Wilson v. Brennan, No. CV 07-457 WPL/LAM.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtWilliam P. Lynch
Citation637 F.Supp.2d 959
PartiesMark J. WILSON, Plaintiff and Counter-Defendant, v. John BRENNAN, Michelle Geels, Tour of the Gila Inc., Doyne Wrealli and Rob Narvaez, Defendants and Counter-Plaintiffs.
Decision Date09 July 2009
Docket NumberNo. CV 07-457 WPL/LAM.
637 F.Supp.2d 959
Mark J. WILSON, Plaintiff and Counter-Defendant,
John BRENNAN, Michelle Geels, Tour of the Gila Inc., Doyne Wrealli and Rob Narvaez, Defendants and Counter-Plaintiffs.
No. CV 07-457 WPL/LAM.
United States District Court, D. New Mexico.
July 9, 2009.

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Mark J. Wilson, North Potomac, MD, pro se.

Pamela Crane, Placitas, NM, for Defendants and Counter-Plaintiffs.

Laura M. Wilson, North Potomac, MD, pro se.


WILLIAM P. LYNCH, United States Magistrate Judge.

The Tour of the Gila is a United States Cycling Federation (USCF) sanctioned bicycle race held in Grant County, New Mexico. The Tour draws 400 to 500 USCF racers each year, and was described by Velo News as "not the richest or the most prestigious race in America, but it has to be the hippest."

Mark Wilson, a Race Director of the Tour for twelve years, has sued Tour of the Gila, Inc., a non-profit corporation that conducts the Tour, and Jack Brennan, Michelle Geels, Doyne Wrealli and Rob Narvaez, individuals associated with the Tour in various capacities, for copyright infringement. Wilson claims that he created original text, compilations of facts and graphics for the Tour's Race Bible and other documents and that the Defendants have infringed on his copyrighted materials by using them without his permission. The Defendants assert that the Tour purchased Wilson's intellectual property or obtained a license to use Wilson's materials in May of 2002, and have filed counterclaims against Wilson, seeking a declaratory judgment that Wilson's copyrights are invalid, and seeking recovery for conversion, fraud, and violations of the New Mexico

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Unfair Practices Act. This Order will resolve all issues presented in this case.


In the fall of 1986 a small group of bicyclists in Silver City, New Mexico, who were interested in promoting the Silver City/Grant County area, met to consider hosting a bicycle race for USCF riders in Grant County in 1987. The group consisted of Mark Richard, Mark Wilson, Tim Matthes, Mike Sauber and Sharlene Grunerud. Wilson, an experienced bicycle racer, told the group that he would work with them on developing the race, but only if he was paid to do so.

Once Scott Nichols Motors agreed to be the title sponsor for the race, work to plan the race began in earnest. Many decisions had to be made, including how many days of racing, what type of bicycle race to hold, what routes the races would take, what the name of the race would be, and how to recruit volunteers to assist with the race and provide lodging for the riders, Wilson served as Race Director for the 1987 race, a four-day stage race which was called the "Tour of the Gila," and he was paid $1,000 for his services.

The 1987 race was a success, and the group decided to make the race an annual event. Wilson served as Race Director each year from 1988 to 1994 and was paid each year for his services. During this time the race was expanded to five days to include a time trial, three road races, and a criterium. Wilson and others also created and updated yearly a Tour of the Gila Race Bible, Course Itineraries & Time Schedules, and a document variously referred to as the Race Announcement or the Official Race Guide and Entry Form ("Race Announcement"). The Race Bible is a lengthy compilation of materials (12 pages long in 1994, but 28 pages long by 1999), which includes the race schedule, the rules governing the race, the prize distribution, a list of past winners, and maps, profiles and narrative descriptions of the race courses. The Course Itineraries & Time Schedules include information for each day's race about landmarks on the race course and a prediction of the length of time to complete the race based on historical finishing times. This document was designed to be distributed to volunteers who were assisting with the race. The Race Announcement contains a brief description of the Tour, including a Prize List, Course Descriptions for each race, and information about how to register for the race.1 The Race Announcement was distributed to prospective bicycle racers, while the Race Bible was distributed to the racers and race officials each year.

After the 1994 race Wilson moved to Savannah, Georgia and Liz Blancett served as Race Director for the 1995, 1996 and 1997 races. In 1995 the Race Bible was substantially revised. Steve Farris rewrote the text for the 1995 Race Bible and updated it yearly for the races held in 1996, 1997, 1998 and 1999. Wilson moved back to Silver City in 1997. He served as Race Director for the 1998 and 1999 races, and was paid $2,500 each year for his services.

Like many volunteer groups, the Tour was run on a very informal basis from its inception in 1986 until early 2000. In January of 2000 the organizational meeting of the Board of Directors of the Tour of the Gila, Inc. was held. At this meeting, Michelle

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Geels, a long-time volunteer, was elected as President, while Wilson was elected Vice-President and Jack Brennan was elected Secretary/Treasurer.2

Although Wilson moved to Maryland in August of 1999, he served as Race Director with Brennan for the 2000 and 2001 races. Wilson also assembled the 2000 and 2001 Race Bibles from materials provided by various people. He admitted that they were substantively very similar to the 1999 Race Bible. On the last page of the 2000 Race Bible Wilson placed the following notice: "Copyright © 2000 by Tour of the Gila[,] Inc. All rights reserved." He placed a similar notice on the last page of the 2001 Race Bible. Wilson also prepared the Course Itineraries & Time Schedules and Race Announcement. He was paid $2,000 plus costs each year for his services.

Brennan and Wilson did not work well together, and it was difficult for Wilson to be actively involved in the day-to-day planning of the race because he was living over 2000 miles away. Brennan decided not to ask Wilson to serve as Race Director for the 2002 race, and asked Michelle Geels to serve as Race Director with him. Brennan did ask Wilson to serve as Race Consultant that year and to prepare the 2002 Race Bible, but they did not discuss specific details about the work to be done or whether Wilson would be paid to do it.

The 2002 Race Bible prepared by Wilson relied heavily upon the earlier race bibles but also included new material that Wilson created.3 Wilson added some new text passages to the 2002 Race Bible, together with factual compilations, maps and profiles of the race courses, and page headers for the races. On the last page of the 2002 Race Bible Wilson placed the following notice: "Copyright © 2002 by Mark Wilson[.] All rights reserved[.]"

The 2002 Tour was held on May 1 to 5, 2002. On May 8, 2002 Wilson presented Brennan with a bill for $1,268.66 for preparation of the 2002 Race Bible. Wilson's meeting with Brennan in Brennan's store, Gila Hike and Bike, about payment of the bill was short and tense. Brennan was upset because he did not anticipate that Wilson would charge the Tour for preparing the 2002 Race Bible. Wilson and Brennan have differing recollections of this conversation. Brennan testified that he told Wilson that the Tour was purchasing Wilson's intellectual property when he paid Wilson's bill. In contrast, Wilson maintains that he told Brennan that his intellectual property was not for sale.

Relations between Wilson and Brennan and others associated with the Tour deteriorated after this meeting. On May 29, 2002 Wilson wrote to Brennan and for the first time formally asserted that he had copyright protection for the graphics used in the 2002 Race Bible. He gave the Tour permission to use the graphics for the 2003 race, but demanded payment for any use of the graphics after that time.

Doyne Wrealli produced the Tour's Race Bibles for the 2003 through 2006 races. Rob Narvaez maintained the Tour's website and posted the Race Bible and other materials on the Internet beginning in 2004. Wrealli and Narvaez worked under

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directions given to them by Brennan and Geels, who have served as a Race Directors for the Tour since 2002.

In the spring of 2004 Wilson viewed the Tour's Race Bible and other materials on-line and decided that they infringed on his intellectual property rights. Wilson contacted the Tour and offered to allow the Tour to use the graphics for the 2004 race for the sum of $329. The Tour declined to make payment, but promised not to make further use of Wilson's materials. In 2004 Steve Farris drove the race courses with a GPS unit to get more accurate profiles of the roads, and then used a computer program to design new race course profiles for the Race Bible.

On June 21, 2004 Wilson wrote to Brennan and claimed copyright protection in virtually all aspects of the Tour. After receiving this letter the Tour made efforts to comply with Wilson's demands that it stop using his works by making minor changes to Wilson's maps and the normal yearly revisions to the Race Bible.

In the spring of 2005 Wilson again viewed the Tour's Race Bible and other materials on-line and concluded that they infringed on his intellectual property rights. On April 25, 2005 Wilson registered with the Copyright Office the text, factual compilations and the graphic materials that he claims to have created in connection with the Tour.4 Wilson's Applications did not reflect that he had incorporated any preexisting works into his text or graphic materials.

In April of 2006 Wilson notified the Tour of his copyright registrations and demanded that the Tour stop infringing on his copyrights. The parties had various discussions about how to resolve this matter, but were unable to do so. On May 9, 2007 Wilson filed suit claiming copyright infringement.


The Copyright Act of 1976 protects "original works of authorship fixed...

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