743 F.2d 630 (9th Cir. 1984), 83-6190, Oddo v. Ries

Docket Nº:83-6190.
Citation:743 F.2d 630
Party Name:677 Frank ODDO, Appellee, v. Jack W. RIES, MME Publications, MME Publishing Company and Material Movement Enterprises, Appellants.
Case Date:June 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 630

743 F.2d 630 (9th Cir. 1984)


Frank ODDO, Appellee,


Jack W. RIES, MME Publications, MME Publishing Company and

Material Movement Enterprises, Appellants.

No. 83-6190.

United States Court of Appeals, Ninth Circuit

June 19, 1984

Argued and Submitted May 8, 1984.

Page 631

[Copyrighted Material Omitted]

Page 632

Vance C. Simonds, Jr., Capretz & Casdan, Irvine, Cal., for appellee.

Patrick F. Bright, Kendrick, Netter & Bennett, Los Angeles, Cal., for appellants.

Appeal from the U.S. District Court for the Central District of California.

Before GOODWIN, SNEED and ALARCON, Circuit Judges.

GOODWIN, Circuit Judge.

In the guise of a copyright infringement suit, this case presents an accounting problem between two partners. Ries and his codefendants 1 appeal from a judgment awarding Oddo $10,000 statutory damages for infringement, $20,000 attorneys' fees, general damages of $1,000, and costs of suit.

Oddo and Ries entered into a partnership in March 1978 to create and publish a book describing how to restore Ford F-100 pickup trucks. According to the partnership agreement, Ries was to provide capital and supervise the business end of the venture; Oddo was to write and edit the book. By January 1980, Oddo had delivered to Ries a manuscript that contained much but not all of the material the partners planned to include in the book. This manuscript consisted partly of a reworking of previously published magazine articles that Oddo had written and partly of new material, also written by Oddo, that had never before been published.

At about the same time, Ries became dissatisfied with the progress Oddo had made on the manuscript. Ries hired another writer to complete Oddo's manuscript, and then published the finished product. The book that Ries eventually published contained substantial quantities of Oddo's manuscript but also contained material added by the new writer.

I. Infringement

Three copyrighted works are at issue in this case. The first, actually a set of copyrighted works, consists of the magazine articles that Oddo reworked into the manuscript that he delivered to Ries. The second work is Oddo's manuscript, and the third is the book that Ries published. We will refer to these works as the articles, the manuscript, and the book. The district court did not specify which copyright Ries had infringed; it simply held "[t]hat the copyright of Plaintiff Oddo was infringed by Defendant Ries when he caused the Guide [i.e., the Book] to be published ...."

A. Book and Manuscript

The district court erred if it meant that Ries infringed the copyright in the manuscript or the book. The district court concluded that the Oddo/Ries partnership owns the copyrights in the book and the manuscript. As a partner, Ries is a co-owner of the partnership's assets, including the copyrights. Cal.Corp.Code Sec. 15025(1) (Deering 1979). A co-owner of a copyright cannot be liable to another co-

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owner for infringement of the copyright. Richmond v. Weiner, 353 F.2d 41, 46 (9th Cir.1965); Picture Music Inc. v. Bourne, Inc., 314 F.Supp. 640, 646 (S.D.N.Y.1970), aff'd 457 F.2d 1213 (2d Cir.), cert. denied 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). Rather, each co-owner has an independent right to use or license the use of the copyright. E.g., Meredith v. Smith, 145 F.2d 620, 621 (9th Cir.1944); Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 268 (2d Cir.1944); Piantadosi v. Loew's, Inc., 137 F.2d 534, 537 (9th Cir.1943); see generally Comment, Problems in Co-ownership of Copyrights, 8 UCLA L.Rev. 1035, 1039-47 (1961)...

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