throbber
IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`__________________________
`No. 01-20869
`__________________________
`
`United States Court of Appeals
`Fifth Circuit
`F I L E D
`May 19, 2003
`
`Charles R. Fulbruge III
`Clerk
`
`ALAMEDA FILMS S A DE C V; CIMA FILMS S A DE CV;
`CINEMATOGRAFICA FILMEX S A DE C V; CINEMATOGRAFICA
`JALISCO S A DE C V; CINEMATOGRAFICA SOL S A DE C V,
`Plaintiffs - Counter Defendants - Appellees
`- Cross Appellants,
`CINEPRODUCCIONES INTERNATIONAL S A DE C V; CINEVISION S A DE
`CV; DIANA INTERNACIONAL FILMS S A DE C V; FILMADORA MEXICANA
`S A DE C V; GAZCON FILMS S A DE C V; GRUPO GALINDO S A DE C V;
`MIER S A DE C V; ORO FILMS S A DE C V; PELICULAS Y VIDEOS
`INTERNACIONALES S A DE C V; PROCINEMA S A DE C V;
`PRODUCCIONES EGA S A DE C V; PRODUCCIONES GALUBI S A DE C V;
`PRODUCCIONES MATOUK S A DE C V; PRODUCCIONES ROSA PRIEGO S A;
`PRODUCCIONES TORRENTE S A DE C V; PRODUCCIONES VIRGO S A
`DE C V; VIDEO UNIVERSAL S A DE C V; SECINE S A DE C V;
`CUMBRE FILMS S A DE C V,
`Plaintiffs - Appellees - Cross Appellants,
`
`
`v.
`AUTHORS RIGHTS RESTORATION CORPORATION INC; MEDIA RESOURCES
`INTERNATIONAL LLP; TELEVISION INTERNATIONAL SYNDICATORS INC;
`H JACKSON SHIRLEY, III;
`Defendants - Counter Claimants - Appellants
`- Cross Appellees.
`___________________________________________________
`Appeal from the United States District Court for the
`Southern District of Texas
`___________________________________________________
`Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
`Wiener, Circuit Judge:
`Plaintiffs-Appellees-Cross-Appellants Alameda Films, S.A., et
`
`

`
`al. (collectively, “the Plaintiffs”) are 24 Mexican film production
`companies that sued Defendants-Appellants-Cross-Appellees Authors
`Rights Restoration Corp., Inc., Media Resources International,
`Television International Syndicators, Inc., and H. Jackson Shirley,
`III (collectively, “the Defendants”), claiming copyright violations
`in 88 Mexican films that the Defendants distributed in the United
`States (“U.S.”). Following a lengthy and vociferously disputed
`discovery process and the filing of numerous pre-trial motions,
`including eight motions filed by the Defendants for partial summary
`judgment, the district court eliminated from consideration seven of
`the 88 films in question and conducted a jury trial on the
`Plaintiffs’ claims concerning the remaining 81 Mexican films. The
`jury returned a verdict for the Plaintiffs on all claims.
`On appeal, the Defendants proffer myriad issues, but their
`principal complaints implicate the district court’s (1) determining
`that production companies, such as the Plaintiffs, can hold
`copyrights under Mexican law, (2) permitting the Plaintiffs to
`recover damages for both copyright infringement and unfair
`competition, and (3) awarding attorney fees and costs to the
`Plaintiffs. In addition, the Defendants assert a litany of legal
`and factual errors purportedly committed by the district court
`during the trial. The Plaintiffs cross-appeal the district court’s
`grant of partial summary judgment to the Defendants on the
`copyright status of seven of the 88 disputed films. We affirm the
`district court on all issues advanced on appeal, except for the
`2
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`

`
`quantum of attorneys’ fees and costs awarded to the Plaintiffs,
`which we remand to the district court for a more precise
`determination, per the Johnson factors,1 of the Plaintiffs’
`recoverable fees and costs incurred.
`I.
`FACTS and PROCEEDINGS
`In the mid-1980s, the Defendants began distributing a variety
`of Mexican films in the U.S. This activity included 88 films that
`had been produced and released by the Plaintiffs in Mexico during
`that country’s “golden age” of cinema, between the late-1930s and
`the mid-1950s. The Plaintiffs acknowledge that, at the time the
`Defendants began distributing these 88 films in the U.S., 69 of
`them had lost their copyrights here for failure of the authors to
`comply with U.S. copyright formalities, such as registering and
`renewing copyrights. According to the Plaintiffs, however, the
`legal status of these films changed in 1994 when the U.S. adopted
`the Uruguay Round Agreement Act (“URAA”),2 thereby amending the
`1976 Copyright Act.3 The URAA eliminated many of the formalities
`previously required for copyrighting foreign works in the U.S,
`including registration and notice. The URAA also provided,
`effective January 1, 1996, for the automatic restoration of
`
`1 See Johnson v. Georgia Highway Express, Inc., 488 F.2d
`714, 717-19 (5th Cir. 1974).
`2 Pub. L. 103-465, 108 Stat. 4809 (1994).
`3 See 17 U.S.C. § 104A (codifying the portion of the URAA
`pertaining to copyright).
`
`3
`
`

`
`copyrights in various foreign works that had fallen into the public
`domain in the U.S. as a result of their foreign authors’ failure to
`follow U.S. copyright formalities.4
`Following Congress’s 1994 adoption of the URAA, the Defendants
`began to obtain assignments of “rights” to the films from some
`individual “contributors,” such as screenwriters and music
`composers. The Defendants did not, however, contact any of the
`Plaintiffs to obtain assignments or licenses to these films. The
`Defendants continued to distribute Mexican films in the U.S. after
`January 1, 1996, the date on which the U.S. copyrights were
`automatically restored in those films that were eligible for
`copyright restoration under the URAA.
`In June 1998, the Plaintiffs filed suit in the U.S. District
`Court for the District of Columbia, alleging that the Defendants
`violated the Plaintiffs’ (restored) U.S. copyrights in the 88 films
`here at issue. The Plaintiffs also alleged unfair competition by
`the Defendants in violation of the Lanham Act, as well as several
`common-law claims. The Defendants filed a counter-claim, and, a
`few months later, the case was transferred to the Southern District
`of Texas.
`Following discovery, the Plaintiffs filed a motion for partial
`summary judgment that they were the “authors” of the films under
`Mexican law and thus held the U.S. copyrights that were restored
`
`4 17 U.S.C. § 104A(a)(1)(A) & (h)(2)(A).
`4
`
`

`
`under the URAA. Defendants filed two cross-motions for partial
`summary judgment, claiming that (1) under Mexican law, only natural
`persons, such as the individual contributors, and not artificial or
`juridical persons, such as film production companies, could be
`“authors”; and (2) seven of the 88 films produced by Plaintiffs
`were ineligible for copyright restoration under the URAA because
`these seven had fallen into the public domain in Mexico. The
`Defendants also filed a motion to dismiss the action and another
`for partial summary judgment.
`The district court eventually denied all motions except one,
`granting the Defendants’ second motion for partial summary judgment
`concerning the copyright status of the seven particular films that
`had fallen into the public domain in Mexico. In denying the
`Plaintiffs’ motion for partial summary judgment, the district court
`acknowledged that interpretation of Mexican copyright law under 17
`U.S.C. § 104A is a question of law for determination by the court.5
`On this question, the district court ruled that film production
`companies can hold copyrights —— a derecho de autor (“author’s
`right”) —— under the Mexican Civil Code. The district court
`reserved for trial, though, the disputed issue whether the
`Plaintiffs had in fact obtained Mexican copyrights in the 81
`
`5 See 17 U.S.C. § 104A(2)(b) (noting that a “restored work
`vests initially in the author or initial rightholder of the work
`as determined by the law of the source country of the work”).
`See also FED. R. CIV. P. 44.1 (noting that a “court’s
`determination [of foreign law] shall be treated as a ruling on a
`question of law”).
`
`5
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`

`
`remaining films.
`Following these rulings, the parties engaged in extensive
`motion practice. The Defendants filed, inter alia, another five
`motions for partial summary judgment, for a total of eight such
`motions. The Plaintiffs filed a motion for reconsideration of the
`denials of its motion for partial summary judgment and a motion to
`stay discovery. The district court denied all motions and set the
`case for trial.
`In the ensuing jury trial, the district court permitted both
`sides to adduce testimony about the requirements of Mexican
`copyright law; and the district court instructed the jury that a
`film production company can be an “author” under Mexican copyright
`law for purposes of the URAA. The jury returned a verdict for the
`Plaintiffs, finding that (1) the Plaintiffs own the U.S. copyrights
`in the 81 films remaining in dispute, (2) the Defendants violated
`the copyrights in all 81 films, (3) the Defendants were guilty of
`unfair competition, and (4) the Defendants should pay the
`Plaintiffs’ attorneys’ fees and costs. The jury awarded the
`Plaintiffs copyright infringement damages of $1,512,000, unfair
`competition damages of $486,000, and attorneys’ fees and costs of
`$984,000.
`The Defendants filed several post-verdict motions, requesting
`that the district court (1) make its own findings of fact and
`conclusions of law, (2) grant a judgment as a matter of law, (3)
`grant a new trial, and (4) render a judgment notwithstanding the
`6
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`

`
`verdict. The district court denied all these motions and entered
`its Amended Final Judgment, which ordered, in addition to the
`damages awarded at trial, declaratory and equitable relief in favor
`the Plaintiffs. The Defendants and the Plaintiffs each timely
`filed notices of appeal.
`
`A.
`
`II.
`ANALYSIS
`Can film production companies hold copyrights under Mexican
`law?
`Standard of review.
`1.
`We “review questions regarding foreign law de novo. This
`analysis is plenary.”6
`2.
`The “author’s right” under Mexican law.
`The URAA provides that a “[c]opyright subsists . . . in
`restored works, and vests automatically on the date of
`restoration.”7 The copyright in a restored work “vests initially
`in the author or initial rightholder of the work as determined by
`the law of the source country of the work.”8 The URAA thus
`
`6 Karim v. Finch Shipping Co., 265 F.3d 258, 271 (5th Cir.
`2001) (quoting Banco de Credito Indus., S.A. v. Tesoreria Gen.,
`990 F.2d 827, 832 (5th Cir. 1993)). See also Itar-Tass Russian
`News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir.
`1998) (noting, in reviewing a district court’s application of
`Russian copyright law under 17 U.S.C. § 104A, that a
`“[d]etermination of a foreign country’s law is an issue of law”).
`7 17 U.S.C. § 104A(a)(1)(A).
`8 17 U.S.C. § 104A(b) (emphasis added). See also Films by
`Jove v. Berov, 154 F. Supp. 2d 432, 448 (E.D.N.Y. 2001) (applying
`Russian copyright law to determine an “author” under § 104A(b)).
`7
`
`

`
`establishes two categories for foreign copyright owners whose U.S.
`copyrights can be restored: (1) authors, and (2) initial
`rightholders. The class of “initial rightholders” includes only
`owners of a copyright in a “sound recording,”9 e.g., music
`composers; whereas, the class of “authors” includes all other
`creators of works originally copyrighted in foreign jurisdictions.
`Accordingly, the Plaintiffs can claim restored copyrights in their
`films under the URAA only if the Plaintiffs are considered
`“authors” under Mexican copyright law —— the law of the source
`country of the work.
`The Defendants’ principal contention on appeal is that the
`Plaintiffs, as film production companies, cannot be “authors” under
`the Mexican Civil Code. The Defendants maintain that the Mexican
`Civil Code permits only individuals, i.e., natural persons, to be
`“authors”; that the law does not permit corporations or other legal
`entities to be “authors” for purposes of claiming copyright
`entitlements. In contending that only natural persons can hold
`copyrights under Mexican law, the Defendants argue that we should
`never reach the restoration analysis under the URAA, because the
`Plaintiffs fail this threshold determination of qualification to
`hold copyrights under the “law of the source country of the work.”10
`In response, the Plaintiffs —— and the Government of Mexico,
`
`9 See 17 U.S.C. § 104A(h)(7).
`10 17 U.S.C. § 104A(b).
`
`8
`
`

`
`as amicus curiae —— urge that the Defendants’ failure even to
`mention the Collaboration Doctrine of the Mexican Civil Code is
`telling. They note that in Mexican law, the Collaboration Doctrine
`covers various provisions regarding copyrights claimed by
`corporations, which necessarily create copyrighted works only
`through the collaboration of individuals, viz., their agents and
`employees. Thus, Article 1,198 of the 1928 Mexican Civil Code
`provides:
`The person or corporation that imprints or publishes a work
`made by various individuals with the consent of such
`individuals will have the property in the entire work, except
`each individual will retain the right to publish anew their
`own composition, independently, or in a collection.11
`Subsequent amendments and re-enactments of Mexico’s copyright laws
`in 1947 and 1956 specify that “whoever” creates a work with the
`“collaboration” of one or more other authors is entitled to the
`“author’s right” (derecho de autor) in the entire work, as long as
`the contributors are mentioned in the work and are paid for their
`respective contributions.12 Finally, the 1963 amendment of the
`Mexican copyright laws provides explicitly that “[p]hysical persons
`and legal entities who produce a work with the special and
`remunerated collaboration of one or more persons shall enjoy with
`
`11 C.C.D.F. art. 1,197 (1928) (emphasis added). The
`relevant translations of the Mexican Civil Code were provided in
`the record excerpts.
`12 Ley Federal de Derecho de Autor art. 60 (1947); Ley
`Federal de Derecho de Autor art. 60 (1956).
`9
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`

`
`respect to that work the author’s right therein . . . .”13
`The Defendants devote a substantial portion of their briefs to
`discussing the role of Collective Bargaining Agreements (“CBA”) in
`Mexico. The Defendants appear to believe that the Plaintiffs
`maintained before the district court (and continue to maintain on
`appeal) that they have copyrights in the films by virtue of having
`obtained assignments of the copyrights via the CBAs of the “natural
`persons” who worked for the production companies. If the
`Defendants harbor such a belief, they are mistaken. The CBAs that
`the Plaintiffs submitted into evidence were meant to prove only
`that the Plaintiffs’ employees had been paid, thereby satisfying
`one of the requirements under the Collaboration Doctrine for the
`Plaintiffs, as production companies, to claim copyrights in the
`films that they produced.
`The Defendants’ insistence that an “author’s right” under
`Mexican law vests only in a “natural person” is simply wrong. As
`amicus, the Government of Mexico explains that “throughout every
`iteration of its intellectual property laws, [Mexico] has
`recognized the producer as the rightful owner of the copyright of
`any film in its entirety.” Provisions of the Mexican Civil Code
`identified by the Plaintiffs clearly support this position.14 Thus,
`
`13 Ley Federal de Derecho de Autor art. 59 (1963) (emphasis
`added).
`14 See C.C.D.F. art. 1,197 (1928); Ley Federal de Derecho de
`Autor art. 60 (1947); Ley Federal de Derecho de Autor art. 60
`(1956); Ley Federal de Derecho de Autor art. 59 (1963).
`10
`
`

`
`the district court correctly determined that the Plaintiffs can be
`and are “authors” under Mexican law, and thus can hold Mexican
`copyrights (derecho de autor) in the films that they have produced.
`B.
`Are the seven films excluded by the district court eligible
`for restoration of their U.S. copyrights under the URAA?
`The Defendants’ second motion for partial summary judgment
`requested that the district court eliminate consideration of seven
`of the Plaintiffs’ original 88 claims for copyright infringement,
`contending that the films had fallen into the public domain under
`Mexican copyright law, thereby precluding restoration of their U.S.
`copyrights under the URAA.15 The district court granted that
`motion, ruling that the seven films had fallen into the public
`domain in Mexico and thus were ineligible for copyright restoration
`in the U.S.
`1.
`Standard of review.
`We review a grant of summary judgment de novo, applying the
`same standard as the district court.16 A motion for summary
`judgment is properly granted only if there is no genuine issue as
`to any material fact.17 In reviewing all of the evidence, we must
`disregard all evidence favorable to the moving party that the jury
`
`15 The seven films are: Besame Mucho, El Corsario Negro,
`Tentacion, Aguile o Sol, Canaima, Humo En Los Ojos, and Pasiones
`Tormentosas.
`16 Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
`380 (5th Cir. 1998).
`17 Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
`317, 322 (1986).
`
`11
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`

`
`is not required to believe, and we should give credence to the
`evidence favoring the nonmoving party.18 The nonmoving party,
`however, cannot satisfy his summary judgment burden with
`conclusional allegations, unsubstantiated assertions, or only a
`scintilla of evidence.19
`2.
`Registration requirements of Mexican copyright law.
`Following the threshold determination whether one who claims
`a restored copyright is an “author” under the source country’s law,
`the URAA predicates restoration of the work’s U.S. copyright on its
`meeting three requirements: The work (1) is not in the public
`domain in the source country, (2) is in the public domain in the
`U.S. because of noncompliance with copyright formalities, lack of
`subject matter protection, or lack of national eligibility, and (3)
`was first published in the source country and was not published in
`the U.S. within 30 days after its initial foreign publication.20
`The district court determined that the seven films in question were
`not eligible for copyright restoration under the URAA because they
`had fallen into the public domain in the source country —— Mexico.
`These seven films were produced and released between 1938 and
`1946, and thus were governed by the copyright provisions of the
`
`18 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
`133, 151 (2000).
`19 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
`1994) (en banc).
`20 § 104A(h)(6) (defining conditions for a “restored work”).
`12
`
`

`
`1928 Mexican Civil Code. Article 1,189 of that Code states:
`The author who publishes a work cannot acquire the rights
`granted to him by this title if he does not register the work
`within a period of three years. At the conclusion of this
`term, the work enters the public domain [if not registered].21
`It is undisputed that the Plaintiffs never registered their
`copyrights in the seven films here at issue. In 1947, though,
`Mexico amended its copyright laws to eliminate the registration
`requirement. Article 2 of the 1947 Ley Federal de Derecho de Autor
`states that:
`[copyright] protection provided under this law to authors is
`conferred upon the simple creation of the work, without the
`necessity of deposit or registry previously [required] for its
`protection....22
`Thus, for any works originally published in Mexico after the
`effective date of the abolition of that country’s registration
`requirement (January 14, 1948), authors received automatic
`copyright protection.
`The 1947 amendment of the Mexican copyright law also contained
`a safe harbor for any previously published works that had fallen
`into the public domain under the 1928 Code prior to the new law’s
`effective date of January 14, 1948. Authors who had failed to
`register their works within three years following their
`publication, as required under Article 1,189 of Mexico’s 1928 Code,
`thereby allowing such works to fall into the public domain, were
`
`21 C.C.D.F. art. 1,189 (1928).
`22 Ley Federal de Derecho de Autor art. 2 (1947).
`13
`
`

`
`given a six-month period of repose following the aforesaid
`effective date of the 1947 revision during which to register their
`works and thereby restore their copyrights.23
`3.
`Is the restoration provision of the 1947 amendment
`applicable to the seven films at issue?
`It is undisputed that four of the seven films that the
`district court ruled to have fallen into the public domain were
`released by the Plaintiffs less than three years before January 14,
`1948, when the 1947 copyright provisions went into effect. On
`appeal, the Plaintiffs urge us to reverse the summary judgment
`concerning these four films, contending that the 1947 law, not the
`1928 Code, is applicable. They direct us to that language of the
`1947 copyright law stating that authors of works that (1) had been
`previously published under the 1928 Code, and (2) had fallen into
`the public domain prior to January 14, 1948, were accorded a six-
`month safe harbor during which to register these works and restore
`their copyrights. The Plaintiffs also note that any work created
`after the 1947 law went into effect received automatic copyright
`protection, with no registration requirement. Thus, urge the
`Plaintiffs, a temporal hiatus results from the effective dates of
`these two provisions of Mexico’s 1947 copyright law for works that
`were published after 1945, but never registered: Works in this
`category had not yet lost their copyrights under the 1928 Code when
`the 1947 law went into effect; yet, the 1947 law did not provide
`
`23 Id.
`
`14
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`

`
`for either an automatic copyright in, or a period of repose for
`registration of, works published during this short period.
`Based on this analysis of the 1947 copyright law, the
`Plaintiffs first contend that the four films that they produced
`during this three-year gap between 1945 and 1948 should be granted
`copyright protection under the terms of the 1947 copyright law. In
`so claiming, however, the Plaintiffs are in essence asking us to
`rewrite Article 2 of Mexico’s 1947 copyright law to apply
`retroactively its automatic copyright date three years earlier than
`is specified in the statute. This we decline to do. As the
`district court recognized in its summary judgment order, the
`automatic copyright provision expressly applies only to those works
`first published on or after January 14, 1948. Each of the
`Plaintiffs’ four films were produced and released either in 1945 or
`1946, and thus, by the plain words of the statute, do not qualify
`for the automatic copyright provision of the 1947 law.
`The Plaintiffs alternatively maintain that canons of Mexican
`constitutional law support their interpretation of the automatic
`copyright provision as having retroactive effect, despite the
`statute’s express terms to the contrary. They say that canons of
`Mexican constitutional law preclude retroactive application of
`statutes only when doing so would work to the detriment of a
`person’s legal rights; retroactive application is actually
`sanctioned when it works in favor of both personal and property
`rights. The Plaintiffs thus conclude that retroactive application
`15
`
`

`
`of the automatic copyright provision to works created after 1945
`would advance Mexico’s strong policy interest in favoring the moral
`rights of an author over the public interest.
`We are not convinced by the Plaintiffs’ alternative request
`that we judicially rewrite the 1947 statute to provide for
`automatic copyright protection as early as 1945, rather than the
`statute’s express effective date of January 14, 1948. In fact,
`there is no reason for us to consider the canons of Mexican
`constitutional law in retroactive application of statutes because
`there is a completely reasonable explanation for the purported
`“gap” in the 1947 copyright law: There was simply no need to
`provide a safe harbor for works that remained within the three-year
`grace period for registration by or later than January 14, 1948,
`because authors of those works still had time remaining in which to
`register these works. The safe harbor was needed for works that
`had already fallen into the public domain: It was only the authors
`of these works who were given an explicit second bite at the apple.
`Works produced between January 1945 and January 1948 remained
`within the three-year grace period specified under the 1928 Code
`during which their authors could register them. Thus, Mexico’s
`1947 copyright law implicitly recognized that authors of works
`created within this three-year period still had time to register
`their works, as required under the terms of the 1928 Code, and thus
`were not in need of a grace period or safe harbor.
`Simply put, the Plaintiffs should have realized in 1947 that
`16
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`

`
`they needed to register their copyrights in these four films before
`the 1928 Code’s three-year grace period expired. It should have
`been obvious to them that, when the 1947 copyright provisions went
`into effect the following January, the new automatic copyright
`provisions would not apply to these four films. The Plaintiffs do
`not dispute the fact that they never registered the four films in
`question; neither is there evidence in the record indicating that
`they did so. By the plain terms of the applicable 1928 Code, these
`films fell into the public domain in Mexico. Thus, they are
`ineligible for U.S. copyright restoration under the URAA.
`4.
`Are the registration requirements of the 1928 Code
`applicable to all seven films?
`The Plaintiffs propose yet another theory for holding that all
`seven disputed films retained their copyright protection and thus
`did not fall into the public domain after the 1928 Code’s three-
`year grace period expired. They note that the 1928 Code’s
`registration requirement applied only to works that were
`“published.” The Plaintiffs quibble semantically that films are
`never “published”; rather, they are “released.” Thus, argue the
`Plaintiffs, the literal terms of the 1928 Code’s registration
`provision do not apply to films at all.
`The Plaintiffs identify no Mexican canon of constitutional law
`or statutory interpretation that should guide our construction of
`the 1928 Code’s registration requirement. Neither do they identify
`any Mexican court opinion or other authoritative Mexican
`
`17
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`

`
`interpretation of the 1928 Code’s registration requirement of films
`vis-à-vis books or other “published” works. When there are gaps in
`foreign law, though, a U.S. court may use forum law to fill them.24
`In this regard, U.S. courts have broadly interpreted the U.S.
`copyright statutes to cover new types of works that clearly fall
`within the ambit of their protection, even though these new kinds
`of works are not covered literally by the terminology employed in
`the statutes at the time of their enactment.25 Furthermore, it
`would be anomalous for us to exempt films from the duties imposed
`on authors by the 1928 Code while affording these same films the
`benefits provided to authors by the very same code. Accordingly,
`we are satisfied that the term “publishes,” as broadly used in the
`1928 Code, was intended to encompass all appropriate forms of
`distributing copyrighted works to the public. As, in the mid-
`1940s, films could be distributed to the public only by being
`“released” to theaters, it would be nonsensical to construe the
`
`24 See Cantieri Navali Rieunitu v. M/V Skyptron, 802 F.2d
`160, 163 n.5 (5th Cir. 1986).
`25 See, e.g., Sony Corp. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) (applying the 1976 Copyright Act to issues
`raised by VCRs, which were invented and distributed after the Act
`was enacted and are not mentioned in literal terms in the
`statute); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
`156 (1975) (recognizing that the Copyright Act must be construed
`in light of its basic purpose “[w]hen technological change has
`rendered its literal terms ambiguous”). See also Micro Star,
`Inc. v. FormGen, Inc., 154 F.3d 1107 (9th Cir. 1998) (applying
`the 1976 Copyright Act’s provisions regarding “derivative works”
`to an innovative 1990s video game, Duke Nukem 3D, although this
`term originally applied to novels, films and other literary-based
`subject matter).
`
`18
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`

`
`1928 Code’s registration requirement as not applicable to the very
`films that benefit from the copyright protections afforded by the
`other provisions of that Code. We hold that the 1928 Code’s
`registration requirements are applicable to films, necessarily
`including the seven disputed here.
`C.
`Do damage awards for both copyright infringement and unfair
`competition constitute a “double recovery”?
`1.
`Standard of review.
`The Defendants’ effort to obtain a remittitur order from the
`district court is grounded in their contention that the Plaintiffs
`received a double recovery. We review a denial of remittitur for
`abuse of discretion,26 and will only order a remittitur if we are
`“left with the perception that the verdict is clearly excessive.”27
`2.
`Does recovery for both copyright infringement and a
`Lanham Act violation constitute a clearly excessive
`verdict?
`Following the jury verdict, the Defendants filed a motion for
`remittitur in the district court, insisting that the jury’s award
`of damages for both copyright infringement and unfair competition
`constituted a “double recovery.” The Defendants insist that the
`1976 Copyright Act “preempts” claims for unfair competition. The
`district court denied this motion; yet, on appeal, the Defendants
`re-urge the same contention. Given this preemption of unfair
`
`26 Thomas v. Texas Dep’t of Criminal Justice, 297 F.3d 361,
`368 (5th Cir. 2002).
`27 Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th
`Cir. 1995).
`
`19
`
`

`
`competition claims, they maintain, a plaintiff cannot assert and
`recover on both. Accordingly, argue the Defendants, the district
`court should not have permitted the jury to award compensatory
`damages on both claims in this case: The damages are duplicative
`and thus excessive, requiring remittitur.
`In response, the Plaintiffs rightly point out that the
`Defendants confuse allegations of unfair competition under the
`Lanham Act with such allegations under state tort law. This
`confusion is revealed in the Defendants’ reliance on those of our
`cases in which we have held that the 1976 Copyright Act preempts
`state common-law claims for conversion, misappropriation,
`plagiarism, disparagement and defamation.28 In this case, though,
`the Plaintiffs lodged a federal claim for unfair competition under
`the Lanham Act.29
`The federal Copyright Act does not preempt the federal Lanham
`Act, or vice-versa. In fact, it is common practice for copyright
`owners to sue for both infringement under the 1976 Copyright Act
`and unfair competition under the Lanham Act. Such a litigation
`posture has never been disallowed by the courts on grounds of
`either preemption or impermissible double recovery.30 We discern
`
`28 See Daboub v. Gibbons, 42 F.3d 285 (5th Cir. 1995).
`29 15 U.S.C. § 1125(a).
`30 See, e.g., Veeck v. Southern Bldg. Code Cong. Int’l,
`Inc., 293 F.3d 791, 794 (5th Cir. 2002) (en banc) (noting that
`“SBCCI counterclaimed for copyright infringement, unfair
`competition and breach of contract”); Lyons Partnership v.
`20
`
`

`
`no basis in law or fact that supports the Defendants’ contention
`that the district court abused its discretion in denying their
`request for remittitur.
`D.
`Trial errors asserted by the Defendants.
`The Defendants on appeal allege a litany of trial errors; yet,
`they offer no logically structured arguments in support of these
`assertions. The Federal Rules of Appellate Procedure require that
`an appellant’s brief set out in its argument section the
`“appellant’s contentions and the reasons for them, with citations
`to the authorities and parts of the record on which the appellant
`relies.”31 “The purpose of the requirements in respect of briefs
`is to conserve the time and energy of the court and clearly to
`advise the opposite party of the points he is obliged to meet.”32
`Beyond rote recitations of the standards of review and erroneous
`citations to case law,33 the Defendants do not provide us with any
`
`Giannoulas, 179 F.3d 384, 387 (5th Cir. 1999) (noting that the
`plaintiff sued for “unfair competition, and trademark dilution
`under the Lanham Act, copyright infringement, and other claims”).
`31 FED. R. APP. P. 28(a)(9)(A) (rev. ed. 2002).
`32 United States v. Abroms, 947 F.2d 1241, 1250-51 (5th Cir.
`1991) (quoting Thys Co. v. Anglo Cal. Nat’l Bank, 219 F.2d 131,
`133 (9th Cir. 1955)).
`33 For example, in claiming that the trial errors were
`cumulatively “unfair,” the Defendants assert in their appellate
`brief that the “Constitution . . . does not authorize the
`issuance of patents (i.e. copyrights) for works in the public
`domain,” and they cite a famous case in patent law. See Graham
`v. John Deere Co., 383 U.S. 1 (1966). Patents, however, are not
`copyrights, and thus patent cases are inapposite to copyright
`cases.
`
`21
`
`

`
`basis —— either in their argument or by reference to the voluminous
`record —— for determining that the district court committed the
`proffered errors. Thus, “[i]n the absence of logical argumentation
`or citation to a

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