United States District Court, D. Oregon, Portland Division
AMENDED  OPINION AND ORDER
V. ACOSTA United States Magistrate Judge
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”).
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
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.
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.
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
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.
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
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).
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.
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, ...