Freeplay Music, LLC v. Dave Arbogast Buick-GMC, Inc.
| Decision Date | 24 September 2019 |
| Docket Number | Case No. 3:17-cv-42 |
| Parties | FREEPLAY MUSIC, LLC, Plaintiff, v. DAVE ARBOGAST BUICK-GMC, INC., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff Freeplay Music, LLC ("FPM") filed suit against Dave Arbogast Buick-GMC, Inc. ("Arbogast") alleging 279 instances of copyright infringement under 17 U.S.C. § 501. This matter is currently before the Court on Defendant's Motion for Summary Judgment or for Referral of Issues to Register of Copyrights, Doc. #52, and on Plaintiff's Motion for Summary Judgment on Liability for Copyright Infringement, Doc. #53.
As part of its advertising strategy, Dave Arbogast Buick-GMC, Inc. ("Arbogast") promotes the sale of its automobiles via YouTube videos. According to General Manager, Blake Arbogast, early in 2013, he instructed his interns to search the Internet for sources of free music that could be used in those videos. The interns found the website freeplaymusic.com, which is owned and operated by Plaintiff Freeplay Music, LLC. Doc. #52-1, PageID##894-95. An Arbogast employee, David Novotny, who was responsible for developing the advertisements, accessed the website and downloaded music to a folder by right-clicking his selections. He does not recall seeing anything about restrictions for business use, or the need for a license. Novotny first uploaded the music to his videos in early 2014. Doc. #52-2, PageID##909-10.
In July of 2014, Darrin Michael, Arbogast's e-commerce Director, told Blake Arbogast that some of the videos had been "flagged for copyright [infringement] because of the music." Michael began removing the infringing audio from the inventory videos. By July 11, 2014, Blake Arbogast believed that all of the allegedly infringing music had been removed from the YouTube videos. Doc. #52-1, PageID##895, 898. He was incorrect in this assessment.
On October 21, 2014, Arbogast received an email message from TuneSat, LLC, a company acting on behalf of Freeplay Music, LLC. The message stated that it had identified FPM's copyrighted music being used in Arbogast's YouTube videos. TuneSat demanded that Arbogast cease and desist all unauthorized use ofFPM's copyrighted music and provide a list of all suspected unauthorized uses. TuneSat indicated that, absent proof of a valid license, it would be forced to treat the matter as a copyright infringement. It indicated, however, that it would be open to structuring a settlement agreement to cover all of the unauthorized uses. Doc. #52-1, PageID#901.
Jordan Davis of TuneSat spoke to Arbogast's Darrin Michael on October 29, 2014. In a follow-up email, Davis attached screenshots of FPM's home page as it appeared in 2012. Doc. #52-1, PageID#904. The home page included the following statement: "To learn how you can use Freeplay music click on Terms of Use, Licensing, Rate Card." Doc. #52-2, PageID#912. It appears that Michael agreed that Arbogast had probably never purchased a license for the music; he was, however, going to confirm that. Davis attached a list of the alleged infringements and offered to settle the matter for $750,000. Doc. #52-1, PageID#904. Arbogast refused.
On February 9, 2017, FPM filed suit against Arbogast, alleging 279 instances of copyright infringement, involving 23 of FPM's copyrighted sound recordings and compositions. Doc. #1. In a Motion for Judgment on the Pleadings, Doc. #17, Arbogast challenged FPM's ownership of the copyrights at issue. The parties conducted limited discovery on this issue. On June 1, 2018, the Court overruled Arbogast's motion as moot and stayed the case pending mediation. Doc. #50. All attempts at mediation have failed.
The parties have now filed cross-motions for summary judgment. FPM seeks summary judgment on the issue of Arbogast's liability for copyright infringement. Doc. #53. Arbogast also seeks summary judgment on all claims. In the alternative, Arbogast asks the Court to refer the case to the Register of Copyrights for a determination of whether inaccurate information included on the copyright registrations, if known, would have caused the Register to refuse the registrations. Doc. #52.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).
Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial. Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Once the burden of production has so shifted, the party opposingsummary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings and present some type of evidentiary material in support of its position." Celotex, 477 U.S. at 324. The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff. Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Id. at 255. If the parties present conflicting evidence, a court may not decide which evidence to believe. Credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure Civil 3d § 2726 (1998). Ultimately the Court must decide "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Snap-On Bus. Sols. Inc. v. O'Neil & Assocs. Inc., 708 F. Supp. 2d 669, 676 (N.D. Ohio 2010).
In determining whether a genuine dispute of material fact exists, a court need only consider the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). "A district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). If it so chooses, however, the court may also consider other materials in the record. Fed. R. Civ. P. 56(c)(3).
The standard of review for cross-motions of summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991). Id. (citations omitted).
In order to succeed on its claim of copyright infringement, FPM must prove that: (A) it is the owner of the copyrights at issue; and (B) Arbogast copied, recorded, adapted, or published the copyrighted works without authorization to doso. Hi-Tech Video Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995).
Both the Plaintiff and Defendant filed motions for summary judgment on the issue of copyright ownership. FPM maintains that there is no issue of material fact on the element of copyright ownership. FPM produced certifications of registration for all 23 musical works involved in this action.1 Arbogast, however, argues it is entitled to summary judgment because FPM cannot establish copyright ownership for all of the copyright registrations. As an alternative to summary judgment, Arbogast requests that the case be referred to the Copyright Office for determination of validity for the registration certifications FPM produced.
A copyright registration is a prerequisite to filing a civil action for copyright infringement. 17 U.S.C. § 411(a). "A certificate of copyright registration constitutes 'prima facie evidence of the validity of the copyright and of the facts stated in the certificate.'" Jedson Eng'g, Inc. v. Spirit Constr. Servs., Inc., 720 F. Supp. 2d 904, 913 (S.D. Ohio 2010) (quoting 17 U.S.C. § 410(c)). The presumption of validity may be rebutted, but the party challenging the...
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