Latin Am. Music Co. v. Media Power Grp., Inc.

• Decision Date: 15 January 2013
• Docket Number: No. 11–2108.,11–2108.
• Citation: 705 F.3d 34
• Parties: LATIN AMERICAN MUSIC CO. INC., et al., Plaintiffs, Appellants, v. MEDIA POWER GROUP, INC., et al., Defendant, Appellees.
• Court: U.S. Court of Appeals — First Circuit

705 F.3d 34

LATIN AMERICAN MUSIC CO. INC., et al., Plaintiffs, Appellants,

v.MEDIA POWER GROUP, INC., et al., Defendant, Appellees.

No. 11–2108.

United States Court of Appeals, First Circuit.

Jan. 15, 2013.

Artemio Rivera Rivera, with whom Anthony L. Bini Del Valle was on brief, for appellants.

Patricia Rivera–MacMurray, with whom Miguel J. Ortega Nuñez and Saldaña, Carvajal & Vélez–Rivé were on brief, for appellees.

Before TORRUELLA, HOWARD and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

Appellants Latin American Music Company (“LAMCO”) and Asociación de Compositores y Editores de Música Latinoamericana (“ACEMLA”) ¹ sued Media Power Group, Inc. (“MPG”) and its president Eduardo Rivero Albino for infringement of copyright with respect to twenty-one songs. The United States District Court for the District of Puerto Rico granted the defendants' motion for summary judgment as to twelve songs. Claims as to the remaining nine songs went to trial, resulting in a jury verdict for the defendants. LAMCO challenges both the summary judgment and the unfavorable jury verdict. Finding no error, we affirm.

I.

MPG owns four radio stations, branded “Radio Isla,” in Puerto Rico and has a number of affiliated stations that rebroadcast its programming. In 2005, LAMCO notified MPG that LAMCO owned copyrights to many songs played on Radio Isla and that MPG was infringing the copyrights by using the songs on-air without a license. After unsuccessful licensing negotiations, LAMCO filed suit against MPG and its president, seeking money damages for violations of the Copyright Act as to twenty-one songs. Segments of the songs were allegedly broadcast during various news and talk-show programs on Radio Isla. LAMCO alleged that the composers or their heirs had assigned copyrights in the songs to LAMCO. MPG did not hold licenses from LAMCO or from the composers.

The parties' cross-motions for summary judgment were referred to a magistrate judge for a report and recommendation. Adopting most of the magistrate judge's findings and recommendations, the district court denied LAMCO's motion and granted the defendants' motion as to twelve songs, concluding that LAMCO: (1) was collaterally estopped from litigating ownership of valid copyrights in four songs; (2) failed to show compliance with the registration requirement of 17 U.S.C. § 411(a) with respect to four other songs; (3) failed to establish an infringing use as to three songs; and (4) lacked ownership in one song. Infringement claims as to the remaining nine songs were tried before a jury. The jury found that LAMCO failed to prove that it owned the songs, resulting in a verdict for the defendants.

II.

LAMCO presents four claims on appeal. First, it challenges the jury verdict on sufficiency-of-the-evidence grounds. Second, it contends that the issue of ownership was submitted to the jury in violation of the law of the case doctrine. Third, it maintains that the district court erred when it ruled that LAMCO was collaterally estopped from litigating its claims as to four songs. Finally, LAMCO challenges the dismissal of its claims relating to four other songs for failure to show compliance with 17 U.S.C. § 411(a). We address the claims in turn.

A. Sufficiency of the Evidence

To establish copyright infringement, the plaintiff must prove two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Provided that a copyright claim is registered with the Copyright Office within five years of first publication of the work, the certificate of registration is prima facie evidence of ownership and the validity of the copyright. 17 U.S.C. § 410(c); Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir.2005). “Upon the plaintiff's production of such a certificate, the burden shifts to the defendant to demonstrate some infirmity in the claimed copyright.” Johnson, 409 F.3d at 17.

The jury determined that LAMCO did not prove that it owned copyrights in any of the nine songs that the defendants allegedly infringed. LAMCO contends that the jury's determination rests on insufficient evidence. Specifically, LAMCO argues that it met its prima facie burden of establishing ownership of valid copyrights in the songs by producing certificates of registration and “chain of title” evidence of ownership, and that the defendants failed to carry their burden of rebutting this prima facie showing. ² This contention need not detain us.

It is beyond peradventure that in order to challenge the sufficiency of the evidence on appeal, a party must first have presented the claim to the district court, either by moving for judgment as a matter of law before the case is submitted to the jury and renewing that motion after the verdict, Fed.R.Civ.P. 50(a), (b), or by moving for a new trial pursuant to Fed.R.Civ.P. 59.

Hammond v. T.J. Litle & Co., Inc., 82 F.3d 1166, 1171 (1st Cir.1996). Because

LAMCO did not advance a sufficiency of the evidence challenge before the district court, it is foreclosed from advancing the challenge on appeal. Unitherm Food Sys., Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 402, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). Indeed, we are “powerless” to entertain such a challenge even to correct plain error. Id. at 405, 126 S.Ct. 980;see Johnson v. Guerrieri Mgmt., Inc., 437 Fed.Appx. 853, 857 (11th Cir.2011); Hertz v. Woodbury Cnty., 566 F.3d 775, 780–81 (8th Cir.2009); Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007). Accordingly, LAMCO's sufficiency of the evidence challenge is procedurally defaulted and we do not address it.

B. Law of the Case

LAMCO next maintains that the district court erred in submitting the ownership question to the jury because the court had already ruled at summary judgment that there was no genuine issue as to LAMCO's ownership of the songs. LAMCO argues that the summary judgment ruling on ownership became the law of the case, precluding the court from presenting the issue to the jury.

Before addressing the challenge, we review the procedural context relevant to the claimed error. In his report and recommendation on the parties' cross-motions for summary judgment, the magistrate judge concluded that there was no genuine dispute as to LAMCO's ownership of valid copyrights in eight of the nine songs subsequently presented to the jury, because the defendants did not controvert LAMCO's evidence of ownership.³ The district court adopted the conclusion in a footnote, noting that neither party objected to it. Despite determining that ownership of the eight songs was not genuinely in dispute, the court did not enter partial summary judgment in LAMCO's favor but instead denied outright its motion for summary judgment. It is therefore unclear whether the district court considered the fact of ownership undisputed for purposes of the motion only, seeFed.R.Civ.P. 56(e)(2), or treated the fact as established in the case, seeFed.R.Civ.P. 56(g).

At trial, the parties treated ownership as a live issue. In the jointly proposed pretrial order and in its opening statement to the jury, LAMCO acknowledged its burden to establish ownership. LAMCO then produced evidence of ownership, and the defendants challenged the sufficiency of LAMCO's evidence. Not only did LAMCO fail to object to jury instructions on the issue of ownership, but its own proposed instructions stated that LAMCO had the burden of proving ownership of each song as an element of the claim. LAMCO even objected to the defendants' Rule 50(a) motion for judgment as a matter of law by arguing that it was for the jury to determine whether LAMCO owned the songs. Furthermore, although the special verdict form asked the jury to determine whether LAMCO proved ownership of the songs, LAMCO did not object to it on the ground that ownership was an established fact.⁴ The jury found that LAMCO failed to prove that it owned the songs, and, as instructed, did not proceed to decide whether LAMCO proved infringement.

Only in its Rule 59 motion for a new trial did LAMCO apprise the district court of its theory that the ownership determination was not for the jury because it was previously determined at summary judgment.⁵ The court denied the motion without setting forth its reasoning. LAMCO appeals on the ground that the law of the case doctrine precluded the court from submitting the ownership question to the jury, warranting a new trial limited to the issues of infringement and damages.

We review the denial of a motion for a new trial for abuse of discretion. Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir.2008). We review de novo whether the law of the case doctrine applies. Negron–Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir.2009).

Under the law of the case doctrine, “unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation.” Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir.1997). Strictly speaking, the doctrine was not implicated in this case because “interlocutory orders ... remain open to trial court reconsideration, and do not constitute the law of the case.” Harlow v. Children's Hosp., 432 F.3d 50, 55 (1st Cir.2005) (internal quotation marks and alteration omitted); seeFed.R.Civ.P. 54(b) (absent an entry of a final judgment, “any order or other decision, however designated, that adjudicates fewer than all the claims ... may be revised at any time before the entry of a judgment adjudicating all the claims”). “We have sometimes said—instead of an outright statement that law of the case is not applicable to interlocutory orders at all—that law of the case permits a lower court to review prior interlocutory orders as long as that review is not an abuse of discretion.” Harlow, 432 F.3d at 55. There was no abuse of discretion here.

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