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Segura v. Sofa Entertainment, Inc.

United States District Court, D. Oregon, Portland Division

June 9, 2017

KEVIN SEGURA, an individual, dba SHINY VINYL MUSIC, Plaintiff,
v.
SOFA ENTERTAINMENT, INC., a California corporation; DIRECT HOLDINGS AMERICA INC., a Delaware corporation, dba STARVISTA LIVE and TIMELIFE, Defendants.

          AMENDED [1] OPINION AND ORDER

          JOHN V. ACOSTA United States Magistrate Judge

         Introduction

         Plaintiff Kevin T. Segura (“Segura”) filed suit for copyright infringement pursuant to the Copyright Act of 1976, 17 U.S.C. § 101 et seq., against defendants Direct Holdings America, Inc., dba StarVista Live and TimeLife (“Direct Holdings”) and Sofa Entertainment, Inc. (“SOFA”).

         Segura seeks to recover statutory damages in the amount of $150, 000 and attorney fees due to SOFA's alleged copyright infringement of a musical interlude. SOFA moves for partial summary judgment on the issue of statutory damages and attorney fees, claiming Section 412 bars Segura's recovery. 17 U.S.C. § 412. The court grants SOFA's motion because the undisputed facts show Section 412 bars Segura's recovery for statutory damages and attorney fees.[2]

         Background

         In September 1956, the Ed Sullivan Show aired a performance by Elvis Presley. A band called The Vagabonds played live music prior to Presley's performance. Before and after The Vagabonds' live performance on the Ed Sullivan Show, a brief fanfare played in the background. The fanfare, the “Vagabonds Play-On, ” and the “Vagabonds Play-Off, ” is the subject of Segura's claim.

         In 2006, SOFA prepared and released three 60-minute Ed Sullivan Show episodes (“the SOFA Video Compilation.”) The September 1956 Ed Sullivan Show was one of the episodes included in the complation. The Vagabonds Play-On and the Vagabonds Play-Off also were included in that episode.

         While performing restoration work on the SOFA Video Compilation for its 2006 release, Segura heard the Vagabonds Play-On and the Vagabonds Play-Off and decided he liked the music. Segura registered a copyright for the Vagabonds Play-On and the Vagabonds Play-Off on March 7, 2012. (Def. Repl. at 2.) Segura approached SOFA regarding its copyright infringement for the unlicensed use of the Vagabonds Play-On and the Vagabonds Play-Off in the 2006 SOFA Video Compilation. Ultimately, on July 29, 2012, SOFA and Segura entered into a retroactive, non- exclusive license agreement, spanning May 10, 2007 through December 31, 2012, for its limited use of the Vagabonds Play-On and the Vagabonds Play-Off in the SOFA Video Compilation.

         In 2014, Direct Holdings and SOFA re-released the same September 1956 episode (“the TimeLife Video Compilation”). The Vagabonds Play-Off, but not the Vagabonds Play-On, was included in that episode. Segura brought an action for willful copyright infringement under 17 U.S.C. § 101 et seq., alleging SOFA's 2014 use of the Vagabonds Play-Off infringed on his copyright. Defendant SOFA moved for partial summary judgment, citing the Copyright Act, 17 U.S.C. § 412, on Segura's request for statutory damages and attorney fees.

         Standard

         Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is not genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

         The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

         When a motion for summary judgment is unopposed, the court may grant the motion only if the movant's papers are sufficient to support the motion and do not on their face reveal a genuine issue of material fact. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). Summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wines, 533 F.2d 429, 439 (9th Cir. 1976). Where different ultimate inferences may be drawn, ...


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