Brickey v. Amazon.com et al

Filing 63

ORDER GRANTING 59 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
HERMAN LEON BRICKEY,

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Plaintiff,
v.
AMAZON.COM, INC. et al.,
Defendants.

CIVIL ACTION NO. SA-13-CA-961-XR

ORDER
On this date, the Court considered Defendants Amazon.com, Inc. (“Amazon”) and CD
Baby’s motion for summary judgment. Doc. No. 59. After careful consideration, the motion is
GRANTED.
BACKGROUND
This case arises out of a pro se copyright infringement claim stemming from Defendants
allegedly unauthorized sale of Plaintiff Herman “Bick” Brickey’s music album. In June of 2009,
Mr. Brickey entered into a contract with Defendant CB Baby for the distribution of his CD,
“Texas Blues and County Tear Jerkers.” In March of 2012, Mr. Brickey requested that CD Baby
discontinue the sale of his CD.

Doc. No. 33 at p. 3. The core of Mr. Brickey’s copyright

infringement claim is his contention that Defendants unlawfully continued sales after he
withdrew consent. Doc. No. 4. at 4.
On October 23, 2013, Mr. Brickey filed an original complaint in this Court alleging
violations of the Copyright Act. Id. On December 23, 2013, this Court granted Defendants’
partial motion to dismiss. Doc. No. 17. In that order, the Court dismissed Mr. Brickey’s claim
for $5,000,000 in punitive damages from each Defendant because Congress did not authorize
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that form of relief in the Copyright Act. Id.

On February 21, 2014, the Court denied Plaintiff’s

motion for summary judgment on the grounds that Mr. Brickey had not conclusively established
that copyright infringement had occurred. Doc. No. 41. After the parties were unable to finalize
a tentative settlement agreement, Defendants filed the instant motion for summary judgment on
June 30, 2014. Doc. No. 59.
LEGAL STANDARD
Summary judgment is proper when the evidence shows “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R CIV. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252 (1986). Rule 56 “mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails . . . to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir.
2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The court must draw reasonable inferences and construe evidence in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Although the evidence is viewed in the light most favorable to the nonmoving party, a
nonmovant may not rely on “conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence” to create a genuine issue of material fact sufficient to survive summary
judgment. Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004).
DISCUSSION
Plaintiff has not responded to this motion within the time provided by the local rules to
do so. During the pendency of this case pro se Plaintiff has repeatedly attempted to submit
“evidence” to the Court. See Docs Nos. 15, 21. Although not properly filed in conjunction with

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any motion, the Court has reviewed this documentary evidence as part of its summary judgment
analysis to ascertain whether a fact issue exists. Eversley v. MBank of Dallas, 843 F.2d 172, 174
(5th Cir. 1988) (noting that courts may not grant “default” summary judgment even if the nonmovant does not respond).
To establish a prima facie case of copyright infringement, a plaintiff must demonstrate:
“(1) ownership of a valid copyright, and (2) copying [by the defendant] of constituent elements
of the work that are original.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004)
(citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)). A certificate of
registration is generally considered prima facie evidence both that a copyright is valid and that
the registrant owns the copyright. Id.

Mr. Brickey has provided several certificates of

registration. Doc. No. 33. Defendants do not dispute that Mr. Brickey was a valid copyright
owner. Doc. No. 59 at ¶ 2.
Therefore, the key question is whether actionable copying occurred in the form of
unauthorized sales of Mr. Brickey’s copyrighted work. The parties agree that on June 8, 2009,
Mr. Brickey authorized Defendant CD Baby and its affiliates to sell both hard copy and digital
versions of his CD. Doc. No. 59, Ex. 2. Moreover, there is no factual dispute that Mr. Brickey
was compensated for all sales that occurred during this time period. Doc. 59. Ex. 5, see also
Declaration of Joel Andrew at ¶ 8. Mr. Brickey does not argue that any of the Defendants
breached this agreement. Instead, he asserts that Defendants unlawfully continued their sales
after March 27, 2012, the date on which he withdrew his consent for them to sell his music. Doc.
No. 1.
As evidence that these unauthorized sales occurred, Mr. Brickey has provided
screenshots of various websites showing his CD for sale. Docs No. 1 & 15.

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Resolving the

inference in favor of non-movant Plaintiff that these screenshots were taken after he withdrew
his consent on March 27, 2012, they do not establish how many (if any) of his CDs were sold
after that date. Defendants concede that one such sale occurred on Amazon after Mr. Brickey
withdrew his consent. Doc. No. 59 at ¶ 11. However, the uncontroverted evidence shows that
Amazon was the rightful owner of the copy that was sold. See Declaration of Dung Phan at ¶ 6,
Doc. No. 59, Ex. 6. Specifically, Mr. Phan testified that Amazon had purchased the copy it sold
from Super D, another CD distributor. Id. Super D had purchased the copy from CD Baby
while CD Baby was authorized to sell Plaintiff’s works. Id. Since Mr. Brickey was compensated
for all the CDs sold by CD Baby, he had already been compensated for the one CD that Amazon
re-sold after Mr. Brickey withdrew his consent for sale. Id. at ¶ 7.
Under the “first sale” doctrine, no copyright infringement occurred with respect to this
sale because Amazon.com was the lawful owner of the CD it sold and was therefore “entitled,
without the authority of the copyright owner, to sell.” 17 U.S.C. § 109(a); see also Quality King
Distributors, Inc. v. L’anza Research Intl, Inc., 523 U.S. 135 (1998) (discussing first sale
doctrine). It is well settled that the protections afforded by the Copyright Act are not absolute.
Cf. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 155 (1975) (“The Copyright Act does
not give a copyright holder control over all uses of his copyrighted work”) (internal quotations
omitted). Mr. Brickey has no statutory right to recover additional compensation for the sale of a
CD that was sold by its rightful owner, Amazon. Finally, Plaintiff does not provide any evidence
to create a fact issue that any other copies were sold for which the “first sale” doctrine may not
apply.1 Accordingly, Defendants are entitled to summary judgment on Plaintiff’s copyright
infringement claim.

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In fact, Mr. Brickey has stated that he has provided “all my true facts before the Court,” as of March 13, 2014.
Doc. No. 49.

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Several issues remain. Although the case against Defendants CD Baby and Amazon.com
is DISMISSED, Mr. Brickey also had originally sued Rebecca Valadez, Jeffrey Bezos, and CD
Universe. When the Magistrate Judge granted Mr. Brickey leave to file in forma pauperis, she
permitted the claims to go forward against Amazon.com and CD Universe only. 2 Doc. No. 3.
Accordingly, there are no live claims against Defendants Valadez and Bezos, neither of whom
have been served. The case is therefore DISMISSED as against these Defendants. However,
Defendant CD Universe appears to have been served in this action and has not filed a response.
Doc. No. 10. If Mr. Brickey wishes to proceed with this case against CD Universe, he must file
for entry of default on or before August 1, 2014. Failure to do so will lead to this case being
dismissed for failure to prosecute.
Next, there is the issue of Defendants’ counterclaim for which Mr. Brickey is in default.
Doc. No. 58. Since default was entered against Mr. Brickey, the Court accepts all factual
allegations that relate to liability as true. Jackson v. FIE Corp., 302 F.3d 515, 524-25 (5th Cir.
2002). Accordingly, Mr. Brickey has breached his agreement with Defendants that he would
hold them harmless and indemnify them for any litigation arising out of their contract. See Doc.
No. 34, Ex. 1. Defendants seek to recoup their attorney’s fees as damages and have stated their
intention to negotiate in good faith with Mr. Brickey regarding a reasonable accommodation.
Doc. No. 59. If no agreement is reached, Defendants may seek a default judgment. See FED. R.
CIV. P. 55
CONCLUSION
In light of the foregoing analysis, Defendants’ motion for summary judgment is
GRANTED. Doc. No. 59. If Mr. Brickey wishes to proceed with this case against CD Universe,
he must file for entry of default on or before August 1, 2014.
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This Court later allowed Mr. Brickey to add CD Baby as a Defendant. Doc. No. 17.

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SIGNED this 18th day of July, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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