`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`ALVERTIS ISBELL d/b/a ALVERT
`MUSIC,
`
`Plaintiff,
`
`v.
`
`DM RECORDS, INC.,
`
`Defendant.
`
` §
` §
` §
` §
` §
` §
` §
` §
` §
` §
` §
`
`Civil Action No. 4:07-cv-146
`
`MEMORANDUM OPINION AND ORDER REGARDING
`MOTIONS FOR SUMMARY JUDGMENT
`
`Pending before the court are:
`
`•
`
`•
`
`•
`
`•
`
`•
`
`Defendant’s Motion for Summary Judgment (Dkt. #138), Plaintiff’s
`Response thereto (Dkt. # 195), Defendant’s Reply (Dkt. #211), and
`Plaintiff’s Surreply (Dkt. #227);
`
`Plaintiff’s Motion for Partial Summary Judgment (Dkt. #153),
`Defendant’s Response thereto (Dkt. #161), and Plaintiff’s Reply (Dkt.
`#166);
`
`Plaintiff’s Motion to Strike Summary Judgment Evidence (Dkt.
`#169), Defendant’s Response thereto (Dkt. #190), and Plaintiff’s
`Reply (Dkt. #209);
`
`Plaintiff’s Motion to Strike Summary Judgment Evidence (Dkt.
`#196), Defendant’s Response thereto (Dkt. #210), and Plaintiff’s
`Reply (Dkt. #226); and
`
`Plaintiff’s Motion for Leave to Supplement Motion for Summary
`Judgment (Dkt. #191), Defendant’s Response thereto (Dkt. #192),
`and Plaintiff’s Reply (Dkt. #207).
`
`The court will address the above-referenced motions in turn.
`
`-1-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 2 of 13 PageID #: 6475
`
`I. BACKGROUND
`
`In this civil action, Plaintiff Alvertis Isbell d/b/a/ Alvert Music (“Isbell”) seeks a declaratory
`
`judgment that Alvert Music is the rightful owner of two musical compositions: “Dazzey Duks” and
`
`“Whoomp! (There It Is)” (together, “Subject Compositions”). Isbell also seeks damages for DM’s
`
`alleged infringement upon his rights in the Subject Compositions. The events giving rise to this suit
`
`begin with business conducted by two companies, Alvert Music and Bellmark Records (“Bellmark”),
`
`each run by Alvertis Isbell. Bellmark was purportedly a record company, owning sound recordings.
`
`Compl. ¶ 10. Alvert Music is, and has been, a music publishing company, which owns musical
`
`compositions and not sound recordings. Id. at ¶ 11.1
`
`During the early 1990's, Bellmark entered into writers agreements to obtain composition
`
`rights to the Subject Compositions for its affiliated publishing company, Alvert Music. Id. at ¶¶
`
`13–14. Bellmark retained for itself the two sound recordings. In 1997, DM Records secured
`
`licenses from both of Isbell’s companies to exploit both the musical compositions and sound
`
`recordings at issue. Id. at ¶¶ 15–16. In April of that year, Bellmark filed a Chapter 11 bankruptcy
`
`petition, which was later converted into a Chapter 7 petition. Id. at ¶ 17. In October of 1999, DM
`
`purchased the assets of Bellmark from the bankruptcy estate, including all of Bellmark’s rights in
`
`the Subject Compositions. Id. at ¶ 18. Alvert Music has not sought bankruptcy protection. Since
`
`that time, DM allegedly has proceeded with regard to the Subject Compositions in a manner
`
`inconsistent with Alvert Music’s ownership rights thereto. In 2002, Isbell filed this lawsuit in the
`
`1
`“‘Sound recordings’ are ‘works that result from the fixation of a series of musical,
`spoken, or other sounds . . . .’ A sound recording differs from a musical composition, which
`captures an artist's music in its written form only.” Emanation Inc. v. Zomba Recording, Inc., 72
`Fed. App’x 187, 188 n.1 (5th Cir. 2003) (internal citations omitted).
`
`-2-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 3 of 13 PageID #: 6476
`
`Northern District of Texas. In 2004, that court transferred the matter to this court, and the magistrate
`
`judge referred it to the bankruptcy court in that same year. In 2007, the bankruptcy court issued a
`
`report and recommendation that the magistrate judge’s referral be withdrawn, and the undersigned
`
`judge agreed. Following an appeal of a December 2008 order by this court, this case is now pending
`
`once more before this court.
`
`On October 31, 2011, following this court’s March 31, 2011 order denying Defendant’s
`
`motion for summary judgment, this court granted DM leave to file a second motion for summary
`
`judgment. DM’s second motion for summary judgment argues that the lawsuit is barred by the
`
`doctrine of res judicata and 11 U.S.C. § 363(m); that Isbell did not properly acquire ownership of
`
`the Subject Compositions under 17 U.S.C. § 204 or § 205; that Isbell should be equitably estopped
`
`and/or has waived his right to assert claims of ownership; and, even if Isbell did own the copyrights
`
`to the Subject Compositions, Bellmark had an implicit license to exploit the Subject Compositions
`
`and that license was transferred to DM. Isbell both responded to DM’s motion and filed his own
`
`motion for summary judgment, asking the court to find, as a matter of law, that Isbell owns the
`
`copyrights to the Subject Compositions and that DM has infringed upon those rights. All other
`
`pending motions were filed in August through November of 2011.
`
`II. MOTIONS TO STRIKE SUMMARY JUDGMENT EVIDENCE
`
`Isbell requests that the court strike two declarations of Mark Watson, President of DM, (Dkts.
`
`#138-1, #162-1) from summary judgment evidence. See Dkts. #169, #196. Specifically, Isbell argues
`
`that large portions of the declarations contain inadmissible hearsay, testimony outside of Watson’s
`
`personal knowledge, and testimony in violation of Fed. R. Evid. 401 and 403. The court recognizes
`
`that “unsubstantiated assertions, improbable inferences, and unsupported speculation are not
`
`-3-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 4 of 13 PageID #: 6477
`
`competent summary judgment evidence.” Hugh Symons Grp., PLC v. Motorola, Inc., 292 F.3d 466,
`
`468 (5th Cir. 2002). Neither are “conclusory allegations.” Id. The court has reviewed the evidence
`
`provided in accordance with the Fed. R. Civ. P. 56(c)(4) summary judgment standards, and has
`
`considered only those portions of the declarations that “[are] made on personal knowledge [and] set
`
`out facts that would be admissible in evidence.” Therefore, Isbell’s motions to strike (Dkts. #169,
`
`#196) are DENIED.
`
`III. MOTION FOR LEAVE TO SUPPLEMENT
`
`Isbell also requests leave to supplement his motion for summary judgment with a newly-
`
`discovered document, a compact disc. See Dkt. #191. DM argues that Isbell’s motion should be
`
`denied due to lack of compliance with Fed. R. Civ. P. 26 and Local Rule CV-7(h). However, Isbell’s
`
`motion contains a certificate of conference in compliance with Local Rule CV-7(h), alleging that
`
`Isbell’s counsel conferred with DM’s counsel via telephone regarding this motion and DM’s counsel
`
`opposed the motion.
`
`DM also argues that this document is untimely, unauthenticated, and untrustworthy due to
`
`Isbell’s having purchased the compact disc from a public internet website, www.amazon.com, after
`
`the discovery cutoff period. Addressing the untimeliness argument, this document should have been
`
`produced by DM, not Isbell. Thus, the delay in producing this document did not result from a lack
`
`of due diligence on Isbell’s part. Further, the document is material evidence in this case. Addressing
`
`the authentication and untrustworthiness argument, DM objected to Isbell’s second request for
`
`production of “any and all documents showing each and every album on which the [Subject]
`
`Compositions or sound recordings of the [Subject] Compositions appear,” arguing that the
`
`“information requested [was] equally accessible to the Plaintiff using internet services.” See Def’s
`
`-4-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 5 of 13 PageID #: 6478
`
`Resp. to Pl.’s Request for Prod. (Dkt. #191-2), ¶ 46. DM may not refuse to produce certain
`
`documents, arguing that they are “equally accessible to the Plaintiff using internet services,” then
`
`later object to Isbell’s procuring such documents “using internet services.” Accordingly, because
`
`Isbell does not add new arguments to his summary judgment motion and because DM has failed to
`
`show that it is prejudiced by Isbell’s delay in submitting the newly-discovered document, Isbell’s
`
`motion (Dkt. #191) is GRANTED.
`
`IV. MOTIONS FOR SUMMARY JUDGMENT
`
`A. LEGAL STANDARD
`
`Summary judgment may be granted if the pleadings, the discovery and disclosure materials
`
`on file, and any affidavits show “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); Celotex Corp. v. Catrett,
`
`477 U.S. 317, 322 (1986). The purpose of the rule is “to isolate and dispose of factually unsupported
`
`claims or defenses.” Celotex, 477 U.S. at 323–24. Therefore, a court must consider whether “there
`
`are any genuine factual issues that properly can be resolved only by a finder of fact because they may
`
`reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
`
`(1986). In deciding whether to grant summary judgment, the court construes all facts and inferences
`
`in the light most favorable to the nonmoving party. Evans v. City of Bishop, 238 F.3d 586, 589 (5th
`
`Cir. 2000). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.
`
`Both parties bear burdens of producing evidence in the summary judgment process. Celotex,
`
`477 U.S. at 323–24. First, the party seeking summary judgment must show that, if the evidentiary
`
`material of record were reduced to admissible evidence in court, it would be insufficient to permit
`
`the nonmoving party to carry its burden of proof. Id. The nonmoving party must then set forth
`
`-5-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 6 of 13 PageID #: 6479
`
`“specific facts showing that there is a genuine issue for trial” and “may not rest upon the mere
`
`allegations or denials of his pleadings.” FED. R. CIV. P. 56(e); Anderson, 477 U.S. at 249.
`
`B. ANALYSIS
`
`1. Ownership of the Subject Composition Copyrights
`
`Both Isbell and DM have requested that the court grant summary judgment in their favor
`
`regarding ownership of the Subject Composition copyrights. DM argues that there was never any
`
`written assignment or transfer of copyright ownership to Isbell in compliance with 17 U.S.C. §§ 204
`
`and 205. D. Mot. Summ. J. (Dkt. #138), at 17, 20. Conversely, Isbell has requested that the court
`
`rule as a matter of law that Isbell owns the Subject Composition copyrights. Pl. Mot. Summ. J. (Dkt.
`
`#153), at 1. Because there are genuine issues of material fact surrounding ownership of the Subject
`
`Composition copyrights, the court DENIES both DM and Isbell’s motions for summary judgment.
`
`a. Writers Agreements
`
` Copyright ownership is shown by: (1) proof of originality and copyrightability, and (2)
`
`compliance with the applicable statutory requirements. See Compaq Computer Corp. v. Ergonome,
`
`Inc., 387 F.3d 403, 407–08 (5th Cir. 2004). Under § 204(a) of the Copyright Act, “[a] transfer of
`
`copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance,
`
`or a note or memorandum of the transfer, is in writing and signed by the owner of the rights
`
`conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204. The writing does not have to
`
`contain any particular language or “magic words,” but it must show an agreement to transfer
`
`copyright. Lyrick Studios, Inc. v. Big Idea Prods. Inc., 420 F.3d 388, 392 (5thCir. 2005). There are
`
`
`writers agreements transferring interests in the copyrights of both “Dazzy Duks” and “Whoomp!
`
`(There it is)” (together, “Writers Agreements”). See Dkt. #153-5, #153-6, & #138-3. The Writers
`
`-6-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 7 of 13 PageID #: 6480
`
`Agreements assign interests in the Subject Composition copyrights to “Bellmark’s affiliated
`
`publishing company” and “Bellmark’s affiliated designee publisher,” without mentioning Alvertis
`
`Isbell or Alvert Music by name. See id.
`
`Isbell argues that, because California law governs the contracts, a “third party beneficiary
`
`[may] enforce a contract made for its benefit.” Hess v. Ford Motor Co., 41 P.3d 46, 51 (Cal. 2002).
`
`“[I]t is not necessary for a third party to be specifically named in a contract.” Galardi Grp. Franchise
`
`& Leasing, LLC v. City of El Cajon, 125 Cal. Rptr. 3d 394, 400 (Cal. Ct. App. 2011). However, the
`
`issue in this case is not whether the third-party beneficiary must be named in the contract, but
`
`whether there was a third-party beneficiary at all. Thus, Isbell’s argument is misplaced.
`
`DM argues that the proper grammatical reading of “Bellmark’s affiliated publishing
`
`company” and “Bellmark’s affiliated designee publisher” assigns the copyrights to an entity owned
`
`by Bellmark, especially because neither Alvertis Ibell or Alvert Music is mentioned in the Writers
`
`Agreements. Isbell, however, argues that this language demonstrates the parties’ intent to transfer
`
`the copyrights to a company separate and apart from Bellmark, especially because other parts of the
`
`agreements simply use the name “Bellmark” when intending to convey rights to Bellmark itself. It
`
`is well settled that “[t]he language of the contract, unless ambiguous, represents the intentions of the
`
`parties.” Kimbell Foods, Inc. v. Republic Nat’l Bank of Dallas, 557 F.2d 491, 496 (5th Cir. 1977).
`
`Because this contract is susceptible to more than one reasonable interpretation, it is ambiguous and
`
`extrinsic evidence may be used to determine the parties’ intent. See, e.g., Nichols v. Alcatel USA,
`
`Inc., 532 F.3d 364, 377 (5th Cir. 2008). Here, however, both parties have produced copious amounts
`
`of conflicting material evidence of the parties’ actions and intent surrounding and following the
`
`Writers Agreements. Thus, due to the disputed factual record, summary judgment cannot be granted
`
`-7-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 8 of 13 PageID #: 6481
`
`on the above-argued grounds.
`
`b. Alter Ego
`
`Alternatively, DM argues that Bellmark was an alter ego of Isbell, and their commingled
`
`assets—including rights in the Subject Compositions—were transferred by Bellmark to DM. Isbell,
`
`on the other hand, argues that any alter ego theory was dismissed by the bankruptcy court. During
`
`the pendency of Bellmark’s bankruptcy in 1997, the bankruptcy court issued an order allowing the
`
`creditors committee to “pursue on behalf of the estate, any and all claims of the estate against
`
`insiders and affiliates, including without limitations, Bellmark/Life Entertainment, Inc.; Emerge
`
`Music, Inc.; Alvertis Isbell (a/k/a Al Bell), and the other Al Bell Companies.” See Dkt. #153-22. In
`
`1998, however, the court granted the trustee’s motion to dismiss the adversary proceeding against
`
`Bellmark insiders due to the lack of “sufficient [factual] support at [that] time.” See id. These
`
`bankruptcy court orders do not establish that there was or was not an alter ego relationship between
`
`Isbell and his companies. Rather, the orders illuminate the presence of significant factual dispute
`
`regarding an alleged alter ego relationship, which should be resolved at trial.
`
`Accordingly, there are genuine disputes as to material fact regarding the ownership of the
`
`Subject Composition copyrights at the time of the bankruptcy sale to DM. Due to these fact
`
`disputes, the court may not resolve the issue of ownership as a matter of law. See FED. R. CIV. P.
`
`56(a); Celotex Corp., 477 U.S. at 322. Therefore, the court DENIES both Isbell and DM’s motions
`
`for summary judgment on the issue of ownership of the Subject Compositions.
`
`2. Copyright Infringement
`
` Isbell also requests that the court find, as a matter of law, that DM infringed upon Isbell’s
`
`Subject Composition copyrights. In order to prove copyright infringement, a party must prove both
`
`-8-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 9 of 13 PageID #: 6482
`
`(a) ownership and (b) a violation of the owner’s exclusive rights. Controversy Music v. Down Under
`
`Pub Tyler, Inc., 488 F. Supp. 2d 572, 576 (E.D. Tex. 2007). Because the court has not granted
`
`Isbell’s motion for summary judgment on the issue of ownership, the court must also DENY Isbell’s
`
`motion for summary judgment on the issue of copyright infringement.
`
`3. Affirmative Defenses
`
`In its motion for summary judgment, DM requests that the court find in its favor as a matter
`
`of law on numerous affirmative defenses. For the following reasons, DM’s motion on these grounds
`
`is DENIED.
`
`a. Res Judicata
`
`DM argues that the bankruptcy court’s order approving the sale of Bellmark’s assets or
`
`interests in assets “free and clear of all liens, claims, and encumbrances” precludes this action by
`
`Isbell. D. Mot. Summ. J. 12. “A valid final adjudication of a claim precludes a second action to that
`
`claim or any part of it.” Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222, 233 n.5 (1998) (citing
`
`RESTATEMENT (SECOND) OF JUDGMENTS §§ 17–19 (1982)). “When a bankruptcy court approves the
`
`sale of an asset of the debtor, a person who has notice of the sale cannot later void it on the ground
`
`that he is the asset’s real owner.” ITOFCA, Inc. v. MegaTrans Logistics, 322 F.3d 928, 930 (7th Cir.
`
`2003) (holding that res judicata bars a claim when it was clear “on the face of the bankruptcy judge’s
`
`order” that such property was conveyed in the bankruptcy sale).
`
`DM’s argument assumes, however, that the Bellmark estate owned the Subject Compositions.
`
`The bankruptcy court itself stated on numerous occasions that the “sale of the [p]urchased [a]ssets
`
`is made ‘as is, where is’ without any representation or warranties concerning the Estate’s right, title
`
`or interest, if any, in such assets . . . .” See Dkt. #1, at 3–4. Further, the bankruptcy court held that
`
`-9-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 10 of 13 PageID #: 6483
`
`the determination of whether the Subject Compositions are “property of the estate depends on non-
`
`bankruptcy law.” Id. at 12. Accordingly, because DM’s argument assumes Bellmark owned the
`
`Subject Compositions at the time of the sale, a fact not yet established in this case, the court
`
`DENIES DM’s motion for summary judgment on the grounds of res judicata.
`
`b. 11 U.S.C. § 363(m)
`
`DM also argues that Isbell’s claims are precluded under 11 U.S.C. § 363(m) because DM
`
`purchased, in good faith, the rights to the Subject Compositions from the Bellmark bankruptcy
`
`estate. D. Mot. Summ. J. 16. It is well settled that 11 U.S.C. § 363(m) protects good faith purchasers
`
`of bankruptcy estate assets by precluding claims or appeals by third parties who fail to seek a stay
`
`during the bankruptcy proceedings. However, section 363(m) does not apply in this case because
`
`it protects good faith purchasers only from suits challenging the validity of the sale of underlying
`
`property in a bankruptcy estate. In re Supertrail Mfg. Co., Inc., 383 Fed. App’x 475, 478 (5th Cir.
`
`2010). Section 363(m) does not apply to those assets not included in the bankruptcy estate. Because
`
`the central issue in this suit whether the Subject Compositions were part of Bellmark’s estate, the
`
`court DENIES DM’s motion for summary judgment based on 11 U.S.C. § 363(m).
`
`c. Equitable Estoppel
`
`DM also requests summary judgment on the basis of equitable estoppel. It argues that Isbell
`
`either waived or should be estopped from asserting his claims of infringement because (a) Isbell
`
`never asserted a claim of ownership during the bankruptcy proceedings or during the years thereafter,
`
`(b) Isbell concealed material facts regarding ownership of the Subject Composition copyrights, and
`
`(c) DM reasonably relied on Isbell’s actions or inactions when it decided to purchase the assets of
`
`Bellmark. D. Mot. Summ. J. (Dkt. #138), at 19–20. “Although there is no on-point circuit authority
`
`-10-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 11 of 13 PageID #: 6484
`
`articulating the elements of estoppel as a defense to a copyright infringement allegation, a consensus
`
`has developed that a copyright defendant must prove four conjunctive elements to establish estoppel
`
`in such cases:
`
`(1) the plaintiff must know the facts of the defendant’s infringing conduct;
`
`(2) the plaintiff must intend that its conduct shall be acted on or must so act that the
`
`defendant has a right to believe that it is so intended;
`
`(3) the defendant must be ignorant of the true facts; and
`
`(4) the defendant must rely on the plaintiff’s conduct to its injury.”
`
`Carson v. Dynegy, Inc., 344 F.3d 446, 453 (5th Cir. 2003). “Furthermore, it is accepted that estoppel
`
`may be accomplished by a plaintiff’s silence and inaction.” Id. In sum, “the theory of estoppel is
`
`based on reasonable reliance.” Id. at 454.
`
`However, “[e]quitable estoppel is disfavored and should only be applied as needed to avoid
`
`injustice.” Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 389 (5th Cir. 2001). Further,
`
`when determining a party’s intent, the question is often fact-specific and, ordinarily, “such issues are
`
`inappropriate for summary judgment.” Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 711 (2d
`
`Cir. 1991). With this in mind, the court concludes that at least one element of equitable estoppel
`
`cannot be met as a matter of law because Isbell’s intent, both at the time of the bankruptcy sale and
`
`in the years thereafter, is ambiguous and a question best left to the trier of fact. Additionally, this
`
`court has held that there is a genuine factual dispute regarding when Isbell knew or had reason to
`
`know that the Subject Compositions at stake were being exploited. See Dkt. #109, at 6. Accordingly,
`
`because DM is unable to establish the elements of equitable estoppel as a matter of law, the court
`
`DENIES DM’s motion for summary judgment on this affirmative defense.
`
`-11-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 12 of 13 PageID #: 6485
`
`d. Implied Nonexclusive License
`
`Finally, DM argues that, even if Isbell owns the Subject Composition copyrights, Bellmark
`
`had an implied license to exploit the Subject Compositions since it had been exploiting the
`
`compositions for years without objection by Isbell. D. Mot. Summ. J. (Dkt. #138), at 21. Therefore,
`
`while Isbell may nevertheless bring his claim for declaratory relief, he is precluded from pursuing
`
`his claim for copyright infringement due to Bellmark’s implied license, which was transferred to DM
`
`in the bankruptcy sale. Id. Other circuits have held that an express or implied license is a valid
`
`defense to a copyright infringement claim. See Wilchombe v. Tee Vee Toons, Inc., 555 F.3d 949, 956
`
`(11th Cir. 2009); Tasini v. N.Y. Times Co., Inc., 206 F.3d 161, 170–71 (2d Cir. 2000); Effects Assoc.
`
`v. Cohen, 908 F.2d 555, 558–59 (9th Cir. 1990). “It is a hallmark principle of copyright law that
`
`licensors may not sue their licensees for copyright infringement.” Agence France Presse v. Morel,
`
`769 F. Supp. 2d 295, 302 (S.D.N.Y. 2011).
`
`Although a non-exclusive license may be implied from the conduct of the parties, the
`
`defendant bears the burden of proving the existence of such a license. Carson, 344 F.3d at 451. An
`
`implied license arises when: “(a) a person (the licensee) requests the creation of a work, (b) the
`
`creator (the licensor) makes the particular work and delivers it to the licensee who requested it, and
`
`(c) the licensor intends that the licensee-requestor copy and distribute his work.” Lulirama Ltd., Inc.
`
`v. Axcess Broadcast Servs., Inc., 128 F.3d 872, 879 (5th Cir. 1997) (quoting I.A.E., Inc. v. Shaver,
`
`74 F.3d 768, 775 (7th Cir. 1996)). See also Nearstar, Inc. v. Waggoner, 2011 WL 817374, at *3
`
`(E.D. Tex. Mar. 2, 2011). However, the undisputed facts of this case do not at this point satisfy the
`
`criteria above for creation of a non-exclusive implied license. DM has produced no evidence
`
`alleging that Isbell was the “creator” of the work and “intend[ed] that the licensee-requestor copy
`
`-12-
`
`
`
`Case 4:07-cv-00146-RAS Document 240 Filed 02/03/12 Page 13 of 13 PageID #: 6486
`
`and distribute his work,” as is required to establish an implied non-exclusive license. Id. Therefore,
`
`DM’s motion for summary judgment based on the defense of an implied license is DENIED.
`
`4. Attorneys Fees
`
`Because the court has not granted either party’s motion for summary judgment, all requests
`
`for the allocation of attorneys fees are DENIED.
`
`V. CONCLUSION
`
`For the reasons set forth above, Isbell’s motions to strike summary judgment evidence (Dkts.
`
`#169, #196) are DENIED; Isbell’s motion for leave to supplement its summary judgment motion
`
`(Dkt. #191) is GRANTED; DM’s motion for summary judgment (Dkt. #138) is DENIED; and
`
`Isbell’s motion for summary judgment (Dkt. #153) is DENIED.
`
`IT IS SO ORDERED.
`
`-13-