Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`TANISIA N. BAKER,
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`CARL WEBER et al.,
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`Plaintiff,
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`Defendants.
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`19 Civ. 1093 (JPC)
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`OPINION AND
`ORDER
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`JOHN P. CRONAN, United States District Judge:
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`Plaintiff Tanisia Baker sued Defendants Carl Weber, Urban Books, LLC, Urban Books
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`Media, LLC, and Kensington Publishing Corporation (“Defendants”) as well as Vickie Stringer,
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`Vickie Stringer Publishing, LLC, Triple Crown Publications, and Vickie Stringer Agency, LLC
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`(the “Defaulting Defendants”) for copyright infringement and other related claims. Baker claims
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`that for years Defendants relied on a nonexistent license to publish and distribute two of her books.
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`She now moves for partial summary judgment on her copyright infringement claims against
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`Defendants. She also moves for default judgment against the Defaulting Defendants, who never
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`responded to her complaint.
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`The Court denies both motions. There are genuine issues of material fact on whether
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`Defendants infringed Baker’s copyrights. These include questions on whether Defendants had an
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`actual (or implied) license to distribute her works, which would provide a defense to copyright
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`infringement. Because Baker’s default judgment motion relies in part on these factual questions,
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`the Court also denies the motion for default judgment.
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 2 of 24
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`A. Facts1
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`I. Background
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`Baker is an author who wrote two books that are at issue in this case, Sheisty and Still
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`Sheisty. Pl. 56.1 Stmt. ¶¶ 1-2. She holds the copyright for Sheisty at Registration Number
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`TXu001142798/2003-08-19 and Still Sheisty at Registration Number TXu001200086/2004-09-08.
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`Id.; Dkt. 89 (“Baker Declaration”) ¶¶ 2-3, Exhs. 1-2. Defendants have noted, however, that other
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`copyrights for Sheisty and Still Sheisty exist. Def. Counter 56.1 Stmt. ¶¶ 1-2; Dkt. 97 (“Lane
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`Declaration”) ¶¶ 3-4, Exhs. A-C. This includes a copyright for Still Sheisty which lists Triple
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`Crown Publications as the copyright claimant—Registration Number TX0006125092/2005-01-
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`28. Def. Counter 56.1 Stmt. ¶ 2; Lane Declaration ¶ 5, Exh. C.
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`In 2003, Baker signed a publishing agreement with Triple Crown Publications, an LLC
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`owned by Vickie Stringer. Pl. 56.1 Stmt. ¶ 4; Baker Declaration ¶ 4, Exh. 3 (“2003 Agreement”).
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`The 2003 Agreement gave Triple Crown Publications “the sole and exclusive right to print, publish
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`and sell” Sheisty and Still Sheisty. 2003 Agreement ¶ 1. In return, Triple Crown Publications
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`agreed to pay Baker royalties, including “ten percent (10%) of the retail price” of the books. Id.
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`¶ 3. A different royalty structure existed if Triple Crown Publications choose to “sell or license
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`. . . the use of the [books].” Id. ¶ 4. In that scenario, Triple Crown Publications had to divide the
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`net sales equally between itself and Baker. Id. Triple Crown Publications had to pay Baker any
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`1 The following facts are drawn primarily from the parties’ statements of material facts
`pursuant to Local Civil Rule 56.1, Dkt. 92 (“Pl. 56.1 Stmt.”); Dkt. 99 (“Def. Counter 56.1 Stmt.”),
`and the declarations and other submissions made by the parties. Unless otherwise noted, the Court
`cites to only one party’s Rule 56.1 Statement where the parties do not dispute the fact, the adverse
`party has offered no admissible evidence to refute that fact, or the adverse party simply seeks to
`add its own “spin” on the fact or otherwise dispute the inferences from the stated fact.
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`2
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 3 of 24
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`owed royalties twice a year and then provide royalty statements within 120 days after the royalties
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`were due. Id. ¶ 5.
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`The 2003 Agreement also included three relevant assignment provisions. First, Triple
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`Crown Publications could assign the agreement to others. Id. ¶ 15. Second, Baker could end the
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`agreement if her books were out of print after “five (5) years from the date of first publication.”
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`Id. ¶ 13(b). Third, Baker could end the agreement in certain situations:
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`BANKRUPTCY: If (a) petition in bankruptcy is filed by Publisher, or (b) a petition
`in bankruptcy is filed against Publisher and such petition is finally sustained, or (c)
`a petition for arrangement is filed by publisher or a petition for reorganization is
`filed by or against Publisher, and an order is entered directing the liquidation of
`Publisher as in as in [sic] bankruptcy, or (d) Publisher makes an assignment for the
`benefit of creditors, or (e) publisher liquidates its business for any cause whatever,
`Author may terminate this Agreement by written notice and thereupon all rights
`granted by him hereunder shall revert to him.
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`Id. ¶ 26.
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`Triple Crown Publications began publishing Sheisty and Still Sheisty in 2004. Baker
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`Declaration ¶ 6. Then in June 2010, Stringer dissolved Triple Crown Publications. Pl. 56.1 Stmt.
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`¶¶ 5, 7. After Baker learned this, she sent Triple Crown Publications a letter, dated October 10,
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`2011, asking to revert her rights in the books because Triple Crown Publications “liquidated its
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`business on June 14th, 2010 without a proper Assignment agreement in place.” Baker Declaration,
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`Exh. 5. In a letter dated October 19, 2011, Stringer, Triple Crown Publications’ owner, wrote back
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`that Triple Crown Publications “did not liquidate its assets nor . . . file for bankruptcy.” Id., Exh.
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`6 at 1. Instead, according to Stringer, Triple Crown Publications had “assigned all of the rights
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`and privileges in [Sheisty and Still Sheisty] to different business entities; Vickie Stringer
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`Publishing, LLC and Triple Crown Productions, LLC,” before Triple Crown Publications
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`3
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 4 of 24
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`dissolved “for tax purposes.” Id. (emphasis added).2 Stringer also claimed to Baker in that letter
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`that Stringer had not “reverted the rights in [Baker’s] contract” and that Stringer’s “assignments
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`ha[d] [not] changed [Baker’s] contract[] in any way.” Id. Baker never responded to Stringer’s
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`October 19, 2011 letter. Years later, however, Stringer changed her position. In a January 2, 2019
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`email to the American Arbitration Association, Stringer claimed that the 2003 Agreement had “an
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`out of print clause and out of business clause [which] revert[ed] rights to [Baker].” Id., Exh. 9 at
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`1.
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`In October 2014, Triple Crown Publications (through Triple Crown Productions) licensed
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`the distribution rights for several works, including Baker’s two books, to Urban Books, LLC. Pl.
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`56.1 Stmt. ¶ 11; Dkt. 90 (“Perdomo Declaration”) ¶ 9, Exh. 14 (“2014 Agreement”).3 The 2014
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`Agreement also licensed the rights to two books by the author Toy Styles. Pl. 56.1 Stmt. ¶ 11;
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`Perdomo Declaration ¶ 9; 2014 Agreement at 1. In this agreement, Triple Crown Productions
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`referred to itself as “successor-in-interest to Triple Crown Publications.” 2014 Agreement at 4.
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`The 2014 Agreement also warranted to Urban Books:
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`(a) that it has full power to enter into this Agreement and to grant the rights granted
`herein; (b) that the Work will be protected by valid copyright; (c) that Licensee’s
`exercise of its rights hereunder will not infringe, violate, nor be subject to any
`trademark, trade name, copyright, literary, artistic[,] dramatic, property rights, or
`any proprietary right at common law of any person[,] firm, or corporation; (d) if
`Licensor’s edition of
`the Work contains printed,
`insert[,] or bound-in
`advertisements[,] Licensee shall be notified of such and is permitted, at its option,
`to delete same from its edition; (e) that the Work contains no matter that is obscene,
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`2 Other evidence indicates that Triple Crown Publications had assigned these publishing
`rights in 2009 and recorded the assignment with the copyright office. Pl. 56.1 Stmt. ¶ 6.
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`3 The 2014 Agreement has “Urban Books c/o Kensington Publishing Corp” in its title.
`2014 Agreement at 1. Defendants claim that including “c/o Kensington Publishing Corp” is a
`mistake. Def. Counter 56.1 Stmt. ¶ 11. They contend that “Kensington does not have and has
`never had an address coincident with an Urban Books address, and is not [and] has never been
`formally associated with Urban Books, other than through an arms’ length relationship whereby
`Kensington provides distribution services to Urban Books.” Def. Counter 56.1 Stmt. ¶ 11. The
`Court need not decide Kensington’s rights under the 2014 Agreement to decide these motions.
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`4
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 5 of 24
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`libelous, nor contains injurious formulas, recipes or instructions, nor is in violation
`of any common law right of privacy, nor otherwise in contravention of law.
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`Id. ¶ 5.
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`Two months after signing the 2014 Agreement, Stringer told Baker that she had licensed
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`Sheisty and Still Sheisty to Urban Books. Baker Declaration ¶ 14, Exh. 7. Two days later, Baker
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`sent a Facebook message to a Facebook profile in the name of “Carl Weber.” Baker Declaration
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`¶¶ 15-16. Carl Weber is Urban Books’ majority owner and manager. Pl. 56.1 Stmt. ¶ 10. The
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`message said that Baker “would like to speak with you or someone in your camp that can answer
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`some questions and concerns that [Baker] ha[d]” with the “distribution deal . . . for [Baker’s] titles
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`Sheisty and Still Sheisty.” Baker Declaration, Exh. 8 at 2-3. After receiving no response, Baker
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`sent another message on Christmas: “Carl can u please respond i would like to speak with u
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`regarding my titles & your distribution agreement with Vickie Stringer.” Id. at 3. It appears that
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`no one responded to this message either. See id. 3-4.
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`The parties dispute whether Weber ever saw Baker’s Facebook messages. In his
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`deposition, Weber said that the Facebook profile is a “professional page” created by Kensington
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`Publishing. Perdomo Declaration, Exh. 21 (“Weber Deposition”) at 21-22. Kensington Publishing
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`created the page “[b]ecause [Weber] refused to”; Weber is “not a believer in social media.” Id. at
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`22-23. Weber also claimed that he did not “recall ever receiving a Facebook message from Ms.
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`Baker regarding her works as an author.” Id. at 23.
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`In late March 2015, Styles contacted Weber by phone. See Perdomo Declaration ¶ 10;
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`Weber Deposition at 84. Weber admitted that in this conversation Styles “reached out to [him]
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`and asked [him] to not publish [Styles’s] book.” Weber Deposition at 84. Weber also said that
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`Styles wished for him to not publish her works because “she had commenced litigation against
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`Vickie Stringer.” Weber Declaration ¶ 12. But Weber did “not recall any discussion of the reasons
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 6 of 24
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`for or facts concerning Ms. Styles’[s] litigation against Ms. Stringer.” Id.; see also Weber
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`Deposition at 87-89. Still, he “obliged [Styles’s] request” and did not publish her works. Weber
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`Declaration ¶ 12; see also Pl. 56.1 Stmt. ¶ 14.
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`After the phone call, the parties dispute whether Weber received a follow-up email from
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`Styles. See Pl. 56.1 Stmt. ¶ 13; Def. Counter 56.1 Stmt. ¶ 1. Baker provided an email chain from
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`Styles to Baker’s lawyer, Francelina Perdomo. See Perdomo Declaration, Exh. 15 at 1. That email
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`chain includes an email from Styles to “urbanbooks@optonline.net” in April 2015 that asks Weber
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`to “give [her] a status [on] [her] concern” about her books. Id. at 1-2. Below that email is a March
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`26, 2015, email from Styles (with no listed recipient) saying that she is attaching “the original
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`paperwork for my Federal Court Case for copyright infringement.” Id. at 2. In that federal
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`complaint, Styles claims that Stringer failed to pay her royalties for her works and that the
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`“Agreement[s] became voidable and the rights to Ms. Styles’ Works should have been transferred
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`back to her upon demand.” Id., Exh. 16 ¶ 44; see also id. ¶¶ 29-38.
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`This same email chain between Styles and Baker’s lawyer also includes a forwarded email
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`with Styles listed as both the sender and receiver. In that email, Styles says that she “do[es] not
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`authorize” transferring the rights to her works because “Vickie no longer has legal rights to my
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`books and her company was dissolved (proof can be provided).” Id., Exh. 15 at 3. The parties
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`similarly contest whether Weber received this forwarded email. See Pl. 56.1 Stmt. ¶ 13; Def.
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`Counter 56.1 Stmt. ¶ 13; Dkt. 96 (“Opposition”) at 12-13. Weber claims that he “did not receive
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`these emails or referenced materials.” Def. Counter 56.1 Stmt. ¶ 13. He instead claims that his
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`“only communication with Ms. Styles on the subject of the Styles works being the phone
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`conversation.” Id.
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 7 of 24
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`In April 2015, Urban Books began publishing and distributing Sheisty.4 Pl. 56.1 Stmt. ¶ 12.
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`Early the next year, Urban Books began publishing Still Sheisty. Id. Then in April 2017, Urban
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`Books combined Sheisty and Still Sheisty into The Sheisty Saga and started publishing it. Id. ¶¶ 3,
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`12. Baker never received royalties from Defendants for these publications. Id. ¶ 17. Instead,
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`Urban Books sent royalty checks to Triple Crown. Weber Declaration ¶ 9. After the checks came
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`back as undeliverable, Urban Books held the funds for Triple Crown. Id.
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`In September 2018, Weber and Urban Books received a letter from Baker’s counsel. Pl.
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`56.1 Stmt. ¶ 15. The letter told Weber and Urban Books that Baker had “sent a written notice to
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`Triple Crown Publishing . . . seeking reversion of her rights into the Works in accordance with the
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`provisions of the publishing agreement executed between Ms. Baker and Triple Crown.” Perdomo
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`Declaration, Exh. 17 at 1. The letter claimed that Weber and Urban books “infringe[d] on Ms.
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`Baker’s copyrights” by publishing her books without authorization. Id. The letter also said that
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`“[i]n the unlikely event that you believe and are able to demonstrate that Urban Books, LLC and
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`its Affiliates have the required authority to reproduce the Works and commercially exploit them,
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`it is imperative that you immediately contact [Baker’s lawyer’s] office to discuss a payment
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`arrangement.” Id. at 2. Weber and Baker (or Baker’s lawyer) did not have further discussions
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`before Baker sued. Pl. 56.1 Stmt. ¶ 16.
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`B. Procedural History
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`Baker filed this lawsuit on February 5, 2019. Dkt. 1. She alleges eight causes of action:
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`(1) a declaratory judgment that she exclusively owns Sheisty and Still Sheisty, (2) a declaratory
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`judgment that all the licensing agreements are terminated or void, (3) copyright infringement, (4)
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`4 Kensington Publishing Corp. was the professional publisher that Urban Books used to
`distribute both books. Pl. 56.1 Stmt. ¶ 9.
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 8 of 24
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`fraud, (5) civil conspiracy to commit fraud, (6) unjust enrichment, (7) contractual breach, (8) an
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`accounting for her works, and (9) a constructive trust over all the defendants. Dkt. 5 at 13-25.
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`Defendants denied the claims and asserted affirmative defenses in their answers to the Complaint
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`in March and April 2019. Dkt. 29, 39. Defendants also crossclaimed against the Defaulting
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`Defendants seeking indemnification. Dkt. 29.
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`After the Defaulting Defendants were properly served and failed to respond, Dkts. 36-38,
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`the Clerk of the Court entered a Certificate of Default against them, Dkt. 45. Baker then moved
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`for default judgment as to those defendants on all her claims, including that Stringer fraudulently
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`represented that Baker could not terminate the 2003 Publishing Agreement and fraudulently tried
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`to assign Baker’s publishing rights to Defendants. See Dkt. 78 at 15-18.
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`Discovery concluded on January 22, 2021. On February 26, 2021, Baker moved for partial
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`summary judgment against Defendants on her copyright infringement claim. Dkt. 88, 91. She
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`asks for compensatory damages for copyright infringement, statutory damages for willful
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`copyright infringement, and interest, costs, and fees. Dkt. 88 at 2. Defendants opposed the motion
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`for summary judgment on March 15, 2021. Dkt. 96.
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`II. Legal Standards
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`A court should grant summary judgment only “if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(c). In determining whether a genuine factual dispute exists, a court “is not to weigh the
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`evidence but is instead required to view the evidence in the light most favorable to the party
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`opposing summary judgment, to draw all reasonable inferences in favor of that party, and to
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`eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 9 of 24
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`The moving party bears the initial burden to show the lack of a genuine dispute on each
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`material element for the asserted claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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`If the moving party carries her burden, the non-moving party must then “designate specific facts
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`showing that there is a genuine issue for trial.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.
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`2008) (quotations omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
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`A court must grant summary judgment “if, under the governing law, there can be but one
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`reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250.
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`For a default, “[e]ntry of a default judgment is appropriate when the adversary process has
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`been halted because of an essentially unresponsive party.” Gucci Am., Inc. v. Tyrrell-Miller, 678
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`F. Supp. 2d 117, 118 (S.D.N.Y. 2008) (quotations omitted). But “when a default is entered against
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`one defendant in a multi-defendant case, the preferred practice is for the court to withhold granting
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`default judgment until the trial of the action on the merits against the remaining defendants.”
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`Economist’s Advocate, LLC v. Cognitive Arts Corp., No. 01 Civ. 9486 (RWS), 2004 WL 2650906,
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`at *3 (S.D.N.Y. Nov. 22, 2004) (quotations and alterations omitted).
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`III. Baker’s Motion for Summary Judgment
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`The Court first turns to Baker’s motion for summary judgment on her copyright
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`infringement claim against Defendants. To establish copyright infringement, a plaintiff must show
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`“(1) ownership of a valid copyright and (2) infringement of the copyright by the defendant.”
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`Spinelli v. Nat’l Football League, 903 F.3d 185, 197 (2d Cir. 2018) (quotations omitted). In
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`Baker’s view, there are no genuine factual issues that Defendants infringed her copyrights by
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`publishing Sheisty and Still Sheisty since 2014. Defendants, in contrast, argue that even if Baker
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`owns valid copyrights for those works, that they had a license to publish Baker’s works based on
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`the 2014 Agreement and Baker’s conduct since that agreement.
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 10 of 24
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`As detailed below, Baker has shown that she owns valid copyrights for her two books but
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`failed to show the absence of any material fact that Defendants infringed her copyrights. The
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`Court thus denies her motion for partial summary judgment. But by moving for summary
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`judgment on the copyright infringement claims, Baker has implicitly moved to strike affirmative
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`defenses. The Court therefore, in analyzing Baker’s motion, also addresses whether to strike
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`certain affirmative defenses for trial.
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`A. Valid Copyright Ownership
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`Baker has shown that she holds valid copyrights for Sheisty and Still Sheisty. By submitting
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`registration certificates for each work, see Baker Declaration, Exhs. 1-2, Baker provided “prima
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`facie evidence” that she owns the two works. Psihoyos v. Pearson Educ., Inc., 855 F. Supp. 2d
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`103, 116 (S.D.N.Y. 2012).
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`Defendants do not contest in their opposition brief that Baker owns the copyright for the
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`two books. See Opposition at 6 (challenging only whether they infringed the copyright). And in
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`their Rule 56.1 statement, Defendants only claim that there are other copyright claimants for
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`Sheisty and Still Sheisty listed under different copyright numbers. See Def. Counter 56.1 Stmt. ¶¶
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`1-2. But these different copyright registrations do not change that Baker is the copyright claimant
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`for both works under different registration numbers. Instead, the existence of other copyright
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`claimants would only be relevant as a damages consideration if liability is found. See New Line
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`Cinema Corp. v. Russ Berrie & Co., 161 F. Supp. 2d 293, 302 (S.D.N.Y. 2001). Defendants have
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`therefore failed to rebut the ownership presumption. See Psihoyos, 855 F. Supp. 2d at 116.
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`B. Copyright Infringement
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`The Court turns next to whether Baker has shown that Defendants infringed her copyrights.
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`“A copyright holder possesses the exclusive right to ‘reproduce copyrighted work in copies’ and
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 11 of 24
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`to ‘distribute copies … of the copyrighted work to the public by sale.’” Id. at 119 (alteration in
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`original) (quoting 17 U.S.C. § 106). There is no dispute that Defendants published Baker’s works
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`without her express authorization. But that does not end the inquiry. “[I]f Defendants can show
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`that
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`the copying was authorized, or
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`that
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`they are entitled
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`to any other defense
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`to copyright infringement, then they will not be held liable.” Id.
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`Defendants raise four defenses to copyright infringement: (1) Defendants had a license to
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`publish the works, (2) equitable estoppel bars Baker’s copyright claims, (3) the doctrine of laches
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`bars Baker’s copyright claims, and (4) Defendants lacked notice of Baker’s copyright. While
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`Defendants have the “burden to prove that they are entitled to these defenses, . . . on a motion for
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`summary judgment it remains [Baker’s] burden to show the absence of genuine issues of material
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`fact that Defendants will be unable to prove entitlement to the defenses.” Id. The Court will
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`address each defense in turn.
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`1. License
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`A license acts as an affirmative defense: “a copyright owner who licenses his work to
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`another waives his right to sue the licensee for copyright infringement.” Spinelli, 903 F.3d at 202
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`(quotations omitted). Because a license acts as an affirmative defense, Defendants have “the
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`burden of coming forward with evidence of one.” Id. (quotations omitted). That evidence must
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`show that they have one of the “three types of copyright licenses: (1) written; (2) oral; [or] (3)
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`implied.” Gasery v. Kalakuta Sunrise, LLC, 422 F. Supp. 3d 807, 815 (S.D.N.Y. 2019). A written
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`license may be either exclusive or nonexclusive. See id. But an oral or implied license “can only
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`be non-exclusive.” Id. (quotations omitted). Once a defendant shows that he or she had a license
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`to use a work, the failure to pay the copyright owner does not yield a copyright claim. Graham v.
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`James, 144 F.3d 229, 236 (2d Cir. 1998). The failure to pay instead gives rise only to a contract
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`claim. Id.
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 12 of 24
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`i. Actual License
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`Defendants first contend that they have an actual written license to publish Baker’s works.
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`While acknowledging that Baker did not personally sign a contract with them, they argue that the
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`2014 Agreement between Triple Crown Productions and Urban Books gave them a license to
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`publish her works. Opposition at 6-8. In Defendants’ view, the 2003 Agreement allowed Triple
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`Crown Publications to assign its rights to Triple Crown Productions, who could then license
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`Baker’s books to other parties under the 2014 Agreement. Id. Baker resists this argument by
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`pointing to the letter she sent on October 10, 2011. That letter combined with “Triple Crown
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`Publications’ dissolution” in 2011 reverted the rights to the books to her under the 2003
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`Agreement, according to Baker. Dkt. 91 (“Motion”) at 11. She therefore contends that Triple
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`Crown Productions lacked the power to license her works to Defendants.
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`The question of whether the 2014 Agreement gave Defendants an actual license to publish
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`Baker’s works thus hinges on the 2003 Agreement and whether Triple Crown Publications
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`permissibly assigned the rights to Sheisty and Still Sheisty to Triple Crown Productions. The
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`relevant section of the 2003 Agreement provides:
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`BANKRUPTCY: If (a) petition in bankruptcy is filed by Publisher, or (b) a petition
`in bankruptcy is filed against Publisher and such petition is finally sustained, or (c)
`a petition for arrangement is filed by publisher or a petition for reorganization is
`filed by or against Publisher, and an order is entered directing the liquidation of
`Publisher as in as in [sic] bankruptcy, or (d) Publisher makes an assignment for the
`benefit of creditors, or (e) publisher liquidates its business for any cause whatever,
`Author may terminate this Agreement by written notice and thereupon all rights
`granted by him hereunder shall revert to him.
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`2003 Agreement ¶ 26. The parties seemingly agree that under this provision, Baker could
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`terminate the 2003 Agreement after providing written notice if one of the five provisions’
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`requirements, set out at (a) to (e), are met. See Motion at 11-12; Opposition at 6-9; Dkt. 103
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`(“Reply”) at 2-3. But the parties differ from there on how to interpret the 2003 Agreement.
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 13 of 24
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`“The interpretation of an unambiguous contract . . . is . . . a question of law reserved for
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`the court.” Golden Pacific Bancorp v. FDIC., 273 F.3d 509, 515 (2d Cir. 2001) (citation omitted).
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`But ambiguous contractual language that yields “differing interpretations of the contract present[s]
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`a triable issue of fact.” Id. (quotations omitted). To enter summary judgment for Baker, she must
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`therefore show not only that her interpretation is best, but that the 2003 Agreement unambiguously
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`yields it. See id. at 514-15; Bank of Am. Nat’l Tr. & Sav. Ass’n v. Gillaizeau, 766 F.2d 709, 715
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`(2d Cir. 1985).
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`Here, there remain material issues to be resolved as to whether any of the five provisions
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`were satisfied when Baker sent the termination notice in 2011. Because Triple Crown Publications
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`did not go bankrupt, the only plausible provisions that apply here are provisions (c) and (e). Yet
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`neither provision unambiguously applies.
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`Consider first provision (c)—“a petition for arrangement is filed by publisher or a petition
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`for reorganization is filed by or against Publisher, and an order is entered directing the liquidation
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`of Publisher as in as in [sic] bankruptcy.” 2003 Agreement ¶ 26 (emphasis added). Triple Crown
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`Publications dissolved in 2010. Pl. 56.1 Stmt. ¶ 5. The letter from Stringer to Baker characterized
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`this dissolution as assigning all assets to “Vickie Stringer Publishing, LLC and Triple Crown
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`Productions, LLC. . . . for tax purposes.” Baker Declaration, Exh. 6 at 1. That might be understood
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`as a reorganization. Yet provision (c) also requires that “an order is entered directing the
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`liquidation of Publisher as in [a] bankruptcy.” 2003 Agreement ¶ 26.
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`Neither party suggests how the Court should interpret this clause. But a plausible reading
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`is that this clause requires entry of an order (resembling a bankruptcy order) to liquidate Triple
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`Crown Publications. Under this plausible reading, summary judgment is inappropriate. See
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`Mauney v. Imperial Delivery Servs., Inc., 865 F. Supp. 142, 152 (S.D.N.Y. 1994), opinion
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 14 of 24
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`corrected (Oct. 4, 1994). Baker points to no facts suggesting that Stringer reorganized—let alone
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`liquidated— Triple Crown Publications in response to an order. And that says nothing on whether
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`that hypothetical order resembled orders given in a bankruptcy.
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`Consider next provision (e)—“publisher liquidates its business for any cause whatever.”
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`2003 Agreement ¶ 26. This provision also has two plausible constructions. One reading is what
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`Baker seemingly puts forward: if Triple Crown Publications dissolves and assigns its rights to
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`others, it has “liquidate[d] its business.” See Motion at 11. Under this reading, liquidation means
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`to wind down the business. See Liquidate, Black’s Law Dictionary (11th ed. 2019) (“To wind up
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`the affairs of (a corporation, business, etc.).”). Because Triple Crown Publications wound down
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`the business and assigned its rights to others, provision (e) should apply, under Baker’s view.
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`But that is not the only plausible reading. Another plausible reading is that provision (e)
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`refers only to liquidations in the bankruptcy context. Under this view, liquidation refers to
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`determining “the liabilities and distribut[ing] the assets of (an entity) . . . in bankruptcy.” Id.; but
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`see id. (also referring to “dissolution”). That “liquidation” refers only to bankruptcy is a reasonable
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`construction. For one, the section of the agreement containing this provision is titled
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`“BANKRUPTCY.” 2003 Agreement ¶ 26. And the surrounding four provisions all refer to
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`bankruptcy. See id. Under the ejusdem generis principle, when “general words follow specific
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`words[,] . . . the general words are construed to embrace only objects similar in nature to those
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`objects enumerated by the preceding specific words.” Cir. City Stores, Inc. v. Adams, 532 U.S.
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`105, 114-15 (2001) (quotations omitted). Thus, all the surrounding provisions referencing
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`bankruptcy could limit the phrase “liquidat[ion] . . . for any cause what[so]ever” to mean only
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`liquidations relating to bankruptcy. See Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017,
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`Case 1:19-cv-01093-JPC Document 104 Filed 09/30/21 Page 15 of 24
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`1020 (2d Cir. 1985) (denying summary judgment by applying ejusdem generis principle to find
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`that a clause had more than “one reasonable interpretation”).
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`Baker resists these interpretations by pointing to Stringer’s email to the American
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`Arbitration Association when Stringer claimed that the rights reverted to Baker in 2011. See Reply
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`at 2-3. But that email does not make ambiguous language unambiguous. For one, the email
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`contradicts her earlier response of October 19, 2011 to Baker, thus presenting a factual issue. More
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`to the point, “[s]ubsequent commentary by one of the parties to a contract[,] . . . offered in
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`connection with a law suit, cannot shed light on the original meaning of the instrument.” Royal
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`Park Invs. v. U.S. Bank Nat’l Ass’n, 319 F.R.D. 122, 130 (S.D.N.Y. 2016). Said differently, the
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`Court looks to the contract’s objective language to understand the parties’ intentions, not the
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`“party’s statements in subsequent litigation.” Id. (quotations omitted). Stringer’s later self-serving
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`statements thus do not definitively say what the 2003 Agreement meant.
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`Genuine factual issues therefore remain for the jury as to whether the publishing rights
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`reverted to Baker in 2011 pursuant to the 2003 Agreement.5 This in turn means that there are
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`genuine issues of material fact on whether Triple Crown Productions granted Defendants an actual
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`license to use Baker’s works.
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`ii.
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`Implied License
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`Defendants next argue that even if Triple Crown Productions lacked the authority to grant
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`them a license to publish Baker’s works, that they had an implied one based on Baker’s conduct
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`5 Because provisions (c) and (e) are ambiguous, the Court need not decide whether the
`phrase “all rights granted by [Baker] . . . shall revert to [her]” is also ambiguous. Defendants claim
`that this phrase meant that Triple Crown Publications had to grant the rights back to Baker if
`provisions (c) or (e) or met, but that the rights did not automatically revert to Baker. Opposition
`at 7.