Joe Hand Promotions, Inc. v. Alburl
| Decision Date | 20 February 2020 |
| Docket Number | Case No.: 5:18-cv-1935-LCB |
| Parties | JOE HAND PROMOTIONS, INC. Plaintiff, v. SCOTT ALBURL, et al., Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
The Plaintiff, Joe Hand Promotions, Inc. ("JHP"), asserts one count of satellite and cable piracy, and one count of copyright infringement against the Defendants, Scott Alburl, Angie Alburl n/k/a Angie Barraza, and Sidelines33, LLC, d/b/a Sidelines Pub & Grub1 ("Sidelines"). Alburl and Barraza are sued in their individual capacities as well as in their capacities as "officers, directors, shareholder, members and/or principals of Sidelines33, LLC." The Clerk entered default as to Scott Alburl and Sidelines on March 19, 2019, when they failed to respond to the complaint. (Docs. 15 and 16). The case is now before the Court on the Plaintiff's motion for summary judgment as to Angie Barraza. In its motion, JHP states that it "now solely moves for summary judgment and an award of damages under the Copyright Act." (Doc. 23, p. 1).
Jurisdiction is proper in this Court as this action arises under federal law. See, 28 U.S.C. §§ 1331 and 1338(a). Venue is proper in this District pursuant to 28 U.S.C. 1391(a) and (b), because a substantial part of the events giving rise to this action occurred in the District. Additionally, all of the Defendants are alleged to reside in this District.
JHP asserts that it is a corporation that "specializes in distributing and licensing premier sporting events to commercial/non-commercial establishments including bars, restaurants, clubhouses, shops, and similar locations." (Doc. 1, p. 2). According to JHP, it was granted the exclusive right by the copyright holder to commercially distribute the presentation of the Floyd Mayweather, Jr. vs. Conor McGregor boxing match ("the Program"), including all undercard bouts and commentary on August 26, 2017.
JHP alleges that the Defendants exhibited the Program at their establishment, Sidelines Pub & Grub, without paying the proper licensing fee. According to JHP, the Defendants circumvented the licensing requirement and "unlawfully obtained the Program through an unauthorized cable signal, satellite signal, and/or internet stream." (Doc. 1, p. 3). JHP alleged that the Program would have been legally available to the Defendants had they paid the proper licensing fee. JHP contends that the Defendants advertised the Program on Sidelines's official Facebook pageand intentionally pirated the Program for the purpose of attracting paying customers. In its count for copyright infringement, JHP seeks statutory damages, attorney's fees, costs, and interest pursuant to 17 U.S.C. § 505.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.
The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson"). All reasonable doubts about the facts and alljustifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249, 106 S.Ct. 2505.
When faced with a "properly supported motion for summary judgment, [the non-moving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). "[A] party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [her] pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248, 106 S.Ct. 2505 (citations omitted).
Summary judgment is mandated "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., 477 U.S. at 322, 106 S.Ct. 2548. "Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative." Sawyer v. Sw.Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "Essentially, the inquiry is 'whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'" Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505); see also LaRoche v. Denny's, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) ().
In her response to JHP's motion for summary judgment, Barraza does not dispute that the Program was broadcast at Sidelines. See (Doc. 33, p. 2). However, Barraza denies that she assisted in any way with the unlawful interception of the Program, and maintains that she knew nothing about the alleged infringement including whether a licensing fee was paid to JHP. Barraza also concedes that she owns ten percent of Sidelines33, LLC, that she was a principal of the company, and that she served as a manager of the establishment on the date the Program wasexhibited. (Doc. 33, p. 2-3). Alburl and Barraza were married at the time the Program was broadcast but have since divorced.
"'To make out a prima facie case of copyright infringement, a plaintiff must show that (1) it owns a valid copyright in the [work] and (2) defendants copied protected elements from the [work].'" Saregama India, Ltd. V. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011), quoting Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int'l, 533 F.3d 1287, 1300 (11th Cir. 2008). JHP alleged in its complaint that it had the sole exclusive right to license the Program and that Sidelines33, LLC, broadcast the program without paying the required licensing fee.
Barraza does not dispute that the copyright for the Program was assigned to JHP nor does she dispute that the Program was broadcast at Sidelines Pub & Grub. See (Doc. 33, p. 2). However, in her affidavit that she attached to her response, she stated that she was unaware that Alburl failed to obtain proper licensing for the Program and that she was not involved with intercepting or receiving the transmission. (Doc. 33-1, p. 4). Nevertheless, JHP attached documents to its motion for summary judgment showing that it contracted with the owners of the copyright to the Program for the exclusive commercial rights to distribute the Program under the copyright laws of the United States. (Docs. 23-3, 23-2, and 23-4). Further, JHP asserted that Sidelines did not pay a licensing fee.
JHP also attached the affidavit of Douglas E. Sharp, a private investigator who stated that, on the night of the event, he went to Sidelines Pub & Grub and witnessed the Program being displayed on 19 television screens to approximately 145 patrons. (Doc. 23-6). Sharp took photographs of the television screens showing the Program and attached those to his affidavit. Thus, JHP has presented evidence that it owned the rights to license the Program under the relevant copyright laws and that those rights were infringed when the Program was unlawfully broadcast at Sidelines.
Further, JHP's evidence demonstrates that the conduct in question was "willful" under the Copyright Act. The Eleventh Circuit "has stated that willfulness under the Copyright Act 'means that the defendant "knows his actions constitute an infringement; the actions need not have been malicious."'" Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 1271 (11th Cir. 2015), quoting Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 851 (11th Cir.1990), quoting in turn Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir.1988)). JHP attached to its motion screenshots of a Facebook page the was apparently maintained by Sidelines. (Doc. 23-8). The pages contain the following statement: Id. Underneath that language is the address of the establishment and its hours of operation.
Sharp's affidavit also includes a photograph showing the copyright warning...
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