Thornton v. J Jargon Co.

Decision Date08 July 2008
Docket NumberNo. 8:06-cv-1640-T-27TGW.,8:06-cv-1640-T-27TGW.
Citation580 F.Supp.2d 1261
PartiesJohn J. THORNTON (d/b/a Baby Boomer Headquarters), an individual, Plaintiff, v. J JARGON CO., a Florida corporation, et al., Defendants.
CourtU.S. District Court — Middle District of Florida

Michael John Colitz, III, Stefan Vaughn Stein, William F. Hamilton, Woodrow Heath Pollack, Holland & Knight, LLP, Tampa, FL, for Plaintiff.

Dineen Pashoukos Wasylik, George Donovan Conwell, Jr., Conwell Kirkpatrick, PA, Tampa, FL, for Defendants.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT are: (1) Plaintiffs Motion for Partial Summary Judgment (Dkt.67), to which Defendants have responded in opposition (Dkt.78); (2) Defendants' Amended Motion for Summary Judgment (Dkt.73), to which Plaintiff has responded in opposition (Dkt.82); (3) Defendants' Motion in Limine to Exclude the Expert Testimony of Larry Steven Londre and Evidence of Irrelevant Advertising Rates (Dkt.83), to which Plaintiff has responded in opposition (Dkt.91); (4) Plaintiffs Motion to Strike the Testimony of Brad Kassner (Dkt.87), to which Defendants have responded in opposition (Dkt.92); and (5) Plaintiffs Motion to Strike Defendants' Amended Disclosure of Fact Witnesses and Strike the Testimony of Diana C. Coles (Dkt.88), to which Defendants have responded in opposition (Dkt.93).

Background

In this action for copyright infringement, brought pursuant to 17 U.S.C. §§ 101, et seq., Plaintiff alleges that theater programs for "Menopause the Musical" contain an unauthorized reproduction of Plaintiffs copyrighted work, "The Official Baby Boomer Qualifying Exam." Menopause the Musical ("the Musical") has been performed across the country since March 2001. (Am.Compl., Dkt.42, ¶ 16). Defendant Jeanette Linders ("Linders") is the author of the Musical, Defendant J. Jargon Co. is the holder of rights to the Musical, and Defendant TOC Productions, Inc., ("TOC") is a production company that has produced the Musical at various locations throughout the country. (Dkt.42, ¶¶ 16-17). Linders is the President of TOC. (Linders Dep. at 63). In the instant motion, Plaintiff seeks summary judgment against Linders and TOC only. (Dkt. 67 at 1, n. 1).

In 1996, Plaintiff authored the work at issue, "The Official Baby Boomer Qualifying Exam" (hereinafter, "BBQE"). The BBQE is a twenty-nine question test featuring trivia targeted to members of the "Baby Boom generation," those individuals born between the years of 1946 and 1964. (Pl. Dec. ¶¶ 2, 8, Exh. 3). The BBQE includes questions based on music, movies, television, and other cultural phenomena that, as Plaintiff states, true "Baby Boomers should be able to answer." (Pl. Dec. ¶ 5, Exh. 3). In addition to the twentynine questions, the BBQE features a five paragraph essay in which Plaintiff addresses the question "Just what are the qualifications for baby boomer status?" (Pl. Dec. ¶¶ 2, 8, Exh. 3). Plaintiff declares that he located a file containing the BBQE on his computer, dated March 10, 1996. (Pl. Dec. ¶¶ 7-9). Plaintiff also located a file containing an earlier, twentyseven question version of the BBQE, dated June 9, 1995. (Pl. Dec. ¶ 5, Exh. 1). Both versions contain copyrights on the final line to "Hershel Chicowitz," which is Plaintiffs pen name. (Pl. Dec. ¶¶ 5, 8, Exh. 1 at 4, Exh. 3 at 5).

In June 1997, Plaintiff started a website targeted at baby boomers (www.bbhq. com). (Pl. Dec. ¶ 10). According to Plaintiff the BBQE is "one of the most popular features of the site." (Pl. Dec. ¶ 10). Certain features of the website are only accessible by paying an annual membership fee. (Pl. Dec. ¶ 10). According to Plaintiff, there are 6,000 subscribers to his free newsletter, 500 people have an active paid subscription to the website, and he estimates that the website receives 5,000 visits per day. (Pl. Dec. ¶ 10).

Plaintiff alleges that he has spent "countless hours" addressing unauthorized uses of the BBQE and other copyrighted work on various websites. (Pl. Dec. ¶¶ 20-21). Specifically, Plaintiff submits copies of his correspondence to seven alleged infringers relating to unauthorized uses of the BBQE between August 2000 and March 2004. (Pl. Dec. ¶¶ 22-29, Exhs.9-16). In addition, in 1995 or 1996, Plaintiff posted the twenty-seven question version of the exam, with its copyright notice, on America OnLine ("AOL") and on a website he maintained through CompuServe. (Pl. Dec. ¶ 6). Plaintiff declares that "at some point an unauthorized version of the exam was posted on AOL." (Pl. Dec. ¶ 6). Plaintiff alleges that when he discovered this, he contacted AOL and "had them remove the unauthorized version." (Pl. Dec. ¶ 6).

Over the weekend of June 9, 2006, Plaintiff attended a performance of the Musical in Tampa, Florida. (Pl. Dec. ¶ 32). After returning home from the Musical, Plaintiff noticed that the program that he received for the performance included a page entitled "Take the Age Test," a trivia exam featuring twenty-four fill-in-the-blank questions. (Pl. Dec. ¶ 32, Exh. 17 at 4). As discussed in detail below, the "Take the Age Test" (hereinafter, "Age Test") possesses significant similarities to the BBQE. As a result, Plaintiff contends that the Age Test infringes the BBQE.

At some point that same weekend, Plaintiff visited the Musical's website and completed a form on the website to notify the producers of their allegedly unauthorized use of the BBQE. (Pl. Dec. ¶ 34). As a result, Linders sent an email on June 12, 2006 to employees of the production companies for the Musical, in which she wrote: "GOT THIS OVER THE WEEKEND> IF YOU ARE USING THE AGE TEST PLEASE PUT A c BABYBOOMER HQ. (www.bbhq.com) at the end of the age test." (Dkt.73, Exh. M). The email contains the following version of Plaintiffs communication:

I am the author of the copyrighted Official Baby Boomer Qualifying Exam—http://www.bbhq.com/bbexaml.php? caller=intro—which is printed, nearly word-for-word, as your "Take the Age Test." I wrote that, and other similar trivia quizzes, over a decade ago.

While I am flattered, I would certainly appreciate it if you would provide an attribution to Baby Boomer Head Quarters—WWW.BBHQ.COM in your program (Pl. Dec, Exh. 18).

Plaintiff notes that this version of his communication breaks off midsentence and that he would not have typically ended a communication in that manner. (Pl. Dec. ¶ 35).

Linders also replied directly to Plaintiff: Dear Hershel,

Needless to say I don't remember where I found "The Age Test" ... it was probably on one of those ongoing emails that are group blasted years ago ... but had there been a copyright noticed attached to it, it would have been included and attributed.

I will advise the persons who manage our program to do that. And will consider a weblink.

I hope you enjoyed my show.

(Pl. Dec, Exh. 19).

Plaintiff responded, in part:

Jeanie—

Thanks for your reply. And congrats on your show!

Yes that version of my exam has been flying around the Internet for a long time. It never comes with attribution. Still, it would seem to me that before one copied and reproduced something of that length, a writer might do some research to find the origin.

. . . .

(Pl. Dec, Exh. 20).

Effective August 10, 2006, Plaintiff received a Certificate of Registration for the BBQE. (Pl. Dec, Exh. 6). Plaintiff later received a supplementary Certificate of Registration to correct the "date of first publication" from June 1, 1995 to June 15, 1997. (Pl. Dec. ¶ 14, Exh. 7).

On September 6, 2006, Plaintiff filed this lawsuit, alleging a single claim for copyright infringement based on Defendants' use of the Age Test in programs for the Musical. (Dkt.1). In his motion for summary judgment, Plaintiff argues that he is entitled to judgment as matter of law on his claim of copyright infringement and on each of the Defendants' eleven affirmative defenses. Defendants argue that even if Plaintiff can demonstrate copyright infringement, Plaintiff has suffered no cognizable damages as a matter of law and Defendants are entitled to prevail under the affirmative defenses of fair use and license.

As set forth below, disputed issues of material fact preclude summary judgment on Plaintiffs copyright infringement claim. Further, while Defendants are entitled to summary judgment on Plaintiffs claim for actual damages, there is an issue for the fact-finder on Plaintiffs claim for Defendants' profits attributable to the infringement.

Standard

Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. "An issue of fact is `material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). "An issue of fact is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that...

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