Drewry v. Cox
Filing
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ORDER denying 11 Defendant Danny Cox's Motion for Partial Summary Judgement (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 8/21/2017. (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
KAREN DREWRY, an individual,
Plaintiff,
v.
DANNY COX, an individual
doing business as THE BROTHERS
DUPREE,
Defendant.
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Case No. CIV-16-1307-M
ORDER
This matter is on the Court’s September 2017 trial docket.
Before the Court is Defendant Danny Cox’s Motion for Partial Summary Judgement
and Brief in Support, filed July 3, 2017. On July 24, 2017, plaintiff filed her response, and
on August 4, 2017, plaintiff filed her supplemental response. Defendant filed no reply.
Based on the parties’ submissions, the Court makes its determination.
I.
Introduction
Plaintiff owns the registered copyright for the album Buckhorn Opera, which
features the song “Sleeping My Blues Away” (“Song”). The copyright was registered on
April 25, 2013. In 2010, defendant recorded the Song, and defendant’s recording of the
Song was published on a CD entitled Home Grown Blues by the Oklahoma Blues Society.
In 2014, defendant produced a CD which included the Song. While plaintiff disputes these
facts, defendant contends that he produced 200 of the CDs with the Song on it at a cost of
$1,000. Defendant contends, which plaintiff disputes, that he gave away approximately
175 of the CDs and did not realize a profit from the CD that was produced in 2014.
Plaintiff filed this action on November 16, 2016, alleging defendant infringed on
plaintiff’s federally registered copyright, pursuant to 17 U.S.C. § 501 et seq., and that
defendant published or caused to be published false statements concerning his alleged
original authorship of the work in violation of the Oklahoma Deceptive Trade Practices
Act (“ODTPA”), Okla.Stat. tit. 78, § 51 et seq. Plaintiff seeks damages and injunctive relief
for defendant’s alleged copyright infringement and violation of the ODTPA. Defendant
now moves this Court for partial summary judgment on plaintiff’s claims for damages and
attorney fees and costs, pursuant to 17 U.S.C. §§ 504 and 505 and Okla. Stat. tit. 78, § 53. 1
II.
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.
The moving party is entitled to summary judgment where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party. When applying this
standard, [the Court] examines the record and reasonable inferences drawn therefrom in
the light most favorable to the non-moving party.” 19 Solid Waste Dep’t Mechs. v. City of
Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir. 1998) (internal citations and quotations
omitted).
1
Plaintiff concedes that she is not entitled to statutory damages pursuant to 17 U.S.C. §
504(c) and only seeks actual damages, pursuant to 17 U.S.C. § 504(b), for defendant’s alleged
copyright infringement of the Song.
2
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Furthermore, the
non-movant has a burden of doing more than simply showing there is some metaphysical
doubt as to the material facts. Rather, the relevant inquiry is whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Neustrom v. Union Pac. R.R. Co., 156 F.3d
1057, 1066 (10th Cir. 1998) (internal citations and quotations omitted).
III.
Discussion
A.
Copyright Claim
The United States copyright law provides that:
The copyright owner is entitled to recover the actual damages
suffered by him or her as a result of the infringement, and any
profits of the infringer that are attributable to the infringement
and are not taken into account in computing the actual
damages. In establishing the infringer's profits, the copyright
owner is required to present proof only of the infringer's gross
revenue, and the infringer is required to prove his or her
deductible expenses and the elements of profit attributable to
factors other than the copyrighted work.
17 U.S.C. § 504(b). Further, “the court in its discretion may allow the recovery of full costs
by or against any party other than the United States . . . [and] may also award a reasonable
attorney's fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. A court with
jurisdiction over a civil action alleging copyright infringement may also “grant temporary
and final injunctions on such terms as it may deem reasonable to prevent infringement of
a copyright.” 17 U.S.C. § 502.
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Defendant contends that plaintiff is not entitled to actual damages because she
revealed she has not suffered any damages. Plaintiff contends that she is entitled to present
her evidence as to her damages sustained a result of defendant’s admitted infringement of
the Song. Having carefully reviewed the parties’ submissions, and viewing the evidence in
the light most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s
favor, the Court finds that sufficient evidence has been presented to show plaintiff has
suffered actual damages from defendant’s copyright infringement of the Song.
Specifically, in defendant’s affidavit, he admits that he sold some of the CDs he published
with the Song on it. See Exhibit C ¶6, Affidavit of Danny Cox, attached to defendant’s
motion for summary judgment (“The most I ever sold one of the CDs for was $5.00”).
Further, plaintiff, in her response to defendant’s interrogatory no. 2, responded that “Mr.
Cox has received money from sales of records containing the infringing song. The money
he has received is unknow[n] to me at present.” Exhibit D, Response to Interrogatory No.
2, attached to defendant’s motion for summary judgment. The Court finds the fact
defendant admits he sold some of the CDs he published containing plaintiff’s protected
song, despite the fact that plaintiff is unaware of the amount of money defendant made
from the sale of the CDs, is sufficient evidence to show defendant infringed on plaintiff’s
protected copyright, which as a result entitles her to actual damages. Therefore, defendant’s
motion for summary judgment as to plaintiff’s claim for actual damages pursuant to 17
U.S.C. § 504(b) should be denied.
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B.
Violation of the ODTPA
The Oklahoma Deceptive Trade Practices Act (ODTPA)
proscribes fourteen categories of conduct performed in the
course of a person's business, vocation, or occupation,
including: (1) passing off goods or services as those of another;
(2) knowingly making a false representation as to the source,
sponsorship, approval, or certification of goods or services;
and (3) knowingly making a false representation as to
affiliation, connection, association with, or certification by
another.
Kimray, Inc. v. Norriseal-Wellmark, Inc., No. CIV-16-1167-D, at *4 (W.D. Okla. May 8,
2017) (citing Okla. Stat. tit. 78, § 53(1)(2)&(3)). Further,
Any person damaged or likely to be damaged by a deceptive
trade practice of another may maintain an action in any court
of equitable jurisdiction to prevent, restrain or enjoin such
deceptive trade practice. Proof of actual monetary damages,
loss of profits or intent shall not be required. If in such action
damages are alleged and proved, the plaintiff, in addition to
injunctive relief, shall be entitled to recover from the defendant
the actual damages sustained by the person.
Okla. Stat. tit. 78, § 54(A).
Defendant, relying on Conatzer v. American Mercury Ins. Co., 15 P.3d 1252 (Okla.
Civ. App. 2000), contends that because plaintiff is not in business, she is not in competition
with him and, therefore, cannot bring a claim for a violation of the ODTPA. See id. at 1254
(“It has been definitively established that [the ODPTA] protect[s] competing business
interests. . .”). Plaintiff contends that defendant’s reliance on Conatzer is misplaced, as this
instant action claims that defendant’s attribution of plaintiff’s copyrighted work as that of
defendant’s own was a deceptive trade practice.
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Having carefully reviewed the parties’ submissions, and viewing the evidence in the
light most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s favor,
the Court finds that plaintiff has presented sufficient evidence to show that defendant
violated the ODTPA and, therefore, plaintiff is entitled to damages. Specifically, while a
nominal amount, defendant admits to deriving less than $50.00 from the CDs he published
containing a copy or derivative performance of the Song. See Exhibit 1, Answers to
Interrogatories Number 2 and 6, attached to Plaintiff’s Supplemental Response. The Court
finds defendant’s act in selling a CD which attributed plaintiff’s Song to defendant violated
the ODTPA, in that defendant knowingly made a false representation as to the author of
the Song on the CDs he sold. 2 Therefore, the Court finds that defendant is not entitled
summary judgment on plaintiff’s claim of damages for defendant’s violation of the
ODTPA.
IV.
Conclusion
Accordingly, for the reasons set forth above, the Court DENIES Defendant Danny
Cox’s Motion for Partial Summary Judgement and Brief in Support [docket no. 11].
IT IS SO ORDERED this 21st day of August, 2017.
2
Further, the Court agrees that defendant’s reliance on Conatzer is misplaced. Conatzer
related to claims of trademark infringement, and defendant has not provided, nor has the Court
found, any authority that competition is required in claims of copyright infringement and violation
of the ODTPA.
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