Dutcher v. Bold Films et al
Filing
239
MEMORANDUM DECISION and ORDER denying 139 Plaintiff's Motion for Partial Summary Judgment; denying 148 Defendants' Motion for Summary Judgment ; denying 155 Plaintiff's Motion for Summary Judgment, except with respect to Defendants 11th, 12th, 13th, 14th, 15th, and 16th Affirmative Defenses, as to which stipulated dismissal is GRANTED. Plaintiff's Evidentiary Objections 229 are OVERRULED. Signed by Judge Dee Benson on 8/13/2018. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RICHARD DUTCHER,
Plaintiff,
v.
BOLD FILMS LP, BOLD FILM
PRODUCTIONS, LLC, OPEN ROAD
FILMS, LLC, NBCUNIVERSAL MEDIA,
LLC, and UNIVERSAL STUDIOS HOME
ENTERTAINMENT LLC,
MEMORANDUM DECISION AND
ORDER
Case No. 2:15-cv-110-DB
District Judge Dee Benson
Defendants.
Before the Court are three Motions for Summary Judgment—two filed by Plaintiff (Dkt.
Nos. 139 and 155) and one filed by Defendants (Dkt. No. 148). The Motions have been fully
briefed by the parties, and the court has carefully considered the facts and arguments set forth in
those filings. Pursuant to civil rule 7-1(f) of the United States District Court for the District of
Utah Rules of Practice, the Court elects to determine the Motions on the basis of the written
memoranda and finds that oral argument would not be helpful or necessary. DUCivR 7-1(f).
Plaintiff’s Motion for Summary Judgment on Defendants’ Affirmative Defense Re: Damages
(Dkt. No. 139)
In his Motion for Summary Judgment on Defendants’ Affirmative Defense Re: Damages,
(Dkt. No. 139), Plaintiff argues that Defendants failed to timely provide admissible evidence to
establish their deductible expenses and elements of profit attributable to factors other than
copyrighted work as required by 17 U.S.C. § 504(b). Even assuming for purposes of this Motion
that Plaintiff’s timeliness arguments regarding Defendants’ disclosures are true, the court finds
sufficient facts—including financial records and corporate depositions—for a reasonable jury to
determine Defendant’s deductible expenses and the elements of profit attributable to factors
other than the copyrighted work.” 17 U.S.C. § 504(b). Accordingly, Plaintiff’s Motion (Dkt. No.
139) is DENIED.
Plaintiff’s Motion for Summary Judgment Re Defendants’ Affirmative Defenses
(Dkt. No. 155)
In his Motion for Summary Judgment regarding Defendants’ Affirmative Defenses, (Dkt.
No. 155), Plaintiff argues that judgment should be granted in his favor with respect to
Defendants’ 4th, 7th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, and 18th Affirmative Defenses. In
their response, Defendants stipulate to the dismissal of their 11th, 12th, 13th, 14th, 15th, and
16th Affirmative Defenses. Accordingly, those defenses are DISMISSED.
Defendants’ Eighteenth Affirmative Defense is: “Defendants have not reaped any profits
attributable to any infringement(s).” Dkt. No. 90 at 7. Plaintiffs’ arguments with respect to this
Defense are the same as those discussed in Plaintiff’s Motion for Summary Judgment regarding
damages, discussed above. For the reasons articulated above, the court finds sufficient evidence
to present Defendants’ Eighteenth Affirmative Defense to a jury.
Similarly, Defendants’ Seventeenth Affirmative Defense is: “Plaintiff has not suffered
any actual damages and/or Defendants are entitled to have any damages awarded apportioned to
any infringement(s), as opposed to unprotected elements of the works.” Id. at 7. Like
Defendants’ Eighteenth Affirmative Defense, the court finds sufficient facts related to
apportionment of damages to create a genuine issue of material fact with respect to Defendants’
Seventeenth Affirmative Defense.
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Defendants’ Fourth Affirmative Defense is: “Plaintiff’s claim is barred to the extent that
Plaintiff does not hold a valid copyright in Falling.” Id. at 5. It is undisputed that Falling was a
copyrighted work, but a factual dispute lies in the timing of the registration of that copyright. A
genuine dispute of material fact exists as to whether Plaintiff’s claim for attorneys’ fees is barred
because of the timing of his copyright registration. Accordingly, Plaintiff’s Motion with respect
to the Fourth Affirmative Defense is denied.
Defendants’ Seventh Affirmative Defense is: “Any similarity between Falling and
Nightcrawler consists of ideas and/or expression of unprotected copyright and/or unprotected
stock elements or scenes a faire, and is therefore not protectable expression.” Id. at 6. Even
accepting Plaintiff’s timeliness arguments as true for purposes of this Motion, the court finds
sufficient facts to create a genuine issue of material fact as to the unprotected elements of the
film and application of the scenes-a-faire doctrine to this case. Accordingly, Plaintiff’s Motion
with respect to Defendants’ Seventh Affirmative Defense is denied.
Accordingly, Defendants’ 11th, 12th, 13th, 14th, 15th, and 16th Affirmative Defenses
are DISMISSED and Plaintiff’s Motion with respect to Defendants’ 4th, 7th, 17th, and 18th
Affirmative Defenses is DENIED.
Defendants’ Second Motion for Summary Judgment Regarding Substantial Similarity
(Dkt. No. 148)
Defendants’ Second Motion for Summary Judgment Regarding Substantial Similarity
(Dkt. No. 148) revisits the question the court addressed at the Motion to Dismiss stage: whether a
reasonable jury could conclude that Nightcrawler is substantially similar to Falling. See Dkt.
Nos. 71 and 72. Having reviewed the briefing submitted by the parties, the court again finds
sufficient evidence to allow the case to go to a jury on the question of substantial similarity.
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Accordingly, Defendants’ Second Motion for Summary Judgment Regarding Substantial
Similarity is DENIED.1
CONCLUSION
For the foregoing reasons, Plaintiff’s Motions for Summary Judgment (Dkt. Nos. 139 and
155) are DENIED, except with respect to Defendants’ 11th, 12th, 13th, 14th, 15th, and 16th
Affirmative Defenses, as to which stipulated dismissal is GRANTED. Defendants’ Motion for
Summary Judgment (Dkt. No. 148) is also DENIED. Plaintiff’s Evidentiary Objections (Dkt. No.
229) are OVERRULED.
DATED this 13th day of August, 2018.
BY THE COURT:
Dee Benson
United States District Judge
1
In light of the court’s ruling, Plaintiff’s Evidentiary Objections (Dkt. No. 229) are OVERRULED.
4
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