Vincent v. City Colleges of Chicago

• Decision Date: 30 April 2007
• Docket Number: No. 06-3082.,06-3082.
• Citation: 485 F.3d 919
• Parties: Veronica VINCENT, Plaintiff-Appellant, v. CITY COLLEGES OF CHICAGO, Ezekiel Morris, and Chicago Association of Realtors, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

485 F.3d 919

Veronica VINCENT, Plaintiff-Appellant, v. CITY COLLEGES OF CHICAGO, Ezekiel Morris, and Chicago Association of Realtors, Inc., Defendants-Appellees.

No. 06-3082.

United States Court of Appeals, Seventh Circuit.

Submitted March 29, 2007.

Decided April 30, 2007.

Veronica Vincent, Oak Park, IL, pro se.

Alan S. King, Drinker, Biddle, Gardner & Carton, Paul H. Burmeister, City Colleges of Chicago, Peter M. Friedman, Holland & Knight, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and FLAUM and EVANS, Circuit Judges.

EASTERBROOK, Chief Judge.

Veronica Vincent wrote Smart Foreclosure Buying and has registered her copyright in that work, which the Chicago Association of REALTORS® published through its educational arm the Real Estate Education Company. (The Real Estate Education Company has since been consolidated with the Chicago REALTORS® Real Estate School; for simplicity we use "the Association" to refer to the Chicago Association of REALTORS® and all of its affiliates.) The Association promised to pay Vincent 15% of the book's selling price. Vincent used the book as the text in a class she taught at the City Colleges of Chicago. The course title was the same as the book's.

In 1995 Vincent stopped teaching this class. The City Colleges continued to offer a course with the same title, taught by Ezekiel Morris—though a prospective student might have thought that Vincent was the instructor, as her initials appeared next to the course description in the college catalog. In 2001 Vincent told the Association by phone, fax, and letter to stop publishing her book. The Association promptly stopped paying her royalties, but it did not stop printing and selling copies of the book. Vincent also asked the City Colleges to stop offering any course using her book, or at least to cease using the book's title as the name of the course. When Vincent discovered that the Association was continuing to print the book for use not only in the college courses but also in a self-directed educational program it offers for real estate brokers, she demanded that the Association pay her a portion of the revenue from these endeavors; it refused but did remit several years' back royalties.

According to Vincent's complaint, from which this narration has been drawn, the Association, the City Colleges, and Morris have violated the federal copyright and trademark laws. Vincent's complaint named "Harold Washington College" and "Wilbur Wright College" as defendants, but these are just parts of the City Colleges' operations. One could not sue Harvard College, as opposed to the larger institution (Harvard University) of which it is a component. Cf. Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). But the City Colleges received the papers and responded to the complaint, so we have reformed the caption. (It is unclear whether the City Colleges or its governing body the Board of Trustees of Community College District No. 508 is the real party in interest; nothing turns on the answer, so we do not pursue it.) Vincent also named the City of Chicago as a defendant but never served the City with process; it has been dismissed as a party, and that decision does not require further discussion. Quite apart from the lack of service, the City of Chicago has nothing to do with the events of which Vincent complains.

The district court dismissed most of the complaint under Fed.R.Civ.P. 12(b)(6). The complaint is fatally deficient, the judge wrote, because it does not plead facts that show an entitlement to relief. 2005 WL 818410, 2005 U.S. Dist. LEXIS 42963 (N.D.Ill.2005). The only well-pleaded claim, the district court concluded, is Vincent's contention that the Association violated the copyright laws by printing copies of her book after she withdrew consent. With respect to that claim, the district court later granted summary judgment in the Association's favor, ruling that Vincent had failed to establish that the Association received written notice of her decision. 2006 WL 1722373, 2006 U.S. Dist. LEXIS 44737 (N.D. Ill.2006).

The district judge faulted Vincent for failing to demonstrate beyond peradventure that the Association had received written notice. But why must notice be in writing? The license to print the book was oral; an oral contract may be modified or terminated orally. Nothing in the Copyright Act requires all transactions to be written—if it did, then the Association would not have had authority to publish the book in the first place! Because there are no distinctive federal rules for how parties reach contracts concerning copyrights, see T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.1964) (Friendly, J.), oral licenses and oral terminations are valid to the extent allowed by state statutes of frauds. The Association does not contend that an oral termination of an oral license is invalid as a matter of Illinois contract law, which governs here. And although the Association insists that one term of the oral contract was that termination would be in writing, that contention is itself contested.

A dispute about whether the Association received written notice would preclude summary judgment even if a writing were essential. Vincent provided evidence that she mailed the Association a letter of termination. The Association denies receiving this letter, which was sent to its old offices: the Association had moved without notifying Vincent. But the Postal Service forwards letters for one year after a move and should have forwarded this one. (The Association moved in September 2001; Vincent maintains that she mailed her letter that December; the Association does not contend that it failed to provide the Postal Service with a forwarding address.) Vincent maintains that the letter did not come back to her, as it should have done if the Postal Service could not deliver it. Maybe the letter arrived but was misfiled, or maybe someone at the Association threw it away because it did not correspond to a written contract in the Association's files.

Evidence of mailing is evidence of delivery. See Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Henderson v. Carbondale Coal & Coke Co., 140 U.S. 25, 11 S.Ct. 691, 35 L.Ed. 332 (1891). Although almost any evidence may be refuted, the trier of fact determines whether the presumption of delivery has been overcome. Certainly a jury could infer that the Association received some notice; why else did it stop remitting royalties? If the Association were utterly in the dark, as it purports to have been, then it would have continued paying Vincent.

That's not all. Vincent testified by deposition that she sent the Association a termination notice by fax. The Association asserts that its old fax machine had been disconnected as part of the move, but that just sets up another factual dispute. Vincent testified that the fax went through (senders can tell the difference between reaching a fax machine and reaching a disconnected line). Fax and phone numbers usually are changed at the same time, or not at all, when a business moves. A new machine at the old number would have received the fax. The Association kept its old numbers for voice lines (the move of about five city blocks did not affect the area code), and Vincent was able to leave a termination message on its voice-mail system; a trier of fact could conclude that the fax number carried over too. Proof from the phone company's records that the fax number was out of service could be deemed incontrovertible, but all the Association offered was its say-so.

Summary judgment on the copyright claim was proper, however, with respect to Morris and the City Colleges. Vincent appears to believe that a copyright entitles the author to determine how a work is used and thus to prevent the book's adoption as a teaching text. Not at all. An author has the exclusive right to control copying, but once a given copy has been sold its owner may do with it as he pleases (provided that he does not create another copy or a derivative work). See Quality King Distributors, Inc. v. L'anza Research International, Inc., 523 U.S. 135, 118 S.Ct. 1125, 140 L.Ed.2d 254 (1998) (discussing 17 U.S.C. § 109(a) and the first-sale doctrine). When Smart Foreclosure Buying is out of print, students may read it in the library or buy used copies from those who took the class in earlier years. Authors capitalize on the durability of the printed word not by charging for each extra person's use but by setting a price for new copies that reflects the work's value to multiple readers. See Stanley M. Besen & Sheila N. Kirby, Private Copying, Appropriability & Optimal Copyright Royalties, 32 J.L. & Econ. 255 (1989).

As for the rest of the case: a judicial order dismissing a complaint because the plaintiff did not plead facts has a short half-life. "Any decision declaring `this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed. R.Civ.P. 9(b)." Kolupa v. Roselle Park District, 438 F.3d 713, 715 (7th Cir.2006). Civil Rule 8 calls for a short and plain statement; the plaintiff pleads claims, not facts or legal theories. See Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073, 1077-78 (7th Cir.1992). Factual detail comes later—perhaps in response to a motion for a more definite statement, see Fed.R.Civ.P. 12(e), perhaps in response to a motion for summary judgment. Until then, the possibility that facts to be adduced later, and consistent with the complaint, could prove the claim, is enough for the litigation to move forward. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

Facts that substantiate the claim ultimately must be put into evidence, but the rule "plaintiff needs to prove Fact Y" does not imply "plaintiff must allege Fact Y at the...