UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`HILLER, LLC,
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`Plaintiff,
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`v.
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`SUCCESS GROUP INTERNATIONAL )
`LEARNING ALLIANCE, LLC, and
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`REBECCA CASSEL,
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`Defendants.
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`and
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`CLOCKWORK IP, LLC,
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`Intervenor/Counter-Plaintiff.
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`Civil Action Number 3:17-CV-743
`Judge Jon Phipps McCalla
`Magistrate Judge Jeffery S. Frensley
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`MEMORANDUM IN SUPPORT OF CLOCKWORK’S MOTION FOR
`JUDGMENT NOTWITHSTANDING THE VERDICT
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`Case 3:17-cv-00743 Document 258 Filed 04/10/19 Page 1 of 26 PageID #: 11470
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`INTRODUCTION ............................................................................................................. 1
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`LEGAL STANDARD ........................................................................................................ 4
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`A.
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`Hiller Failed to Prove Any Original Material in the Technician’s Guide
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`that Would Allow Hiller to Own a Valid Copyright .............................................. 5
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`1.
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`The only evidence of the source of the content in the Technician’s
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`Guide was that it came from Clockwork ................................................... 5
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`2.
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`Hiller did not meet its burden to show a valid copyright by proving
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`original content apart from the Clockwork material .................................. 9
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`B.
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`Hiller Failed to Prove Authorization to Use Clockwork Preexisting
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`Material ................................................................................................................ 10
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`1.
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`Hiller did not have authorization to use Clockwork preexisting
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`2.
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`3.
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`material .................................................................................................... 10
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`No Copyright Exists in an Unauthorized Derivative Work ..................... 13
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`Clockwork Material Pervades the Technician’s Guide as a Matter
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`of Law ...................................................................................................... 16
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`III.
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`CONCLUSION ................................................................................................................ 19
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`i
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`

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`
`
`Cases
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`BancTraining Video Sys. v. First Am. Corp.,
`956 F.2d 268 (6th Cir. 1992) .....................................................................................................9
`
`Barnes v. City of Cincinnati,
`401 F.3d 729 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) .....................................................4
`
`Clarksville–Montgomery Co. Sch. Sys. v. U.S. Gypsum Co.,
`925 F.2d 993 (6th Cir. 1991) .....................................................................................................4
`
`Entertainment Research Group, Inc. v. Genesis Creative Group, Inc.,
`122 F.3d 1211 (9th Cir. 1997) .................................................................................................14
`
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (1991) ...................................................................................................................5
`
`Holmes v. City of Massillon,
`78 F.3d 1041 (6th Cir. 1996) .....................................................................................................4
`
`Lexmark Int’l, Inc. v. Static Control Components, Inc.,
`387 F.3d 522 (6th Cir. 2004) .....................................................................................................9
`
`M. M. Bus. Forms Corp. v. Uarco, Inc.,
`472 F.2d 1137 (6th Cir. 1973) .................................................................................................10
`
`Pickett v. Prince,
`207 F.3d 402 (7th Cir. 2000) ........................................................................................... passim
`
`Pickett v. Prince,
`52 F.Supp.2d 893 (N.D. Ill. 1999) ...........................................................................................16
`
`Schrock v. Learning Curve Int’l, Inc.,
`586 F.3d 513 (7th Cir. 2009) ...................................................................................................15
`
`Static Control Components, Inc. v. Lexmark Int’l, Inc.,
`697 F.3d 387 (6th Cir. 2012), aff’d, 572 U.S. 118 (2014) .........................................................4
`
`Stewart v. Abend,
`495 U.S. 207 (1990) .....................................................................................................11, 12, 15
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`Statutes
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`17 U.S.C.S. § 103.....................................................................................................................11, 13
`
`ii
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`17 U.S.C. § 103(b) .........................................................................................................................14
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`Other Authorities
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`Fed. R. Civ. P. 50 .......................................................................................................................4, 18
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`Fed. R. Civ. P. 59 ...................................................................................................................1, 4, 18
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`iii
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`Pursuant to Federal Rule of Procedure 50(b), Intervenor Clockwork IP LLC
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`(“Clockwork”) respectfully submits this Memorandum in Support of its Motion for Judgment
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`Notwithstanding the Verdict. Alternatively, Clockwork moves for the judgment to be altered or
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`amended or for a new trial pursuant to Fed. R. Civ. P. 59.
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`I.
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`INTRODUCTION
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`At summary judgment, the Court identified three areas of factual dispute to be resolved at
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`trial. First, how the Technician’s Guide was created—whether it was an original work created
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`from scratch by Janice Horne, as claimed by Hiller, or whether Horne used preexisting
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`Clockwork materials. Second, what were the similarities between the Clockwork materials and
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`the materials in the Technician’s Guide. Third, whether Hiller and Horne were authorized to use
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`Clockwork materials in the Technician’s Guide.
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`At trial Hiller failed to present any evidence on these three points. Hiller failed to present
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`any witness who could testify as to where the content in the Technician’s Guide came from. Mr.
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`Hiller took the stand and could not point to any content Ms. Horne (or he) created, and Mr.
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`Mobley had no involvement in the creation of the Technician Guide and also did not point to any
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`content Ms. Horne created. In fact, Janice Horne herself explained that she only drafted five
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`pages (which were themselves derived from third-party material) of content in the entire
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`Technician’s Guide. She admitted that the rest of the content in the Technician’s Guide was
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`preexisting material that was given to her. In contrast, Rebecca Cassel and Jocelyn Silvio
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`testified at length regarding how they contributed Clockwork preexisting content to the
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`Technician’s Guide and identified specific pages containing that content. Clockwork’s witness,
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`Lance Sinclair, linked Clockwork copyrighted material to specific pages in the Technician’s
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`Guide, showing the matching pages side by side. It is undisputed that the only source identified
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`for any particular content in the Technician’s Guide is Clockwork material.
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`1
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`On the second issue, similarity, Hiller acknowledged (and it was a stipulated fact) that the
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`Technician’s Guide included various pages of Clockwork material, copied verbatim. Clockwork
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`presented extensive evidence, including many side-by-side comparisons, showing that at least 47
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`pages of the Technician’s Guide were derived from Clockwork content. Hiller did not rebut any
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`of this evidence and failed to identify any other source for the content in the Technician’s Guide.
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`The evidence showed that Horne not only copied Clockwork material to put together the
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`Technician’s Guide, but also that the use of Clockwork material was significant. Thus,
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`overwhelming similarity was also conclusively proven at trial.
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`Finally, on the issue of authorization, the witnesses uniformly testified that Hiller was not
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`authorized to use any Clockwork preexisting material in the Technician’s Guide. Not a single
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`witness testified that he or she had given Hiller authorization to use Clockwork’s preexisting
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`material to make new, derivative works. All of the documentary evidence in the case further
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`established that Hiller was not authorized to use Clockwork material, and it conclusively rebutted
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`Hiller’s brief and conclusory statement that he thought his SGI membership might have provided
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`authorization. Even Mr. Hiller himself conceded that his membership (and any purported
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`authorization that came with it) ended in June 2016, a year before he registered any copyrights.
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`Hiller further admitted that the moment his membership ended he had to return all
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`Clockwork/SGI material and had no further right to access it. Thus, it was also conclusively
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`established at trial that the Technician’s Guide was an unauthorized derivative work from its
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`inception.
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`With these three factual issues all established in Clockwork’s and SGI’s favor, there was
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`no basis for the jury’s verdict that Hiller owned a valid copyright in the Technician’s Guide, or
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`that Clockwork did not own the Technician’s Guide. With respect to the first factual issue,
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`2
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`Hiller failed to present evidence of any original content in the Technician’s Guide and therefore
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`any claimed copyright is invalid as a matter of law.1 In addition, Hiller’s failure to prove
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`authorization further requires that Hiller’s copyright in the Technician’s Guide be found invalid.
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`Finally, with respect to the similarity of the Technician’s Guide to the Clockwork materials and
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`the significance of the use of Clockwork materials, Clockwork’s proof, which Hiller failed to
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`rebut, established that the Technician’s Guide was not only an unauthorized derivative work, but
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`that Clockwork material actually pervaded the Technician’s Guide.2
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`As a result of the record at trial and the law as set forth below, Clockwork respectfully
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`requests the Court grant Clockwork’s motion for judgment notwithstanding the verdict (or in the
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`alternative for altering or amendment of the judgment or a new trial), and issue a declaratory
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`judgment that Hiller’s copyright in the Technician’s Guide is invalid. Clockwork separately
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`requests a declaratory judgment that Clockwork owns the Technician’s Guide copyright.
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`II.
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`ARGUMENT
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`A renewed motion for a judgment as a matter of law following an adverse
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`jury verdict may be granted if “when viewing the evidence in a light most favorable to the non-
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`moving party, giving that party the benefit of all reasonable inferences . . . reasonable minds
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`could come to but one conclusion in favor of the moving party.” Barnes v. City of
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`Cincinnati, 401 F.3d 729, 736 (6th Cir.), cert. denied, 546 U.S. 1003, 126 S.Ct. 624, 163 L.Ed.2d
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`1 One’s ability to own a copyright is completely separate from the issue of whether there has
`been fraud on the Copyright Office leading to the registration of that copyright.
`2 Even if the pervade standard were the proper standard to use to determine whether one could
`potentially have a copyright in new material added to preexisting materials, Hiller never
`attempted to show what was added to the Clockwork materials. Throughout this case and trial,
`Hiller has claimed ownership over the entirety of the Technician’s Guide as an original work,
`registered the copyright in that manual as such, and claimed infringement over the entirety of
`that work. There is simply no basis for Hiller to claim that the Technician’s Guide is a
`purely original work, in light of the stipulation that it contains preexisting Clockwork
`materials and all other unrebutted evidence presented at trial.
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`3
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`506 (2005). Judgment as a matter of law is appropriate where there is no “legally sufficient
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`evidentiary basis” for a reasonable jury “to find for the [non-moving] party on that issue.”
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`Fed.R.Civ.P. 50(a)(1); Static Control Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 414
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`(6th Cir. 2012), aff’d, 572 U.S. 118 (2014).
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`In making a renewed motion for judgment as a matter of law, a party may also include an
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`alternative request for a new trial under Federal Rule of Civil Procedure 59. See Fed.R.Civ.P.
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`50(b). A new trial may be granted “on all or some of the issues-and to any party . . . after a jury
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`trial, for any reason for which a new trial has heretofore been granted in an action at law in
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`federal court.” Fed.R.Civ.P. 59(a). A new trial is warranted when a jury has reached a
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`“seriously erroneous result,” which may occur when the verdict is against the weight of the
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`evidence or the trial was unfair to the moving party in some fashion. See Holmes v. City of
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`Massillon, 78 F.3d 1041, 1045–46 (6th Cir. 1996). The burden of demonstrating the necessity of
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`a new trial is on the moving party, and the ultimate decision whether to grant such relief is a
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`matter vested within the sound discretion of the district court. Clarksville–Montgomery Co. Sch.
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`Sys. v. U.S. Gypsum Co., 925 F.2d 993, 1002 (6th Cir. 1991).
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`A.
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`Hiller Failed to Prove Any Original Material in the Technician’s Guide that
`Would Allow Hiller to Own a Valid Copyright
`1.
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`The only evidence of the source of the content in the Technician’s
`Guide was that it came from Clockwork
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`Hiller claimed that it owned the Technician’s Guide as an original work of authorship,
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`entirely authored by Janice Horne. However, Hiller did not meet its burden to prove a valid
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`copyright, and, in fact, failed to prove that there was any original content in the Technician’s
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`Guide. Hiller admitted that the Technician’s Guide contained preexisting material owned by
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`Clockwork (3/5 Trial Tr. 68:17-25), and the existence of preexisting material in the Technician’s
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`Guide was treated as a stipulated fact at trial. (Dkt. 242 at 21). Under the Copyright Act, and as
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`4
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`set forth in the Court’s jury instructions, Hiller at most could claim copyright protection only for
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`those elements of the Technician’s Guide that it could specifically prove were original content.
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`Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991) (“Originality remains
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`the sine qua non of copyright; accordingly, copyright protection may extend only to those
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`components of a work that are original to the author.”); id. at 345 (“Original . . . means only that
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`the work was independently created by the author (as opposed to copied from other works), and
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`that it possesses at least some minimal degree of creativity.”). To establish ownership of a valid
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`copyright, Hiller was required to show which parts of the Technician’s Guide were a work of
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`original authorship, and that these original contributions were “more than trivial.” (Dkt. 242 at
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`28). Whether Hiller claims that the Technician’s Guide was an original work, a derivative work,
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`or a compilation, the same standard applies – Hiller’s ownership of a copyright was limited to
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`the original material. (Dkt. 242 at 29).
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`Hiller bore the burden to prove originality and ownership of a valid copyright. (Dkt. 242
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`at 26). Given the stipulation that the Technician’s Guide included unspecified preexisting
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`material, Hiller could not meet this burden without showing which specific content in the
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`Technician’s Guide was original, and therefore owned by Hiller. To attempt to meet this burden,
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`Hiller called James Hiller, Mitch Mobley, Janice Horne (via deposition), and Vicki Lind (via
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`deposition) as witnesses.3 However, none of these witnesses even attempted to testify as to what
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`material in the Technician’s Guide was original versus Clockwork preexisting material. In fact,
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`3 The other witnesses called by Hiller either testified as to damages only, or did not testify
`regarding the Technician’s Guide. Hiller did call Jimmy Hiller Jr. as a rebuttal witness, but he
`was asked only a few questions regarding a single board at the design workshop and did not
`testify at all as to whether any original content went into the Technician’s Guide. In fact, the
`crux of Jimmy Hiller Jr.’s testimony was that it was simply a coincidence that the board about
`which he testified had almost the exact same elements in the exact same order as Clockwork’s
`Ride-Along Checklist. (3/11 Trial Tr. 79:22-81:3).
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`5
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`all of the relevant Hiller witnesses affirmatively testified that they did not create the content in
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`the Technician’s Guide, and did not decide which content would be included. (3/5 Trial Tr.
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`269:21-270:12 (Bob Pike Group); 3/5 Trial. Tr. 335:7-10 (Janice Horne); 3/5 Trial Tr. 53:14-18
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`(James Hiller); 3/6 Trial Tr. 96:5-9 (Janice Horne); 3/5 Trial Tr. 227:9-13 (Mitch Mobley)).4
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`Specifically, Mr. Hiller did not testify to drafting any pages in the Technician’s Guide,
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`nor did he testify as to the origin of any of the content. In fact, on cross-examination, Mr. Hiller
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`admitted that he did not know who contributed what to the Technician Guide. (3/5 Trial Tr.
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`53:14-18). Mr. Hiller testified that the Bob Pike Group delivered the Technician’s Guide to
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`Hiller but did not testify to any knowledge of whether Bob Pike Group drafted the content. (3/4
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`Trial Tr. 37:6-10). Mr. Hiller’s only testimony as to the content in the Technician’s Guide was
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`to point out a handful of pages that he said showed preexisting steps followed by Hiller
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`technicians. (3/5 Trial Tr. 12:7-17:3). However, Mr. Hiller also testified that the general steps to
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`a service call were not unique to any one organization, establishing the substance of these steps
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`(as opposed to their expression) could not be an “original” contribution. (3/4 Trial Tr. 117:21-
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`24). Hiller acknowledged that preexisting material in the Technician’s Guide was Clockwork or
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`SGI content. (3/5 Trial Tr. 68:17-25). Hiller further acknowledged that numerous specific pages
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`in the Technician’s Guide were Clockwork content. (3/5 Trial Tr. 62:21-64:5, 68:13-25, 99:14-
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`100:25, 101:18-105:9, 112:5-113:13).
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`Hiller’s other witnesses did not fill in the gaps left by Mr. Hiller’s testimony. Mitch
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`Mobley, who Hiller identified as having more knowledge of the content of the Technician’s
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`4 The final trial transcript is not available at this time. As a result, Clockwork’s citations are to
`the rough draft transcript. It is Clockwork’s understanding that the final transcript will be ready
`by no later than April 30. As soon as Clockwork receives the final trial transcripts, it will file an
`amended brief with citations to the final transcript along with excerpts of the cited portions of
`that final transcript.
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`6
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`Guide, admitted he had no role whatsoever in drafting the Technician’s Guide and could not say
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`how much Clockwork content was in it. (3/5 Trial Tr. 137:23-138:4, 177:9-178:10, 222:20-23).
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`Vicki Lind, testifying on behalf of Bob Pike Group (who was listed as the author on Hiller’s
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`copyright registration), testified that she could not say where any of the content in the
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`Technicians Guide came from. (3/5 Trial Tr. 269:21-270:12). Finally, Janice Horne, who was,
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`according to Hiller, the sole purported author of the Technician’s Guide, testified that other than
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`five pages (out of 116 pages), all of the content in the Technician’s Guide was preexisting
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`material provided to her. (3/5 Trial Tr. 335:7-10, 338:15-18). Further, even those five pages
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`were adapted from “DisC” content, a personality profile owned by a third party, or other
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`preexisting material. (3/5 Trial Tr. 335:7-338:18). Even that de minimis content inserted by
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`Horne was not original material and could not be owned by Hiller. Nor did Horne even select
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`the content in the Technician’s Guide, testifying that she was not the person who decided what
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`type of information to cover in the Technician’s Guide. (3/6 Trial Tr. 96:2-9).
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`Therefore, Hiller did not introduce any testimony that could establish any original content
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`in the Technician’s Guide, much less any testimony that distinguished between the Clockwork
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`preexisting material and original work subject to copyright protection. Similarly, Hiller did not
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`introduce documentary evidence of any Hiller preexisting material or content that was included
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`in the Technician’s Guide.
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`In contrast, Clockwork and SGI introduced unrebutted testimony from Jocelyn Silvio that
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`she provided the content on a large number of pages in the Technician’s Guide, and that the
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`content she provided was Clockwork licensed content. (3/7 Trial Tr. 147:24-148:24, 168:16-
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`175:15, 180:15-182:16, 183:13-187:3, 190:2-195:20, 208:20-209:6, 214:1-236:6, 266:10-19).
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`Rebecca Cassel also testified extensively to the Clockwork content that was included in the
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`7
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`Technician’s Guide. Rebecca Cassel, Vicki Lind, and Janice Horne all testified that Clockwork
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`materials were present during the creation of the Technician’s Guide, and Rebecca Cassel
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`confirmed that content was drawn from the Clockwork materials even during the Results-Based
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`Design workshop.5 (3/6 Trial Tr. 286:12-21; 3/6 Trial Tr. 100:7-10; 3/5 Trial Tr. 287:14-19).
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`Lance Sinclair produced Clockwork copyrighted documents from classes Hiller had attended,
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`and through side-by-side comparisons, demonstrated many pages in the Technician’s Guide were
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`directly copied or derived from the Clockwork content, including massive scripts of hundreds of
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`words each. (3/8 Trial Tr. 180:10-210:20, 212:17-224:19, 236:2-260:21).
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`2.
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`Hiller did not meet its burden to show a valid copyright by proving
`original content apart from the Clockwork material
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`In total, Clockwork and SGI demonstrated that 47 pages in the Technician’s Guide came
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`from Clockwork materials. (3/7 Trial Tr. 147:24-148:24, 168:16-175:15, 180:15-182:16, 183:13-
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`187:3, 190:2-195:20, 208:20-209:6, 214:1-236:6, 266:10-19; 3/8 Trial Tr. 180:10-210:20,
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`212:17-224:19, 236:2-260:21; 3/7 Trial Tr. 277:8-278:4; 3/6 Trial Tr. at 48:16-20; see also, e.g.,
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`[D.E. 254-1] at 1-17 (non-exhaustive examples); compare Trial Ex. 5 at 108, with Trial Ex. 116
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`at 52 (same); compare Trial Ex. 5 at 25, with Trial Ex. 91 at 25(same); compare Trial Ex. 5 at
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`37, with Trial Ex. 117 (same); compare Trial Ex. 5 at 38, with Trial Ex. 117 (same); compare
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`Trial Ex. 5 at 39, with Trial Ex. 118 at 9-10 (same); compare Trial Ex. 5 at 68, with Trial Ex. 48
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`at 134 (same); compare Trial Ex. 5 at 81, with Trial Ex. 93 (same); compare Trial Ex. 5 at 100,
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`with Trial Ex. 118 at 10 (same); compare Trial Ex. 5 at 101, with Trial Ex. 116 at 92-93(same);
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`5. To the extent Hiller contends that any content in the Technician’s Guide was created during
`the RBD, Hiller never demonstrated that any content from the RBD ended up in the Technician’s
`Guide. He did not point to a single page in the Technician’s Guide to suggest how it was
`original, not preexisting content or how it came from the RBD. Moreover, even with respect to
`the RBD, Clockwork demonstrated that content from Clockwork materials was put on a poster
`during the RBD, and then added to the Technician’s Guide.
`
`8
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`compare Trial Ex. 5 at 101, with Trial Ex. 116 at 94-95 (same); compare Trial Ex. 5 at 102, with
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`Trial Ex. 116 at 94-95 (same); compare Trial Ex. 5 at 103, with Trial Ex. 116 at 97 (same);
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`compare Trial Ex. 5 at 114, with Trial Ex. 18a at 2 (same); compare Trial Ex. 5 at 115, with Trial
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`Ex. 18a at 3-4 (same); compare Trial Ex. 5 at 116, with Trial Ex. 18a at 7 (same); compare Trial
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`Ex. 5 at 117, with Trial Ex. 18a at 5-6 (same)). This is especially significant given that many of
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`the remaining pages were either blank, derived from different third party material, or simply
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`showed the order of steps in a service call, which Hiller testified was universal, and not an
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`original contribution by Hiller. (3/4 Trial Tr. 117:21-25; 3/5 Trial Tr. 202:25-203:9). Regardless,
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`Hiller did not put forward any evidence or testimony that it, Bob Pike Group, or Janice Horne
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`(who Hiller claimed was the sole author) authored even the remaining pages. Lexmark Int'l, Inc.
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`v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004) (original work must be
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`“independently created by the author (as opposed to copied from other works)”).
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`Accordingly, as a matter of law, Clockwork and SGI rebutted any presumption created by
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`Hiller’s copyright registration. To rebut the presumption, Clockwork:
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`1) provided the stipulation and Hiller’s admission that there was preexisting Clockwork
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`material in the Technician’s Guide;
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`2) elicited testimony that the Bob Pike Group (the author listed on the registration) and its
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`contractor Janice Horne could not identify anything original that they added to the
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`Technician’s Guide, nor even identify where the content in the Technician’s Guide came
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`from; and
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`3) offered testimony and extensive evidence that the source of the expressive content in
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`the Technician’s Guide was actually Clockwork preexisting material.
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`Once Clockwork rebutted the presumption created by the registration, Hiller was required to
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`9
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`demonstrate authorship of original content in the Technician’s Guide. BancTraining Video Sys.
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`v. First Am. Corp., 956 F.2d 268 (6th Cir. 1992). Without any testimony as to the original
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`creation of any part of the Technician’s Guide, Hiller failed to prove ownership of a valid
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`copyright as a matter of law. See M. M. Bus. Forms Corp. v. Uarco, Inc., 472 F.2d 1137, 1140
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`(6th Cir. 1973) (holding requisite originality for ownership of a valid copyright was not proved
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`when testimony showed supposed “author” merely pieced together or paraphrased content from
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`other sources).
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`In sum, Hiller failed to prove original content in the Technician’s Guide; therefore
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`judgment as a matter of law should be granted on Clockwork’s claim that Hiller did not prove
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`ownership of a valid copyright.
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`B.
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`Hiller Failed to Prove Authorization to Use Clockwork Preexisting Material
`1.
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`Hiller did not have authorization to use Clockwork preexisting
`material
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`As a separate reason for granting Clockwork’s Motion, Clockwork proved as a matter of
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`law that the Technician’s Guide is an unauthorized derivative work. As such, Hiller cannot claim
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`a copyright in it.
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`All of the testimony and the exhibits introduced at trial show Hiller had no authorization
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`to use Clockwork materials. At trial, Hiller did not present any testimony or evidence that Hiller
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`was authorized to use the Clockwork preexisting materials in the Technician’s Guide. In fact, all
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`of the witnesses uniformly testified that neither Hiller, Bob Pike Group, Janice Horne, or SGI
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`had any authorization to use Clockwork preexisting materials in a new derivative work or to
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`claim ownership of that work. Hiller admitted at trial that when he registered the copyright in
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`the Technician’s Guide, he had no authorization from Clockwork (or anyone else) to use
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`Clockwork preexisting material. (3/5 Trial Tr. 117:19-22, 136:18-137:22). The only evidence in
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`the record as to where the content of the Technician’s Guide comes from shows that it is
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`Clockwork preexisting material that Hiller was not authorized to use. On this basis alone,
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`judgment should be entered against Hiller. 17 U.S.C.S. § 103 (“[P]rotection for a work
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`employing preexisting material in which copyright subsists does not extend to any part of the
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`work in which such material has been used unlawfully.”). Even if Hiller had demonstrated some
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`original content, the lack of authorization for the derivative work as a whole and for the use of
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`Clockwork’s material, invalidates Hiller’s copyright. E.g., Pickett v. Prince, 207 F.3d 402 (7th
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`Cir. 2000).
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`Hiller’s only argument as to authorization was his brief unsupported and conclusory
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`statement that Hiller’s SGI membership might have authorized him to use the Clockwork
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`preexisting material. This argument fails factually and as a matter of law. All of the witnesses
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`testified that Hiller was never given permission to use Clockwork material, and both parties to
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`the Clockwork-SGI license testified that it did not give SGI or its members the right to make or
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`own new derivative works of Clockwork material. (3/7 Trial Tr. 78:14-80:17, 81:10-84:2,
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`85:22-86:6; 3/8 Trial Tr. 264:17-265:17).
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`But even if one were to somehow accept Hiller’s argument as to membership, Hiller
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`admitted that his SGI membership ended by June 2016. (3/5 Trial Tr. at 73:18-74:1). He further
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`admitted that he was required to give back any Clockwork materials in his possession at the
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`conclusion of his SGI membership and that he could not even possess Clockwork or SGI
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`materials, never mind claim ownership over any derivative work containing those materials. (3/5
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`Trial Tr. 92:9-93:4, 116:19-22). Under Stewart v. Abend, 495 U.S. 207 (1990), even if Hiller at
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`some point had authorization to use Clockwork preexisting material in the Technician’s Guide,
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`once that authorization ended, any copyright Hiller claimed in the Technician’s Guide was
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`11
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`invalidated. Id. at 223-24 (explaining that “the element [of a derivative work] drawn from the
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`pre-existing work remains on grant from the owner of the pre-existing work,” and that, “no
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`matter how inseparably intertwined with the derivative work,” use of the pre-existing material as
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`part of that work constitutes “infring[ement] if one who employs the work does not have a valid
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`license or assignment for use”); see also id. at 216 (rejecting the contrary argument because it
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`would “have us read into the Copyright Act a limitation on the statutorily created rights of the
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`owner in the underlying work”). Thus, Hiller’s March 2017 copyright registration is invalid as a
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`matter of law.
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`Hiller did not have authorization to make or own a derivative work using Clockwork
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`material at any point regardless of SGI membership, and Hiller certainly had no right to such
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`materials once Hiller’s SGI membership ended. Furthermore, Hiller’s SGI membership
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`agreements never authorized Hiller to use the Clockwork materials in a Hiller-owned manual.
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`Hiller’s SGI membership agreement in fact explicitly prevented Hiller from using SGI materials
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`outside of his membership, and nowhere authorized Hiller to create his own manual
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`incorporating Clockwork materials. In fact, Hiller’s member agreements alone create an
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`independent contractual basis as to why Hiller’s copyright was invalid. (Trial Exs. 19-21); see
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`Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 524 (7th Cir. 2009) (contract can bar author
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`from obtaining copyright in derivative work). Equally fatal to Hiller’s “membership” theory,
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`the SGI license agreement with Clockwork did not give SGI the right to create derivative works
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`incorporating Clockwork material, thus SGI could certainly not give any such right to Hiller
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`through its membership.
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`Further, the SGI license explicitly granted SGI the right to use the Clockwork materials
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`only in the “Bus