Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 1 of 26
`
` WO
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`Drunvalo Melchizedek, an individual,
`Plaintiff,
`
`vs.
`
`No. CV 09-1815-PHX-JAT
`
`ORDER
`
`))))))))))))))
`
`Ronald L. Holt and Lyssa Royal Holt, a
`married couple; and Flower of Life
`Research, LLC, a Nevada corporation,
`Defendants.
`
`Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. 39),
`and Plaintiff’s Motion for Summary Judgment (Dkt. 41). The Court conducted oral argument
`on May 31, 2011, and is now prepared to rule on the pending motions.
`I. BACKGROUND
`Plaintiff Drunvalo Melchizedek is an avid believer of a particular form of meditation
`referred to as the Flower of Life. (Dkt. 41-1 at ¶ 2; Dkt. 55 at ¶ 2.) The Flower of Life is a
`figure composed of multiple evenly-spaced overlapping circles that are arranged to form a
`flower-like pattern with a six-fold symmetry like a hexagon with the center of each circle
`located on the circumference of the surrounding circles of the same diameter. (Dkt. 41-1 at
`¶ 3; Dkt. 55 at ¶ 3.) The Flower of Life is believed by the parties to contain ancient religious
`and scientific value by depicting the fundamental forms of all created matter known in the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 2 of 26
`
`universe. (Id.)
`Plaintiff is considered to be an expert in the Flower of Life. (Dkt. 41-1 at ¶ 10; Dkt.
`55 at ¶ 10), and has authored several books, teaching videos, and DVDs on the Flower of
`Life (Dkt. 41-1 at ¶ 4; Dkt. 55 at ¶ 4). Since 1984, Plaintiff has presented lectures and
`workshops based upon his books and videos to tens of thousands of people worldwide. (Dkt.
`41-1 at ¶ 9; Dkt. 55 at ¶ 9.)
`In 1992, due to the popularity of his workshops, Plaintiff released a video of one of
`his Flower of Life workshops, referred to herein as the “1992 Video.” (Dkt. 40 at ¶ 3; Dkt.
`59 at ¶ 3.) According to Plaintiff’s introduction in the Ancient Secrets of the Flower of Life
`– Volume 1,
`By 1991 my workshops were filled and overflowing, with hundreds of people
`on the waiting list. I didn’t know how to reach everyone who wanted this
`information. In fact, I could not. So in 1992 I made a decision to release a
`video of one of my workshops and let it go out to the world.
`Within less than a year it was exploding in sales, but there was one big
`problem. Most of the people who were watching the videos could not really
`understand what was presented because it was outside the context and content
`of their spiritual understanding. . . . Eight-five percent were confused and
`unclear about the instructions.
`Immediately I took the video tapes off the market. This, however, did
`not stop the video from continuing to be sold. People wanted the information,
`so they began to copy the existing tapes and give, sell or lease them to people
`worldwide. By 1993, it has been estimated that there were approximately
`100,000 sets of these tapes in the world.
`(Dkt. 59-2, Ex. 2, Bates # DM00547.)
`In 1993, Plaintiff decided to expand the number of lectures and workshop on the
`Flower of Life. (Dkt. 41-1 at ¶ 11; Dkt. 55 at ¶ 11.) To accomplish this expansion, Plaintiff
`established a group of people, referred to as “facilitators,” to help spread his teachings. (Dkt.
`41-1 at ¶ 12; Dkt. 55 at ¶ 12.) Plaintiff trained the facilitators to present a part of his Flower
`of Life workshop concerning an energy field meditation, which the parties refer to as the
`tetrahedronal Mer-Ka-Ba (“TMKB”) meditation. (Dkt. 41-1 at ¶ 13; Dkt. 55 at ¶ 13.)
`Plaintiff recorded the Flower of Life workshop that was presented in Fairfield, Iowa
`in October 1993. (Dkt. 40 at ¶ 5; Dkt. 59 at ¶ 5.) The tapes are referred to by the parties in
`their briefs by a variety of names, including the “33 hour Iowa Tapes,” “Flower of Life
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 2 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 3 of 26
`
`tapes,” and the “1993 Iowa videos.” This Order will refer to the recorded version of this
`Flower of Life workshop as the “1993 Videos.”
`At issue in this action are four works that were created in connection with the 1993
`Videos. Specifically:
`1.
`“The Ancient Secret of the Flower of Life – Volume 1,” registered as
`TX 6-629-102;
`2.
`“The Ancient Secret of the Flower of Life – Volume 2,” registered as
`TX 6-597-643;
`3.
`“Flower of Life Workbook Illustrations (Book #1 and Book #2),”
`registered as TX 6-597-658; and
`4.
`“Flower of Life Video Workshop: Volumes 1–33,” registered as
`PA0001392809.
`(Id.) These four works, collectively referred to herein as the “Copyrighted Works,” are all
`related. The 33-hour long 1993 Videos became The Flower of Life Video Workshop:
`Volumes 1–33. (Id.) The photographs, designs and drawings that are in the Flower of Life
`Video Workshop: Volumes 1–33 are identical those in the Flower of Life Workbook
`Illustrations (Book #1 and Book #2). (Dkt. 40 at ¶ 7; Dkt. 59 at ¶ 7.) The Ancient Secret of
`the Flower of Life – Volumes 1 and 2 include the same photographs, designs and drawings
`as the Flower of Life Video Workshop: Volumes 1–33 and the Flower of Life Workbook
`Illustrations (Book #1 and Book #2) with added designs included in The Ancient Secret of
`the Flower of Life – Volumes 1 and 2. (Id.) Further, all of the slides seen in the Flower of
`Life Video Workshop: Volumes 1–33 are contained in The Ancient Secret of the Flower of
`Life – Volumes 1 and 2. (Dkt. 40 at ¶ 8; Dkt. 59 at ¶ 8.)
`The Clear Light Trust (“Clear Light”) and Pure Heart Trust were assigned the rights
`to the Copyrighted Works. (Dkt. 41-1 at ¶ 7; Dkt. 55 at ¶ 7.) Flower of Life Research, Inc.
`was then granted the right to licence the Copyrighted Works. (Dkt. 41-1 at ¶ 8; Dkt. 55 at
`¶ 8.) Flower of Life Research, Inc., was a non-profit corporation formed by Plaintiff in 1995
`to ensure that Plaintiff’s teachings would not be altered in any manner and to protect the
`facilitators using Plaintiff’s materials. (Dkt. 41-1 at ¶ 14; Dkt. 55 at ¶ 14.) Through Flower
`of Life Research, Inc., Plaintiff granted copyright licenses to the facilitators, which permitted
`the facilitators to use the Flower of Life Video Workshop: Volumes 1–33, and to publicly
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 3 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 4 of 26
`
`perform part of Plaintiff’s lecture based on TMKB meditation. (Dkt. 41-1 at ¶ 16; Dkt. 55
`at ¶ 16.) In 1993, Defendant Ronald Holt (“Holt”) was one of the facilitators who received
`a license from Plaintiff. (Dkt. 41-1 at ¶¶ 18–19; Dkt. 55 at ¶¶ 18–19.)
`Holt worked as a facilitator until 1996 or 1997 when Plaintiff stepped down as
`president of Flower of Life Research, Inc., and asked Holt to take over as president of the
`corporation. (Dkt. 41-1 at ¶¶ 20–21; Dkt. 55 at ¶¶ 20–21.) In December 1998, Holt closed
`Flower of Life Research, Inc., and formed Flower of Life Research, LLC (“FOLR”), a
`Nevada limited liability company, and a defendant in this action. (Dkt. 41-1 at ¶¶ 22–23;
`Dkt. 55 at ¶¶ 22–23.)
`In 1999, Defendants were granted a license to use Plaintiff’s materials for workshops.
`(Dkt. 41-1 at ¶ 24; Dkt. 55 at ¶ 24.) The 1999 License and Agreement for Flower of Life
`2000+ Workshop Material provided that “[i]f any new videos are to be made from this
`material other than the FOLR 2000+ Workshop, approval must be in writing.” (Dkt. 41-8,
`Ex. F at ¶ 5.)
`When the 1999 License and Agreement expired in 2001, FOLR was granted a new
`license to continue using, nonexclusively, the Flower of Life Video Workshop: Volumes
`1–33, and the shortened four-hour “Flower of Life 2000+ Workshop” video. (Dkt. 41-1 at
`¶ 27; Dkt. 55 at ¶ 27.) On December 4, 2001, Plaintiff, as managing director of Clear Light,
`and FOLR entered into the Licensing Agreement. (Licensing Agreement, Dkt. 41-9, Ex. G.)
`Pursuant to the Licensing Agreement, FOLR agreed to “acknowledge publicly and privately
`that the original material of the Flower of Life 2000+ Workshop was sourced from
`intellectual property of Clear Light” as presented by Plaintiff. (Id. at ¶ 4.) The Licensing
`Agreement provided that “Clear Light will retain its copyrights to all of this intellectual
`property including the Original Flower of Life Video Workshop (Iowa) (both in English and
`Spanish) and the Flower of Life Workshop 2000+.” (Id. at ¶ 5.) The Licensing Agreement
`also provided that “[i]f any new videos are to be made from this material other than the
`existing FOLR workshop 2000+, approval must be in writing from Clear Light.” (Id.)
`After entering into the Licensing Agreement, FOLR created a written work referred
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 4 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 5 of 26
`
`to as the “Seed of Life Workshop Student Manual.” (Dkt. 41-1 at ¶¶ 30, 32; Dkt. 55 at ¶ 32.)
`Defendants do not dispute that they used some of Plaintiff’s old materials in the Seed of Life
`Workshop Student Manual. (Dkt. 41-1 at ¶ 32; Dkt. 55 at ¶ 32.) However, Defendants
`contend that Plaintiff gave Holt permission to use these materials. (Dkt. 55 at ¶ 32.)
`Plaintiff, instead, contends that he did not learn of the Seed of Life Workshop Student
`Manual until 2008 when the parties were in litigation. (Dkt. 41-1 at ¶ 31.)
`In December 2002, Plaintiff sent a letter titled “A Sequel to the Open Letter” to “the
`Facilitators, Graduates and Friends of the Flower of Life”, in which Plaintiff wrote:
`Some people believe that I am protecting my copyrights and don’t understand
`that there are more important issues than copyrights. The most important issue
`is the proper transmission of the FOL [Flower of Life] material with integrity
`and responsibility to ensure that no one gets hurt by it or have it empower their
`ego and personal self-serving agendas, which we have seen happens all too
`often.
`. . . .
`So I had one of my workshops videoed and let the video go out to the world
`unrestrained. No control on the copyrighted material. No money coming back
`to me from the videos. No control on the meditation believing that anyone
`who watched the videos (about 33 hours long) would be able to understand the
`Mer-Ka-Ba meditation and would no longer need me.
`. . . .
`Now as far as my “copyrighted material”, this was necessary in order for a
`publisher to publish a book, which the angels had insisted that I do. Publishers
`will not publish your work unless it is copyrighted so that they will not lose
`their money. But at the same time, personally I have never cared about the
`copyrights. I wanted the information to go out to the world.
`People have taken everything I have done in my life and even put it in their
`own books and sold it without giving me any compensation whatsoever. But
`I have not tried to stop them. The only part that I have stopped, or attempted
`to stop, is people teaching the Mer-Ka-Ba meditation itself because I have seen
`what happens when people are not trained and begin teaching.
`(Dkt. 44-1, Ex. F, Bates # HOLTSL006327–29.)
`In late 2005, after Plaintiff had created the Copyrighted Works, Plaintiff spoke to a
`group of Russian facilitators in Bavaria, Germany. (Dkt. 40 at ¶ 9; Dkt. 59 at ¶ 9.) In his
`remarks, Plaintiff stated: “I don’t care about copyrights or any of that stuff, that doesn’t
`matter. Forget it, just take it and you’ll understand what this is all about by tomorrow.” (Id.)
`Plaintiff does not dispute this transcription of his remarks; rather, Plaintiff disputes that this
`statement was in reference to the Copyrighted Works, as Defendants contend. (Dkt. 59 at
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 5 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 6 of 26
`
`¶ 9.)
`
`In 2006, Defendants filed an action against Plaintiff for breach of the Licensing
`Agreement in the Superior Court of Gila County, Arizona, and Plaintiff filed a counterclaim
`against Defendants for breach of the Licensing Agreement. (Dkt. 58-3, Ex. C.)
`On or about June 29, 2007, Plaintiff registered the Copyrighted Works with the U.S.
`Copyright Office. (Dkt. 41-4; Ex. B; Dkt. 41-1 at ¶ 5; Dkt. 55 at ¶ 5.) These materials serve
`as the basis for Plaintiff’s copyright infringement claim in this action.
`On September 2, 2009, the parties entered into the Binding Arbitration Agreement,
`and agreed to dismiss the state court action with prejudice. (Dkt. 64-1, Ex. A.) In a
`handwritten and initialed provision, the Binding Arbitration Agreement provides: “It is
`understood and agreed that the arbitrator will not make a binding decision on the ownership
`of any copyrights of any materials. However, he will decided the relative ownership rights
`and use of the materials between the parties.” (Id. at Recital B.) After the parties submitted
`to binding arbitration, the arbitrator issued his award on September 3, 2009. (Dkt. 58-5, Ex.
`E.) The arbitrator found in favor of FOLR on the breach of contract claim and awarded
`$50,000 in damages. (Id. at ¶ 2.) With respect to Plaintiff’s counterclaims, the arbitrator
`granted Plaintiff “a judicial declaration affirming that he is the owner of the materials which
`were the subject of the Revised Licensing Agreement dated December 7, 2001,” but denied
`all further relief. (Id. at ¶ 3.)
`On August 31, 2009, Plaintiff initiated this action. (Dkt. 1.) Plaintiff alleges that
`Defendants infringed Plaintiff’s copyrights in the Copyrighted Works (Count I), as well as
`breached the Licensing Agreement (Count II). (Dkt. 15.) The Court granted Defendants’
`motion to dismiss Count II of the First Amended Complaint on claim preclusion grounds,
`because the arbitrator’s award constituted final judgment on the merits of parties’ breach of
`contract claims. (Dkt. 28.) Therefore, the only remaining claim before the Court is Count
`I of the First Amended Complaint for copyright infringement.
`II. LEGAL STANDARD
`Summary judgment is appropriate when “the movant shows that there is no genuine
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 6 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 7 of 26
`
`dispute as to any material fact and that the moving party is entitled to summary judgment as
`a matter of law.” Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be or is genuinely
`disputed must support that assertion by “citing to particular parts of materials in the record,”
`including depositions, documents, affidavits, or other materials, or by “showing that
`materials cited do not establish the absence or presence of a genuine dispute, or that an
`adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1). Thus,
`summary judgment is mandated “against a party who fails to make a showing sufficient to
`establish the existence of an element essential to that party’s case, and on which that party
`will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
`Initially, the movant bears the burden of pointing out to the Court the basis for the
`motion and the elements of the causes of action upon which the non-movant will be unable
`to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-
`movant to establish the existence of material fact. Matsushita Elec. Indus. Co. v. Zenith
`Radio Corp., 475 U.S. 574, 586 (1986). The non-movant “must do more than simply show
`that there is some metaphysical doubt as to the material facts” by “com[ing] forward with
`‘specific facts showing that there is a genuine issue for trial.’” Id. at 586–87 (quoting
`Fed.R.Civ.P. 56(e) (1963) (amended 2010)).
`A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could
`return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
`(1986); Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004) (“A genuine issue of fact
`is one that could reasonably be resolved in favor of either party.”). The non-movant’s bare
`assertions, standing alone, are insufficient to create a material issue of fact and defeat a
`motion for summary judgment. Liberty Lobby, 477 U.S. at 248. However, in the summary
`judgment context, the Court construes all disputed facts in the light most favorable to the
`non-moving party. Ellison, 357 F.3d at 1075.
`When parties submit cross-motions for summary judgment on the same claim or
`issues, each motion must be considered on its own merits and analyzed under Rule 56. Fair
`Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 7 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 8 of 26
`
`2001). The failure of one party to carry its burden does not automatically mean that the
`opposing party has satisfied its burden. It is certainly conceivable that both parties may have
`failed to meet their burden of proving they are entitled to summary judgment, in which case
`the Court properly denies both motions.
`III. COPYRIGHTS – GENERALLY
`Copyright protection exists “in original works of authorship fixed in any tangible
`medium of expression, now known or later developed, from which they can be perceived,
`reproduced, or otherwise communicated.” 17 U.S.C. § 102(a). Works of authorship include
`literary works, pictorial, graphic and sculptural works, and motion pictures and other
`audiovisual works. Id. “Copyright law only protects expression of ideas, not the ideas
`themselves.” Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002) (citing 17
`U.S.C. § 102(b)). The owner of a copyright has the exclusive right to reproduce the
`copyrighted work, to prepare derivative works based on the copyrighted work, to distribute
`copies of the copyrighted works, and to perform or display the copyrighted work publicly.
`17 U.S.C. § 106. However, a plaintiff cannot assert a civil action for infringement of a
`copyright until the copyrighted work has been registered. Id. § 411(a).
`If ownership of a valid copyright is established, then to avoid summary judgment a
`plaintiff asserting a claim for copyright infringement need only demonstrate a triable issue
`of fact as to whether the defendant “copied anything that was original to their work.” Funky
`Films, Inc. v. Time Warner Entertainment Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006)
`(quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). “‘Original,’
`as the term is used in copyright, means only that the work was independently created by the
`author (as opposed to copied from other works), and that it possesses at least some minimal
`degree of creativity.” Feist, 499 U.S. at 345 (citing 1 Melville Nimmer & David Nimmer,
`Copyright § 2.01[A], [B] (1990)). The requisite level of creativity is “extremely low; even
`a slight amount will suffice. The vast majority of works make the grade quite easily, as they
`possess some creative spark, no matter how crude, humble or obvious it might be.” Id.
`(quoting Nimmer, supra, § 108[C][1]). So, while facts are not copyrightable, factual
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 8 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 9 of 26
`
`compilations can be protected by copyright. Id. A work can be original “even though it
`closely resembles other works so long as the similarity is fortuitous, not the result of
`copying.” Id.
`
`IV. ANALYSIS
`Here, both parties have moved for summary judgment. Defendants move for
`summary judgment in their favor on Plaintiff’s copyright infringement claim. (Dkt. 39 at p.
`1.) Whereas, Plaintiff moves for summary judgment adjudicating Defendants’ liability on
`the copyright infringement claim, and requests the Court conduct a hearing to determine the
`extent of damages. (Dkt. 41 at p. 15.)
`Defendants argue that Plaintiff has expressly abandoned his copyrights in the
`Copyrighted Works on three distinct occasions through overt acts indicating his intent to
`abandon his copyrights. (Dkt. 39 at p. 3.) Plaintiff responds that Defendants have taken
`Plaintiff’s statements out of context, and regardless, the doctrine of res judicata and estoppel
`prevent Defendants from raising the abandonment defense. (Dkt. 58 at p. 3.)
`Plaintiff moves for summary judgment on the grounds that Defendants have made
`unauthorized copies of and distributed images from the Copyrighted Works that infringe
`Plaintiff’s copyrights under the Copyright Laws, 17 U.S.C. §§ 106 et seq. (Dkt. 41 at p. 7.)
`Defendants reassert their argument that Plaintiff cannot enforce his copyrights, because he
`has abandoned them. Defendants also respond that Plaintiff orally consented to Defendants’
`use of Flower of Life workshop materials, and, regardless, Plaintiff’s copyrights are invalid
`because many components of the Copyrighted Works are not subject to copyright protection.
`(Dkt. 54 at p. 1.)
`The Court will address each of the parties’ arguments and responses separately,
`beginning with Defendants’ Motion for Summary Judgment on the grounds of abandonment.
`A.
`Defendants’ Motion for Summary Judgment
`Defendants argue that Plaintiff abandoned his copyrights in the Copyrighted Works
`through three overt acts, each indicating Plaintiff’s intent to abandon his copyright
`protection. Plaintiff opposes the motion on two grounds: first, the statements that Defendants
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 9 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 10 of 26
`
`rely on are taken out of context and do not support the abandonment defense; and second,
`Defendants are barred from putting forth their abandonment defense, regardless of the effect
`of Plaintiff’s statements.
`1.
`Abandonment Defense to Copyright Infringement
`Abandonment of copyright protection provides a defense to a claim of copyright
`infringement. “In copyright, waiver or abandonment of copyright ‘occurs only if there is an
`intent by the copyright proprietor to surrender rights in his work.’” A&M Records, Inc. v.
`Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001) (quoting 4 Melville Nimmer & David
`Nimmer, Nimmer On Copyright ¶ 13.06 (2000)). Abandonment of a copyright “must be
`manifested by some overt act indicative of a purpose to surrender the rights and allow the
`public to copy.” Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960)
`(finding evidence of an overt act lacking where there was no consent to public use and no
`permission to sell the copyrighted works); see McIntosh v. N. Cal. Universal Enter. Co., 670
`F. Supp. 2d 1069, 1099 (E.D. Cal. 2009) (finding that submission of subdivision plans in
`exchange for payment did not constitute an overt act of abandonment of copyright protection
`in the plans). The Ninth Circuit has stated that a copyright owner can abandon some rights
`without abandoning all rights. Micro Star v. FormGen Inc., 154 F.3d 1107, 1114 (9th Cir.
`1998) (finding that FormGen did not abandon all of its rights to profit commercially from its
`computer game, even though it encouraged players to make and freely distribute their own
`game levels). Based on the record before the Court, there is a material issue of fact as to
`whether Plaintiff intended to abandon his copyright through an overt act or acts.
`a.
`Release of the 1992 Video
`According to Defendants, Plaintiff has indicated his desire to abandon copyright
`protection in the Copyrighted Works through three overt acts. As evidence of Plaintiff’s first
`overt act, Defendants cite to Plaintiff’s statement in the Sequel to the Open Letter: “So I had
`one of my workshops videoed and let the video go out to the world unrestrained. No control
`on the copyrighted material. No money coming back to me from the videos.” (Dkt. 44-1,
`Ex. F.) Defendants acknowledge that the video that Plaintiff refers to in the statement above
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 10 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 11 of 26
`
`is the 1992 Video. Defendants argue that by letting the 1992 Video go out to the world
`unrestrained and without any control on the copyrighted material, Plaintiff abandoned his
`copyrights in the photographs, designs and drawings that are shown in the 1992 Video and
`subsequently in the Copyrighted Works. (Dkt. 39 at pp. 9–10.)
`Plaintiff responds that the purported overt act cited by Defendants, the release of the
`1992 Video, is irrelevant with respect to copyright protection in the Copyrighted Works,
`because the 1993 Videos, on which the Copyrighted Works are based, were made after the
`release and attempted retraction of the 1992 Video. According to Plaintiff, the content of the
`1993 Videos is substantially different than the 1992 Video, and Plaintiff did not make any
`overt acts indicating an intent to abandon copyright protection in the 1993 Videos or the
`Copyrighted Works. (Dkt. 58 at pp. 14–15.)
`An overt act indicating the abandonment of copyright protection in one work does not
`automatically result in the abandonment of copyright protection in subsequent works. E.g.,
`Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1395 (C.D. Cal. 1990)
`(finding that abandonment ended when the plaintiff changed the contents of the copyright
`notice on his newsletters; yet, the revised notice did not avoid abandonment of the
`newsletters distributed under the original notice). The Court finds that the reference in the
`Sequel to the Open Letter to the enforcement of Plaintiff’s copyrights in the 1992 Video is
`not bearing on the question of whether Plaintiff abandoned copyright protection in the
`Copyrighted Works. Consequently, the Court does not need to address whether Plaintiff did
`in fact abandon copyright protection in the 1992 Video. The Copyrighted Works were
`created after Plaintiff purportedly took the 1992 Video off the market following an
`unsuccessful public release. (Dkt. 59-2, Ex. 2, Bates # DM00547.) Plaintiff’s copyrights in
`the 1992 Video, the 1993 Videos and the Copyrighted Works extend to the original selection
`and arrangement of each work’s components. See Apple Computer, Inc. v. Microsoft Corp,
`35 F.3d 1435, 1445 (9th Cir. 1994) (citing Feist, 499 U.S. at 348–51). At a minimum, the
`original selection and arrangement of the materials in the Copyrighted Works are subject to
`copyright protection distinct from copyright protection in the 1992 Video.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 11 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 12 of 26
`
`An overt act indicating an intent to abandon copyright protection in a work must be
`taken with respect to that particular work. Therefore, even if the same photographs, designs
`and drawings appear in the 1992 Video and the Copyrighted Works, abandonment of
`copyright protection in the 1992 Video does not automatically extend to the Copyrighted
`Works. Defendants have not offered any authority to the contrary.
`b.
`Sequel to the Open Letter
`According to Defendants, the second overt act indicating Plaintiff’s intent to abandon
`his copyright protection in the Copyrighted Works is the publication of the Sequel to the
`Open Letter. (Dkt. 39 at p. 10.) Defendants cite to the following paragraph in the Sequel to
`the Open Letter:
`Now as far as my “copyrighted material”, this was necessary in order for a
`publisher to publish a book, which the angels had insisted that I do. Publishers
`will not publish your work unless it is copyrighted so that they will not lose
`their money. But at the same time, personally I have never cared about the
`copyrights. I wanted the information to go out to the world.
`(Dkt. 44-1, Ex. F, Bates # HOLTSL006329.)
`Plaintiff argues that Defendants take this statement out of context. According to
`Plaintiff, the Sequel to the Open Letter explains that Plaintiff, at the time of releasing the
`1992 Video, was more concerned about 1992 Video being accessible to the public, than
`concerned about enforcement of his copyrights. According to Plaintiff, after the 1992 Video
`was not properly utilized, Plaintiff created the 1993 Videos and registered his copyrights in
`the Copyrighted Works to protect the transmission of his teachings. (Dkt. 58 at p. 15.)
`Defendants note that the Sequel to the Open Letter was written after the Copyrighted Works
`were created, and argue that the “copyrighted material” referred to in the letter includes the
`Copyrighted Work.
`The Court finds the interpretation and intent behind Plaintiff’s statements in the
`Sequel to the Open Letter is an issue of fact that could reasonably be resolved in favor of
`either party. A reasonable jury could determine that the paragraph quoted above merely
`indicates that Plaintiff has copyrighted his published works at the behest of his publishers,
`even though he did not personally care about copyrights. This interpretation does not mean
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 12 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 13 of 26
`
`that Plaintiff has abandoned copyright protection in the Copyrighted Works. Alternatively,
`a reasonable jury could instead determine that the “copyrighted material” refers to the
`Copyrighted Works, and the issuance of the Sequel to the Open Letter is an overt act
`indicating Plaintiff’s intent to abandon copyright protection in the Copyrighted Works.
`Consequently, the interpretation of and intent behind Plaintiff’s copyright-related statements
`in the Sequel to the Open Letter is open to reasonable interpretation. There is a disputed
`issue of material fact as to whether the Sequel to the Open Letter constitutes an overt act
`indicating Plaintiff’s intent to abandon copyright protection in the Copyrighted Works.
`c.
`2005 Remarks in Bavaria, Germany
`Defendants assert that the third overt act indicating Plaintiff’s to abandon copyright
`protection in the Copyrighted Works occurred during his remarks at a 2005 Flower of Life
`workshop in Bavaria, Germany. (Dkt. 39 at p. 11.) At the workshop, Plaintiff stated: “I
`don’t care about copyrights or any of that stuff, that doesn’t matter. Forget it, just take it and
`you’ll understand what this is all about by tomorrow.” (Dkt. 45-3, Ex. C at Time Stamp
`30:06–22; Dkt. 53.) Defendants argue that because Plaintiff had already created and
`published the Copyrighted Works, this excerpt from Plaintiff’s remarks (“just take it”) clearly
`refers to the Copyrighted Works and possibly other materials as well.
`Plaintiff disagrees, and argues that this remark refers, not to the Copyrighted Works,
`but to an unpublished book that Plaintiff was writing called Tantra of the Heart. Plaintiff
`contends that he was giving an oral license of a specific work to a specific group of people,
`and that even though the earlier discussion of the new book was not on the tape of the
`workshop, the remark nevertheless referred to the new book. (Dkt. 58 at p. 16.)
`The Court finds that the interpretation and intent behind Plaintiff’s statement at the
`Flower of Life workshop raises an issue of fact for the jury to decide. As Plaintiff points out,
`the remark quoted above does not specify which copyrighted work or works that Plaintiff is
`discussing with his audience. The jury could reasonably interpret Plaintiff’s remarks to
`constitute an overt act indicative of his intent to abandon his copyright protection in the
`Copyrighted Works. Or, the jury could also reasonably determine that Plaintiff’s remarks
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 13 -
`
`

`
`Case 2:09-cv-01815-JAT Document 79 Filed 06/03/11 Page 14 of 26
`
`are insufficient to constitute overt acts, or do not even refer to the Copyrighted Work, but
`rather to Tantra of the Heart. Contrary to Defendants’ assertions, the Court does not find it
`clear that Plaintiff was referring to the Copyrighted Works. Further, even if he was referring
`to the Copyrighted Works, it is a disputed question of fact as to whether Plaintiff’s intent was
`to abandon his copyright protection in these works.
`Based on the foregoing, the Court finds that questions of fact exist as to whether the
`overt acts propounded by Defendants are indicative of Plaintiff’s intent to abandon copyright
`protection in the Copyrighted Works.
`2.
`Res Judicata Effect of Arbitrator’s Award
`Plaintiff argues that the doctrine of res judicata preclud