Pye v. Mitchell
| Decision Date | 03 May 1978 |
| Docket Number | No. 75-2902,75-2902 |
| Citation | 574 F.2d 476 |
| Parties | , 1978-81 Copr.L.Dec. 25,002 Consuelo Stephanie PYE and Iris Lee Hammer, Plaintiffs-Appellees, v. James MITCHELL, Arthur Mitchell and Cinema Seven, Inc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert L. Thorp (argued), San Francisco, Cal., for defendants-appellants.
Stephen Arian (argued), San Francisco, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before DUNIWAY, SNEED and TANG, Circuit Judges.
This is an infringement action under the 1909 Copyright Act, Act of March 4, 1909, c. 320, § 25, 35 Stat. 1081, as amended prior to the comprehensive revision by Pub.L. No. 94-553, Title I, § 101, Oct. 19, 1976, 90 Stat. 2541, effective January 1, 1978. Inasmuch as the cause of action arose prior to January 1, 1978, it is governed by Title 17, U.S.C. "as it existed when the cause of action arose," section 112, Pub.L. No. 94-553.
Defendants/Appellants James Mitchell, Arthur Mitchell, and Cinema Seven, Inc. were found liable for infringement of Plaintiff/Appellee Consuelo Pye's copyright in the musical work "Lucy's Song." The district court awarded Pye $5,000 for the use of "Lucy's Song" in defendants' movie "Flesh and Brimstone" and $5,000 for its use by defendants in the movie "Sex Odyssey." Defendants do not contest their liability for infringement of "Lucy's Song" but argue that the measure of damages is not justified by the damage provisions of the Copyright Act, 17 U.S.C. § 101(b). Defendants were also found liable for infringement of Consuelo Pye's and Iris Hammer's undivided one-third interests in the musical composition "Whatever Happens." The district court awarded Pye and Hammer each $5,000 for defendants' use of their music in "Sex Odyssey." Defendants contest both the finding of statutory liability for "Whatever Happens" and, alternatively, the amount of damages awarded. Plaintiffs were awarded $9,600 in attorneys' fees plus costs of suit which defendants contest for the first time on this appeal.
Two basic issues confront us. The first is whether Pye and Hammer are entitled to statutory damages under 17 U.S.C. § 101(b) for defendants' use of "Whatever Happens" in "Sex Odyssey." Defendants argue that copyright protection for the song was not effective until a date subsequent to any acts of infringement. Defendants argue further that even if copyright protection was effective at the time of infringing performances, plaintiff Hammer is not entitled to statutory damages because she was not registered as a joint owner with the Copyright Office at the time of any acts of infringement.
The second issue is whether a written release from liability, executed by a joint owner of copyright, which did not expressly mention copyright infringement, constituted actual notice of infringement for the purpose of invoking the exception to the limitations on damages set forth in 17 U.S.C. § 101(b). Defendants contend that because the release was not formal notice it cannot serve as actual notice so as to invoke the exception and justify the damages awarded by the lower court.
Finally defendants argue, for the first time on appeal as already noted, that the attorneys' fees award included amounts for time spent on issues not directly related to the present litigation.
We affirm the lower court's decision. Plaintiffs Pye and Hammer are both entitled to statutory damages under 17 U.S.C. § 101(b). The written release did constitute actual notice of infringement of plaintiffs' interest in "Whatever Happens" with the result that the damages awarded by the lower court are well within its discretionary powers. And finally, we will not overturn the award of attorneys' fees where the issue is first raised on appeal.
Facts.
Plaintiffs Consuelo Pye and Iris Hammer compose and perform musical works. Defendants Arthur Mitchell, James Mitchell, and Cinema Seven, Inc. produce sexually explicit movies. Consuelo Pye created and wrote the musical composition "Lucy's Song." She secured statutory copyright protection for the unpublished work under 17 U.S.C. § 12 on January 17, 1972. Pye, Iris Hammer, and Daniel LeBlanc (not a party to this action) co-authored the musical composition "Whatever Happens." LeBlanc fulfilled the requirements of 17 U.S.C. § 12 on March 8, 1972. A space provided for "application received," one of three required dates on the registration certificate, originally read March 8, 1972, but for an unknown reason, has since been altered to May 22, 1972. LeBlanc obtained the registration certificate in his and Pye's names only. On February 7, 1973, both an Assignment and Transfer of Part Ownership of Copyright to Iris Hammer and an Affidavit Correcting Fact of Ownership were recorded with the Register of Copyrights in recognition of Hammer's interest in "Whatever Happens."
Both musical compositions were performed publicly at the Palace of Fine Arts in San Francisco on September 25, 1971 as part of a concert given by "Synchronicity," a group to which Pye and LeBlanc belong. Alex Benton, a Mitchells' employee, recorded the concert without the consent of either Pye, Hammer, or LeBlanc.
The Mitchells incorporated "Lucy's Song" in a sound track accompanying "Flesh and Brimstone," a movie first released October 5, 1971. The Mitchells included both "Lucy's Song" and "Whatever Happens" in a production entitled "Sex Odyssey," first released May 5, 1972. Following the premiere of each movie, Bruce Hatch, a sound engineer for the Mitchells, informed defendants that their productions contained infringing music. The Mitchells did not expunge "Lucy's Song" from "Flesh and Brimstone" or "Sex Odyssey." They did delete "Whatever Happens" from one print of "Sex Odyssey." There were at least three prints of "Sex Odyssey," incorporating plaintiffs' music, in circulation, two of which were screened after May 25, 1972. The lower court found infringing performances in excess of ten times of "Flesh and Brimstone" between October 5, 1971, and November 9, 1972, and of "Sex Odyssey" between May 5, 1972 and June 20, 1974.
About a week after the first screening of "Sex Odyssey" Arthur Mitchell, Consuelo Pye, Daniel LeBlanc, and Alex Benton discussed the Mitchells' use of plaintiffs' music. Before angrily leaving the meeting, Pye made it clear that she did not consent to the defendants' use of her music. On May 25, 1972, LeBlanc, purporting to represent Pye, executed a written release relieving the Mitchells from further financial responsibility for the use of plaintiffs' music for the previous two-week period. 1 An addendum, dated May 30, 1972, notes that it was agreed that the music was not to be used again. Both the release and the addendum were signed by LeBlanc and Arthur Mitchell. The lower court found that the release constituted actual notice of infringement.
Plaintiffs' actual damages and defendants' actual profits were unascertainable. The lower court, as already noted, awarded statutory "in lieu" damages to Pye in the amount of $5,000 for the multiple infringements of "Lucy's Song" in "Flesh and Brimstone" and $5,000 for the multiple infringements of "Lucy's Song" in "Sex Odyssey." The lower court also awarded Pye and Hammer each statutory damages of $5,000 for the infringement of "Whatever Happens" in "Sex Odyssey" and attorneys' fees in the amount of $9,600.
We will discuss the two principal issues which this case presents and then briefly turn our attention to the question of attorneys' fees.
Plaintiffs Pye and Hammer are entitled to statutory damages
under 17 U.S.C. § 101.
Only the proprietor of statutory copyright at the time of acts of infringement is entitled to damages under 17 U.S.C. § 101. 2 2 Nimmer on Copyright § 132 (1976). The district court concluded that Pye and Hammer are proprietors of undivided one-third interests in the musical work "Whatever Happens" effective March 8, 1972. Defendants first contend that because the March 8, 1972 date originally entered adjacent to "application received" on the registration certificate was altered to May 22, 1972, the latter is the true effective date of copyright. Furthermore, defendants maintain that there were no acts of infringement subsequent to May 22, 1972. Therefore they cannot be found liable for statutory damages where they have not infringed a statutory right.
Defendants tender this argument for the first time on appeal. That is too late. The copyright registration certificate was admitted into evidence with the express stipulation that the effective date was March 8, 1972. It is not clear from the record whether the May 22 date had even been substituted at this time. Far from making the requisite specific and timely objection at trial, Fed.R.Evid. 103(a)(1), defendants agreed to the effectiveness of copyright as of March 8. Where an issue is conceded below, it cannot be raised for the first time on appeal. Drop Dead Co. v. S. C. Johnson & Son, Inc.,326 F.2d 87 (9th Cir. 1963), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 177 (1964); Wilson v. Byron Jackson Co., 93 F.2d 572 (9th Cir. 1937); Edward B. Marks Music Corp. v. Continental Record Co., 222 F.2d 488 (2d Cir.), cert. denied, 350 U.S. 861, 76 S.Ct. 101, 100 L.Ed. 764 (1955). Since the argument was not properly raised at the district court level, it may not be presented in the Court of Appeals. Rothman v. Hospital Service of Southern California, 510 F.2d 956 (9th Cir. 1975). We affirm the district court's finding that the effective date of copyright in "Whatever Happens" is March 8, 1972.
Defendants next argue that plaintiff Hammer was not a proprietor of copyright in "Whatever Happens" until January 7, 1973, the date she was officially recorded in the Copyright Office as a joint owner. The district court found that Hammer, together with Pye and LeBlanc "created and wrote the original words and...
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