Cooper v. NCS Pearson, Inc.

Filing 74

ORDER. Defendant's 17 Motion for Summary Judgment is granted. Judgment shall enter in favor of defendant and against plaintiff. Plaintiff's 29 Motion to Supplement her opposition to the motion for summary judgment is denied as moot. The trial preparation conference scheduled for 6/8/2012 and the trial scheduled to commence on 6/25/2012 are vacated. This case shall be closed in its entirety. By Judge Philip A. Brimmer on 2/22/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02840-PAB-CBS
JULIA COPELAND COOPER, an individual United States citizen,
Plaintiff,
v.
NCS PEARSON, INC., a Minnesota corporation,
Defendant.

ORDER

This matter is before the Court on the motion for summary judgment [Docket No.
17] filed by defendant NCS Pearson, Inc. and the motion to supplement her opposition
to the motion for summary judgment [Docket No. 29] filed by plaintiff Julia Copeland
Cooper. The motions are fully briefed and ripe for disposition.1
I. BACKGROUND2
This case relates to a copyrighted psychological test instrument entitled Battery
of Health Improvement (“BHI”). In 1993, Daniel Bruns, J. Mark Disorbio, and a
company named Battery for Health and Illness, Inc. (“BHI, Inc.), to which Bruns and
Disorbio had assigned their rights in the BHI, began negotiating an agreement whereby

1

The Court exercises federal question jurisdiction over this case pursuant to 28
U.S.C. § 1331 in conjunction with 28 U.S.C. § 1338(a), which grants district courts
original jurisdiction over copyright cases.
2

Unless otherwise indicated, the following facts are not in dispute.

defendant3 would acquire intellectual property rights in the BHI. In her role as president
of BHI, Inc., plaintiff was integrally involved in these negotiations. On April 30, 1993,
Bruns, Disorbio, and BHI, Inc. executed assignments of their intellectual property rights
in the BHI to defendant. Plaintiff signed these assignments on behalf of BHI, Inc. The
assignments make clear that Bruns and Disorbio jointly held all rights in the BHI and
were thus capable of transferring such rights to defendant. See Docket No. 17-3 at 30;
Docket No. 17-4 at 30. For example, the Bruns assignment states “Assignor is a joint
author of and joint owner of all rights in an original literary work entitled ‘Battery for
Health and Illness’ (the ‘Work’) and, jointly with John Mark Disorbio, is the absolute
proprietor of the copyright and all attendant intellectual property rights of the Work.”
Docket No. 17-3 at 30.4
Bruns, Disorbio, and BHI, Inc., through plaintiff in her role as president of the
company, then entered into a Publication Agreement (the “Agreement”) effective May 4,
1993.5 The Agreement provides that Bruns, Disorbio, and BHI, Inc. “desire . . . to grant
[defendant] all right, title and interest in and to the [BHI] to enable [defendant] to so
publish the [BHI] and distribute products and services related to and/or embodying the
[BHI].” Docket No. 17-5 at 6. By executing the Agreement, Bruns, Disorbio, and BHI,
Inc. warranted, inter alia, that they “exclusively own all Intellectual Property Rights to the

3

The negotiations occurred with a predecessor entity to defendant NCS Pearson,
Inc. called National Computer Systems, Inc.
4

The work’s title was later changed to the Battery for Health Improvement.

5

The Agreement defined the “Authors” of the BHI as Bruns, Disorbio, and BHI,
Inc. See Docket No. 17-5 at 6-7.
2

[BHI] and that no other person has an option, claim or right to the [BHI].” Docket No.
17-5 at 10. In exchange for receiving the unencumbered right to publish the BHI,
defendant agreed to pay royalties.
In 1996, defendant published the first version of the BHI (“BHI-1”). The cover of
the BHI-1 indicated that it was “by” Bruns and Disorbio, “with contributions by” plaintiff.
Plaintiff was included in the “About the Authors” section of the BHI-1. In 1997,
defendant published a work entitled “Advanced BHI Interpretation: A Guide for
Generating Clinical Hypotheses with The Battery for Health Improvement,” which
indicated that the work was by Bruns, Disorbio, and plaintiff. However, all copyright
registrations relating to the BHI, of which plaintiff was aware, list only Bruns and
Disorbio as authors.
Defendant published later editions of the BHI, namely, a brief version of the BHI
in 2002 called the BBHI-2 and a full edition of the BHI in 2003 called the BHI-2.
Plaintiff’s name no longer appeared on the cover page or in the About the Authors
section of these BHI publications. Instead, plaintiff received the following
acknowledgment in the BBHI-2 and BHI-2: “The authors wish to express their
appreciation to [plaintiff] whose knowledge, professional expertise, and support greatly
facilitated the completion of this project.” Docket No. 17-2 at 11; Docket No. 17-2 at 18.
Upon publication of the BHI-1 in 1996, defendant began sending royalty
payments to plaintiff in her role as president of BHI, Inc. Plaintiff then distributed half of
each payment to Bruns and Disorbio, respectively. Plaintiff never distributed any of the
royalty payments to herself. In 2001, Bruns and Disorbio requested that defendant
send their respective half shares to them directly, which defendant has done since
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September 2001. Plaintiff never demanded a royalty share from Disorbio, Bruns, or
defendant. Between 1993 and 2008, plaintiff never informed defendant that she had
any authorship rights in the BHI.
In 2009, however, plaintiff asserted authorship rights in correspondence with
defendant. On November 19, 2010, plaintiff initiated the present action seeking a
declaration of such rights. In her verified complaint, plaintiff seeks a “one-third
undivided copyright ownership interest in the [BHI]” and “requests an accounting and
payment from defendant and others . . . of their past, present, and future profits
traceable to the use of and benefit from the [BHI] or any portion thereof.” Docket No. 1
at 8-9, ¶ 58. Plaintiff did not name Bruns or Disorbio as defendants. Plaintiff also
seeks to have defendant “give her authorship credit comparable to and in the same
manner such credit is given to Daniel Bruns and J. Mark Disorbio.” Docket No. 73 at 2.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and

4

preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
III. DISCUSSION
Defendant argues that it is entitled to summary judgment because, among other
reasons, plaintiff’s claims are barred by the applicable statute of limitations. Plaintiff’s
claim arises under the federal copyright laws. See 17 U.S.C. § 101 et seq. Section
507(b) of the Copyright Act provides that “[n]o civil action shall be maintained under the
provisions of this title unless it is commenced within three years after the claim
accrued.” 17 U.S.C. § 507(b). “A cause of action for copyright infringement under
section 507(b) of the Copyright Act accrues ‘when one has knowledge of a violation or
is chargeable with such knowledge.’” Fisher v. United Feature Syndicate, Inc., 37 F.
Supp. 2d 1213, 1216 (D. Colo. 1999) (quoting Roley v. New World Pictures, Ltd., 19
F.3d 479, 481 (9th Cir. 1994)). Because section 507(b) is silent regarding the accrual
of a copyright claim, “a claim accrues when the plaintiff knows or has reason to know of
the existence and cause of the injury which is the basis of his action.” Home Design
Services, Inc. v. B & B Custom Homes, LLC, 509 F. Supp. 2d 968, 972 (D. Colo. 2007).
The undisputed facts reveal that plaintiff’s claim against defendant accrued no
later than 1996 and is therefore barred by the applicable statute of limitations. Upon

5

the execution of the assignments and the Agreement in 1993, plaintiff was on notice
that defendant believed that, in exchange for making royalty payments to BHI, Inc., it
was acquiring “all Intellectual Property Rights to the [BHI] and that no other person has
an option, claim or right to the [BHI].” Docket No. 17-5 at 10.6 Yet, plaintiff did not
assert her rights within three years of the Agreement’s execution. See Big East
Entertainment, Inc. v. Zomba Enterprises, Inc., 453 F. Supp. 2d 788, 794 (S.D.N.Y.
2006) (“‘An express assertion of sole authorship or ownership will start the copyright
statute of limitations running.’”) (quoting Netzer v. Continuity Graphic Assocs., Inc., 963
F. Supp. 1308, 1315 (S.D.N.Y.1997) (alteration removed).
Even assuming that plaintiff’s claim did not accrue in 1993, it clearly ripened
upon the publication of the BHI-1 in 1996. In the present action, plaintiff seeks to be
credited in the same manner as Bruns and Disorbio and requests payment for the use
of material she claims to have co-authored. It is undisputed, however, that upon
publication of the BHI-1 in 1996, plaintiff knew (1) that, regardless of how one might
characterize the credit she received on the BHI-1, she was not credited “in the same
manner” as Bruns and Disorbio, Docket No. 73 at 2, and (2) that she was not receiving
any payments for her alleged one-third right to the copyrighted work. See Carell v.
Shubert Organization, Inc.,104 F. Supp. 2d 236, 249 (S.D.N.Y. 2000) (“Although
plaintiff contends that defendants appeared to recognize her ‘proprietary interest’ in the
Makeup Designs before 1992, she has never received royalty payments from
6

Plaintiff points out that she did not sign the Agreement in her individual capacity.
She does not explain how this fact is relevant to her knowledge regarding respective
rights in the BHI. Nor does she dispute that she had knowledge of the Agreement’s
contents.
6

defendants for use of her copyrights. Thus, although defendants did not directly
acknowledge their repudiation of plaintiff's rights during the 1980s, their non-payment of
royalties should have put her on notice of this fact.”); see also Cambridge Literary
Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG., 510 F.3d 77, 91 (1st
Cir. 2007).7
The only disputed fact plaintiff identifies relating to her knowledge in the 19931996 time period is her assertion that Disorbio, her husband at the time, told her before
executing the Agreement that, “because she was not a clinical psychologist[,] she could
not appear as an author on legal documents such as the . . . Agreement relating to a
psychological test instrument.” Docket No. 23 at 6, ¶ 41. To the extent she understood
this statement to address only the rules regarding authorship credit in the field of clinical
psychology, it has no relevance to whether she believed she had an enforceable
interest in the BHI works. In fact, plaintiff’s arguments in support of the contention that
her claim did not accrue until 2009 appear to be based on her belief all those years that
she did have such authorship rights, which contradicts her argument that she believed

7

The parties focus most of their energy addressing what plaintiff learned or
should have learned in the years following, particularly in relation to the publication of
the BBHI-2 and the BHI-2. Plaintiff’s claim to authorship of all the BHI works, however,
derives from her contributions to the BHI-1. No disputed fact identified by plaintiff casts
into doubt that she knew the facts supporting her present claim no later than 1996 and
that nothing happened upon the publication of later editions in 2002 and 2003 that
would have prevented her from asserting her authorship rights. For this reason,
plaintiff’s motion to supplement her opposition to defendant’s motion for summary
judgment [Docket No. 29], which relates to certain facts she may have learned in 2003
regarding how she was being credited, will be denied as moot. The Court does note,
however, that plaintiff admits to having been told by an unidentified individual in 2003
that she was no longer receiving credit as a contributor on certain BHI-related
documents, a fact she confirmed with Disorbio. See Docket No. 29-1 at 1-2, ¶¶ 3-7.
7

Disorbio. See, e.g., Docket No. 23 at 7, ¶ 43 (“[Plaintiff] believed prior to the middle of
2009 that she was still receiving credit as a contributor, developer and a coauthor of the
BHI because she was listed on the original BHI-1 materials and was repeatedly given
credit as a contributor and a coauthor of the BHI-1 by the Defendant, by Disorbio and
by Bruns from the 1990’s through the filing of the lawsuit.”); id. at 7, ¶ 42 (“In the 1990’s
and into the 2000’s, [plaintiff] was recognized as an author and/or contributor to at least
the BHI-1 and the BBHI-2 in . . . narrative reports. [Plaintiff] saw one of these reports in
or about 2006 with a 2002 copyright notice that continued to give her credit as a
contributor to the BBHI-2.”) (citations omitted); id. at 7, ¶ 44 (“Additionally, from 20032009[, plaintiff] saw documentation such as the 2009 newsletters prepared by the
Defendant . . . that specified [plaintiff] had developed the BHI.”).8
And, assuming plaintiff understood Disorbio’s statement to relate to legal rights in
the BHI works, see Docket No. 23 at 7, ¶ 41 (averring that, “prior to 2009[, she] lacked
knowledge about a coauthor’s copyright ownership in a joint work”), the Court has
identified no reason why that would toll the accrual of her claim, the factual basis of
which she was fully aware as of 1996. See Gatewood v. Railroad Retirement Bd., 88
F.3d 886, 890 (10th Cir. 1996) (“[W]e are aware of no authority . . . which suggests that
8

The Court also notes that plaintiff has not brought a copyright infringement claim
against defendant. Cf. Davis v. Meridian Films, Inc., 14 F. App’x 178, 182 (4th Cir.
2001) (“[T]o conclude, as the district court did, that an infringement claim is time-barred
when the underlying authorship claim is time-barred would be to fail to recognize that a
new infringement claim accrues every time an infringement occurs.”); Carell v. Shubert
Organization, Inc., 104 F. Supp. 2d 236, 252 (S.D.N.Y. 2000) (“[W]hile a dismissal of an
ownership claim as time-barred bars certain remedies associated with ownership, it
does not extinguish the right of a copyright owner to sue for infringement. A copyright
owner can recover for infringing actions that occur within three years of filing; only
infringement claims beyond three years of suit are barred.”).
8

ignorance of the law should warrant equitable tolling of a statute of limitations.”); see
also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that
ignorance of the law, even for an incarcerated pro se petitioner, generally does not
excuse prompt filing.”) (citation omitted). Tolling of the statute of limitations is especially
inappropriate based on her reliance on the legal opinion of a clinical psychologist as
opposed to an attorney.9 Furthermore, plaintiff does not address how Disorbio’s
statement is relevant to the accrual of her claim against the defendant in any event.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that this declaratory judgment
action is barred by the statute of limitations. Therefore, it is
ORDERED that defendant’s motion for summary judgment [Docket No. 17] is
GRANTED. Judgment shall enter in favor of defendant and against plaintiff. It is
further
ORDERED that plaintiff’s motion to supplement her opposition to the motion for
summary judgment [Docket No. 29] is denied as moot. It is further
ORDERED that the trial preparation conference scheduled for June 8, 2012 and
the trial scheduled to commence on June 25, 2012 are VACATED. It is further
9

Cf. Memorylink Corp. v. Motorola, Inc., 2009 WL 464338, at *6 (N.D. Ill. Feb. 23,
2009) (“Memorylink contends that Strandwitz and Kniskern were unaware that they
were giving up some of their ownership rights when they signed the Assignment. The
Court is hard pressed to understand how this can be true given that the Assignment is
relatively clear. Specifically, the Assignment states the parties, ‘hereby also sell, assign
and transfer unto the said Motorola, Inc., and Memorylink Corp., jointly and equally, the
entire right, title and interest in and to said invention . . .’ Motorola’s name is not buried
in the fine print, nor is the language difficult to understand. If Memorylink had doubts
about the Assignment, they should have either refused to sign it or consulted a lawyer.”)
(citation omitted).
9

ORDERED that this case shall be closed in its entirety.

DATED February 22, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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