Moffat v. Acad. Therapy
| Decision Date | 22 December 2016 |
| Docket Number | 15-cv-626-jdp |
| Parties | MARILYN MOFFAT, KAREN KEMMIS, DANIELLE PARKER, and MARK RICHARDS, Plaintiffs, v. ACADEMY OF GERIATRIC PHYSICAL THERAPY, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
The main issue in this case is the ownership of materials used in a program that certifies physical therapists as experts in geriatric exercise. This dispute was a foreseeable one that could have been avoided easily if the parties had fully worked out their agreements in writing when they undertook to develop the course. But they did not, and now disagreements over control of the course have given rise to a messy copyright case.
Defendant Academy of Geriatric Physical Therapy is a non-profit professional association of physical therapists who specialize in treating older adults. More than a decade ago, the Academy established a task force to promote physical therapists as experts in exercise for the aging. This effort led to the Academy's creation of the Certified Exercise Expert for Aging Adults (CEEAA) program, which requires participants to complete three two-day courses to achieve certification. Plaintiffs are highly credentialed physical therapists and members of the Academy. They each taught parts of the CEEAA course and played a role in its development. What matters most here is that they claim to have written the course materials, consisting of several PowerPoint slide decks and lab manuals. After a dispute over control of the course arose, plaintiffs applied for and received copyright registrations in the course materials in their own names.
The Academy now offers the CEEAA course without plaintiffs' participation, but it uses a version of the course materials that plaintiffs claim as theirs. So plaintiffs brought this suit alleging that the Academy infringes their copyrights. The Academy asserts counterclaims for breach of contract against all plaintiffs and for breach of fiduciary duty against plaintiff Danielle Parker, who had been a member of the Academy board of directors when plaintiffs registered copyright to the course materials.
Both sides move for summary judgment on plaintiffs' copyright infringement claims. Dkt. 29 and Dkt. 30. The material facts are not genuinely disputed, despite the unsupportable allegations in plaintiff Moffat's affidavits, which the court discredits as a matter of law. The court concludes that although plaintiffs were not formal employees of the Academy, the course materials were nevertheless prepared as works made for hire under the principles set out in Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The Academy at all times retained ownership of the course itself, had the right to control course content, paid two plaintiffs for course administration, and other Academy members contributed to the course materials. And the versions of the course materials plaintiffs now claim are derivative works based on earlier versions that the Academy owns.
Even if the course materials were not works made for hire, plaintiffs' infringement claims would fail for an additional reason: plaintiffs have, at a minimum, granted the Academy an implied, non-exclusive license to use plaintiffs' contributions in connection with the CEEAA course and certification program. Although this implied license would not allow the Academy to sue for infringement, it would defeat plaintiffs' copyright infringement claims.
Plaintiffs also move for summary judgment on the Academy's counterclaims. Dkt. 30. That part of plaintiffs' motion is also denied. Plaintiffs raise no argument as to the Academy's contract claims. Factual disputes preclude summary judgment on the breach of fiduciary duty claim against plaintiff Parker.
Before laying out the facts, the court must deal with plaintiffs' failure to comply with the court's summary judgment procedures, which are provided in the preliminary pretrial conference order. Dkt. 9. The essential requirement is that the parties must set out proposed findings of fact that include "all facts necessary to sustain the motion for summary judgment." Id. at 9. These proposed facts, and any fact-based objections to the opposing side's proposed facts, must cite admissible evidence. These evidentiary requirements are important because only a genuine dispute of a material fact will preclude summary judgment, and a genuine dispute is one supported by admissible evidence. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897-98 (7th Cir. 2003).
The Academy's summary judgment submissions are meticulously prepared to comply with the court's requirements. But plaintiffs failed to comply in many ways, as the Academy points out. Dkt. 46, at 3-10 and Dkt. 54, at 4-9. Plaintiffs' submissions are replete with factual assertions and objections that are not grounded in evidence. See Dkt. 46, at 5-6 (). Plaintiffs acknowledge that they were aware of the court's summary judgment procedures. But they contend that although they did not provide as much "citation support" as the Academy did, "virtually all of the individualPFOFs were supported by citation to the evidence." Dkt. 56, at 4-5. But this is simply not true. Many of plaintiffs' responses to the Academy's proposed facts are not at all grounded in evidence. The problem is so pervasive that the court will deem the Academy's proposed facts undisputed.1
Plaintiffs' submissions pose a second problem. The primary source of plaintiffs' putative evidence is two affidavits from plaintiff Moffat, the first dated July 21, 2016, Dkt. 45, and the second filed August 18, 2016, Dkt. 52.2 Moffat was deposed on May 23, 2016. Dkt. 25. Some of Moffat's affidavit statements contradict her deposition testimony, as well as the deposition testimony of the other plaintiffs.3 It appears that Moffat's affidavitstatements, particularly those in her second affidavit, were made simply to controvert facts established by the Academy's motion for summary judgment. Moffat offers no explanation for why her affidavit testimony varies from her deposition testimony. The court will not disregard Moffat's affidavits entirely, but it will disregard any affidavit statement by Moffat that contradicts her deposition testimony under the sham affidavit rule. See McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 750-51 (7th Cir. 2010). The court will also disregard any affidavit statement that is merely conclusory (such as that the Academy had "no 'control' whatsoever," or that it "repeatedly acknowledged" that plaintiffs owned the copyright to the course materials, Dkt. 52, ¶¶ 22, 36) or not based on her personal knowledge (such as "it was always the understanding of everyone concerned that we owned the Copyrighted Materials," Dkt. 45, ¶ 29).
What follows then is a summary of the core background facts as established by the parties' submissions. They are undisputed unless otherwise noted. Additional detail will be added in the analysis section where pertinent.
The Academy of Geriatric Physical Therapy is a non-profit professional association for physical therapists who specialize in geriatrics. The Academy is a section of the American Physical Therapy Association, and it was formerly known as the Section on Geriatrics of thatassociation. The Academy is a 501(c)(3) charitable organization incorporated under the laws of the state of Virginia. Its headquarters are in Madison, Wisconsin, which accounts for the venue of this litigation. In addition to the typical functions of a professional association, the Academy provides training for therapists that can lead to certification as a Certified Exercise Expert for Aging Adults. The designation CEEAA is a federally registered trademark owned by the Academy.
Plaintiffs Marilyn Moffat, Karen Kemmis, Danielle Parker, and Mark Richards are physical therapists with advanced degrees and extensive experience. Plaintiffs have taught the Academy's courses that lead to CEEAA certification. They participated in the development of the courses, and Moffat especially played a key role. Moffat and Kemmis also served as course administrators. Parker was a member of the Academy's board of directors.
In 2004, the Academy formed a task force to promote physical therapists as experts in geriatric exercise. The task force had about 10 physical therapist members, including plaintiffs Moffat, Kemmis, and Richards, and several Academy staff members. Moffat and Dale Avers (a non-party to this case) were co-chairs. The task force created educational and promotional materials, which included physical education curriculum content guidelines, instructions for physical therapists, and a PowerPoint presentation for continuing education for physical therapists, among other items. The task force did its work under the auspices of the Academy, and the task force reported and sought approval for its work and its proposals from the Academy. The Academy reimbursed expenses of the task force members, but no one was paid for their work.
As the task force was winding up its work, Avers proposed to the Academy that it establish a formal certification program. By the time the task force submitted its last report to the Academy in 2007, the task force had created a PowerPoint presentation of 500-600 slides for use as a continuing education program for physical therapists. The Academy established an "interim committee" to test and plan for the implementation of what would become the CEEAA program. Moffat and Kemmis chaired the interim committee.
To test the demand for such a program, the Academy offered several two-day "pre-courses" in 2007 and 2008. The pre-courses used the PowerPoint presentation created by the task force, which the court will refer to as the "Pre-course PowerPoint," and a set of tests and...
To continue reading
Request your trial