Nunes v. Rushton
| Decision Date | 09 March 2018 |
| Docket Number | Case No. 2:14–cv–00627–JNP–DBP |
| Citation | 299 F.Supp.3d 1216 |
| Parties | Rachel NUNES, Plaintiff, v. Tiffanie RUSHTON, Defendant. |
| Court | U.S. District Court — District of Utah |
Shawn P. Bailey, Shaun L. Peck, Peck Hadfield Baxter & Moore LLC, Logan, UT, for Plaintiff.
Brennan H. Moss, Brody N. Miles, Chrystal M. Mancuso–Smith, Pia Anderson Moss & Hoyt LLC, Salt Lake City, UT, for Defendant.
Rachel Nunes sued Tiffanie Rushton for copyright infringement, defamation, and a number of additional causes of action. Before the court are cross-motions for summary judgment brought by Rushton and Nunes. Rushton brings a motion for partial summary judgment as to actual damages under the copyright claim and for summary judgment as to the defamation, defamation per se, false light, business disparagement, tortious interference with economic relations, electronic communication harassment, false advertising, and Utah deceptive trade practices claims. [Docket 172]. Rushton also moves to exclude several of Nunes's expert witnesses. [Docket 158, 168, 169, 170, 171]. Nunes seeks summary judgment on her copyright claim [Docket 218], defamation claims [Docket 228], electronic communication harassment claim [Docket 229], false advertising claims [Docket 230], and tortious interference claim. [Docket 231]. Nunes also brings separate motions for summary judgment as to Rushton's insanity defense [Docket 160] and her affirmative defenses of unclean hands, comparative fault, bad faith, failure to mitigate damages, estoppel, and laches. [Docket 161].
The court grants partial summary judgment in favor of Nunes on the issue of liability for copyright infringement and partial summary judgement in favor of Rushton on the issue of actual damages under the copyright claim. The court also grants summary judgment in favor of Rushton on the defamation, defamation per se, false light, business disparagement, tortious interference with economic relations, electronic communication harassment, false advertising, and Utah deceptive trade practices claims. Finally, the court grants Nunes's motions for summary judgment on Rushton's affirmative defenses and denies as moot Rushton's various motions in limine. Thus, the only issue remaining for trial is the amount of the statutory damages award for copyright infringement.
Nunes is a writer who has authored more than fifty novels. She published her novel A Bid for Love in 1998. Nunes registered her copyright to A Bid for Love with the U.S. Copyright Office on September 8, 1998.
Rushton is also a writer who has published three novels under her pen name, Sam Taylor Mullens. She published her most recent novel, The Auction Deal , between May and July 2014 by distributing between 80 and 90 free copies to reviewers and bloggers for promotional purposes. With the exception of the addition of sex scenes, The Auction Deal is substantially similar to A Bid for Love and shares the same dialog, scenes, characters, themes, settings, and plot.
In May 2014, Rushton created about fifteen "sock puppet" accounts on Google.com, Yahoo.com, Goodreads.com, and Facebook.com. Rushton registered these accounts under usernames that did not identify her as the individual controlling the accounts. Rushton used her sock puppet accounts to post positive reviews of her previous two novels, Hasty Resolution and Hold You Again . In addition to giving herself positive online reviews, Rushton also posted negative reviews of Nunes's book. In April 2014, Rushton posted a negative Amazon review of A Bid for Love under her own name. In May 2014, Rushton posted three more negative Amazon reviews of A Bid for Love , one under her own name and two under sock puppet names.
On August 1, 2014, a reader of both A Bid for Love and one of the promotional copies of The Auction Deal contacted Nunes and reported that the two novels were very similar. Other readers subsequently contacted Nunes to notify her of the similarities.
After Nunes learned of The Auction Deal , she attempted to obtain a copy by requesting it from one of Rushton's sock puppet accounts. In response, Rushton sent Nunes a series of private comments through Goodreads.com. On August 4, 2014, Rushton called Nunes "petty" and her conduct "ridiculous." On August 5, 2014, Rushton called Nunes's behavior "extremely unprofessional and inappropriate" and threatened to start a protest campaign on the sidewalks of bookstores.
Rushton pulled The Auction Deal from sale on Amazon.com after Nunes contacted her. Before Rushton stopped selling the book, she purchased two copies for herself. No other copies of the novel were ever sold to the public.
Rushton, however, continued to post negative comments about Nunes and her books. On August 6, 2014, Rushton posted another negative review of A Bid for Love under her own name and nine more negative reviews of Nunes's books from sock puppet accounts. Rushton also used sock puppets to give multiple one-star ratings of Nunes's books on Goodreads.com. Rushton made several public comments about Nunes on Facebook, including:
After Nunes discovered the identity of the person who had written and published The Auction Deal , she decided to sue Rushton. Nunes started a GoFundMe.com fundraiser to finance her lawsuit. Rushton posted several comments on Nunes's GoFundMe.com page using sock puppet accounts, including:
Nunes subsequently sued Rushton for copyright infringement, defamation, and a number of additional claims. During a deposition, Rushton conceded that she used Nunes's novel as a starting point for her own novel. Rushton further admitted that she added some material—including sex scenes—deleted some material, changed some of the words from Nunes's novel, and then distributed the resulting novel as her own original work. Rushton also acknowledged that her novel was substantially similar to Nunes's novel.
A federal court exercising supplemental jurisdiction over state-law claims "applies the substantive law, including choice of law rules, of the forum state." BancOklahoma Mortg. Corp. v. Capital Title Co. , 194 F.3d 1089, 1103 (10th Cir. 1999) (citation omitted). Because all of the relevant conduct occurred in Utah, the court applies Utah's substantive law to the claims for defamation, defamation per se, false light, business disparagement, tortious interference with prospective business relations, electronic communication harassment, and deceptive trade practices under the Utah Truth in Advertising Act. Federal law applies to Rushton's copyright infringement and false advertising claims because they arise under federal statutes.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Schneider v. City of Grand Junction Police Dep't , 717 F.3d 760, 767 (10th Cir. 2013) (citation omitted). On a motion for summary judgment, the court "consider[s] the evidence in the light most favorable to the non-moving party." Conroy v. Vilsack , 707 F.3d 1163, 1170 (10th Cir. 2013) (citation omitted). However, Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations in original) (citation omitted).
Both Nunes and Rushton move for partial summary judgment on Nunes's cause of action for copyright infringement. The court addresses each motion separately.
Nunes seeks summary adjudication on two issues. First, she argues that that she is entitled to a summary adjudication on the issue of liability for copyright infringement because Rushton does not contest that a significant portion of her novel, The Auction Deal , was copied from Nunes's novel, A Bid for Love . Second, Nunes argues that the court should summarily adjudicate that Rushton's infringement "was committed willfully" within the meaning of 17 U.S.C.A. § 504(c)(2).
The owner of a copyright has the exclusive right to reproduce and distribute the copyrighted work...
To continue reading
Request your trial
-
John Bean Techs. Corp. v. B GSE Grp., LLC
...the advertisement is literally false, a violation may be established without evidence of consumer deception."); Nunes v. Rushton , 299 F. Supp. 3d 1216, 1239 (D. Utah 2018) (same). Thus, because the court concludes some of Defendants’ statements were literally false, JBT satisfies the likel......
-
Vitamins Online, Inc. v. HeartWise, Inc.
...by extrinsic evidence that demonstrates that the challenged statements "tend to mislead or confuse consumers." Nunes v. Rushton, 299 F. Supp. 3d 1216, 1239 (D. Utah 2018) (quoting Zoller Labs., 111 F. App'x at 982). 13. Yet, even under a theory of implied falsity, a plaintiff's failure to d......
-
Yeager v. Nat'l Pub. Radio
...word "scam," used in an article regarding a timeshare sales program, is incapable of being proven true or false); Nunes v. Rushton, 299 F.Supp.3d 1216, 1231-32 (D.Utah 2018)("scam" and "hoax" used as opinionated rhetorical hyperbole and therefore, not defamatory); Robinson v. Wichita State ......
-
Pipkin v. Acumen
...communications harassment statute—a criminal statute—does not authorize a private cause of action. See Nunes v. Rushton , 299 F. Supp. 3d 1216, 1237–38 (D. Utah 2018). Utah appellate courts have yet to address this issue, and because we conclude that the legitimate business exemption applie......