Jarecki V Ohoven - Order Granting Summary Judgment 081811

Case 2:11-cv-05353-GAF -JEM Document 80
Filed 08/18/11 Page 1 of 9 Page ID #:1006
LINK: 61, 66 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Title CV 11-5353 GAF (JEMx) Nicholas Jarecki v. Michael Ohoven et al Date August 18, 2011
Present: The Honorable Renee Fisher Deputy Clerk
GARY ALLEN FEESS None Court Reporter / Recorder N/A Tape No.
Attorneys Present for Plaintiffs: None Proceedings: (In Chambers)
Attorneys Present for Defendants: None
ORDER RE: PLAINTIFFS MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION AND BACKGROUND Plaintiff Nicholas Jarecki (Plaintiff or Jarecki) filed this suit for a declaratory judgment against Michael Ohoven and Infinity Media, Inc. (collectively, Defendants) in the Southern District of New York on March 22, 2011. (Docket No. 1). On June 16, 2011, that court concluded that it lacked personal jurisdiction over Defendants and accordingly transferred venue to this Court. (Docket No. 40.) On July 25, 2011, a little over a month after the case was transferred and approximately two weeks after Defendants filed their Answer, Plaintiff filed the present motion for summary judgment. (Docket No. 61.) On July 28, 2011, Defendants filed an ex parte application to continue the hearing on the motion to allow Defendants to conduct discovery. (Docket No. 66.) Plaintiff alleges that he solely authored a screenplay (the Screenplay) for a film (the Film) that was set to begin principal photography in April 2011. (Docket No. 1, Compl. 89.) Accordingly, Plaintiff contends, he owns all rights, title, and interest in and to the Screenplay and any derivative works, including the Film. (Id. 9.) The complaint alleges that Plaintiff had communicated with Ohoven, the President of Infinity Media, Inc. (Infinity), and Infinitys independent consultant, Kevin Turen (Turen), regarding the financing, development, and production of the Film. (Id. 10.) According to the complaint, Ohoven and Turen provided some assistance with the development of the Film, and the parties discussed Defendants potential role as a financier and producer of the Film. (Id.) However, the parties never reached an agreement as to the financing or production of the Film, nor did they ever enter into any written agreements transferring any copyright rights in the Screenplay or the Film. (Id.) In late 2010, Plaintiff told Defendants that he would be financing and producing the Film
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 9
without their involvement. (Id. 11.) Then, on March 3, 2011, counsel for Defendants sent Plaintiffs counsel a letter contending that Defendants have the exclusive right to produce and distribute the Film and that they are the co-author and co-owner of the Screenplay by virtue of contributions that Turen purportedly made to the Screenplay on Infinitys behalf. (Id. 12.) Plaintiff understands Defendants to contend that Turens contributions rendered the Screenplay a joint work under copyright law and that Turens contributions were made on a work-for-hire basis for Infinity, such that Turens co-authorship rights inure to the benefit of Infinity. (Id.) In this suit, Plaintiff seeks a declaratory judgment (1) that Defendants hold no copyright interests in the Screenplay or in the Film, and (2) that, as between Plaintiff and Defendants, the Screenplay is not a joint work and Plaintiff is the sole author of the work. (Id. 25.) II. FACTS Nicholas Jarecki wrote a screenplay called Arbitrage that is currently being made into a motion picture starring Richard Gere, Susan Sarandon, and Tim Roth. (Declaration of Nicholas Jarecki (Jarecki Decl.) 1.) Jarecki is also the director, producer, and primary financier of the Film. (Id.) Jarecki wrote and revised the Screenplay from early 2009 through May 2011. (Id. 2.) Jarecki has a registered copyright in the Screenplay. (Id. 3 & Ex. A.) In November 2009, Jarecki showed the Screenplay to Kevin Turen, a friend who was consulting for Infinity at the time. (Id. 13.) Jarecki initially sought Turens general impressions in his independent capacity. (Id.) In February 2010, in consultation with Turen, Jarecki sent the Screenplay to Ohoven, President of Infinity, to see if he was interested in working on the project. (Id.) From February through December 2010, Ohoven and Jarecki negotiated the possibility of producing the Film together. (Id. 6.) After Infinity expressed interest, Turen continued to review drafts of the Screenplay and to provide general comments. (Id. 13.) Turen attests that he provided only general comments and feedback; he did not provide lines of dialogue or descriptions of action. (Declaration of Kevin Turen (Turen Decl.) 18.) Despite Turens contributions, it was never Jareckis or Turens intent that Turen would be deemed a co-author of the Screenplay. (Jarecki Decl. 13; Turen Decl. 18.) Nonetheless, Ohoven and Infinitys in-house attorney attest that Turen repeatedly told them that he practically co-wrote the Screenplay with Nick [Jarecki] in Infinitys offices, that [Turen] wrote out specific dialogues and scenes with him and that there was no way Nick could ever kick us off the Picture. (Declaration of Michael Ohoven (Ohoven Decl.) 3; Declaration of Travis Mann (Mann Decl.) 3.) During this periodFebruary through December 2010, when Turen provided services to Infinity in connection with the potential production of the FilmTuren was an independent
contractor, not an employee, of Infinity. (Turen Decl. 711, 18.) Turen never signed any agreement with Infinity regarding his services, nor did he ever sign any agreement that transferred to Infinity any rights in any work product that Turen created. (Id. 14.) In Fall 2010, Ohoven began demanding that Jarecki sign rights in the Screenplay over to Infinity, and in December, Jarecki concluded that he could not work with Ohoven and broke off negotiations. (Jarecki Decl. 7.) Jarecki never signed any written agreement granting Infinity any rights in the Screenplay. (Id. 11.) After Jarecki broke off negotiations with Infinity, Turen remained involved, and Arbitrage PSC, Inc., ultimately engaged him as Producer of the Film. (Id. 13; Turen Decl. 6.) On March 3, 2011, in-house counsel for Infinity, Travis Mann, sent a letter to Jareckis attorney accusing Jarecki and Turen of orchestrating a bad faith conspiracy to replace Infinity as [the Films] producer and financier. (Jarecki Decl., Ex. B at 2.) The letter asserted that to the extent that Jarecki, Turen and/or other third parties rendered services in connection with the Picture as a work made for hire for Infinity and/or were compensated by Infinity for their services in connection with the Picture, Infinity has an ownership interest in the results and proceeds of such services and the underlying property rights in and to the Picture, including, without limitation, an ownership interest in the screenplay. (Id.) The letter demanded that Jarecki immediately cease and desist from developing and producing the Film and indicated that failing to do so would force Infinity to seek immediate, emergency injunctive and equitable relief in connection with this matter. (Id. at 3.) The letter indicated that if Jarecki did not confirm within five business days that he would honor his obligations to Infinity, Infinity would pursue all available legal and equitable claims against Jarecki and related entities. (Id.) Before this letter, Infinity had never indicated that it believed it had co-authorship rights in the Screenplay. (Jarecki Decl. 14.) To the contrary, Infinity had acted as if only Platinfiff authored and owned the Screenplay. A draft letter agreement prepared by Defendants and dated April 22, 2010, refers to Plaintiffand only Plaintiffas the Writer, describes the Screenplay as having been written by Writer [Jarecki], and requires Jarecki to negotiate any Writers rights agreement in good faith. (Jarecki Decl., Ex. C.) A draft option agreement dated November 3, 2010, similarly describes the Screenplay as written and owned by Jarecki. (Id., Ex. D.) All copies of the Screenplay listed only Jarecki as the author. (Id., Ex. E.) In multiple offer letters to actors, Defendants described the Film as written and to be directed by Nicholas Jarecki. (Reply Declaration of Nicholas Jarecki (Jarecki Reply Decl.), Ex. E.) On November 1, 2010, Ohoven approved a press release that described the Film as written and to be directed by Nicholas Jarecki. (Id., Ex. F.) Similarly, as of June 13, 2011, Infinitys website described the Film as written and directed by Nick Jarecki. (Id., Ex. G.)
LINK: 61, 66 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Title CV 11-5353 GAF (JEMx) Nicholas Jarecki v. Michael Ohoven et al III. DISCUSSION A. LEGAL STANDARD FOR SUMMARY JUDGMENT Summary judgment is proper where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). Thus, when addressing a motion for summary judgment, the Court must decide whether there exists any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Id. at 256. The moving party can meet this burden by presenting evidence establishing the absence of a genuine issue or by pointing out to the district court . . . that there is an absence of evidence supporting a fact for which the nonmoving party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To defeat summary judgment, the nonmoving party must put forth affirmative evidence that shows that there is a genuine issue for trial. Anderson, 477 U.S. at 25657. This evidence must be admissible. See Fed. R. Civ. P. 56(c), (e). The nonmoving party cannot prevail by simply show[ing] that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must show that evidence in the record could lead a rational trier of fact to find for it. See id. at 587. In reviewing the record, the Court must believe the nonmoving partys evidence, and must draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. B. LEGAL STANDARD FOR A CONTINUANCE UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(D) Under Federal Rule of Civil Procedure 56(d), [i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; [or] (2) allow time to obtain affidavits or declarations or to take discovery. Fed. R. Civ. P. 56(d). In considering a Rule 56(d) request, [t]he district court has discretion to continue a motion for summary judgment if the opposing party needs to discover essential facts. Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990); see also Portland Retail Druggists Assn v. Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981) (Before summary judgment may be entered against a party, that party must be afforded . . . an adequate opportunity to respond. Implicit in the opportunity to respond is the requirement that sufficient time be afforded for discovery necessary to develop facts essential to justify (a partys) opposition to the motion. (quoting Fed. R. Civ. P. 56) (alteration in original)).
Date
August 18, 2011
The party seeking a continuance under Rule 56(d) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1100 (9th Cir. 2006). In addition, the party seeking a continuance must show it was diligent in pursuing discovery. See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). A Rule 56(d) declaration need not be presented in a form suitable for admission as evidence at trial, so long as it rises sufficiently above mere speculation. Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1206 (1st Cir. 1994). C. APPLICATION A copyright registration certificate is prima facie evidence of copyright ownership. Aurora World, Inc. v. Ty Inc., 719 F. Supp. 2d 1115, 1128 (C.D. Cal. 2009) (citing 17 U.S.C. 410(c). A certificate of copyright registration, therefore, shifts to the defendant the burden to prove the invalidity of the plaintiffs copyrights. Id. (quoting Ets-Hokin v. Dkyy Spirits, Inc., 225 F.3d 1068, 1076 (9th Cir. 2000)). A copyright in the Screenplay has been registered in Plaintiffs name. (Jarecki Decl., Ex. A.) Plaintiff has accordingly made a prima facie case that he owns the copyright in the Screenplay. Plaintiff has attested that he never signed any agreement granting Defendants any rights in the Screenplay. (Jarecki Decl. 11.) Under the Copyright Act, a transfer of copyright ownership is not valid unless it is in writing and signed by the owner of the rights conveyed or such owners duly authorized agent. 17 U.S.C. 204(a). In their opposition to the motion for summary judgmentwhich is nothing more than a request for a continuance under Rule 56(d)Defendants make no argument that this provision does not apply here such that an oral transfer could be enforceable. (See generally Docket No. 71, Opp.) Thus, because Plaintiff never signed any written agreement, he did not contractually transfer any ownership rights in the Screenplay. In their Rule 56(d) request, Defendants do not suggest that discovery would reveal the existence of any such written agreement. Indeed, in their Answer, Defendants admit that the parties have not entered into any written agreements assigning, licensing or otherwise transferring to Defendants any copyright rights in the Screenplay and/or the Film. (Docket No. 55, Answer 10.) It is accordingly undisputed that Plaintiff did not transfer rights in the Screenplay to Defendants. Defendants contend that they nonetheless have rights in the Screenplay because Infinity qualifies as a co-author under copyright law. Under the Copyright Act, co-authors of a joint work co-own the copyright in the work. 17 U.S.C. 201(a). A joint work is defined as a work prepared by two or more authors with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole. Id. 101. To establish that a work qualifies as a joint work, a party must show (1) that each author made an independently copyrightable contribution; (2) that the putative coauthors made objective manifestations of a shared intent to be coauthors; (3) that the alleged author superintended the work by exercising control; and (4) that the audience appeal of the work can be attributed to both authors and that the share of each in its success cannot be appraised. Richlin v. MetroGoldwyn-Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008) (quoting Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990) and Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000)) (alteration omitted). Defendants contend that Turen co-authored the Screenplay while he was working on Infinitys behalf. (Answer 12.) Plaintiff has refuted this contention with evidence that Turen did not make any independently copyrightable contributions to the Screenplay, that neither Plaintiff nor Defendants or Turen manifested any intent to be co-authors, and that Turen did not exercise control over the work. First, Plaintiff has offered a declaration by Turenthe purported co-authorthat he provided only general comments and feedback, and did not provide any lines of dialogue or descriptions of action. (Turen Decl. 18.) Copyright law protects only expression of ideas, not the ideas themselves. Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002). Thus, if Turen provided only ideas, and not any expressions of ideas, he did not make independently copyrightable contributions that could entitle him to co-author status. Second, Plaintiff and Turen have both attested that they did not intend to be co-authors of the Screenplay. (Jarecki Decl. 3; Turen Decl. 18.) Although Defendants now contend that Turen told them that he authored portions of the screenplay, Defendants own documents belie this claim. Before this dispute arose, Defendants prepared numerous documents reflecting an understanding that Plaintiff alone was the Screenplays author. (See Jarecki Decl., Exs. C, D, E; Jarecki Reply Decl., Exs. D, E, F, G.) A draft letter agreement prepared by Defendants and dated April 22, 2010, refers to Plaintiffand only Plaintiffas the Writer, describes the Screenplay as having been written by Writer [Jarecki], and requires Jarecki to negotiate any Writers rights agreement in good faith. (Jarecki Decl., Ex. C.) A draft option agreement dated November 3, 2010, similarly describes the Screenplay as written and owned by Jarecki. (Id., Ex. D.) All copies of the Screenplay listed only Jarecki as the author. (Id., Ex. E.) In multiple offer letters to actors, Defendants described the Film as written and to be directed by Nicholas Jarecki. (Jarecki Reply Decl., Ex. E.) On November 1, 2010, Ohoven approved a press release that described the Film as written and to be directed by Nicholas Jarecki. (Id., Ex. F.) Finally, as of June 13, 2011, Infinitys website described the Film as written and directed by Nick Jarecki. (Id., Ex. G.) This evidence shows that Defendants objectively manifested an understanding that Jarecki was the sole author of the Screenplay.
Finally, Plaintiff has offered evidence that he exercised sole control over the development of the Screenplay. Specifically, Plaintiff attested that [t]he creative . . . decisions for this project . . . have ultimately been my sole responsibility and that he has retained creative control of the project throughout development, financing and production. (Jarecki Decl. 4.) Turen confirms that Jarecki retained sole control over the Screenplay and its content. (Turen Decl. 17.) Defendants have not presented any facts to dispute any of this evidence; indeed they cannot as they authored the most persuasive evidence of Jareckis role as the sole creator of the screenplay. Despite this evidence, Defendants now request a Rule 56(d) continuance to allow them to obtain evidence so that it can properly oppose the Motion for Summary Judgment. (Docket No. 66, Ex Parte Application at 3.) But what might such evidence be and where might it be found? On those questions, Defendants have provided very little detail as to what they could accomplish if given the opportunity to conduct discovery. This failure flies in the face of Ninth Circuit precedent which mandates that a party seeking a continuance under Rule 56(d) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. Tatum, 441 F.3d at 1100 (emphasis added). Defendants have identified only one specific fact in support of their application: they contend that allowing time for discovery would permit them to obtain deposition testimony from Turen that he co-wrote the Screenplay with Jarecki. (Opp. at 2.) Defendants suggest that they could obtain this testimony notwithstanding Turens declaration attesting otherwise because Turen previously told Ohoven and Infinitys counsel that he practically co-wrote the Screenplay, that Turen wrote out specific dialogue and scenes, and that there was no way Jarecki could kick [them] off the Picture. (Opp. at 2; Ohoven Decl. 3; Mann Decl. 3.) Defendants, however, have not attempted to explain why this evidence would preclude summary judgment. Indeed, it would not. For example, Turen might agree that he made such statements but acknowledge that they were exaggerations meant, perhaps, to enhance his standing with Ohoven and others. On the other hand, if Turen in fact contradicted his declaration, agreed that he made such statements and insisted that they were true, such testimony that he wrote portions of the Screenplay would establish only that he contributed independently copyrightable elements. It would not establish that he and Jarecki objectively manifested any intent to be coauthors, nor would it establish that Turen exercised any control over the work. Defendants have not suggested that discovery would uncover any evidence raising a triable issue of fact on either
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 7 of 9
of these elements.1 They therefore have not shown that additional discovery would allow them to present evidence precluding summary judgment. As a result, they have not demonstrated their entitlement to a continuance under Rule 56(d). See Tatum, 441 F.3d at 1100 (allowing a Rule 56(d) continuance only where the non-moving party identif[ies] by affidavit the specific facts that further discovery would reveal, and explain[s] why those facts would preclude summary judgment). Moreover, even if Defendants could raise a triable issue of fact as to whether Turen was a co-author of the Screenplay, they have not indicated that they could obtain any evidence showing that Turen co-authored the script on a work-for-hire basis on behalf of Infinity. Turen attests that he was never an employee of Infinity and that he rendered his services to Infinity as an independent contractor. (Turen Decl. 78.) Turen further attests that he never signed any agreement with Infinity regarding his services or any agreement transferring rights to Infinity in any of his work product. (Id. 13.) In light of this, even if Turen did co-author the Screenplay, no evidence in the record indicates that that co-author status would be imputed to Infinity. In sum, Defendants have not shown that allowing time for discovery would enable them to uncover evidence that could defeat summary judgment. They accordingly are not entitled to a continuance under Federal Rule of Civil Procedure 56(d). They have not put forth any evidence raising a triable issue of fact on the elements of joint authorship. Plaintiff has accordingly met his burden to show that the undisputed facts establish that Defendants hold no copyright interests in the Screenplayor, derivatively, in the Filmand that the Screenplay is not a joint work by Plaintiff and Defendants. Plaintiffs motion for summary judgment is therefore GRANTED and Defendants ex parte application for a Rule 56(d) continuance is DENIED. IV. CONCLUSION Defendants ex parte application for a continuance of the motion for summary judgment under Federal Rule of Civil Procedure 56(d) is DENIED and Plaintiffs motion for summary judgment is GRANTED. The Court concludes that Defendants hold no copyright interests in the Screenplay or in the Film and that the Screenplay is not a joint work by Plaintiff and Defendants. Plaintiffs motion to strike Defendants affirmative defenses is DENIED as moot.
Defendants also seek additional time to depose Plaintiff, to obtain affidavits and/or declarations from [unspecified] witnesses, and to obtain a copy of the shooting script. (Docket No. 661, Declaration of Michael Ohoven in Support of Ex Parte Application 6.) Defendants do not explain what testimony they expect to obtain from Plaintiff or from the unidentified witnesses, nor do they explain how a copy of the shooting script would help them to defeat summary judgment.
1
Plaintiff is hereby ORDERED to submit a proposed judgment consistent with this Order by no later than August 30, 2011. The hearing on this motion currently scheduled for August 22, 2011, is hereby VACATED.
IT IS SO ORDERED.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 9 of 9

Jarecki V Ohoven - Order Granting Summary Judgment 081811

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Jarecki V Ohoven - Order Granting Summary Judgment 081811

Uploaded by

Copyright:

Available Formats

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 1 of 9 Page ID #:1006

Present: The Honorable Renee Fisher Deputy Clerk

Attorneys Present for Plaintiffs: None Proceedings: (In Chambers)

Attorneys Present for Defendants: None

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 2 of 9 Page ID #:1007

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 3 of 9 Page ID #:1008

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 4 of 9 Page ID #:1009

August 18, 2011

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 5 of 9 Page ID #:1010

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 6 of 9 Page ID #:1011

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 7 of 9 Page ID #:1012

CIVIL MINUTES - GENERAL

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 8 of 9 Page ID #:1013

Case 2:11-cv-05353-GAF -JEM Document 80

Filed 08/18/11 Page 9 of 9 Page ID #:1014

CIVIL MINUTES - GENERAL

You might also like