Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 1 of 12 PAGEID #: 450
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`CHRISTOPER VERNON DOWNEY,
`Plaintiff,
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`vs.
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`BLAISE A. DOWNEY
`Defendant.
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`Case No. 1 :09-cv-634
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`Barrett, J.
`Litkovitz, M.J.
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`REPORT AND
`RECOMMENDATION
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`Plaintiff, Christopher Downey, proceeding pro se, brings this copyright infringement
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`action pursuant to the Copyright Act of 1976, as amended, 17 U.S.C. § 101, et seq. (the
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`Copyright Act), alleging that defendant, Blaise Downey, plaintiffs brother, infringed on his
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`copyrights by utilizing plaintiffs instrumental musical tracks in defendant's recordings. This
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`matter is before the court on defendant's motion for summary judgment (Doc. 47), plaintiffs
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`response in opposition (Doc. 48), and defendant's reply. (Doc. 51). For the reasons stated
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`below, the undersigned recommends that defendant's motion for summary judgment be granted.
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`I. Background
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`The following facts are undisputed. Plaintiff and defendant are brothers who, until
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`recently, cohabitated in the residence owned by defendant. (Doc. 47 at 9-11, Deposition of
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`Plaintiff). See also Doc. 52, Notification of Change of Address. For over twenty years, the
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`parties have created musical works together at defendant's residence. (Doc. 4 7 at 9-11 ).
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`Generally, plaintiff creates the instrumental score and defendant co-authors lyrics and provides
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`vocals. See generally Doc. 47. In 1994, plaintiff registered "Virtual Oblivion," a compilation of
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`29 sound recordings with the Office of Copyrights. "Virtual Oblivion" was assigned the
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`Copyright Registration Number SRu 287-757. (Doc. 47, Ex. 1, "Virtual Oblivion" Copyright
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 2 of 12 PAGEID #: 451
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`Certificate). Plaintiff listed himself as the "co-author of words" and as the "sole instrumental
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`musician" and listed defendant as "co-author of words" and "primary vocalist" for certain songs.
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`!d. Plaintiff alleges that in 2005 and 2006, defendant registered compilations of sound
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`recordings with the Office of Copyrights entitled "The Emperor and his Zombies" and "The
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`Emperor and his Zombies (revised)" listing both plaintiff and defendant as co-authors of the
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`registered works. (Doc. 10 at 1-2, Plaintiffs Complaint). Plaintiffthen brought suit against
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`defendant raising 38 counts of copyright infringement, alleging that defendant's copyright filings
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`infringed on plaintiffs prior copyright filing for "Virtual Oblivion." (Doc. 10). The Court
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`previously dismissed 27 ofplaintiffs 38 counts of copyright infringement. (Doc. 23).
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`Defendant now brings a motion for summary judgment on plaintiffs remaining claims in counts
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`1, 2, 4, 5, 7, 8, 10, and 17-20. (Doc. 23).
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`II. Summary Judgment Standard
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`A motion for summary judgment should be granted if the evidence submitted to the Court
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`demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled
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`to judgment as a matter oflaw. Fed. R. Civ. P. 56( c). See Celotex Corp. v. Catrett, 477 U.S.
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`317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Under Federal Rule
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`of Civil Procedure 56( c), a grant of summary judgment is proper if "the pleadings, depositions,
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`answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
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`there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
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`oflaw." Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate
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`the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving
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`party. Satterfield, 295 F.3d at 615; Matsushita Elec. Industrial Co., Ltd v. Zenith Radio, 475
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`2
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 3 of 12 PAGEID #: 452
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`U.S. 574, 587 (1986); Little Caesar Enterprises, Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.
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`2000).
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`The trial judge's function is not to weigh the evidence and determine the truth of the
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`matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at
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`249-50. The trial court need not search the entire record for material issues of fact, Street v. J C.
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`Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine "whether the
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`evidence presents a sufficient disagreement to require submission to a jury or whether it is so
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`one-sided that one party must prevail as a matter oflaw." Anderson, 477 U.S. at 251-52.
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`If, after an appropriate time for discovery, the opposing party is unable to demonstrate a
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`prima facie case, summary judgment is warranted. Street, 886 F.2d at 1478 (citing Celotex and
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`Anderson). "Where the record taken as a whole could not lead a rational trier of fact to find for
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`the non-moving party, there is no 'genuine issue for trial."' Matsushita Electric Industrial Co. v.
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`Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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`III. Resolution
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`Defendant raises three arguments in support of its motion for summary judgment on
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`plaintiffs remaining counts of copyright infringement: (1) plaintiff has not copyrighted the
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`materials he claims was infringed by defendant; (2) because defendant is listed as a co-author in
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`plaintiffs Copyright Registration, plaintiff may not maintain copyright infringement claims
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`against him; and (3) defendant's alleged conduct does not constitute infringement under relevant
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`copyright law. In support, defendant relies on plaintiffs testimony and the copyright registration
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`form which demonstrate that plaintiff did not register many of the songs at issue for copyright
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`protection. Defendant further cites to this evidence to demonstrate that he is a co-author of the
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`copyrighted work and, consequently, cannot be liable for infringement. Defendant contends that
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`3
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`this evidence demonstrates that plaintiffs claims fails as a matter of law and that summary
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`judgment should be granted in his favor.
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`Plaintiffs response in opposition consists largely of unsupported accusations that
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`defendant, in collusion with several third parties, including unidentified cult members, is part of
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`a scheme designed to "exact revenge upon [p]laintiff." (Doc. 50 at 15). To the extent that
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`plaintiffs memorandum attempts to rebut the arguments raised in defendants summary judgment
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`motion, plaintiff asserts that although defendant was listed as a "co-author of words," defendant
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`did not author any of the instrumental tracks contained in the compilation and, thus, is liable for
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`infringement due to his use of these materials in sound recordings later copyrighted by
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`defendant.
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`In support, plaintiff cites to defendant's discovery responses in an attempt to demonstrate
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`that defendant was incapable of creating sound recordings and/or instrumental tracks. However,
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`the evidence proffered by plaintiff is inadmissible and not properly before the Court. Rather than
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`submitting the actual discovery responses as an exhibit in responding to defendant's motion,
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`plaintiff has merely typed the purported interrogatory responses into his memorandum. See Doc.
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`50 at 11-13. This method of presenting evidence does not comport with the requirements of Fed.
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`R. ofCiv. P. 56( c). Although the Court is mindful of plaintiffs prose status, he still bears the
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`burden of setting forth evidence demonstrating that a genuine issue of material fact exists. See
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`Torba v. JM Smucker Co., 888 F. Supp. 851, 853 (N.D. Ohio 1995) (prose plaintiff must
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`present evidence "setting forth specific facts demonstrating a genuine issue of material fact
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`where the opposing party has moved for summary judgment") (citing Black v. Parke, 4 F.3d 442,
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`448 (6th Cir. 1993) (same)). Here, plaintiff has failed to properly submit defendant's discovery
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`responses into evidence. See Fed. R. Civ. P. 56 (c)(1)(A) (at summary judgment a party
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`4
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 5 of 12 PAGEID #: 454
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`"asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing
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`to particular parts of materials in the record') (emphasis added). Consequently, plaintiffhas
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`introduced no evidence whatsoever either to support his claims or rebut defendant's evidence.
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`Plaintiffs deficient response notwithstanding, the Court must still analyze whether defendant's
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`arguments merit a grant of summary judgment as they primarily involve determinations of law.
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`A. Plaintiff's failure to copyright songs which form the basis of Counts 1, 2, 5, 7, 17,
`and 20 of his complaint preclude his claims of copyright infringement.
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`A copyright infringement claim under 17 U.S.C. § 411 has two elements: "(1) ownership
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`of a valid copyright; and (2) copying of constituent elements of the work that are original."
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`Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394,398 (6th Cir. 2007) (quoting
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`Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004)). Subject to the requirements
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`of§ 411, the legal or beneficial owner of an exclusive right under a copyright is entitled to
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`institute an action for any infringement of that right committed during its ownership. 17 U.S.C.
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`§ 501(b). Section 411(a) requires that no civil action for infringement of a copyright can be
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`instituted until preregistration or registration of the copyright claim has been made in accordance
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`with that title. 17 U.S.C. § § 411(a).
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`Section 411(a)'s registration requirement is not jurisdictional. Reed Elsevier, Inc. v.
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`Muchnick,-- U.S.--, 130 S.Ct. 1237 (2010). Accordingly, a plaintiffs failure to comply with the
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`registration requirement does not divest the federal courts of subject matter jurisdiction over a
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`copyright infringement claim. /d. at 1241. However, the requirement is a precondition to filing
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`a claim. /d. "[Section 411(a)] establishes a condition- copyright registration- that plaintiffs
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`must ordinarily satisfy before filing an infringement claim and invoking the Act's remedial
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`provisions." /d. at 1242. The registration precondition is not satisfied where a plaintiff files a
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`5
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 6 of 12 PAGEID #: 455
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`copyright action before registering its copyright claim. Treadmilldoctor.com v. Johnson, No. 08-
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`2877,2011 WL 1256601, at *4 (W.D. Tenn. Mar. 31, 2011) (citing Reed Elsevier, 130 S.Ct. at
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`1241; Coles v. Wonder, 283 F.3d 798, 801 (6th Cir. 2002); Murray Hill Publ'ns, Inc. v. ABC
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`Communications, Inc., 264 F.3d 622 (6th Cir. 2001), abrogated on other grounds, Reed Elsevier,
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`130 S.Ct. 1237) (and other cases)).
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`Where the plaintiff has failed to satisfy the registration precondition to suit, and a
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`defendant timely raises the plaintiffs failure, the plaintiffs claim must be dismissed. See
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`Treadmilldoctor.com, 2011 WL 1256601, at *5 (and cases cited therein) (although the district
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`court has jurisdiction over the claim where the defendant does not obtain a copyright registration
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`prior to filing suit, the action is subject to dismissal when a defendant moves to dismiss the
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`action for failure to state a claim). See also Peters v. West, 692 F.3d 629, 632 (7th Cir. 2012)
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`("copyright registration, while not jurisdictional, is a substantive requirement of infringement
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`litigation"); Real Estate Innovations, Inc. v. Houston Ass 'n of Realtors, Inc., 422 F. App'x 344
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`(5th Cir. 2011) (where "a plaintiff does not have a copyright registration, [his] claim may be
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`dismissed for failure to state a claim"). Cf. Hoogerheide v. IRS, 637 F.3d 634, 637, 639 (6th Cir.
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`2011) (analogizing nonjurisdictional, mandatory exhaustion requirement under IRS requirement
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`scheme to copyright registration requirement).
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`Plaintiff testified at his deposition that he did not register copyrights for the songs
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`forming the basis of Counts 1, 2, 5, 7, 17, and 20 of his complaint as of its filing date. 1 See Doc.
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`47 at 11-12; 15-16; 25-27; 33-35; 64-66; 76-78.Z Plaintiffhas submitted no evidence that
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`1 Plaintiff testified that he registered a copyright for the song which forms the basis of Count 10, "Secret
`Agent Andy," subsequent to the filing of his complaint. (Doc. 47 at 60).
`2 The titles of the songs that are the subject of these counts are, respectively, "White Castles in Africa";
`"Visions of Captain Space"; "Goldfinger" and "Voodoo Goldfmger"; "Mean Woman Blues"; "South Park"; and
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`6
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 7 of 12 PAGEID #: 456
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`copyright registrations exist for these songs to create a genuine issue of fact on the registration
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`issue. As plaintiff has failed to provide any evidence that he has registered copyrights for these
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`works, defendant's motion for summary judgment should be granted with respect to Counts 1, 2,
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`5, 7, 17, and 20 of plaintiffs complaint for lack of copyright registration under 17 U.S.C. §
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`411(a).3
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`B. Summary judgment is appropriate in light of defendant's co-author status.
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`Defendant further argues that plaintiff cannot maintain his infringement action against
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`defendant because defendant is listed as a co-author of the allegedly infringed works. In support,
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`defendant cites to the copyright registration4 for "Virtual Oblivion," which lists defendant as one
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`of four co-authors of the work. (Doc. 17, Ex. 1 ). In light of defendant's co-authorship status, he
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`contends that plaintiff may not maintain an infringement suit against defendant for any
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`subsequent use of the "Virtual Oblivion" material. In opposition, plaintiff argues the copyright
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`registration identifies defendant as a co-author of words only and therefore the infringement
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`claims involving defendant's use of the "Virtual Oblivion" music and instrumental tracks are still
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`viable. For the following reasons, defendant's argument is well-taken and the undersigned
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`recommends that the instant motion for summary judgment be granted.
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`"The Copyright Act of 1976 provides that copyright ownership 'vests initially in the
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`"Cannibal Women." !d.
`3 As the Court fmds that summary judgment is appropriate on all of plaintiff's claims in light of
`defendant's co-authorship argument, discussed infra in Section III (B), the undersigned declines to reach
`defendant's remaining arguments as to plaintiff's failure to individually register copyrights for each song in the
`"Virtual Oblivion" compilation.
`4 The copyright information for "Virtual Oblivion" is found at: http://cocatalog.loc.gov/ cgi(cid:173)
`bin!Pwebrecon.cgi?Search _Arg=SRu0002877 57 &Search_ Code=REGS&PID=5RLb 1 b-g7 5Z2xcLnPypmezv
`OWHa6&SEQ=20121207132411&CNT= 25&HIST=1 (last visited December 7, 2012). The Court takes judicial
`notice of the fact that plaintiff's copyright registration for "Virtual Oblivion" lists defendant as a co-author. See
`Idema v. Dreamworks, Inc., 90 F. App'x 496, 498 (9th Cir. 2003) (noting appropriateness of taking judicial notice of
`copyright registrations under Fed. R. Evid. 201(b)(2)).
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`7
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`

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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 8 of 12 PAGEID #: 457
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`author or authors of the work."' Cmt'y for Creative Non-Violence v. Reid, 490 U.S. 730, 737
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`(1989) (quoting 17 U.S.C. § 201(a)). "In a joint work, the joint authors hold undivided interests
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`in a work, despite any differences in each author's contribution." Erickson v. Trinity Theatre,
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`Inc., 13 F.3d 1061, 1068 (7th Cir. 1994) (citing 17 U.S.C. § 201). Under the Copyright Act, a
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`"joint work" is defined as "a work prepared by two or more authors with the intention that their
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`contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C.
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`§ 101. "Joint authorship entitles the co-authors to equal undivided interests in the whole work-(cid:173)
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`in other words, each joint author has the right to use or to license the work as he or she wishes,
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`subject only to the obligation to account to the other joint owner any profits that are made."
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`Thomson v. Larson, 147 F.3d 195, 199 (2d Cir. 1998); Childress v. Taylor, 945 F.2d 500, 505
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`(2d Cir. 1991 ); Weinstein v. University of Illinois, 811 F .2d 1091, 1095 (7th Cir. 1987); 1 M. &
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`D. Nimmer, Nimmer on Copyright,§ 6.02 at 6-7 to 6-8)). Further, the owner ofajoint
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`copyright "cannot sue his co-owner ... for infringement ... because a copyright owner cannot
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`infringe his own copyright." McCants v. Tolliver, No. 11 CV 0664, 2011 WL 2893058, at *4
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`(N.D. Ohio July 15, 2011) (citations omitted).
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`Here, there is no question that defendant is a co-author and, thus, a joint owner of the
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`copyrighted work "Virtual Oblivion." Plaintiffs copyright registration specifically lists
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`defendant as a co-author. (Doc. 47, Ex. 1). As instructed by the Copyright Act, "[i]n any judicial
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`proceedings the certificate of a registration made before or within five years after first
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`publication of the work shall constitute prima facie evidence of the validity of the copyright and
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`of the facts stated in the certificate." 17 U.S.C. § 410(c). Consequently, the Court finds that
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`defendant has presented prima facie evidence that he is a co-author of the work "Virtual
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`Oblivion"- the work forming the basis of plaintiffs copyright infringement claims. Further,
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`8
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 9 of 12 PAGEID #: 458
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`plaintiff testified that defendant was a co-author of words and/or the primary vocalist of the
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`songs for the remaining claims. Doc. 17 at 11-12, 15-16,21-27,33-38, 55-61,64-74,76-78.
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`The uncontested facts of this case, as well as the copyright registration itself, confirm that
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`defendant is a co-author and joint owner of the "Virtual Oblivion" compilation.
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`While plaintiff asserts that defendant is the co-author ofwords only, he cites to no
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`authority supporting the proposition that this distinction permits an infringement action for
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`defendant's subsequent use of the music and instrumental tracks. In any event, the Copyright
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`Act's definition of "joint work" as a combination of "interdependent parts of a unitary whole[,]"
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`17 U.S.C. § 101, reveals Congress' intent that even where a co-author's contribution to the joint
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`work could exist independently, once it is combined with another's contribution it is to be treated
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`as a "joint work" subject to joint ownership. See Jane C. Ginsburg and Robert A. Gorman,
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`Copyright Law, 65 (2012) ("For example, if a popular song is created collaboratively by
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`composer and lyricist, they are both regarded as co-owners of the copyright, even though the
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`composer's melody and the lyricist's words could have constituted separate works."). Here, the
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`songs contained in "Virtual Oblivion" were created as a joint work by plaintiff, as composer, and
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`defendant, as lyricist, to which defendant has rights as a co-author. Accordingly, the
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`undersigned finds that all of plaintiffs remaining copyright infringement claims against
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`defendant fail because, as a co-author, defendant cannot be charged with infringement.
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`McCants, 2011 WL 2893058, at *5.
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`In light of this finding, the Court declines to reach defendant's remaining argument that
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`summary judgment is appropriate for plaintiffs failure to present evidence that defendant
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`infringed the copyright at issue.
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`9
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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 10 of 12 PAGEID #: 459
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`V. Conclusion
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`For these reasons, the Court hereby RECOMMENDS that defendant's motion for
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`summary judgment (Doc. 48) be GRANTED and that this matter be DISMISSED on the docket
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`of the Court.
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`Date: /Ahr jz_
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`~~ ~_.d__, __ ~
`Karen L. Litkovitz ~d
`United States Magistrate Judge
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`10
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`

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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 11 of 12 PAGEID #: 460
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`CHRISTOPER VERNON DOWNEY,
`Plaintiff,
`
`vs.
`
`BLAISE A. DOWNEY
`Defendant.
`
`Case No. 1 :09-cv-634
`
`Barrett, J.
`Litkovitz, M.J.
`
`NOTICE
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`Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
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`the recommended disposition, a party may serve and file specific written objections to the
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`proposed findings and recommendations. This period may be extended further by the Court on
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`timely motion for an extension. Such objections shall specify the portions of the Report objected
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`to and shall be accompanied by a memorandum of law in support of the objections. If the Report
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`and Recommendation is based in whole or in part upon matters occurring on the record at an oral
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`hearing, the objecting party shall promptly arrange for the transcription of the record, or such
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`portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
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`assigned District Judge otherwise directs. A party may respond to another party's objections
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`WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
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`accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
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`(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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`11
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`

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`Case: 1:09-cv-00634-MRB-KLL Doc #: 53 Filed: 12/11/12 Page: 12 of 12 PAGEID #: 461
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