownership operates like the
`common analogy of a bundle of sticks. The author, as
`the original owner, holds all of the exclusive rights in
`the protected work. Id. § 106, 201. The author may
`transfer any one of these sticks, in whole or in part, to
`a third party. Id. § 201(d)(1). Anyone holding a stick, or
`a part of a stick, can sue anyone who infringes on that
`right. For example, anyone holding a right to distribute
`a copyrighted work in California can sue infringers in
`California, but not in New York. The right to enforce is
`only as broad as the exclusive right held.
`In addition to the ownership requirement, the
`Copyright Act includes a few other limitations on who
`can sue for copyright infringement. It limits the right
`to sue to those who owned the exclusive right at the
`time of the infringement. 17 U.S.C. § 501(b). It also
`provides that “no civil action for infringement of the
`copyright . . . shall be instituted until preregistration or
`registration of the copyright claim has been made” with
`the United States Copyright Office. Id. § 411(a).
`
`
`
`App. 10
`Therefore, the default rule is that only those who
`owned an exclusive right in a registered copyright at
`the time of the infringement may bring suit.
`However, the Copyright Act extends special
`treatment to live broadcasts. See id. § 411(c). When the
`copyrighted work “consist[s] of sounds, images, or both,
`the first fixation of which is made simultaneously with
`its transmission”—that is, when the copyrighted work
`is a broadcast of a live event—then the Copyright Act
`allows an owner to sue for infringement of an
`unregistered copyright so long as the owner registers
`the copyright within three months of the live broadcast.
`See id.; see Fourth Estate Pub. Benefit Corp. v. Wall-
`Street.com, LLC, 139 S. Ct. 881, 888 (2019). Stated
`differently, although copyright registration
`is
`ordinarily a requirement to bring suit, “[s]uch
`registration is not a condition of copyright protection.”
`17 U.S.C. § 408(a) (emphasis added). Rather, as the
`Supreme Court has described it, the registration
`requirement “is akin to an administrative exhaustion
`requirement that the owner must satisfy before suing
`to enforce ownership rights.” Fourth Estate, 139 S. Ct.
`at 888.
`With this legal framework in mind, we turn to the
`question now before us: did the November 21, 2017,
`Copyright Agreement between Showtime and JHP give
`JHP the right to sue for copyright infringements
`occurring on August 26, 2017. We conclude that it did.
`Defendants argue that JHP did not own any
`exclusive rights in the Fight on the day it aired. They
`recognize that the Copyright Agreement purportedly
`transferred “the exclusive right to distribute and
`
`
`
`App. 11
`publicly perform” the Fight live on August 26, 2017.
`(Copyright Agreement, R.40-2, Page ID #262.) But they
`argue that this exclusive right was, in effect, illusory
`because the Fight had already aired by the time
`Showtime and JHP entered into the Copyright
`Agreement. Because these exclusive rights were
`illusory, Defendants argue that the Copyright
`Agreement merely gave JHP a bare right to sue.
`Pointing to case law from the Second and Ninth
`Circuits, Defendants conclude that JHP does not have
`a cause of action under the Copyright Act because the
`bare right to sue is insufficient give JHP ownership of
`an exclusive right.
`In response, JHP argues that the plain language of
`the Copyright Agreement retroactively gave JHP
`exclusive rights in the live broadcast on August 26,
`2017. To the extent that the language of the Copyright
`Agreement is unclear, it argues that Showtime
`intended to retroactively give JHP the exclusive right
`to distribute the Fight on the day it aired as well as the
`right to sue violators for copyright infringement. As
`evidence of this intent, JHP points to the Commercial
`Licensing Agreement between Mayweather and JHP on
`August 1, 2017. JHP does not have much to say about
`whether the Copyright Act allows such a retroactive
`transfer of exclusive rights.
`These arguments touch on complicated questions of
`copyright law including when copyright protection in a
`live broadcast first arises, whether or how an author
`may transfer exclusive rights in a live event before
`registering a copyright, and whether an author can
`retroactively transfer exclusive rights. However, we do
`
`
`
`App. 12
`not need to get into these issues to resolve this case.
`We conclude that the Copyright Agreement gave JHP
`an enforceable right to sue Defendants because it
`formalized a series of earlier agreements under which
`JHP went about exclusively licensing and distributing
`the Fight to commercial establishments in a specific
`region before the Fight aired.
`The earlier agreements between Showtime,
`Mayweather, and JHP gave JHP an exclusive license
`to distribute the streaming rights to commercial
`establishments to air the Fight live on August 26, 2017.
`On June 20, 2017, Showtime and Mayweather signed
`the Distribution Agreement. In that agreement,
`Showtime “grant[ed] to [Mayweather] exclusively, the
`right to exhibit and distribute, and authorize the
`exhibition and distribution of, the [Fight] in the
`Territory
`live via
`the Internet.”
`(Distribution
`Agreement, R. 40-4, Page ID #357.) The Distribution
`Agreement thus gave Mayweather one of Showtime’s
`sticks from its bundle, making Mayweather an “owner”
`under the Copyright Act. See 17 U.S.C. §§ 106(3)–(4),
`201(d), 204. Admittedly, at this point, the Fight had not
`happened, and Showtime did not hold a registered
`copyright. But copyright protection can arise before
`registration, see Fourth Estate, 139 S. Ct. at 887–88,
`and nothing prevented Showtime from transferring
`some of the sticks in its bundle in anticipation of the
`Fight, even before applying for a copyright registration.
`In this case, Showtime did just that by giving exclusive
`rights to Mayweather in the Distribution Agreement.
`Mayweather turned around and transferred those
`sticks (or parts of those sticks) to JHP. On August 1,
`2017, JHP and Mayweather signed the Commercial
`
`
`
`App. 13
`Licensing Agreement.3 In that contract, Mayweather
`gave JHP “the sole and exclusive third party license . . .
`to distribute . . . and authorize the public exhibition of
`the
`[Fight]”
`in a designated geographic area.
`(Commercial Licensing Agreement, R. 40-2, Page ID
`#247.) This contract explicitly stated that it was
`transferring JHP an exclusive right as defined in the
`Copyright Act, stating that “JHP holds the right to
`authorize the exhibition of the [Fight] publicly within
`the meaning of 17 U.S.C. § 106(4), (5).” (Id. at Page ID
`#251 (emphasis added).) That statutory provision
`defines “exclusive rights” as including the rights to
`display and perform the work publicly. 17 U.S.C.
`§ 106(4)–(5).
`
`3 Defendants argue that JHP forfeited any argument using the
`Commercial Licensing Agreement as evidence of Showtime and
`JHP’s intent when signing the Copyright Agreement. Specifically,
`they claim that “JHP did not make any argument concerning the
`[Commercial Licensing] Agreement in either its own motion for
`summary judgment or in its response to [Defendants’] motion for
`summary judgment, which is the subject of this appeal.” (Defs. Br.
`at 8–9.) But JHP’s motion for summary judgment did point to the
`Commercial Licensing Agreement as evidence that it held an
`exclusive right on the day of the Fight. JHP specifically noted that:
`“Through an agreement with the promoters of the Event,”—i.e.,
`the August 1, 2017, Commercial Licensing Agreement with
`Mayweather—“[JHP] was licensed to exhibit the Event at
`commercial locations, such as bars, restaurants, clubs, lounges,
`and other commercial establishments throughout the State of
`Tennessee.” (Pl. Mot. Summ. J., R. 40, Page ID #204.) Accordingly,
`Defendants’ forfeiture arguments are without merit. See Bard v.
`Brown Cnty., 970 F.3d 738, 749 (6th Cir. 2020) (quoting United
`States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir.
`2009)).
`
`
`
`App. 14
`In the lead up to the Fight, even without the benefit
`of a registered copyright, these three entities—
`Showtime, Mayweather, and JHP—went about carving
`out their respective rights. These rights, including the
`exclusive right to distribute the Fight to commercial
`establishments, were outlined in the Distribution
`Agreement and the Commercial Licensing Agreement,
`both of which took effect before the Fight aired on
`August 26, 2017. However, the question remains
`whether the November 21, 2017, Copyright Agreement
`was intended to bestow some new and additional right
`to JHP, or whether it merely reiterated and reaffirmed
`the parties’ understandings of their preexisting rights
`with the added benefit of a newly registered copyright.
`The Copyright Agreement does not expressly answer
`this question. Nowhere does it state that it intended to
`formalize existing arrangements, nor does it mention
`the Distribution Agreement or the Commercial
`Licensing Agreement. However, the earlier agreements
`provide necessary context for the Copyright Agreement.
`See Individual Healthcare Specialists, Inc. v. BlueCross
`BlueShield of Tenn., Inc., 566 S.W.3d 671, 694 (Tenn.
`2019).4 And, because none of these agreements conflict
`with one another, we may turn to them to discern
`Showtime and JHP’s intent when entering into the
`later Copyright Agreement. See id. at 696. Viewing
`these agreements together, the Copyright Agreement
`merely intended to reiterate that JHP’s existing
`exclusive license in the live Fight remained intact
`
`4 The parties agree that Tennessee’s principles of contract law
`govern the interpretation of the Copyright Agreement.
`
`
`
`App. 15
`even in the wake of Showtime’s formal Copyright
`Registration.
`Unlike the extensive terms and conditions found in
`the earlier Distribution Agreement and Commercial
`Licensing Agreement, which numbered 36 and 15
`pages respectively, the Copyright Agreement was
`barely three pages long. Outside of the definitions and
`some boilerplate provisions, it had two substantive
`provisions which provided that: (1) “JH[P] has been
`granted the sole and exclusive Commercial Rights . . .
`in the Territory in the [Fight], under the copyright laws
`of the United States” with Commercial Rights defined
`as the “exclusive right to distribute and publicly
`perform the [Fight] live on August 26, 2017 to
`Commercial Premises in the Territory;” and (2) “JH[P]
`has the exclusive right in the Territory to take
`enforcement measures” in connection with its exclusive
`rights in the distribution of commercial licenses.
`(Copyright Agreement, R. 40-2, Page ID #262.) The
`first provision mirrors the exclusive license that
`Showtime gave to Mayweather, and that Mayweather
`then gave JHP, before the Fight. Although Showtime
`and JHP were the only parties to the Copyright
`Agreement, they nonetheless had Mayweather sign and
`say that it accepted and agreed to the terms therein.
`We conclude that, by using a barebone contract
`signed by all of the parties involved in the days leading
`up to the Fight, it is clear that Showtime and JHP
`intended the Copyright Agreement to formalize
`existing rights in the wake of Showtime’s newly
`obtained Copyright Registration. In effect, everyone
`involved came
`together after
`the Copyright
`
`
`
`App. 16
`the Copyright
`in
`Registration and concluded,
`Agreement, that the new registration did not change
`anything. The status of the copyright may have
`changed on October 26, 2017, but the nature of the
`exclusive rights and interests of these three parties
`remained untouched. If the Copyright Agreement was
`an entirely new transfer of rights from Showtime to
`JHP, there would be no need for Mayweather to agree.
`The Copyright Agreement only makes sense as an
`extension of the earlier agreements.
`Defendants’ position
`is seemingly that the
`Copyright Agreement was a standalone transfer of
`rights wholly apart from the earlier agreements. They
`argue that the Copyright Agreement was, in essence, a
`sham because it purported to transfer an exclusive
`right in a live event that had already happened. The
`district court agreed. See Joe Hand Promotions, 2021
`WL 4899466, at *5 (“The exclusive right to perform the
`[Fight] live is utterly meaningless once the [Fight] has
`already occurred, and, thus, can never be performed
`‘live’ again.”). But the Copyright Registration listed
`Showtime as the sole author and claimant of the
`copyrighted work, and copyright ownership “vests
`initially in the author . . . of the work.” 17 U.S.C.
`§ 201(a). If the Copyright Registration could be
`interpreted as returning all of the exclusive rights back
`to the author of the Fight (Showtime), then the
`Copyright Agreement clarified
`that
`the new
`registration did not alter JHP’s preexisting exclusive
`license to distribute the Fight to commercial
`establishments within its geographic zone.
`
`
`
`App. 17
`Because we conclude that the Copyright Agreement
`merely reiterated the existing distribution of rights, we
`need not reach the bulk of the parties’ arguments. The
`parties focus on whether the Copyright Agreement
`could legally transfer an exclusive right retroactively.
`Even if such a retroactive transfer could theoretically
`be legally valid, Defendants argue that the Copyright
`Agreement, as a factual matter, was not intended to be
`retroactive. Because the Copyright Agreement merely
`codified earlier transfers in the wake of the post hoc
`Copyright Registration, there is no retroactivity issue.
`By extension, we need not address Defendants’
`arguments that the Copyright Agreement gave JHP a
`bare right to sue, which they claim is at odds with the
`Second and Ninth Circuits’ interpretation of the
`Copyright Act. The Copyright Agreement simply
`reaffirmed that JHP held an exclusive right to
`distribute the Fight to commercial establishments in
`advance of the live Fight. Even though the Copyright
`Agreement was signed at a later date, JHP acted as
`though it held the exclusive right well in advance of the
`Fight. Indeed, it advertised the Fight, distributed the
`livestream, and collected fees from commercial
`establishments that wanted to air the Fight live. By
`viewing the Copyright Agreement in a vacuum and
`ignoring the parties’ earlier agreements and conduct,
`Defendants ignore Showtime and JHP’s intent when
`entering the contract.
`In sum, JHP owned the exclusive right to distribute
`and publicly display the Fight on the day it aired,
`August 26, 2017. The copyright was registered within
`three months of the alleged infringement, as required
`to sue for copyright infringements in live telecasts. 17
`
`
`
`App. 18
`U.S.C. § 411(c). Accordingly, JHP has a cause of action
`against anyone who violated its exclusive rights on the
`day of the Fight, including Defendants. See id. § 501(b).
`III. CONCLUSION
`For these reasons, we REVERSE the district
`court’s order granting Defendants’ motion for summary
`judgment and REMAND with instructions to grant
`Plaintiff’s motion for partial summary judgment on the
`issue of copyright standing and for further proceedings
`consistent with this opinion.
`
`
`
`App. 19
`
`APPENDIX B
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`Case No. 3:20-cv-382
`[Filed: October 20, 2021]
`____________________________________
`JOE HAND PROMOTIONS, INC.,
`
`JAMES H. GRIFFITH, Jr., d/b/a CJ’S )
`SPORTS BAR, and LISA LESLEY
`
`))
`
`)
`Defendants.
`____________________________________)
`Judge Travis R. McDonough
`Magistrate Judge H. Bruce Guyton
`MEMORANDUM OPINION
`Before the Court are Plaintiff Joe Hand Promotions,
`Inc.’s (“Joe Hand”) motion for partial summary
`judgment (Doc. 39) and Defendants Lisa Lesley and
`James Griffith, Jr.’s motion for summary judgment
`(Doc. 41) and motion for sanctions (Doc. 48).
`Defendants Lesley and Griffith’s motions motion for
`
`))
`
`))
`
`))
`
`Plaintiff,
`
`v.
`
`
`
`App. 20
`summary judgment is GRANTED (Doc. 41). Because
`the Court grants Defendants’ motion for summary
`judgment, Plaintiff Joe Hand’s motion for partial
`summary judgment (Doc. 39) and Defendants Lesley
`and Griffith’s motion for sanctions (Doc. 48) are
`DENIED.
`I.
`BACKGROUND
`James Griffith, Jr. owns and operates CJ’s Sports
`Bar (“the Bar”) in Kingsport, Tennessee. (Doc. 40-7,
`at 17.) Lisa Lesley is an employee of the Bar. (Id. at
`49.) Joe Hand is a business that licenses sports
`and entertainment programming to commercial
`establishments. (Doc. 40, at 1.)
`On August 26, 2017, Floyd Mayweather and Conor
`McGregor engaged in a prizefight that was broadcast
`live (“the Event”). (Doc. 41-1, at 3.) Showtime, Inc.,
`owned the copyright to the Event and made the Event
`available for non-commercial streaming from its
`website. (Doc. 40-2, at 49.) Nearly three months later,
`on November 21, 2017, Joe Hand entered into an
`agreement with Showtime (“the Agreement”), in which
`Showtime purportedly granted Joe Hand “sole and
`exclusive Commercial Rights” in the Event; however,
`despite this ostensibly sweeping phrase, the Agreement
`defined these rights as “[t]he exclusive right to
`distribute and publicly perform the Event live on
`August 26, 2017[,] to Commercial Premises in the
`Territory.” (Id. at 46.)1 The Agreement also contained
`an “Enforcement of Rights” provision:
`
`1 Obviously, by the date of the Agreement, it was impossible for Joe
`Hand to do anything with the Event “live” on August 26, 2017.
`
`
`
`App. 21
`Insofar as [Showtime] is concerned, [Joe Hand]
`shall have the right and standing, as exclusive
`assignee, to assert independent claims, solely in
`the name of
`[Joe Hand],
`for copyright
`infringement under the copyright laws of the
`United States . . . solely relating to the
`unauthorized exploitation of the Commercial
`Rights in the Event in the Territory.
`(Id. at 47.) The Agreement further stated that Joe
`Hand
`has the exclusive right in the Territory to take
`enforcement measures, prosecute and commence
`legal actions with respect to any unauthorized
`exploitation of the Commercial Rights [and that
`Showtime] hereby assigns and grants to [Joe
`Hand] such rights, interests or powers in the
`Event as are held by [Showtime] solely to the
`extent necessary . . . to enable [Joe Hand] to
`enforce and to initiate legal proceedings . . . for
`copyright infringement.
`(Id. at 46.) Joe Hand purportedly licensed the Event to
`commercial establishments and based its rates upon
`the attendance or seating capacity of the commercial
`establishments sublicensing the Event. (Id. at 28.) For
`an establishment with a seating capacity of 101 to 150
`persons, Joe Hand charged $5,200 to license the Event.
`(Doc. 40-3, at 1.)
`Prior to the Event, the Bar posted or shared
`multiple posts on its Facebook page promoting the
`Event and encouraging individuals to buy tickets. (Id.
`at 7–12.) Lesley rented the Bar on the night of August
`
`
`
`App. 22
`26, 2021, for $1,000, collecting six dollars each from
`patrons at the door, and purchased the program from
`Showtime’s website for viewing at the Bar. (Id. at
`18–20; Doc. 41-1, at 3; Doc. 40-2, at 5; Doc. 40-7, at 27.)
`Lesley did not, however, license the Event for the Bar
`through Joe Hand. (See Doc. 47, at 9.) Instead, Lesley
`used an HDMI cable to hook up her computer—which
`she used to buy and stream the Event for $99—to a
`television so patrons could watch the Event together on
`a larger screen. (Id.) No one from the Bar contacted Joe
`Hand about broadcasting the Event. (Doc 41-1, at 3.)
`Griffith received money from the food and beverages
`sold during the Event but did not receive any of the
`door char
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