Keeling v. New Rock Theater Productions, LLC et al

Filing 86

OPINION denying in its entirety re: 67 MOTION for Summary Judgment and Certificate of Service filed by New Rock Theater Productions, LLC. (Signed by Judge Thomas P. Griesa on 11/29/2012) Copies Sent By Chambers. (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
JAMIE KEELING
:
Plaintiff,
:
:
v.
:
:
NEW ROCK THEATER PRODUCTIONS,
:
LLC, EVE HARS, and ETHAN GARBER.
:
:
Defendants.
:
:
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10 Civ. 9345
OPINION

This is an action for copyright infringement, breach of contract, and
tortious interference with contract. Plaintiff Jaime Keeling alleges that
defendants staged live productions of a show called “Point Break LIVE!” which
Keeling claims to have written as a parody of the 1991 blockbuster “Point
Break.” Though Keeling had, for a time, licensed the work to defendants,
defendants allegedly repudiated their license agreement but continued to stage
unlicensed, infringing productions of the show.
Defendants, for the second time, move for summary judgment. This time
they seek to either dismiss the complaint in its entirety, dismiss the complaint
against defendant Ethan Garber, or only dismiss plaintiff’s claims for statutory
damages. Defendants’ motion is denied in each of these respects.

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Discussion
I. K E E LI N G ’ S C O P Y R I G H T I NF R I N GE M E N T C LA I M

IS NOT

T I M E -B A R R E D

Defendants argue that Keeling’s copyright infringement claim, filed in
December 2010, is time-barred because it came more than three years after
defendants’ allegedly-infringing performance of her work in January 2007.
A cursory reading of Keeling’s complaint, however, reveals that this is not
the performance that gave rise to this lawsuit. This lawsuit relates to a
performance staged by defendants in January of 2008, one year later. Under
copyright law, each infringing act is a distinct harm giving rise to an
independent claim for relief. See Stone v. Williams, 970 F.2d 1043, 1049-50
(2d Cir. 1992).
Therefore, Keeling’s infringement claim is not time-barred.

II. P LA I N TI F F ’ S D E CI SI O N
A B OU T

NOT TO

HIRE

AN

E X P E R T W I T NE SS

TO

T E S TI F Y

P A R O DY L A W D OE S N O T W A R R A N T D I SM I S SA L

Defendants suggest that expert testimony will be necessary to inform the
jury about the legal meanings of “parody” and “fair use” and that, therefore,
failure to hire such an expert to testify at trial warrants dismissal of the case.
There is no basis in law for such a conclusion.
It is true, of course, that in cases where the factual basis of a cause of
action is so far from the understanding of a lay person, an expert witness
might be needed to explain that specialized area of knowledge to the jury. But

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this is crucially different from a case where it is the law, and not the facts that
are complex. In cases like this, an expert is always available in the form of a
judge. In fact, not only is it unnecessary for Keeling to retain an expert in
parody law to instruct the jury, such legal instruction from the witness stand is
actually impermissible. See Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992).
Thus, there is no merit to defendants’ contention that the complaint must
be dismissed for failure to secure expert testimony. Accordingly, because the
court does not dismiss Keeling’s copyright infringement claim, it retains
jurisdiction over her related state-law claims.

III. A F A C T U A L D I SP U T E R E M A I N S R E GA R D I NG G A R B E R ’ S P A R T I CI P A TI O N
T HE

IN

A L L E G E D I NF R I N GE M E N T

Defendants argue that Garber cannot be vicariously liable for copyright
infringement allegedly committed by New Rock because he was not a corporate
officer, did not control its actions, did not supervise the allegedly infringing
activity, had no financial stake in the activity, and did not directly participate.
But, to the contrary, there is ample evidence to sustain a genuine dispute
about a number of these factual conclusions. Specifically, the evidence of
record supports the conclusion that Garber was a minority owner of New Rock,
that Garber knew that New Rock’s business involved staging performances of
the allegedly-infringing work, that New Rock sought approval from Garber
before entering into business agreements and, crucially, that it was Garber
who encouraged New Rock to repudiate its license with Keeling but to continue
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staging unlicensed performances of “Point Break LIVE!” in an effort to
maximize profits.
Therefore, there remains a genuine factual dispute about whether Garber
“profit[ed] from direct infringement while declining to exercise the right to stop
or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
914 (2005).

IV. K E E LI N G M A Y B E E N TI T LE D

TO

S TA T U T OR Y D A M A G E S

Section 412 of the Copyright Act forbids recovery of statutory damages for
copyright infringement relating to an unpublished work when the infringement
began before the copyright was registered. Defendants contend that the
infringement that is the subject of this lawsuit was simply a part of a
continuous alleged infringement beginning in January of 2007. Keeling’s
copyright registration became effective January 4, 2008. Therefore, defendants
argue, the alleged infringement began before she registered the copyright and,
accordingly, she is not entitled to statutory damages.
The validity of this reasoning depends, however, on whether the January
2008 infringement that is the subject of this lawsuit was indeed a continuation
of the January 2007 infringement – that is, whether the January 2008
infringement was a part of an already-ongoing series of infringements. Troll
Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2d Cir. 2007). But the evidence of
record is sufficient to support a genuine factual dispute regarding whether the
January 2008 performance was part of a series, and thus is sufficient for
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Keeling's claim for statutory damages to survive this motion for summary
judgment. The evidence lends support to the conclusion that after January
2007, New Rock's productions ceased for approximately nine months after
which they resumed under the auspices of a production agreement with
Keeling. They then continued for about three months before New Rock
repudiated the agreement. It appears that New Rock's first production after its
repudiation of the agreement was on January 4,2008 - the same day, and
thus not prior to, the effective date of Keeling's copyright registration.
If this is the case, then it would be impossible to conclude that the January

2008 performance was part of a continuous series of infringement starting
prior to Keeling's registration date. Therefore, defendants' motion for summary
judgment dismissing Keeling's claim for statutory damages is denied.

Conclusion
Defendants' motion for summary judgment is denied in its entirety.

So ordered.
Dated: New York, New York
November 29, 2012

~f?~

Thomas P. Griesa
U.S. District Judge

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