Frye v. Lagorstrum et al
Filing
66
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
----------------------------------------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
In
this
copyright
infringement
and
breach
of
contract
action, plaintiff Joseph Frye alleges that defendants wrongfully
incorporated footage from his short film into videos that they
published
on
the
Internet.
Defendant
Benjamin
Lagerstrom,
proceeding pro se, moves to dismiss the complaint pursuant to
Federal
Rule
of
Civil
Procedure
12(b)(6)
and
for
against the plaintiff and his attorney under Rule 11.
sanctions
For the
following reasons, the motion is denied.
I. BACKGROUND
A. Facts
Plaintiff’s Complaint, ECF No. 1 (“Compl.”), alleges the
following facts.
Plaintiff Joseph Frye writes screenplays and
produces, directs, and edits videos and films, sometimes using
the
alias
“Little
Lion,
Tiny
Tiger.”
Compl.
¶¶
5–6.
The
individual defendant Benjamin F. Lagerstrom (the “defendant”)
owns
and
operates
the
corporate
defendant
(“Dianacollv”), a New York corporation.
In
September
of
2014,
Frye
Dianacollv,
Inc.
Id. ¶ 10.
and
Lagerstrom
reached
an
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.
Id. ¶¶
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
would
provide,
participation
inter
credit
to
alia,
the
meals,
crew,
Id. ¶ 24,
In exchange, plaintiff
a
and
makeup
provide
completed motion picture within 60 days.
artist,
a
DVD
of
and
the
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
idea
that
future
paid
work
will
result
from
the
help
in
promotion of the project that comes with sample/demonstration
production, otherwise known as a ‘pilot[.]’”
Id.
The Crew
Agreement further provided that “all footage and material being
part of this agreement is the property of the Producer” and that
1
Although the Complaint alleges the Crew Agreement was executed on
September 12, 2014, the signatures appear to be dated September 18.
Crew
Agreement at 2. This discrepancy is immaterial.
2
Dianacollv “will not distribute or display such footage in any
way
other
work.”
than
Id.
as
an
example/demonstration
of
the
company’s
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
give
credits
Lagerstrom
as
“Director
“Executive Producer” of the film.
Principal
shooting
of
of
and
Compl. ¶ 23.
“Homeless”
completed in September of 2014.
Photography”
commenced
Id. ¶¶ 41–42.
and
was
In October of
2014, as Frye was editing the footage to produce a 12–15 minute
short
film,
the
relationship
between
Frye
and
Lagerstrom
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.
The
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.
49,
51,
52.
“Director.”
In
this
Id. ¶ 50.
video,
Lagerstrom
labeled
Id. ¶¶
himself
as
Plaintiff discovered the video and, by
email dated November 14, 2015, insisted Lagerstrom remove it.
2
Elsewhere, the Crew Agreement identifies
Lion-Tiny Tiger.” Crew Agreement at 1.
3
the
“Producer”
as
“Little
Id. ¶ 52.
“Order”
accusing
Lagerstrom refused, responding with a letter styled
to
plaintiff
plaintiff
interested
in
and
of
the
staff
falsely
“Homeless”
at
Showtime
representing
project,3
Networks
that
accusing
Inc.,
Showtime
plaintiff
was
of
certain “criminal activity,” and asserting defendants’ right to
use the footage.
Id. ¶ 53; see id. Ex. G.
Defendant sent
additional letters and emails to Showtime staff leveling similar
accusations.
Id. ¶ 54.
Meanwhile,
editing
of
in
December
“Homeless,”
registration.
of
2014,
plaintiff
having
applied
completed
for
his
copyright
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.
Ex. A.
Between April and June of 2015, defendant published three
additional videos on the websites Vimeo and YouTube.
62.
Id. ¶¶ 60–
These videos -- entitled “Margarita’s Millions,” “Jack, La
Historia
de
Jack
Documental
de
Hernandez”
--
Veneno,”
Benjamin
each
and
“La
Irish
incorporated
3
con
Historia
Ric
footage
de
Flair
from
Jack
y
Veneno.
Relampago
“Homeless”
to
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.
4
create a polemic about the entertainment industry.
Id.
The
videos accused plaintiff of conspiring with Showtime in order to
harm Lagerstrom.
On
June
Id.
22,
2015,
plaintiff,
defendant a cease and desist letter.
through
counsel,
Id. ¶ 63.
sent
Defendant
responded by writing: “Your client is going to jail.... give me
a break.”
video
on
Id. ¶ 64.
YouTube
On June 28, 2015, defendant published a
entitled
“Margarita’s
Millions
Teaser”
that
used footage from “Homeless” to create another polemic about the
entertainment
misconduct.
industry
Id. ¶ 68.
and
accuse
plaintiff
and
Showtime
of
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
contract.4
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,
4
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.
These claims
are not stand-alone causes of action but requests for relief under the
Copyright Act.
We therefore regard them as part of the copyright
infringement claim advanced in Count One.
5
and counterclaims,” a “motion and/or petition for declaratory
judgment,”
and
“proposed
counterclaims.”
amended
we
defenses,
and
Separately, he made requests for sanctions and
to submit additional evidence.
2015,
answers,
struck
defendant’s
By letter dated September 24,
responses
to
the
complaint
and
granted him leave to file a revised, single document to serve as
his
operative
litigation.
motion
ECF
No.
or
43.
pleading
at
Defendant’s
this
stage
“Operative
of
the
Motion
to
Dismiss the Complaint and Request for Sanctions” and associated
memorandum, ECF No. 45 (“Mem.”), filed October 2, 2015, is that
motion,
which
we
address
here.
Plaintiff
responded
by
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.
II. DISCUSSION
A. Legal Standards
On
a
motion
to
dismiss
under
Federal
Rule
of
Civil
Procedure 12(b)(6), the Court must accept as true all factual
allegations in the complaint and draw all reasonable inferences
5
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.
6
in the plaintiff’s favor.
ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
However, “[t]hreadbare
recitals of a cause of action's elements, supported by mere
conclusory statements . . . are not entitled to the assumption
of truth.”
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
In
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
construed
liberally
and
arguments
that
suggest.”
they
interpreted
to
Triestman
raise
v.
the
Fed.
strongest
Bureau
of
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)).
B. Analysis
1. Copyright Infringement
7
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
Cir. 2010).
“‘two
To establish a claim of copyright infringement,
elements
must
be
proven:
(1)
ownership
of
a
valid
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
(1991)).
The
presentation
of
a
certificate
of
copyright
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
at 267.
Here, plaintiff adequately alleges copyright infringement.
As exhibits to the Complaint, he submits copyright registration
certificates
entitling
for
him
original work.
to
the
a
text
and
motion
presumption
of
a
Compl. Ex. A, at 1–4.
picture
valid
of
“Homeless,”
copyright
for
an
He further alleges that
defendant incorporated video shot in connection with the project
into five videos that defendant published on the Internet.
8
He
provides
the
titles,
dates
of
publication,
and
Internet
addresses of the allegedly infringing videos.
Lagerstrom does not dispute that he created and published
the
videos,
filming
of
composed
at
“Homeless,”
least
in
obviating
material was actually copied.
part
any
of
footage
question
from
that
the
original
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.
None
of
these
arguments
is
advanced
factual or legal basis to be plausible.
with
a
sufficient
Even if they were, such
affirmative defenses would rely on facts outside the complaint
and
therefore
context.
would
not
be
appropriate
to
address
in
this
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
6
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.
Crew
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.
9
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.
The
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.
First Investors
Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir.
1998).
binding
Here, plaintiff claims the Crew Agreement constituted a
contract;
that
plaintiff
had
fully
performed
the
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.
7
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.
10
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
Throughout
his
Memorandum
the
Court,
submissions
to
plaintiff’s
counsel,
and
Reply,
defendant
Showtime,
and
and
asserts
others
in
that
have
his
other
plaintiff,
engaged
in
a
conspiracy against him, defrauded him, and violated his civil
rights.
These claims are alleged without a basis in fact or
law, and moreover are wholly irrelevant to the instant motion to
dismiss.
We need not address them further.
C. Sanctions
Having
infringement
concluded
and
that
breach
of
plaintiff’s
contract
claims
survive
a
for
Rule
copyright
12(b)(6)
motion to dismiss, we perceive no basis to impose sanctions
under Rule 11.
Therefore, defendant’s request for sanctions is
denied.
We appreciate that the relationship between plaintiff and
defendant has become acrimonious, and that each feels he was
11
wronged by the other's conduct relating to the editing,
and promotion of "Homeless."
to
repair
or
resolve
this
However,
the Court's
rela t 1onship,
but
to
to
act1on,
whether
thoughtfully
given
the1r
a
settlement
cont1nued
creative
litigation.
pursuing the
consider
of
settlement
this
If
the merits
and
financial
route,
parties
are
1 ega 1
We urge the
and value
of
this
interests,
and
case would be more
the
role is not
evaluate
cla1ms properly advanced under the Federal Rules.
parties
release,
both
sensible
than
interested
the Court would refer this
in
case
to a Magistrate Judge to assist :n that endeavor.
III. CONCLUSION
For the foregoing reasons,
dismiss and h1s
request
for
Defendant Lagerstrom's mot1on to
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.
SO ORDERED.
Dated:
New York, New York
May 23, 2016
L~-~
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
12
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
13
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