Alvarez Guedes v. Marcano Martinez
| Decision Date | 12 February 2001 |
| Docket Number | No. CIV. 00-1160(JP).,CIV. 00-1160(JP). |
| Citation | 131 F.Supp.2d 272 |
| Parties | Guillermo ALVAREZ GUEDES, et al., Plaintiffs v. Hector Luis MARCANO MARTINEZ, et al., Defendants |
| Court | U.S. District Court — District of Puerto Rico |
Jorge A. Pierluisi, Jr., Pierluisi Law Offices, PSC, Hato Rey, PR, Santiago Cordero-Osorio, Cordero Law Offices, PSC, San Juan, PR, for Plaintiff.
José A. Pagán Nieves, San Juan, PR, Darío Rivera Carrasquillo, San Juan, PR, Pinto, Lugo & Rivera, Roberto Sueiro Del Valle, San Juan, PR, for Defendant.
The Court has before it Co-defendants Bestov Broadcasting, Inc. ("Bestov") and American International Insurance Company of Puerto Rico's ("AIICO") Motion for Summary Judgment (docket No. 72), joined by Co-defendants Héctor Luis Marcano Martínez, MTVE Inc., Marcano Teleproducciones, Inc., and Entertainment Plus, Inc. (docket No. 88); Plaintiffs Guillermo Alvarez Guedes and G.A.G. Enterprises, Inc.'s Opposition thereto (docket No. 75); Plaintiffs' Motion for Summary Judgment (docket No. 73); and Bestov and AIICO's Opposition thereto (docket No. 79).
Plaintiffs filed their original Complaint on February 4, 2000, alleging copyright infringement under the Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 — 1101; unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and under Puerto Rico law, P.R. Laws Ann. tit. 10, § 259(a); for unjust enrichment; and for violations of Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. The Complaint alleges that Defendants unlawfully broadcast the copyrighted recordings of Cuban comedian Guillermo Alvarez Guedes ("Alvarez Guedes") during the morning radio show "Hoy por hoy" hosted by Co-defendant Héctor Luis Marcano Martínez ("Marcano") and transmitted on W.I.A.C. 102.5 F.M., "Sistema 102," and that such broadcast constituted a violation of Plaintiffs' right of distribution under the copyright laws. Upon filing the initial Complaint, Plaintiffs also sought, and this Court granted, an ex parte Temporary Restraining Order restraining Defendants (1) from copying, reproducing, or using Alvarez Guedes' copyrighted works, including any of his works set forth in the Complaint; (2) from assisting, aiding, or abetting any other person or entity in the copying, reproduction, or use of any of Plaintiffs's copyrighted works; and (3) from secreting, altering, modifying, removing, or destroying all masters and/or tapes of the "Hoy por hoy" morning radio program since its inceptions on W.I.A.C. 102.5 F.M. At a hearing held on February 17, 2000, the parties agreed to the entry of a permanent injunction to that effect. On June 26, 2000, Plaintiffs amended the Complaint to add as Co-defendants Entertainment Plus and AIICO.
Defendants move the Court for the entry of summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, asserting that Plaintiffs' copyright infringement claim is subject to dismissal because the mere transmission of a sound recording to the public on the airwaves does not constitute copyright infringement; that Plaintiffs' Lanham Act cause of action should be dismissed because the pleadings fail to state a claim for unfair competition; and that Plaintiffs' claims under Puerto Rico law are preempted by the Copyright Act. Plaintiffs also move for summary judgment, alleging that it is undisputed that Defendants infringed Plaintiffs' copyright by broadcasting their copyrighted materials, that Defendants unfairly competed with Plaintiffs in violation of the Lanham Act, and that Defendants have been unjustly enriched by their actions.
1. Co-defendant Héctor Luis Marcano Martínez ("Marcano") is a radio and television personality who produces the live morning radio show, "Hoy por hoy."
2. Co-defendant MTVE, Inc. is a corporation duly organized and existing pursuant to the laws of Puerto Rico.
3. Co-defendant Bestov Broadcasting, Inc. ("Bestov") is a corporation duly organized under the laws of Puerto Rico, and the owner of W.I.A.C. 102.5 F.M., "Sistema 102."
4. Co-defendant Entertainment Plus, Inc. is a corporation duly organized under the laws of Puerto Rico and the producer of the "Hoy por hoy" radio show.
5. The "Hoy por hoy" radio show is broadcast from Monday through Friday from 6:00 a.m. to 10:00 a.m. on the radio station "Sistema 102," 102.5 F.M.
6. "Hoy por hoy" is broadcast from Radio W.I.A.C.'s facilities.
7. Since 1973, Plaintiff Guillermo Alvarez Guedes ("Alvarez Guedes") has recorded twenty-nine volumes of stories and jokes.
8. Since 1997, Alvarez Guedes has registered the copyrights for each of the twenty-nine volumes of recordings, as evidenced by the following certificates of copyright registration issued by the Register of Copyrights: TX-4-730-145; TX 4-730-141; TX-4-730-140; TX-4-730-136; TX-4-730-135; TX-4-730-134; TX-4-730-142; TX-4-730-133; TX-4-730-137; TX-4-730-138; TX-4-702-729; TX-4-730-124; TX-4-730-125; TX-4-730-126; TX-4-730-139;
TX-4-730-150; TX-4-730-151; TX-4-730-131; TX-4-730-143; TX-4-730-149; TX-4-730-130; TX-4-730-147; TX-4-730-123; TX-4-730-148; TX-4-730-129; TX-4-730-132; TX-4-730-144; TX-4-730-122; TX-4-958-016.
9. The copyright certificates enumerated in paragraph 8 herein were issued to Guillermo Alvarez Guedes. No copyright certificates were issued to G.A.G. Enterprises.
10. Some of the jokes and stories recited by Alvarez Guedes in his twenty-nine volumes of audio recordings are of his own creation; others are jokes and stories he has heard and adapted for his performances.
11. Alvarez Guedes does not hold copyright certificates for each joke or story contained in the twenty-nine audio recordings.
12. Alvarez Guedes does not possess a trademark for his voice or personae.
13. Marcano has recognized Alvarez Guedes the best or one of the best humorists in the Hispanic world.
14. The idea to use the jokes and/or stories of Alvarez Guedes in the "Hoy por hoy" radio show originated with Marcano. Marcano used Alvarez Guedes' work as an "attention getter" for the program.
15. Marcano discarded the idea of incorporating in the "Hoy por hoy" program a recording of the jokes of another Cuban humorist, Bobby Leonard, because he believed that Alvarez Guedes had greater name recognition.
16. Co-defendant Marcano played the copyrighted jokes and stories of Alvarez Guedes during every "Hoy por hoy" radio program from November 1, 1999 to February 8, 2000.
17. Marcano played the jokes and stories of Alvarez Guedes directly from the compact discs of these recordings.
18. There was no alteration and/or modification of Alvarez Guedes' recorded jokes and stories when the same were transmitted during the "Hoy por hoy" radio program.
19. Marcom Group, which produces the "Hoy por hoy" show, tapes only the "Huicho and Toño" and the "Charlie Too Much" segments of the show, because they are repeated at 9:00 a.m. These taped segments are retained for approximately eighteen (18) hours.
20. Bestov and Marcano have a contractual relationship, whereby Bestov pays Marcano for producing the "Hoy por hoy" radio show. Bestov pays for the advertising during the show.
21. "Hoy por hoy" is the only radio show that Marcano produces for Bestov.
22. Bestov owns three blanket licenses — BMI, SCSAC, and ASCAP — which permit it to play and transmit on its radio station compact discs containing music.
23. Alvarez Guedes' works were broadcast on the "Hoy por hoy" radio program without Plaintiffs' consent and without the issuance of a license directly by Plaintiffs.
Rule 56(c) of the Federal Rules of Civil Procedure provides for the entry of summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Lipsett v. University of Puerto Rico, 864 F.2d 881, 894 (1st Cir.1988). The function of summary judgment is "to pierce the boilerplate of the pleadings and examine the parties' proof to determine whether a trial is actually necessary." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997) (citing Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). It allows courts and litigants to avoid going to trial in cases where the plaintiff cannot prevail, thus conserving the parties' time and money and saving scarce judicial resources. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).
To defeat a motion for summary judgment, "the nonmoving party must demonstrate the existence of a trial-worthy issue as to some material fact." Cortés Irizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir.1997); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993). A fact is material if, based on the substantive law at issue, it might affect the outcome of the case. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir.1989). A material issue is trial-worthy if there is sufficient evidence to permit a reasonable trier of fact to resolve the issue in the non-moving party's favor. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989). The non-movant may not rest upon mere allegations or denials of the pleadings. See Fed. R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) () It is with this standard in mind that the Court proceeds to assess the motion before it.
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