Righthaven LLC v. Barham et al

Filing 20

ORDER Granting 6 Motion to Dismiss and Granting 14 Motion to Dismiss or Strike Counterclaim. Clerk is directed to close this case. Signed by Judge Roger L. Hunt on 6/22/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RIGHTHAVEN LLC, a Nevada limited-liability )
company,
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Plaintiff,
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vs.
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DANIEL BARHAM, an individual; and
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URBAN NEIGHBOURHOOD, an entity of
)
unknown origin and nature,
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Defendant.
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_______________________________________)

Case No.: 2:10-cv-02150-RLH-PAL
ORDER
(Motion to Dismiss–#6;
Motion to Dismiss–#14)

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Before the Court is Defendant Daniel Barham’s Motion to Dismiss (#6, filed Jan.

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11, 2011), based on a lack of subject matter jurisdiction. The Court has also considered Plaintiff

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Righthaven LLC’s Opposition (#8, filed Jan. 25, 2011), and Barham’s Reply (#12, filed Feb. 24,

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2011).
Also before the Court is Righthaven’s Motion to Dismiss or Strike Counterclaim

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(#14, filed Feb. 28, 2011), based on a failure to state a claim, or alternatively, because the

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counterclaim is redundant. Barham did not respond.

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/

AO 72
(Rev. 8/82)

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BACKGROUND

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This dispute arises out of Barham’s alleged copyright infringement of a Las Vegas

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Review-Journal (“LVRJ”) illustration. Barham operates a website called Urban Neighbourhood.

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This website discusses global architectural issues. In October 2010, Barham published a post

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which included an illustration entitled “Vdara death-ray,” which had originally been published by

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the LVRJ. Righthaven claims that it purchased the rights to this illustration sometime after

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Barham republished it. Righthaven then brought suit against Barham and his website in December

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alleging copyright infringement. Barham answered the complaint in February 2011, and also

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brought a declaratory judgment counterclaim seeking a declaration of non-infringement.

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In a separate case before this Court, Stephens Media, the original owner of “Vdara

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death-ray,” disclosed the Strategic Alliance Agreement (“SAA”) entered into between Stephens

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Media and Righthaven which governs future assignments from Stephens Media to Righthaven and

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the relationship between them.1 Stephens Media and Righthaven entered into the SAA in January

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2010, prior to Stephens Media assigning “Vdara death-ray” to Righthaven. For the reasons

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discussed below, the Court grants Barham’s motion and dismisses Righthaven’s complaint for lack

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of standing, however, the Court also grants Righthaven’s motion and dismisses Barham’s

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counterclaim for lack of standing.

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DISCUSSION

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Recently this Court determined that Righthaven lacked standing to pursue copyright

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infringement claims based on assignments made under the SAA because the SAA prevents

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subsequent assignments from transferring “the exclusive rights necessary to maintain standing in a

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copyright infringement action.” Righthaven v. Democratic Underground, 2:10-cv-01356-RLH-

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GWF, --- F. Supp. 2d ---, 2011 WL 2378186 at *6; see also Righthaven v. Hoehn, 2:10-cv-00050-

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AO 72
(Rev. 8/82)

The Court takes judicial notice of the following cases and directs the reader to these cases for further
information regarding the background of the SAA: Righthaven v. Democratic Underground, 2:10-cv-01356RLH-GW F, --- F. Supp. 2d ---, 2011 W L 2378186 (D. Nev. June 14, 2011) and Righthaven v. Hoehn, 2:10-cv00050-PMP-RJJ, --- F. Supp. 2d ---, 2011 W L 2441020 (D. Nev. June 20, 2011).

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PMP-RJJ, --- F. Supp. 2d ---, 2011 WL 2441020 at *6 (D. Nev. June 20, 2011). The standing

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issues in this case are the same as those in Democratic Underground and Hoehn. Because the

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issues are the same, the same analysis applies and the Court directs readers to the reasoning in

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those cases on the issue of standing. As the Court did in both of those cases, the Court dismisses

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Righthaven for lack of standing.

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The Court, however, also grants Righthaven’s motion and dismisses Barham’s

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counterclaim. First, the Court could grant Righthaven’s motion as unopposed. However, the

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Court also grants the motion based on its above analysis that Righthaven does not have standing to

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assert its copyright infringement claim. As Righthaven does not hold the “Vdara death-ray”

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copyright, Barham lacks standing to assert his claim against Righthaven just as Righthaven lacks

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standing to assert its purported claim. Accordingly, the Court grants Righthaven’s motion and

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dismisses Barham’s counterclaim for a lack of standing.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Barham’s Motion to Dismiss (#6) is GRANTED.

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IT IS FURTHER ORDERED that Righthaven’s Motion to Dismiss (#14) is

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GRANTED. As no claims remain outstanding, the Clerk of the Court is directed to close this case.
Dated: June 22, 2011.

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____________________________________
ROGER L. HUNT
United States District Judge

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AO 72
(Rev. 8/82)

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