Brewer-Giorgio v. Producers Video Inc., BREWER-GIORGI

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBARKETT
Citation216 F.3d 1281
Parties(11th Cir. 2000) Gailrctic Corporation, a Georgia Corporation, Plaintiffs-Appellants, v. PRODUCERS VIDEO, INC., Syd Vinnedge, et al., Defendants-Appellees.
Docket NumberNo. 99-13515,A,BREWER-GIORGI
Decision Date03 July 2000

Page 1281

216 F.3d 1281 (11th Cir. 2000)
Gail BREWER-GIORGIO, Arctic Corporation, a Georgia Corporation, Plaintiffs-Appellants,
v.
PRODUCERS VIDEO, INC., Syd Vinnedge, et al., Defendants-Appellees.
No. 99-13515.
United States Court of Appeals,
Eleventh Circuit.
July 3, 2000.

Page 1282

Appeal from the United States District Court for the Northern District of Georgia.

(No. 95-00147-CV-JOF-1), J. Owen Forrester, Judge.

Before BIRCH, BARKETT and ALARCON*, Circuit Judges.

BARKETT, Circuit Judge:

Gail Brewer-Giorgio and Arctic Corporation appeal the district court's denial of their motion, filed pursuant to Federal Rule of Civil Procedure 15, to amend their complaint. We affirm.

Gail Brewer-Giorgio alleges that she is the nation's foremost expert on the theory that Elvis Presley is still alive. In 1988, she published her first book titled The Most Incredible Elvis Presley Story Ever Told, which was later renamed Is Elvis Alive? She published the sequel in 1990, which was titled The Elvis Files. Both books were copyrighted and the copyrights were assigned to Arctic Corporation ("Arctic"), Brewer-Giorgio's privately-held corporation. In 1991, Brewer-Giorgio filed a copyright application for an unpublished third book about Elvis, titled Operation Fountain Pen.

On March 19, 1990, Arctic contracted with Producer's Video, Inc. ("PVI") to produce a home video based on The Elvis Files, which was successfully completed. Thereafter, in November 1990, Arctic entered into a second agreement with PVI in which Arctic granted to PVI the "sole, exclusive and perpetual right" to use "any information in Arctic's or Brewer-Giorgio's possession" relating to Elvis in order to produce a television special "dealing with Elvis from his death to the present time, and the exploitation and publication" of the special. The agreement further provided that PVI could "produce any additional production relating to the same subject matter" only after reaching a further agreement with Arctic.

In 1991, PVI produced and broadcast nationwide a television special titled "The Elvis Files." The program was broadcast in the Atlanta, Georgia area by WGNX, Inc. Brewer-Giorgio wrote the script for the special and appeared on the show as a live guest, in a taped interview, and in a dramatized "re-enactment" of a telephone

Page 1283

call she allegedly received from Elvis after his death. All of Brewer-Giorgio's rights in the script and her appearances on the program had been transferred to PVI as part of the second agreement. Because "The Elvis Files" was extremely successful, PVI, in conjunction with All American Television, Inc. ("All American"), decided to produce a sequel titled "The Elvis Conspiracy" ("the sequel"). They approached Brewer-Giorgio, who spent the months preceding the broadcast assisting in developing the sequel's script.

Before the sequel was broadcast, a dispute arose over payments due to Brewer- Giorgio and Arctic from the first television special, "The Elvis Files." Because the parties were unable to settle their dispute, Brewer-Giorgio refused to sign the proffered written agreement regarding her participation in the sequel and informed PVI and All American that she would not authorize the broadcast of it. Notwithstanding Brewer-Giorgio's warnings, PVI and All American broadcast the show nationally on January 22, 1992. WGNX again aired the show in the Atlanta area. During the show, Brewer-Giorgio's name was mentioned and a portion of the dramatic re-enactment of the phone call from Elvis was replayed from the first show. At the conclusion of the show, host Bill Bixby stated that he believed that Elvis had died on August 16, 1977.

On January 20, 1995, two days before the three-year statute of limitations on copyright infringements had run on the sequel broadcast, Brewer-Giorgio and Arctic filed this suit for copyright infringement and various state law torts, claiming that she was injured by the broadcast of the sequel because it suggested that she had approved the content of the show, part of which denied the "plausibility" of her theory that Elvis is alive. Brewer-Giorgio named a number of defendants, many of whom dropped out of the suit over the course of the proceedings. Four defendants remain: All American, WGNX, Micki Guzman,1 and Syd Vinnedge.2 The original complaint included twelve counts, half of which were dismissed by consent of the parties and the district court. The remaining counts allege 1) United States copyright infringement, 2) foreign copyright infringement, 3) invasion of privacy, 4) misappropriation of right of publicity, 5) constructive trust, and 6) fraudulent conveyance.

The individual defendants, Micki Guzman and Syd Vinnedge, filed motions to dismiss for lack of personal jurisdiction, which were denied on March 28, 1996. The court's scheduling order as to All American and WGNX, which answered the complaint, was filed on March 10, 1995, and stated that the time for filing amendments to the complaint would expire on June 9, 1995. Discovery ended on November 15, 1995. On December 15, 1995, All American, WGNX, Guzman, and Vinnedge moved for summary judgment. On February 6, 1996, Brewer-Giorgio filed a motion to amend the complaint in order to include additional allegations of copyright infringement. While the original complaint had alleged that the broadcast of the second Elvis special infringed the copyrights in her books, Brewer-Giorgio sought through amendment to add allegations that the broadcast had also infringed copyrights in a draft script that she had been working on and in the final script of the show.

Brewer-Giorgio asserted that she was entitled as a matter of right to amend under Federal Rule of Civil Procedure 15(a) as to the individual defendants, Guzman and Vinnedge, who had not yet filed an answer to the complaint and sought leave of the court to likewise amend as to All American and WGNX. Although the district court agreed that she had a right to amend as to Guzman and Vinnedge under Rule 15(a), the court refused to

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allow the amendment...

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58 practice notes
  • In re Literary Works in Electronic Databases, Docket No. 05-5943-cv(L).
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 2007
    ...prerequisite to the right of the holder to enforce the copyright in federal court"); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir.2000) ("It is well settled in this Court that the registration requirement is a jurisdictional prerequisite to an infringement suit." (......
  • Reed Elsevier, Inc. v. Muchnick, No. 08–103.
    • United States
    • United States Supreme Court
    • March 2, 2010
    ...Hill Publications, Inc. v. ABC Communications, Inc., 264 F.3d 622, 630, and n. 1 (C.A.6 2001); Brewer–Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (C.A.11 2000); Data Gen. Corp. v. Grumman Systems Support Corp., 36 F.3d 1147, 1163 (C.A.1 1994).3 We appointed Deborah Jones Merritt t......
  • Thornton v. J Jargon Co., No. 8:06-cv-1640-T-27TGW.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 8, 2008
    ...in the exercise of reasonable diligence, should have known about an infringement."); see also Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir.2000) (noting that "The broadcast of the offending Elvis special aired on January 22, 1992. Thus, the three-year copyright sta......
  • Florida Evergreen Fol. v. E.I. Dupont De Nemours, No. 98-2242-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 26, 2004
    ...the movant had not explained its failure to include the amended claim in its original filing); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.2000) (affirming denial of motion for leave to amend filed over a year after commencement of action when movant "failed to de......
  • Request a trial to view additional results
58 cases
  • In re Literary Works in Electronic Databases, Docket No. 05-5943-cv(L).
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 2007
    ...prerequisite to the right of the holder to enforce the copyright in federal court"); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir.2000) ("It is well settled in this Court that the registration requirement is a jurisdictional prerequisite to an infringement suit." (......
  • Reed Elsevier, Inc. v. Muchnick, No. 08–103.
    • United States
    • United States Supreme Court
    • March 2, 2010
    ...Hill Publications, Inc. v. ABC Communications, Inc., 264 F.3d 622, 630, and n. 1 (C.A.6 2001); Brewer–Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (C.A.11 2000); Data Gen. Corp. v. Grumman Systems Support Corp., 36 F.3d 1147, 1163 (C.A.1 1994).3 We appointed Deborah Jones Merritt t......
  • Thornton v. J Jargon Co., No. 8:06-cv-1640-T-27TGW.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 8, 2008
    ...in the exercise of reasonable diligence, should have known about an infringement."); see also Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir.2000) (noting that "The broadcast of the offending Elvis special aired on January 22, 1992. Thus, the three-year copyright sta......
  • Florida Evergreen Fol. v. E.I. Dupont De Nemours, No. 98-2242-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 26, 2004
    ...the movant had not explained its failure to include the amended claim in its original filing); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.2000) (affirming denial of motion for leave to amend filed over a year after commencement of action when movant "failed to de......
  • Request a trial to view additional results

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