Frye v. Lagorstrum et al

Filing 251

MEMORANDUM AND ORDER: granting 246 Motion for Summary Judgment. For the foregoing reasons and the reasons stated in our Memorandum and Order of August 31, 2017, the Court grants plaintiff's motion for summary judgment. Having addressed the re new motion for summary judgment, having reached the same result and having previously addressed the issue or appropriate relief, the Court perceives no reason that a judgment identical to the one previously entered (ECF No. 227) should not be once again entered by the Clerk of Court, after which the case should be closed. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 12/23/2019) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
JOSEPH FRYE,
Plaintiff,
MEMORANDUM AND ORDER

- against -

15 Civ. 5348 (NRB)

BENJAMIN F. LAGERSTROM, a.k.a
BENJAMIN IRISH, and DIANACOLLV, INC.,
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

On August 31, 2017, this Court granted plaintiff Joseph
Frye’s motion for summary judgment on his copyright infringement
and

breach

of

contract

claims

against

defendants

Benjamin

Lagerstrom and Dianacollv, Inc. (“Dianacollv”).

See ECF No.

214.

entered

Defendant

plaintiff.

appealed

See ECF No. 230.

the

final

judgment

for

On appeal, the Second Circuit, in

a summary order, vacated the Court’s grant of plaintiff’s motion
for summary judgment on the ground that defendant Lagerstrom had
not been properly advised of his obligation, in responding to
plaintiffs’

motion,

to

present

counter-affidavits

or

other

documentary evidence as to every genuine issue of material fact
that he wished to preserve for trial: often called a “Vital
notice.”

Frye v. Lagerstrom, 778 F.App’x 13, 15 (2d Cir. 2019).

Shortly after this case was remanded, the Court issued an
Order directing plaintiff Frye to refile a motion for summary

judgment and setting forth a briefing schedule.
241.

See ECF No.

To cure the defect identified by the Second Circuit, the

Court enclosed in that Order a “Notice to Pro Se Litigant Who
Opposes a Motion for Summary Judgment” and the full texts of
Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1.
Id. at 3-8.

Before the Court is the plaintiff’s renewed motion

for summary judgment on his copyright infringement and breach of
contract

claims

Dianacollv, Inc.

against

defendants

Benjamin

Lagerstrom

and

See ECF No. 246.

To put this opinion in context, the Court recites here a
summary of its Memorandum and Order of August 31, 2017 (“M&O”).
This action arises out of an agreement that the parties entered
in connection with the

production of

Homeless: A Love Story (“HALS”).

a short film,

entitled

See M&O (ECF No. 214) at 3.

Under the agreement, defendants Lagerstrom and Dianacollv would
provide

video

cast, and crew.

production
Id.

services

in

the

form

of

equipment,

In exchange, plaintiff Frye would provide,

inter alia, meals, a makeup artist, and participation credit to
the crew.

Id.

The agreement further provided that “all footage

and material being part of” the agreement would be the property
of Frye and that Dianacollv “will not distribute or display such
footage in any way other than as an example/demonstration of
[Dianacollv’s] work establishing their efforts of such.”
The shooting of HALS took place in late September 2014.

2

Id.

Id. at

4.

On October 12, 2014, Lagerstrom, under an alias, published

on the website YouTube a video that was composed entirely of
footage from HALS shooting.

Id.

Frye completed his editing of

the footage and received certificates of copyright registration
for the script and the motion picture of HALS on December 26,
2014 and January 20, 2015, respectively.

Id. at 5.

Even after

Frye

of

Lagerstrom

obtained

published

copyright

online

footage from HALS.

four
Id.

registration

additional

videos

HALS,
that

incorporated

Eventually, Frye commenced this action

by filing a complaint on July 10, 2015, asserting claims of
copyright infringement and breach of contract.

Id. at 6.

In the M&O, we addressed various motions by the parties,
including plaintiff’s motion for summary judgment on his claims
and his motion to dismiss defendant Lagerstrom’s counterclaims
under 18 U.S.C. § 241 and the United States Constitution.1
granting

plaintiff’s

motion

for

summary

judgment,

the

In

Court

relied on the plaintiff’s Rule 56.1 statement of material facts
because Lagerstrom failed to submit a Rule 56.1 Counterstatement
of material facts and did not otherwise meritoriously rebut the
assertions in the plaintiff’s Rule 56.1 statement.

See M&O at 2

Although Dianacollv was served on September 12, 2015, see ECF No. 36,
it has never submitted an answer to the complaint or otherwise appeared in
this action. A certificate of default was issued against it on November 24,
2015.
See ECF No. 50.
Plaintiff moved for a default judgment against
Dianacollv prior to his motion for summary judgment against Lagerstrom. See
ECF No. 56.
The Court, however, denied that motion without prejudice on
December 18 2015, based on its preference to resolve all claims against
nondefaulting
defendants
before
entering
a
default
judgment
against
Dianacollv. See ECF No. 60. Dianacollv remains in default.
1

3

(“The following facts are taken from plaintiff’s unrebutted Rule
56.1

Statement”)(emphasis

plaintiff’s

motion

added).

to

The

dismiss

Court

also

defendant

granted

Lagerstrom’s

counterclaims on the grounds that the criminal statute cited by
defendant did not provide a private cause of action and Frye was
not a state actor that could be held liable for the alleged
violations of defendant’s constitutional rights.

Id. at 11-12.

Once again defendant failed to submit a response to the
plaintiff’s Rule 56.1 Statement of Material Facts (“Rule 56.1
Statement”).

“[P]roceeding pro se does not otherwise relieve

[defendant] from the usual requirements of summary judgment.”
Fitzpatrick v. N. Y. Cornell Hosp., No. 00 Civ. 8594(LAP), 2003
WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003).
accepts

all

facts

asserted

by

Therefore, the Court

plaintiff

in

his

Rule

56.1

Statement as true in resolving this motion as long as they are
supported by the record.
Ed.,

584

F.3d

412,

418

See T.Y. v. New York City Dep’t of
(2d

Cir.

2009)(“A

nonmoving

party’s

failure to respond to a Rule 56.1 statement permits the court to
conclude

that

the

facts

asserted

in

the

statement

are

uncontested and admissible.”); see also, Wali v. One Source Co.,
678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009)(holding that, once a
pro se litigant is on notice of the requirements of Rule 56 and
Local

Civil

Rule

56.1,

he

is

“not

requirements of Local Rule 56.1.”).

4

excused

from

meeting

the

Still, appreciating the

fact that defendant Lagerstrom is proceeding here pro se, the
Court

construes

defendant’s

submissions

“liberally

and

interpret[s] them to raise the strongest arguments that they
suggest.”

Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d

Cir. 1999)(internal quotation marks and citations omitted).
The plaintiff’s submissions for this motion are virtually
identical to those filed in support of his previous motion for
summary

judgment.

The

only

difference

is

an

additional

assertion in his affidavit that defendant Lagerstrom has been
making misrepresentations on his website about this lawsuit and
his involvement in HALS.

See Frye Aff. (ECF No. 248) ¶ 38.

Therefore, we limit our discussion here

to the issues

newly

raised by defendant in connection with the present motion and
otherwise rely on our Memorandum and Order of August 31, 2017.2
First, again reading Lagerstrom’s submissions generously,
Lagerstrom appears to suggest that

he entered into the Crew

Agreement based on an understanding that Frye was acting as an
agent

of

CBS/Showtime.

However,

the

exhibits

cited

by

defendant, even when viewed most favorably to him, only suggest
that

plaintiff

was

associated

with

CBS/Showtime

relevant period, which plaintiff does not dispute.
(ECF No. 248) ¶ 5.

during

the

Frye Aff.

Defendant also asserts in his motion papers

Capitalized terms not specifically defined herein refer to those
terms as defined in our Memorandum and Order of August 31, 2017.
2

5

a

number

of

allegations

misrepresentations

about

suggesting

the

HALS

that

project

plaintiff

before

the

made

parties

entered the Crew Agreement but fails to cite any evidence in the
record to support those allegations.3
Second, defendant’s argument that plaintiff cannot assert
any claim based on his copyright in HALS because plaintiff’s
production of HALS was in violation of the CBS Business Conduct
Statement—which

plaintiff

was

bound

by

as

an

Showtime, a subsidiary of CBS—is without merit.
Statement

cited

by

defendant

do

not

employee

of

The portions of

“forbid,”

as

argued

by

defendant, but in fact only requires a disclosure of certain
activities.

Plaintiff

maintains

that

he

disclosed

the

HALS

project to Showtime twice before the parties signed the Crew
Agreement: once in July 2014 and once more in September 2014.
Frye Aff. ¶ 13.

Defendant attempts to dispute this assertion by

contending that the assertions in the plaintiff’s affidavit are
false

but

fails

to

provide

any

evidence

in

support

of

his

contention of falsity.

In Exhibit F to his opposition, Lagerstrom submitted sworn affidavits
of Margaret Germosen (a/k/a Margarita Dominguez), who starred in HALS, and
her agent Leon Lopez III, who claims to have participated in the production
of HALS as a cameraman.
These affidavits include a set of factual
allegations suggesting that plaintiff failed to fulfill his obligations under
the Crew Agreement.
Neither category is relevant here.
This set of
allegations is irrelevant so far as New York law does not allow the equitable
defense of unclean hands in an action for damages for breach of contract.
See Manshion Joho Ctr. Co., Ltd. v. Manshion Joho Ctr., Inc., 806 N.Y.S.2d
480, 482 (N.Y. App. Div. 1st Dep’t 2005).
3

6

Third, defendant asks the Court to revoke the plaintiff’s
copyright

registration

§ 411(b)(2).

of

HALS

pursuant

See Def.’s Opp’n at 12.

to

17

U.S.C.

First of all, defendant

fails to cite, and the Court is not aware of, any authority
allowing the Court to cancel a

copyright registration.

Pastime

16

LLC

v.

Schreiber,

No.

Civ.

8706(JPO),

2017

See
WL

6033434, at *3 (S.D.N.Y. Dec. 5, 2017)(concluding that a federal
district court does not have an authority to cancel copyright
registrations).

Even were we to consider defendant’s argument

simply as an attempt to invoke the procedure specified in 17
U.S.C. § 411(b)(2),
defendant’s

we would have rejected

reading,

Section

411(b)(2)

it.

Contrary to

simply

requires

a

district court to solicit the advice of the Copyright Office
when it is alleged that the application for the copyright at
issue contained inaccurate information.

17 U.S.C. § 411(b)(2).

Before launching this process, however, “a district court may
require

a

application

litigant

to

included

demonstrate
inaccurate

that

(1)

the

information;

registration

and

(2)

the

registrant knowingly included the inaccuracy in his submission
to the Copyright Office.”

Palmer/Kane LLC v. Rosen Brook Works

LLC, 188 F. Supp. 3d 347, 349 (S.D.N.Y. 2016)(citing DeliverMed
Holdings, LLC v. Schaltenbrand, 734 F.3d 616, 625 (7th Cir.
2013)).

Defendant cites the plaintiff’s sole ownership of the

copyright in HALS as a proof of inaccuracy in the plaintiff’s

7

application

for

copyright

registration

of

HALS.

However,

defendant fails to explain why that is the case: in fact, the
Showtime’s

letter

and

the

Crew

Agreement

both

support

a

conclusion that plaintiff is the sole owner of the copyright in
HALS.

Defendant appears to argue that the plaintiff’s failure

to include Showtime as a co-owner in his copyright application
amounted

to

an

inaccuracy

because

resources in producing HALS.

plaintiff

used

Showtime’s

Defendant cites the affidavits in

Exhibit F to his opposition in support of this contention.
assuming that

some of Showtime’s resources

Even

had been used in

developing the HALS project, as claimed by defendant, defendant
still fails to come forward with any evidence to dispute the
Showtime’s express disclaimer of any interest in HALS.
56.1

Stmt.

¶ 28.

Further,

defendant

fails

to

Pl. Rule

adduce

any

evidence suggesting that plaintiff knowingly omitted Showtime as
a co-owner of the copyright in HALS in filing his application.
In sum, defendant fails to carry his burden under 17 U.S.C.
§ 411(b)(2), and the Court therefore declines to solicit advice
from the U.S. Copyright Office in resolving this motion.
Lastly, defendant claims that his use of HALS was protected
under the First Amendment to the United States Constitution in
that his use was intended to inform the public about plaintiff’s
practice of plagiarizing other films produced by CBS/Showtime.
Defendant’s argument is without merit.

8

The unrebutted Rule 56.1

Attorney for Plaintiff
Danny Jiminian, Esq.
Jiminian Law PLLC
Defendant (pro se)
Benjamin F Lagerstrom
Copies of the foregoing Memorandum and Order have been mailed on
this date to the following:
Benjamin F. Lagerstrom
529 W. 29th Street PHD
New York, NY 10001
Benjamin F. Lagerstrom
201 W. 92nd Street Apt. 6B
New York, NY 10025

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