Laura Larson v. Warner Bros Entertainment, Inc, et al
Filed (ECF) Appellees DC Comics and Warner Bros. Entertainment, Inc. in 11-55863, Appellants DC Comics and Warner Bros. Entertainment, Inc. in 11-56034 Motion for miscellaneous relief [Motion By Cross-Appellants and Appellees Warner Bros. Entertainment Inc. And DC Comics For Leave To Lodge An Original Detective Comics #15 In The Appellate Record]. Date of service: 03/23/2012.  [11-55863, 11-56034] (DP)
Appeal Nos. 11-55863, 11-56034
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA SIEGEL LARSON,
Plaintiff, Counterclaim-Defendant, Appellant, and Cross-Appellee,
WARNER BROS. ENTERTAINMENT INC. AND DC COMICS,
Defendants, Counterclaimants, Appellees, and Cross-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE OTIS D. WRIGHT II, JUDGE
CASE NO. CV-04-8400 ODW (RZX)
MOTION BY CROSS-APPELLANTS AND APPELLEES WARNER BROS.
ENTERTAINMENT INC. AND DC COMICS FOR LEAVE TO LODGE AN
ORIGINAL DETECTIVE COMICS #15 IN THE APPELLATE RECORD
JONATHAN D. HACKER
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5300
PATRICK T. PERKINS
PERKINS LAW OFFICE, P.C.
1711 Route 9D
Cold Spring, New York 10516
Telephone: (845) 265-2820
DANIEL M. PETROCELLI
MATTHEW T. KLINE
CASSANDRA L. SETO
O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Warner Bros. Entertainment Inc. and DC Comics
Cross-appellants and appellees Warner Bros. Entertainment Inc. and DC
Comics (collectively, “DC”) respectfully seek leave of this Court to lodge an
original Detective Comics #15 comic book, cover-dated May 1938, in the appellate
record. The comic book, which is one of about 20 originals known to exist, is
encased in plastic and valuable. DC would ask the Court to keep the book
protected, as best it can.
The comic book is self-authenticating and subject to judicial notice. See
FED. R. EVID. 201(b), 902(6); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
(9th Cir. 2010) (judicial notice appropriate where “neither party disputes the
authenticity” of evidence); Valdivia v. Schwarzenegger, 599 F.3d 984, 994 (9th
Cir. 2010) (same); Hotel Employees & Rest. Employees Union, Local 100 v. City of
New York Dep’t of Parks & Recreation, 311 F.3d 534, 540 n.1 (2d Cir. 2002)
(taking judicial notice of facts in “authoritative text”); Fitzgerald v. Penthouse
Intern., Ltd., 525 F.Supp. 585, 595 n.41 (D. Md. 1981) (taking judicial notice of
article’s publication); Assoc. of Irritated Residents v. Fred Schakel Dairy, 2008
WL 850136, *4 (E.D. Cal. Mar. 28, 2008) (self-authenticating documents “proper
for judicial notice”).
The inside front cover of Detective Comics #15 contains an original printing
of one of the works at issue in this cross-appeal: a “Promotional Announcement”
of Superman that DC published on April 10, 1938, eight days before it published
the first full Superman story in Action Comics #1. ER-152-53. The district court
correctly ruled that DC owned the rights in this and other Promotional
Announcements of Superman, and that appellant Laura Siegel Larson had not
recaptured the Announcements pursuant to the Copyright Act’s termination
provisions. ER-180-81. Larson does not appeal this ruling that DC owns the
DC, however, cross-appeals the district court’s sua sponte ruling that several
key Superman elements, including the “S” on Superman’s chest, are not visible in
the Promotional Announcements. DC Merits Br. 12, 20-21, 80-86. The district
court made this ruling without the issue being raised on summary judgment or
briefed, and without actually reviewing an original Promotional Announcement or
legible copy of an Announcement, but rather by looking only at a multiplegeneration photocopy that obscured the image. Id.; SER-44-45. Indeed, the
district court made this ruling even though Larson and her putative expert witness
both argued that the “contents” of the Promotional Announcement was a “classic
issue of fact, precluding summary judgment.” SER-356-57, 370.
DC seeks to provide the Court with an original version of the Announcement
for completeness and accuracy in reviewing the district court’s decision. Cf. U.S.
v. Rivero, 532 F.2d 450, 458 (5th Cir. 1976) (appellate court may take judicial
notice of evidence outside the record “‘where necessary either to affirm, or to show
the impropriety of, a decision below’”) (quoting Am. Legion Post No. 90 of Vill. of
Mamorneck v. First Nat’l Bank & Trust Co., 113 F.2d 868, 872 (2d Cir. 1940)).
For the foregoing reasons, DC’s motion should be granted.
DC notified Larson’s counsel of its intent to file this motion. Counsel
advised that Larson opposes the motion, but declined to provide the reasons why.
Dated: March 23, 2012
O’MELVENY & MYERS LLP
By: /s/ Daniel M. Petrocelli
Daniel M. Petrocelli
Attorneys for Warner Bros.
Entertainment Inc. and DC Comics
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