Fleischer Studios Inc. v. A. v. E.L.A. Inc.
| Decision Date | 16 December 2008 |
| Docket Number | Case No. 2:06–cv–06229–FMC–MANx. |
| Citation | 772 F.Supp.2d 1135 |
| Parties | FLEISCHER STUDIOS, INC., Plaintiff,v.A.V.E.L.A., INC.; Artnostalgia.Com, Inc.; X One X Movie Archive, Inc.; Beverly Hills Teddy Bear Co.; Leo Valencia, Defendants. |
| Court | U.S. District Court — Central District of California |
OPINION TEXT STARTS HERE
Borchien Lai, Mark Steven Lee, Manatt Phelps and Phillips, Los Angeles, CA, for Plaintiff.Douglas D. Winter, The Ball Law Firm LLP, James E. Doroshow, Fox Rothschild LLP, Los Angeles, CA, Anthony M. Keats, Keats McFarland & Wilson LLP, Beverly Hills, CA, for Defendants.
The matter is before the Court on Plaintiff's Motion for Summary Judgment and a Permanent Injunction (docket no. 48) and Defendant's Motion for Summary Judgment (docket no. 53), both of which were filed on March 19,2008. The Court has read and considered the moving, opposing, and reply documents submitted in connection with these motions. The Court heard arguments of counsel on Monday, August 25, 2008; thereafter, the matter was taken under submission. For the reasons and in the manner set forth below Plaintiff's Motion is DENIED and Defendants' Motion is GRANTED in connection with Plaintiff's copyright infringement claim (Claim 1); the Court RESERVES RULING on and ORDERS supplemental briefing regarding Plaintiff's trademark and unfair competition claims.
Rather than draw the Court's attention to the pertinent portions of the Handman Declaration, Defendants have tasked the Court with poring over and ruling on boilerplate objections to statements in virtually every paragraph of the declaration of Stanley Handman (“Handman Declaration”) and portions of the declaration of Mark Fleischer (“Fleischer Declaration”) submitted in support of Plaintiff's Motion. The Court declines to rule on these matters in toto and, instead, briefly addresses the relevant objections throughout this Order to the extent the Court relies on a challenged statement rather than the piece of evidence referenced as an exhibit in support of the statement. However, the Court notes as an initial matter that statements in neither the Handman Declaration nor the Fleischer Declaration are dispositive here; the Court does not rely on any improper legal conclusions or otherwise inadmissible statements made by Handman or Fleischer in rendering this decision. Additionally, Defendants' various objections to statements in the declaration are overruled to the extent that statements by Mr. Handman and Mr. Fleischer represent permissible lay opinion testimony or are based on personal knowledge, e.g., from Mr. Handman's service as general counsel “for Max Fleischer and the company he formed, Fleischer Studios, Inc.” “for the past fifty years.” Handman Decl. ¶ 2.
Pursuant to Federal Rule of Evidence 201, the Court grants Defendants' Request for Judicial Notice of the “Certificate of Status of Domestic Corporation” issued by the California Secretary of State. The Court also takes judicial notice of the fact that Plaintiff, Fleischer Studios, Inc., became incorporated under the laws of the State of California on June 10, 1992. The Court grants Defendants' Request for Judicial Notice of published decisions in three prior cases involving the Fleischer family and/or businesses for the limited purpose of establishing the fact of that prior litigation, the actions taken by the courts hearing those cases, and the undisputed facts memorialized in those public records. Fed.R.Evid. 201(b)(2); see also Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001) .
This action arises out of a dispute over the ownership of intellectual property rights in Betty Boop, a cartoon character that has appeared in cartoon films and other media since the early 1930s. Betty Boop cartoons appeared on television beginning in the 1950s; she also appeared in motion pictures, television specials, television advertisements, and an extensive range of licensed merchandise. The now well-known Betty Boop character was created for Fleischer Studios, Inc., a New York corporation, in the early 1930s. Betty Boop, not a party to this action, is a small, shapely, and distinctly feminine figure with short, curly black hair, large eyes, and pouting lips on a disproportionately large head.1
Plaintiff concedes that it does not own the copyrights in any of the original cartoon films in which Betty Boop appeared; however, Plaintiff claims: (a) equitable and legal ownership (as the “legal and/or beneficial owner”) of the copyright in the character, and (b) federally registered and common law trademarks in the name and image of Betty Boop. With this litigation, Plaintiff asserts the following claims against Defendants A.V.E.L.A. Inc. (“AVELA”), Art–Nostalgia.Com., Inc. (“Art Nostalgia”), X one X Movie Archive, Inc. (“X one X”), and Leo Valencia (“Valencia”), the President, CEO, sole officer, sole shareholder, and sole employee of the defendant corporations: (1) federal copyright infringement, (2) federal trademark infringement, (3) federal false designation of origin, (4) state law trademark infringement and unfair competition, and (5) state law deceptive trade practices. These claims are based on Defendants' involvement in the creation and sale of allegedly unauthorized Betty Boop merchandise, which includes or incorporates restored “vintage” movie posters depicting Betty Boop. Defendants maintain that the original posters are in the public domain and, thus, Defendants' use of the restored poster artwork constitutes neither copyright nor trademark infringement.
The Court summarizes here the uncontroverted facts relevant to its analysis.
It is undisputed that the original Fleischer Studios, a New York corporation, was incorporated in 1929. The original Fleischer Studios, Inc. (“FSI NY1”) was formed by Max Fleischer and others.2 In or about 1938, a new Fleischer Studios, Inc., was formed by Max Fleischer and his brother, David “Dave” Fleischer, and was incorporated in Florida (“FSI FL”). In 1928, all the assets of FSI NY1 were distributed to FSI FL. On May 24, 1941, Paramount Pictures, Inc. (“Paramount”) purchased all of the assets of the original FSI.3 FSI FL was dissolved in 1946. Fleischer v. W.P.I.X. Inc., 30 Misc.2d 17, 20, 213 N.Y.S.2d 632, 636 (N.Y.Sup.1961) (). Thus, the original FSI or “Flesicher Studios” ceased to exist by 1946.
More than 25 years later, at some point prior to Max Fleischer's death in September 1972, Max Fleischer and his heirs formed a new Fleischer Studios, Inc. as a New York corporation (“FSI NY2”).4 The Plaintiff in this action, Fleischer Studios, Inc., is a California corporation (“Plaintiff” or “FSI CA”) that was incorporated in 1992, at which point FSI NY2 was “merged into” Plaintiff. Handman Decl. in Support of Pl's Reply (“Handman Reply Decl.”) ¶ 4, Ex. 46.
A recognizable version of Betty Boop appeared in more than 30 works, including cartoon films and booklets, for which copyright registrations were filed in the years 1930 to 1932. Those include the following works, registered as follows and referenced in Plaintiff's Complaint:
+---------------------------------------------------------------------------+
¦Title (type of work) ¦Registrant ¦Date of Registration ¦
+--------------------------------------+-------------+----------------------¦
¦ ¦ ¦ ¦
+--------------------------------------+-------------+----------------------¦
¦Dizzy Dishes (film) ¦Paramount ¦August 9, 1930 ¦
+--------------------------------------+-------------+----------------------¦
¦Silly Scandals (film) ¦Paramount ¦May 23, 1931 ¦
+--------------------------------------+-------------+----------------------¦
¦Betty, Cartoon Character (booklet) ¦Original FSI ¦July 1, 1931 ¦
+--------------------------------------+-------------+----------------------¦
¦Minding the Baby (film) ¦Paramount ¦September 26, 1931 ¦
+--------------------------------------+-------------+----------------------¦
¦Betty Boop for President (film) ¦Paramount ¦November 2, 1932 ¦
+--------------------------------------+-------------+----------------------¦
¦Betty Boop and Her Gang (booklet) ¦Original FSI ¦December 19, 1932 ¦
+---------------------------------------------------------------------------+
All the Betty Boop cartoon films, including the four listed above, were produced by the original FSI and financed by Paramount. The parties do not dispute that Paramount is designated as the “author of the motion picture” on the copyright registration certificates for each of the cartoons before the Court in this action. The copyright Registration certificates for the two Betty Boop booklets listed above reflect that FSI is the registrant; no author is identified on the certificates.
With the May 24, 1941 agreement between the original FSI and Paramount, the original FSI assigned to Paramount all of its assets, including all the rights in all cartoon films and all of the characters contained therein. Pl's Ex. 4; Defs' Ex. F. The 1941 Cartoon Film Agreement provides in relevant part: 5
The Producer [original FSI] shall and does hereby transfer, sell,...
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