Lewinson v. Henry Holt and Co., LLC

• Citation: 659 F.Supp.2d 547
• Decision Date: 23 September 2009
• Docket Number: Case No. 07-CV-10955 (KMK).
• Parties: Zev LEWINSON, as Assignee of SwordPen.com, Inc., Plaintiff, v. HENRY HOLT AND COMPANY, LLC, Karen J. Katz, and John and/or Jane Does 1 to 10, Defendants.
• Court: U.S. District Court — Southern District of New York

659 F.Supp.2d 547

Zev LEWINSON, as Assignee of SwordPen.com, Inc., Plaintiff, v. HENRY HOLT AND COMPANY, LLC, Karen J. Katz, and John and/or Jane Does 1 to 10, Defendants.

Case No. 07-CV-10955 (KMK).

United States District Court, S.D. New York.

September 23, 2009.

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Zev Lewinson, Teaneck, NJ, pro se.

Robert D. Balin, Esq., Christoper J. Robinson, Esq., Davis Wright Tremaine, LLP, New York, NY, for Defendants.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

Plaintiff Zev Lewinson ("Plaintiff" or "Lewinson"), as assignee of SwordPen.com, Inc. ("SwordPen") and appearing pro se, brings this action pursuant to the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq. (the "Copyright Act") for copyright infringement against Defendants Henry Holt and Company, LLC ("Holt"), Karen J. Katz, and John and/or Jane Does 1 to 10 (collectively "Defendants"), seeking injunctive relief, an accounting, and damages. Plaintiff alleges that Defendants infringed Plaintiff's copyrighted manuscript for a children's book. Defendants move to dismiss the Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), or in the alternative, for summary judgment under Federal Rule of Civil Procedure 56 ("Rule 56"). For the reasons stated herein, Defendants' motion for summary judgment is granted.

I. Background

A. Factual Background

The following factual allegations are taken from Plaintiff's Amended Complaint.

SwordPen is a New York publisher of children's books, as well as an owner of the associated copyrights of some of those books. (Am. Compl. ¶¶ 3-5.) Defendant Holt is a New York publisher of fiction and non-fiction books, under either its imprint or other imprints, including Metropolitan Books, Times Books, Owl Books, Picador USA, and Books for Young Readers. (Id. ¶¶ 7-8.) Defendant Katz is an author and illustrator of children books. (Id. ¶ 10.)

During the summer of 1999, Lewinson authored a manuscript entitled What Do You Call It? (the "Registered Work"), which was registered on December 2, 1999 with the U.S. Copyright Office. (Id. ¶¶ 13-17.) On or about December 20, 1999, Lewinson sent a certified letter to Holt, which included a copy of the Registered Work, requesting that Holt consider the Registered Work for publication. (Id. ¶ 19.) Sometime before September 2001, Lewinson created an updated version of the manuscript ("Unregistered Manuscript") and sent it to Holt. (Pl.'s Mem. in Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") 2.) The Unregistered Manuscript is not registered with the U.S. Copyright Office, but Plaintiff has indicated that he is taking steps to register it. (Letter from Zev Lewinson to the Court (Sept. 4, 2009).) In spring 2000, Holt informed Lewinson that it would not publish the Registered Work. (Am. Compl. ¶ 20.)

In July 2006, Holt published Can You Say Peace? (the "Katz Work"), a children's book authored by Katz. (Id. ¶ 21.) Katz stated that the idea and concept of the book was given to her by Holt. (Id. ¶ 22.)¹ From July 2006 to the present, the Katz Work has been available for sale to the public. (Id. ¶ 23.)

Plaintiff claims that the Katz Work is substantially similar to and is a derivative of the Registered Work, and therefore that it infringes Plaintiff's copyright in the Registered Work. (Id. ¶¶ 29-35.) In September 2006, Plaintiff's then-counsel notified Defendants that the publication and sale of the Katz Work was in violation of the copyright in the Registered Work. (Id. ¶ 36.) Lewinson assigned his sole ownership of the copyright to SwordPen on August 1, 2007. (Id. ¶ 5.) On August 1, 2008, SwordPen assigned to Lewinson its legal rights in the instant matter. (Id. ¶ 6.)

B. Procedural History

SwordPen was the original plaintiff in this action when it was filed on December 3, 2007. (Compl. ¶ 1.) At the time, Sword-Pen was represented by counsel. (Id. 1.) After Defendants had submitted the instant motion to dismiss, SwordPen's counsel sought the Court's permission to withdraw, which the Court granted on June 25, 2008. (Dkt. No. 12.) Thereafter, the Court notified Swordpen, through Lewinson, that a corporation is not permitted to appear pro se or to be represented by an individual acting in a pro se capacity. (Dkt. No. 13.) Lewinson sought permission to submit an Amended Complaint in this action naming himself as Plaintiff, on the basis that he owns all of SwordPen as well as the copyrighted manuscript at issue, and he has been assigned all of SwordPen's legal claims. (Dkt. No. 14.) Defendants, through counsel, submitted a letter on August 14, 2008 stating that they did not oppose amendment of the Complaint, as long as the copyright was properly assigned to Lewinson. (Dkt. No. 15.) On August 18, 2008, Lewinson submitted a proposed Amended Complaint, substituting himself as Plaintiff. (Dkt. No. 28.) The Court accepted the Amended Complaint for filing on August 11, 2009. (Id.)

In the Amended Complaint, Plaintiff seeks an injunction restraining Defendants and others from engaging in any further acts in alleged violation of the Copyright Act. (Am. Compl. ¶¶ 39-41.) Plaintiff also seeks an accounting of any gains that Defendants made from the alleged infringement, as well as actual damages for copyright infringement, any profits or gains from the sale or distribution arising from the infringement, and attorney's fees and costs. (Id. ¶¶ 42-48.)

The Court held oral argument on September 9, 2009.

II. Discussion

A. Standard of Review

Defendants ask the Court to dismiss this action pursuant to Rule 12(b)(6), or in the alternative, to grant them summary judgment pursuant to Rule 56, on the grounds that the Katz Work is not "substantially similar" to the Registered Work, as required to establish liability under the Copyright Act.² As the Court advised the Parties at oral argument, the Court will consider Defendants' motion as a motion for summary judgment pursuant to Rule 56.³ While the Court is mindful that the Parties have not yet commenced discovery, "in the copyright context, when analyzing the issue of substantial similarity based an analysis of the two works," it is not unusual for courts to consider a motion for summary judgment prior to discovery. Blakeman v. Walt Disney Co., 613 F.Supp.2d 288, 298 (E.D.N.Y.2009); see also Mallery v. NBC Universal, Inc., No. 07-CV-2250, 2007 WL 4258196, at *2 (S.D.N.Y. Dec. 3, 2007) (granting summary judgment in copyright action prior to discovery); Flaherty v. Filardi, 388 F.Supp.2d 274, 283-84 (S.D.N.Y.2005) ("[The] argument that it is generally inappropriate to consider a motion for summary judgment before allowing discovery is unavailing [where substantial similarity is at issue] ... because the Court must resolve [that question] ... solely by comparing Plaintiff's screenplay and Defendants' finished movie.").

Under Rule 56, summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

In applying this standard, the Court is mindful that "[t]he submissions of a pro se party should be held to `less stringent standards than formal pleadings drafted by lawyers.'" Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 577 (S.D.N.Y.2008) (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam)); see also Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y.1998) (recognizing that pro se plaintiffs are to be given "special latitude on summary judgment motions" (internal quotation marks omitted)). Courts must read a pro se litigant's supporting papers liberally, interpreting them "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (internal quotation marks omitted). This does not, however, "relieve [P]laintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks omitted); see also Monterroso, 591 F.Supp.2d at 577 ("[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's bald assertion, unsupported by evidence, is not sufficient to overcome a motion for summary judgment." (internal quotation marks omitted)).

B. Summary of the Works at Issue

Before the Court proceeds with a discussion of the merits of Plaintiff's claim, the Court summarizes briefly the works in question.

1. The Lewinson Works

a. The Registered Work

The Registered Work is a manuscript of a fourteen-page children's book titled What Do You Call It?. (Aff. of Robert D. Balin, Ex. ("Defs.' Ex.") C (Zev Lewinson, What Do You Call It?) (hereinafter "Lewinson I").)⁴ Although the manuscript includes the text of the book, it does not include illustrations. (Id.) The manuscript does, however, provide a short description of a possible illustration to accompany the text on each page. (Id.)

The text on each page of the Registered Work describes a child from one of the following countries, listed in order: Mexico, Hungary, the United States, Sweden, Germany, Israel, the Congo, Australia, Ireland, Russia, Japan, Saudi Arabia,...