Mihalek Corp. v. State of Mich.
| Decision Date | 05 June 1985 |
| Docket Number | Civ. A. No. 84CV-7202-AA. |
| Citation | 630 F. Supp. 9 |
| Parties | The MIHALEK CORPORATION and, Lawrence Patrick Mihalek, Plaintiffs, v. The STATE OF MICHIGAN, Governor James J. Blanchard, the Department of Commerce of the State of Michigan, Ralph J. Gerson, Director, Ross Roy, Inc., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
COPYRIGHT MATERIAL OMITTED
Heikkinen Law Firm, P.C., Richard A. Heikkinen, Howell, Mich., Douglas W. Sprinkle, Birmingham, Mich., for plaintiffs.
Thomas A. Hallin, Asst. Atty. Gen., Lansing, Mich., Michael M. Hathaway, Vandeveer, Garzia, Detroit, Mich., for defendants.
This case is before the court on plaintiff's motion for reconsideration of the court's oral ruling of April 17 and order entered April 24, granting defendants' motion for partial summary judgment; plaintiff's ex parte motion to strike from the court files defendants' response to the motion for reconsideration; and plaintiff's ex parte motion to extend the time to serve certain party defendants. For the reasons stated herein, the motion to strike defendants' response to the motion for reconsideration is granted. The motion for reconsideration and the motion to extend time for service are denied.
This case grows out of a controversy between plaintiffs Lawrence Mihalek and the Mihalek Corporation (hereafter jointly referred to as "plaintiff") and the State of Michigan and certain of its agents and agencies. The thrust of the case is that the state officials, and various advertising agencies working under contract with the state, appropriated plaintiff's work product, portions of which were registered under the federal copyright laws, and used those products to formulate its popular "Say Yes to Michigan" and subsequent "Yes Michigan" promotional campaigns, which seek to encourage investment and travel in this state.
Resolution of these motions should be set against a recitation of the procedural history of this case. Defendant State of Michigan originally filed suit in state court, seeking to enjoin plaintiff from issuing notices of copyright infringement to certain media interests who were publishing items of the state's promotional campaign. Plaintiff subsequently filed a four count complaint in this court, alleging copyright infringement; trademark infringement; appropriation of property without compensation, in violation of the takings clause of the fifth amendment; and unfair competition.
The state court judge before whom the first action was filed initially entered a temporary restraining order against plaintiff herein, then disclaimed jurisdiction over the controversy in light of the presence of the copyright claims, over which exclusive federal court jurisdiction is granted by 28 U.S.C. § 1338. Plaintiff herein successfully removed the state court case to this court, and all subsequent litigation has proceeded under the case arising from the complaint filed by plaintiff.
On October 11, 1984, the court granted in part and denied in part defendant's first motion to dismiss, holding that the defendants were immune from damages by operation of the eleventh amendment. The case proceeded as an injunctive action. On October 25, the court granted defendants' motion for a preliminary injunction, prohibiting plaintiff from filing further notices of copyright infringement. Plaintiff subsequently filed an amended complaint, seeking to establish a defendant class of media entities that had published the "Say Yes to Michigan" materials.
In February of this year, defendants moved to dismiss the amended complaint, or in the alternative to enjoin plaintiff from serving the complaint upon any of the proposed media defendants. Because plaintiff had neither moved for certification of a class of defendants, nor served the media entities named in the amended complaint, the court regarded this case as one against the four defendants named in the original complaint. At the hearing on defendants' motion to strike the amended complaint and to enjoin service, held on February 12, the court held that plaintiff could serve a copy of the complaint upon Ross Roy, Inc., in order to preserve his copyright claims against that defendant from operation of the statute of limitations, but forbade service on the other media entities, unless plaintiff made a particular showing that his rights were jeopardized with respect to each entity he sought to serve. The court concluded that the likely chilling effect on the state's promotional campaign resulting from service of the amended complaint on the media entities justified the relief granted.
Plaintiff's counsel subsequently contacted the chambers of this court to request an ex parte meeting with the judge. The asserted purpose of the meeting was to demonstrate to the judge the strength of plaintiff's copyright infringement claims. Plaintiff's counsel indicated that he believed that his case was threatened by what he presumed was the court's lack of conviction in the strength of the copyright claims.
The court convened an informal hearing, with all parties present, on February 21. The proceedings were recorded by the court reporter. Defendants' motion for summary judgment was pending before the court at that time and scheduled for hearing in April. The court did not conduct a hearing on the motion on February 21, and no rulings whatsover were made by the court at that informal hearing, the purpose of which was merely to provide plaintiff with an opportunity to outline the factual allegations of the copyright infringment claims, with the use of physical evidence.
On April 17, the court heard and granted defendants' motion for partial summary judgment. The court concluded that the plaintiff had failed to demonstrate a genuine issue of fact concerning the substantial similarity between his copyrighted materials and the accused works that composed defendants' promotional campaign. Defendants conceded for the purposes of the motion that its agents had access to plaintiff's copyrighted materials so as to enable them to copy those materials had they so intended.
After plaintiff served his motion for reconsideration of the April 24 order, defendant filed a brief response with the court. Plaintiff subsequently moved ex parte to strike the response from the court's files, pursuant to Local Rule 17(k)(2), which provides that no response to a motion for reconsideration or rehearing shall be allowed unless the court otherwise directs. Although the court believes that the ex parte filing of this motion to strike was improper, it is bound by the old saw that two wrongs do not make a right. Consequently, the response will be stricken from the court's files in this matter, and was not and will not be considered in the court's ruling on plaintiff's motion for reconsideration.
Plaintiff urges four grounds for reconsideration of the April 24 order, as follows:
(1) the court's holding that there was no genuine issue of material fact concerning the absence of substantial similarity between the plaintiff's copyrighted works, and defendants' accused works, was erroneous as a matter of law, because the court failed to take into consideration the affidavits of several purported "lay observors", who asserted that they believed that defendants' promotional campaign had borrowed extensively from plaintiff's works;
(2) plaintiff was prejudiced in the preparation of his response to the motion for summary judgment by the failure of the court reporter to file a copy of the transcript of the informal February 21 hearing until April 29, almost two weeks after the hearing on the motion for summary judgment;
(3) the court improperly limited the hearing on the motion for summary judgment to 1½ hours, thereby depriving plaintiff of an opportunity to call twelve witnesses available to testify on this matter, and to present additional documentary evidence in support of his response to the motion;
(4) the court applied an erroneous legal standard in ruling on the motion for summary judgment, using the forbidden "extrinsic test" of similarity, rather than the appropriate "intrinsic test".
The court will address these arguments in turn.
Plaintiff has failed to cite the court to any authority for the proposition that the affidavits of the alleged "lay observors" have any bearing whatsoever on the issue of substantial similarity, for purposes of a motion for summary judgment. The case of Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288 (D.R.I.1982) is wholly inapposite. That case merely stands for the entirely reasonable proposition that affidavits of plaintiff's investigative agents, attesting to the occurrence of live public performances by alleged infringers, are admissible evidence and may be used to establish proof of such an occurence.
The issue presented in defendants' motion for summary judgment is whether any reasonable jury could conclude, after viewing all of the evidence presented in support of and in opposition to the motion, granting all permissible inferences in favor of the plaintiff, that defendants' accused works were substantially similar to plaintiff's copyrighted works. Although the question of substantial similarity is generally one of fact for the jury, the presentation of a motion for summary judgment gives rise to a legal question of the existence of genuine question of material fact. Cf. Alexander v. Haley, 460 F.Supp. 40 (S.D.N.Y.1978) ().
The issue should be further refined. Defendants have challenged the validity of plaintiff's copyrights, to the extent that he has attempted to claim protection...
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Mihalek Corp. v. State of Mich.
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Mihalek Corp. v. State of Mich.
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