Wilson v. Nat'l Bikers Roundup Inc.
| Decision Date | 12 May 2017 |
| Docket Number | C/A No.: 3:15-4862-MGL-SVH |
| Court | U.S. District Court — District of South Carolina |
| Parties | James A. Wilson, Plaintiff, v. National Bikers Roundup Inc., Columbia SC Roundup Committee, Rozell Nunn d/b/a R&R Enterprise and Rozell Nunn, individually, Albert Butler, and Sheldon Mickens, Defendants. |
This matter comes before the court on the motions of James A. Wilson ("Plaintiff") (1) for summary judgment against Rozell Nunn d/b/a R&R Enterprise ("R&R") and in his individual capacity ("Nunn") [ECF No. 38]; and (2) motion for default judgment against National Bikers Roundup, Inc. ("NBR"), and Columbia SC Roundup Committee ("CRC") [ECF No. 37]. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Because the motions for summary judgment and default judgment are dispositive, this report and recommendation is entered for the district judge's consideration.
For the reasons that follow, the undersigned recommends the district court grant the motions.
Plaintiff initially filed this action against NBR, CRC, R&R, and Nunn ("Defendants") on December 8, 2015, to recover damages arising from the sale at a motorcycle festival held in Darlington, South Carolina, on August 5, 2015 ("Festival"), of shirts that included infringements of Plaintiff's graphic designs. Compl. ¶¶ 10-30 (ECF No. 1). Specifically, Plaintiff asserts a copyright for a graphic design (the "Wilson Design") that was used on the shirts without his permission. Id. ¶¶ 16, 25-26, 28-30; [ECF Nos. 1-1, 1-2]. Together with his complaint, Plaintiff submitted Registration Certificate No. VA 1-976-227 issued by the United States Copyright Office on October 28, 2015, for the Wilson Design ("Certificate"). [ECF No. 1-3].
Plaintiff alleges Nunn was the owner and operator of R&R and was an integral part of organizing and planning the Festival, including having been involved in NBR's and CRC's process of approving items for Festival souvenirs. Id. ¶¶ 8, 18. Plaintiff states that, in preparation for the Festival, NBR and CRC sought a graphic design for Festival souvenir items, including for the sale of 7,500 shirts with an anticipated revenue of $120,000. Id. ¶ 15; Wilson Aff. ¶¶ 3-5 (ECF No. 38-4). Plaintiff states he submitted the Wilson Design in a proposal to NBR and CRC and was informed that it had been selected for use on the souvenirs. Id. ¶¶ 16-19. Plaintiff states that NBR and CRC then reversed their position and told him that they would not need his services in producing the souvenir shirts or in using his design. Id. ¶¶ 19-21. Plaintiff alleges NBR and CRC nevertheless contracted with Nunn and R&R to produce and sell shirts at the Festival thatincluded prominent elements of the Wilson Design. Id. ¶¶ 22-23; Answer of Nunn (ECF No. 16) ("I only printed what South Carolina Roundup Committee as [sic] to be printed.").
Plaintiff filed and served this lawsuit on CRC on December 17, 2015, and on NBR and R&R and Nunn on December 10, 2015. [ECF Nos. 8-11]. On February 3, 2016, Nunn filed a pro se answer to the complaint. [ECF No. 16].1 Nunn's answer was purportedly filed on behalf of NBR, R&R, and Nunn individually. The court issued an order directing NBR and R&R, if a corporate entity, to retain counsel to represent them or be subject to default judgment. Nunn advised the court by filing dated February 22, 2016, that R&R "was once done in sole proprietorship business but is no longer in business." [ECF No. 25].2 Despite the court's extensions, NBR and CRC have not had counsel represent their interests in this litigation. The Clerk of Court entered default against CRC on February 5, 2016 [ECF No. 23], and against NBR on April 7, 2016 [ECF No. 30].
Plaintiff now seeks default judgment pursuant to Fed. R. Civ. P. 55 against NBR and CRC [ECF No. 37] and summary judgment pursuant to Fed. R. Civ. P. 56 against R&R/Nunn [ECF No. 38]. In each motion, Plaintiff requests an award of statutorydamages, attorneys' fees and costs, as well as a permanent injunction to prevent defendants from further infringing his copyrights.
On December 5, 2016, the court advised Nunn, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of the summary judgment procedures and the possible consequences if he failed to respond adequately to Plaintiff's motion by January 4, 2017. [ECF No. 39]. After Nunn failed to respond to the motion for summary judgment, the undersigned issued another order on January 12, 2017, directing him to advise the court by January 26, 2017, whether he opposed Plaintiff's motion and to identify the legal grounds for his opposition. [ECF No. 41]. Nunn filed the following one-paragraph response on January 26, 2017:
I Rozell Nunn Jr. National Bikers Roundup Inc. did not do any copyright infringements on any design that James A. Wilson said he did the design. I Rozell Nunn Jr. only had a design that Columbia south Carolina ask me to get printed for them who was ask by Albert Butler SC Chairmain and Sheldon Mikens SC CoChairman. I was told by these two that Sheldon Mickens had been in charge of how the design was done. I Rozell Nunn Jr, National Bikers Roundup Inc., or R and R enterprise do not owe James A Wilson any money for a design. National bikers Round have steps be fore and one can do a design for the NBR feeling out paper work for all who wish to do a design this has to be do be for anyone can draw print or try to use the trademark of National bikers roundup Inc. there is no record of James A. Wilson having permission in writing do do so on any design. The planiff James A. Wilson is asking money from the wrong parties he named. The Planiff motion should be denied. I am denning I did any thing wrong.
[ECF No. 43] (errors in original). Having considered the motions and the record in this case, the undersigned recommends that they be granted.
Summary judgment is appropriate "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). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the rules, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
To prevail on an action for copyright infringement, "a plaintiff must show first that he owned the copyright to the work that was allegedly copied, and second, that the defendant copied protected elements of the work." Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 353 (4th Cir. 2001). Copying may be shown by direct evidence orcircumstantial evidence. If the plaintiff relies on circumstantial evidence, the "plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author's original work." Id. at 353-54.
It is undisputed that Plaintiff owns the Wilson Design. Copyright registration certificates issued by the United States Copyright Office enable an author to verify to others his ownership of a work. Barring a showing of a certificate's invalidity, pursuant to 17 U.S.C. § 410(c), the document represents prima facie evidence that Plaintiff owns a valid copyright to a work. See Serv. and Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 688 (4th Cir. 1992) (). The allegations of the Complaint against NBR and CRC are deemed admitted because NBR and CRC defaulted on their obligations to defend the litigation. In his response to the Complaint, Nunn admits that he produced the shirts as requested by NBR and CRC. See ECF No. 16 (). Nunn's admission of printing the t-shirts that reflect elements of the Wilson Design demonstrates infringement. Therefore, Defendants are all liable for copyright infringement as a matter of law.
Statutory damages for copyright infringement
The Copyright Act encourages registration, which then allows copyright holders to seek statutory damages in situations such as the present one where the apportionment of damages under § 504(b) becomes complex or relief is unavailable. In this case, Plaintifffailed to register his copyright prior to the infringement and is therefore limited in the damages that he may seek—only actual damages and infringer's profits pursuant to § 504(b). Dash v. Mayweather, No. 3:10-CV-1036-JFA, 2012 WL 1658934, at *4 , aff'd, 731 F.3d 303 (4th Cir. 2013).
Nevertheless, Plaintiff argues that because he does not seek damages in an amount certain, the court must ascertain the amount of damages to award. Ahava (USA), Inc. v. J.W.G., Ltd., 286 F. Supp. 2d 321, 323-24 (S.D.N.Y. 2003). Plaintiff argues he has been denied the opportunity to conduct discovery to determine the full extent of Defendants' infringement and the amount of actual damages he has suffered based on Defendants' profits. Therefore, Plaintiff...
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