Frye v. Lagorstrum et al
MEMORANDUM AND ORDER denying 45 Motion to Dismiss. For the foregoing reasons, Defendant Lagerstrom's motion to dismiss and his request for sanctions are denied. The parties should inform the Court within ten days if they wish a referral to a Magistrate Judge for settlement. This Memorandum and Order resolves Docket Number 45. (Signed by Judge Naomi Reice Buchwald on 5/23/2016) Copies Mailed By Chambers. (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against -
15 Civ. 5348 (NRB)
BENJAMIN F. LAGERSTROM, a.k.a
BENJAMIN IRISH, and DIANACOLLV, INC.,
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
action, plaintiff Joseph Frye alleges that defendants wrongfully
incorporated footage from his short film into videos that they
proceeding pro se, moves to dismiss the complaint pursuant to
against the plaintiff and his attorney under Rule 11.
following reasons, the motion is denied.
Plaintiff’s Complaint, ECF No. 1 (“Compl.”), alleges the
Plaintiff Joseph Frye writes screenplays and
produces, directs, and edits videos and films, sometimes using
individual defendant Benjamin F. Lagerstrom (the “defendant”)
(“Dianacollv”), a New York corporation.
Id. ¶ 10.
agreement to produce a 13-page script entitled “Homeless: A Love
Story,” which Frye had written and registered with the Writers
Guild of America, into a short film of the same name.
22, 36, 40.
On September 12, 2014, the parties executed a “Crew
Agreement” under which Dianacollv would provide video production
services in the form of equipment, cast, and crew.
40; see id. Ex. B (“Crew Agreement”).1
Id. ¶ 24,
In exchange, plaintiff
completed motion picture within 60 days.
Crew Agreement at 1.
The production work was to be done “on speculation,” meaning
that defendants would not be paid but were working “under the
promotion of the project that comes with sample/demonstration
production, otherwise known as a ‘pilot[.]’”
Agreement further provided that “all footage and material being
part of this agreement is the property of the Producer” and that
Although the Complaint alleges the Crew Agreement was executed on
September 12, 2014, the signatures appear to be dated September 18.
Agreement at 2. This discrepancy is immaterial.
Dianacollv “will not distribute or display such footage in any
Plaintiff signed the agreement as the “Producer,”2
and Lagerstrom signed it as the “Crew Chief.”
Compl. ¶ 27; Crew
Agreement at 2.
During negotiations, plaintiff also agreed to
“Executive Producer” of the film.
Compl. ¶ 23.
completed in September of 2014.
Id. ¶¶ 41–42.
In October of
2014, as Frye was editing the footage to produce a 12–15 minute
deteriorated after the two disagreed about how to best promote
the completed film.
See id. ¶¶ 42–46.
On October 12, 2014, defendant Lagerstrom, under the alias
“Jerry Seinfeld,” published a video entitled “Pilot for LL/TT
Showtime Networks” on the website YouTube.
Id. ¶ 49.
approximately six minute video was composed entirely of footage
from the “Homeless” shoot, including an “important part” of the
completed film that Lagerstrom had edited differently.
Id. ¶ 50.
Plaintiff discovered the video and, by
email dated November 14, 2015, insisted Lagerstrom remove it.
Elsewhere, the Crew Agreement identifies
Lion-Tiny Tiger.” Crew Agreement at 1.
Id. ¶ 52.
Lagerstrom refused, responding with a letter styled
certain “criminal activity,” and asserting defendants’ right to
use the footage.
Id. ¶ 53; see id. Ex. G.
additional letters and emails to Showtime staff leveling similar
Id. ¶ 54.
He received certificates of registration for the
text of “Homeless” (effective December 26, 2014) and for the
motion picture (effective January 20, 2015).
Id. ¶ 15; see id.
Between April and June of 2015, defendant published three
additional videos on the websites Vimeo and YouTube.
Id. ¶¶ 60–
These videos -- entitled “Margarita’s Millions,” “Jack, La
Plaintiff asserts that, at the time, he was employed by Showtime
Networks as an associate producer for Interactive Television.
Compl. ¶ 7.
In September of 2014, he informed Showtime about the production of “Homeless”
to fulfill a “right of first refusal” obligation that was a condition of his
employment, and he told defendants about this requirement.
Id. ¶¶ 32–33.
However, plaintiff did not write, produce, or direct “Homeless” as part of
any agreement with Showtime. Id. ¶ 34.
create a polemic about the entertainment industry.
videos accused plaintiff of conspiring with Showtime in order to
defendant a cease and desist letter.
Id. ¶ 63.
responded by writing: “Your client is going to jail.... give me
Id. ¶ 64.
On June 28, 2015, defendant published a
used footage from “Homeless” to create another polemic about the
Id. ¶ 68.
Plaintiff submitted copyright notices to
YouTube and Vemeo, id. ¶¶ 65, 67, 70, some of which Lagerstrom
opposed, id. ¶ 69.
As of the filing of the Complaint, some of
the allegedly infringing videos remained available on YouTube.
Id. ¶ 73.
B. Procedural History
On July 10, 2015, plaintiff filed his Complaint in this
Court, alleging (1) copyright infringement and (2) breach of
Defendant Lagerstrom, proceeding pro se, filed four
separate responses to the complaint: a “memorandum of law in
support of motion to dismiss,” an “answer, affirmative defenses,
Plaintiff’s Complaint also contains “causes of action” for (3)
“injunction” under 17 U.S.C. § 502, (4) “statutory damages” under 17 U.S.C. §
504, and (5) “seizure and impounding” under 17 U.S.C. § 503.
are not stand-alone causes of action but requests for relief under the
We therefore regard them as part of the copyright
infringement claim advanced in Count One.
and counterclaims,” a “motion and/or petition for declaratory
Separately, he made requests for sanctions and
to submit additional evidence.
By letter dated September 24,
granted him leave to file a revised, single document to serve as
Dismiss the Complaint and Request for Sanctions” and associated
memorandum, ECF No. 45 (“Mem.”), filed October 2, 2015, is that
memorandum dated November 5, 2015, ECF No. 48 (“Opp’n”), and
defendant replied on December 3, 2015, ECF No. 52 (“Reply”).
Finally, despite our warnings to Mr. Lagerstrom that he could
not represent a corporation in court, the corporate defendant
Dianacollv remains unrepresented and has defaulted.5
ECF No. 50.
A. Legal Standards
Procedure 12(b)(6), the Court must accept as true all factual
allegations in the complaint and draw all reasonable inferences
On December 18, 2015, we denied plaintiff’s motion for a final default
judgment against Dianacollv without prejudice to its renewal, given the
pending claims against Mr. Lagerstrom. ECF No. 60.
in the plaintiff’s favor.
ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
recitals of a cause of action's elements, supported by mere
conclusory statements . . . are not entitled to the assumption
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
order to withstand a challenge under Rule 12(b)(6), a plaintiff
must allege “enough facts to state a claim to relief that is
plausible on its face.”
544, 510 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
In deciding a motion to dismiss, the Court may
consider exhibits to the complaint and documents incorporated by
reference into the complaint.
Weinstein Co. v. Smokewood Entm’t
Grp., LLC, 664 F. Supp. 2d 332, 338 (S.D.N.Y. 2009).
Defendant Lagerstrom is proceeding pro se.
“It is well
established that the submissions of a pro se litigant must be
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation
marks omitted; emphasis removed).
Yet “pro se status ‘does not
exempt a party from compliance with relevant rules of procedural
and substantive law.’”
Boddie v. New York State Div. of Parole,
285 F. Supp. 2d 421, 426 (S.D.N.Y. 2003) (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
1. Copyright Infringement
Copyright owners possess the exclusive rights to reproduce,
perform publicly, display publicly, prepare derivative works of,
and distribute copies of their copyrighted works.
17 U.S.C. §
106; see Arista Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d
To establish a claim of copyright infringement,
copyright, and (2) copying of constituent elements of the work
that are original.’”
Arista Records, 604 F.3d at 117 (quoting
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
registration provides prima facie evidence of both the validity
of the copyright, 17 U.S.C. § 410(c), and the originality of the
work, Boisson v. Banian, Ltd, 273 F.3d 262, 268 (2d Cir. 2001).
The copying of original elements of the work can be established
through either direct or indirect evidence.
Boisson, 273 F.3d
Here, plaintiff adequately alleges copyright infringement.
As exhibits to the Complaint, he submits copyright registration
Compl. Ex. A, at 1–4.
He further alleges that
defendant incorporated video shot in connection with the project
into five videos that defendant published on the Internet.
addresses of the allegedly infringing videos.
Lagerstrom does not dispute that he created and published
material was actually copied.
Instead, he contends that his
conduct did not constitute copyright infringement because (1)
the Crew Agreement contains a transfer or assignment of the
right to use the footage, Reply 3–5;6 (2) plaintiff’s copyrights
are “fraudulent” because the work was “plagiarized,” Reply 3, 6;
and (3) his uses of the footage are protected by the First
Amendment, Reply 4, 10, 14.
factual or legal basis to be plausible.
Even if they were, such
affirmative defenses would rely on facts outside the complaint
See Capitol Records, Inc. v. MP3tunes, LLC, No. 07
Civ. 9931(WHP), 2009 WL 3364036, at *3 (S.D.N.Y. Oct. 16, 2009)
(“While a complaint can be dismissed for failure to state a
claim pursuant to a Rule 12(b)(6) motion raising an affirmative
As noted, the Crew Agreement states just the opposite, that “all
footage and material being part of this agreement is the property of the
Producer” and that defendants “will not distribute or display such footage in
any way other than as an example/demonstration” of their work.
Agreement at 1.
We take defendant’s argument to be that his videos are
merely “demonstrations” of his work.
Plaintiff has adequately alleged,
however, that given the custom and practice in the motion picture industry,
none of defendants’ videos is correctly viewed as an “example/demonstration”
in the sense of a “teaser, trailer or reel sample.” Compl. ¶¶ 26, 51.
defense if the defense appears on the face of the complaint, the
complaint itself must establish the facts necessary to sustain
defendant’s defense.” (internal quotation marks, brackets, and
citations omitted)); see also Kelly–Brown v. Winfrey, 717 F.3d
295, 308 (2d Cir. 2013) (“Affirmative defenses” that “require
consideration of facts outside the complaint” are “inappropriate
to resolve on a motion to dismiss.”).
2. Breach of Contract
Plaintiff also adequately alleges breach of contract.
elements of a cause of action for breach of contract under New
York law7 are: (1) the existence of a contract; (2) performance
of the contract by one party; (3) breach by the other party; and
(4) damages suffered as a result of the breach.
Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir.
Here, plaintiff claims the Crew Agreement constituted a
contract through October of 2014; that defendant breached the
contract, both by his unauthorized use of the footage and by
falsely claiming that he was the Director of the project; and
that plaintiff was damaged because his own plans for promoting
and releasing “Homeless” were frustrated.
The parties fail to address what law governs their contract. Based on
the Complaint and the briefing on the motion to dismiss, it appears that Frye
and Lagerstrom are residents of New York, that the Crew Agreement was
negotiated and executed in New York, and that “Homeless” was filmed in New
York. Therefore, we presume New York law applies.
Generously construed, defendant’s papers attack the breach
of contract claim by suggesting (1) that the Crew Agreement is
invalid because the “fictitious company Little Lion Tiny Tiger”
was listed as a party to the agreement, Reply 6; and (2) that he
did not profit from his use of the footage, Mem. 7; Reply 4.
Even if true, these contentions are not relevant to whether the
Complaint states a legal claim upon which relief can be granted.
They therefore offer no basis to dismiss the complaint.
3. Defendant’s Further Arguments
conspiracy against him, defrauded him, and violated his civil
These claims are alleged without a basis in fact or
law, and moreover are wholly irrelevant to the instant motion to
We need not address them further.
motion to dismiss, we perceive no basis to impose sanctions
under Rule 11.
Therefore, defendant’s request for sanctions is
We appreciate that the relationship between plaintiff and
defendant has become acrimonious, and that each feels he was
wronged by the other's conduct relating to the editing,
and promotion of "Homeless."
rela t 1onship,
1 ega 1
We urge the
case would be more
role is not
cla1ms properly advanced under the Federal Rules.
the Court would refer this
to a Magistrate Judge to assist :n that endeavor.
For the foregoing reasons,
dismiss and h1s
Defendant Lagerstrom's mot1on to
sanctions are denied.
should inform the Court within ten days if they wish a referral
to a Magistrate Judge for settlement.
This Memorandum and Order
resolves Docket Number 45.
New York, New York
May 23, 2016
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Copies of the foregoing Memorandum and Order have been mailed on
this date to the following:
Attorney for Plaintiff
Danny Jiminian, Esq.
Jim1n1an Law PLLC
65 Payson Avenue, Suite 3
New York, NY 10034
Defendant (pro se)
Benjamin F Lagerstrom
529 W. 29th Street PHD
New York, NY 10001
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?