Erlich Case Documents part 1 of 3By firstname.lastname@example.org (alerma)
14 Jul 1995 11:56:39 GMT
1 HAROLD J. McELHINNY CARLA B. OAKLEY 2 MATTHEW K. FAWCETT MORRISON & FOERSTER 345 California Street San Francisco, California 94104-2675 Telephone: (415) 677-7000 Facsimile: (415) 677-7522
6 Attorneys for Defendant and Counterclaimant DENNIS ERLICH 7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 RELIGIOUS TECHNOLOGY CENTER, a ) Civ. No. C-95-20091 RMW California non-profit ) 12 corporation; and BRIDGE ) PUBLICATIONS, INC., a ) 13 California non-profit ) corporation, ) DEFENDANT ERLICH'S 14 ) APPENDIX RE COPYRIGHT Plaintiffs, ) ISSUES 15 ) V. ) 16 ) NETCOM ON-LINE COMMUNICATION ) 17 SERVICES, INC., a Delaware ) Date: June 23, 1995 corporation; DENNIS ERLICH, ) Time: 9:00 a.m. 18 an individual; and TOM KLEMESRUD, ) The Hon. Ronald M. Whyte an individual, dba CLEARWOOD ) 19 DATA SERVICES, )
21 DENNIS ERLICH, 22 Counterclaimant, 23 V. 24 RELIGIOUS TECHNOLOGY CENTER, INC. 25 and BRIDGE PUBLICATIONS, INC.,
26 Counterclaim Defendants. 27
DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES
1 Plaintiffs cannot establish a likelihood of success
2 as to their copyright claims due to the many defects in the
3 claims themselves, the numerous inconsistencies that pervade
4 the registrations and the absence of an automatic presumption
5 of copyright validity or ownership. The chart attached hereto
6 as Exhibit 1 summarizes the issues as to each of the.-.documents
7 listed in Exhibits A and B to the complaint.1
8 1. Work in the Public Domain. As a result of a
9 1992 amendment to the Copyright Act, a copyright claimant is
10 not required to file an application for a renewal registration
11 for works in which copyright was secured between January 1,
12 1964 and December 31, 1977 because such renewals issue
13 automatically. Paul Goldstein, Copyright (1994 Supp.) SS 4.8
14 at Supp. pg- 99. For works in which copyright was secured
15 prior to 1964, however, a copyright claimant must have filed
16 an application for renewal registration prior to expiration of
17 the initial copyright term in order to prevent the work from
18 entering the public domain. Id.; see generally Lionel S.
19 Sobel, Copyright Renewal After the 1992 Amendments, Vol- 14,
20 No. 7 (Dec. 1992) Entertainment Law Reporter, at pg- 3.
21 Based on these rules, Item 4 of Exhibit A is not
22 entitled to copyright protection because it was first
23 published in 1961 and its initial 28-year copyright term
24 expired in 1989 upon the failure to renew the copyright.2 The
26 1 Since we do not have copies of the complete OT 1, OT 2 or NOTS works, additional defects may exist as to these Exhibit B 27 documents that are not readily apparent from the registration certificates themselves. 28 2 The "original work" (Exhibit 15B to McShane 2/24 Decl.) includes a copyright notice date of 1961. DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES 1
1 work automatically entered the public domain in 1989. New Era 2 Publications Int'l v. Carol Pub. Group, 729 F. Supp- 992, 995 3 (S.D.N.Y. 1990), rev'd on other grounds, 904 F.2d 152 (2d Cir. 4 1990) (holding that Scientology's HCO Manual of Justice, with 5 copyright notice date of 1959, was not entitled to copyright 6 protection since the original 28-year term expired in-1987 and 7 no renewal was timely obtained). 8 2. Plaintiffs Not Entitled To Copyright Interest 9 for Renewal Period. With respect to Items 1, 5 and 7 of 10 Exhibit A, for which renewal was automatic, plaintiffs have 11 not established any right to the copyright interests because 12 the rights, if any, vested automatically in LRH's statutory 13 successors (his wife and children), not LRH's estate. 17 14 U.S.C. SS 304(a)(1)(c); 2 Nimmer on Copyright, SS 9.04 (1994). 15 Specifically, since these works were first published in 1965 16 and 1966 (as evidenced by the copyright notices on the 17 "original works" submitted as Exhibits 2B, 10B and 12B to the 18 McShane declaration), the initial 28-year term for each of 19 these works has expired.3 By statute, the rights to the 20 renewal term automatically vest in the author's widow and 21 children -- not in LRH's estate.4 17 U.S.C. SS 304(a)(2)(c); 22 23 3 Copyright terms expire on December 31 of the last year of 24 the term. 17 U.S.C. SS 305. Thus, the original terms for works first published in 1965 or 1966 expired as of 25 December 31, 1993 and 1994, respectively.
26 4 Mr. McShane testified that Mr. Hubbard's wife and children survived him and are living today. McShane Depo. at 129:22- 27 130:11 (Exh. A to Declaration of Carla B. Oakley in Support of Motion to Dissolve or Amend the Amended TRO, filed herewith 28 ("Oakley Decl.")).
DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES 2
1 2 Nimmer on Copyright, SS 9.04 (1994). Moreover, the statutory 2 vesting of rights in the author's successors supersedes any 3 license or assignment previously made by a deceased author. 4 See Stewart v. Abend, 495 U.S. 207, 220-21 (1990); 2 Nimmer on 5 Copyright, 9.06[C] (1994). Similarly, the copyright 6 interest in Item 6 of Exhibit A, which was first published in 7 1967 according to the notice on the "original work" 8 (Exhibit 3B to McShane 2/24 Decl.), will vest in LRH's wife 9 and children at the end of 1995, or earlier if they file for a 10 renewal registration. 11 Plaintiffs have not, however, established that LRH's 12 wife and children transferred to either of them rights in 13 these various documents. No rights have been transferred to 14 RTC. McShane Depo. at 130:8-11 (Exh. A to Oakley Decl.). 15 Thus, it is unlikely that plaintiffs have the requisite 16 standing as to these works. 17 3. No Registrations of Infringed Works. A valid 18 copyright registration is a statutory prerequisite for filing 19 a claim of infringement. 17 U.S.C. 411. Where the 20 allegedly infringed work is incorporated into a compilation or 21 derivative work, it is not sufficient to have obtained a 22 registration simply for the compilation or derivative work. 23 2 Nimmer on Colpyright, 7.16[B] (1994). Rather, if only 24 the original work is infringed, as distinguished from the 25 compilation or a derivative of the work, registration of the 26 original work may be required before an infringement claim can 27 be stated. See Conan Properties, Inc. v. Mattel, Inc., 601 F. 28 DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES 3
1 Supp. 1179, 1182-83 (S.D.N.Y. 1984) (dismissing action where 2 plaintiff provided registration of only the derivative comic 3 books, but failed to provide registration of CONAN character 4 that was claimed to have been infringed); Moritia v. Omni S Publications Intern., Ltd., 741 F. Supp. 1107, 1110-11 6 (S.D.N.Y. 1990), vacated by consent judgment, 760 F., -Supp. 45 7 (S.D.N.Y. 1991) (denying copyright claim where plaintiff 8 failed to obtain registration for underlying work, but rather 9 had registered only the derivative work); see also Shaw v. 10 Lindheim, 809 F. Supp.2d 1393, 1404 (C.D. Cal. 1992) (use of 11 aspect of derivative work that was contained in underlying 12 protected work cannot be infringement of the derivative). 13 In this case, however, all of the registrations, with 14 the exception of the registrations for the first item on 15 Exhibit A and the first item on Exhibit B, are registrations 16 for collections of alleged LRH writings that were published or 17 authored years earlier. For example, Registration 18 No. A599651, dated November 11, 1974, is for a book composed 19 of several hundred different policy letters and bulletins, 20 each with a separate copyright notice. See, e.g., Oakley 21 Decl., Exh. D (Table of Contents, Organization Executive 22 Course, HCO Division 1). The years specified in these 23 individual notices span 1956 to 1970. The one document within 24 this work that Mr. Erlich allegedly infringed is at pages 552 25 to 557, and includes its own copyright notice, with a date of 26 1965. Id., Exh. E (copy of document). It was not, however, 27 28
1 separately registered. The other multi-part registered works
2 appear to be similar.5
3 Particularly since plaintiffs rely on each work
4 individually to evaluate what percentage was copied for their
5 "fair use" analysis, they cannot claim each work is not
6 separate for registration purposes.
7 4. Registration Certificate Inconsistencies. Aside
8 from various legal defects in plaintiffs' copyright claims,
9 there are numerous inconsistencies throughout the copyright
10 registrations relied upon by plaintiffs that support the
11 conclusion that plaintiffs are not likely to succeed on their
12 claims. For example:
13 9 Reg. No. TX 2-646-306, which was filed in September 1989, identifies LRH as the "copyright 14 claimant." Since LRH died in 1986, LRH cannot be the proper copyright claimant. James E. Hawes, 15 Copyright Registration Practice, SS 8.04 (1995).
16 0 Reg. No. TXu 303-384 is signed by Andy Zulieve, who is identified as an authorized agent of LRH's 17 estate. All other certificates, however, identify Norman Starkey as the authorized agent of LRH's 18 estate or family trust -- not Mr. Zulieve. Mr. McShane testified that he did know of 19 Mr. Zulieve, but thought Mr. Starkey was the sole executor and trustee. McShane Depo. at 146:13-23 20 (Exh. A to Oakley Decl.).
21 0 The titles of the allegedly infringed works identified on Exhibits A and B differ from the 22 titles of the works identified on the corresponding registrations. Thus, without reviewing a copy of 23 the deposit material on file for each registration in question, it is impossible to determine whether 24
25 5 Since RTC has not provided a complete copy of the works 26 covered by the registrations identified on Exhibit B, this conclusion is based on the reference in the registration to 27 series of works, as well as Mr. McShane's testimony describing various components to the OT and NOTS works. McShane Depo- 28 at 153:20-162:25 (Exh. A to Oakley Decl.).
DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES 5
the works listed are indeed covered by the registrations plaintiffs cite. 2 Although Item 3 of Exhibit A is claimed to be 3 confidential, the registration certificate cited for this work indicates that no procedures were 4 undertaken to maintain copies of the works deposited with the Copyright Office confidential. s 5. No Presumption of validity. While a copyright 6 registration may, in certain cases, constitute prima facie 7 evidence of the validity and ownership of the copyright 8 claimed therein, plaintiffs are not entitled to any such 9 presumption for a majority of the registrations relied upon 10 because more than five years elapsed between original 11 publication and registration. 17 U.S.C. 410(c); 2 Nimmer on 12 Copyright, 7.16[D] (1994). Rather, any presumption is at 13 the Court's discretion. 17 U.S.C. 410(c). 14 For example, the titles of the documents identified 15 as Items 9 and 10 of Exhibit A indicate first publication as 16 early as September 1983 and May 1982, respectively. These 17 works were not registered, however, until 1991 and 1990, 18 respectively.6 If a work was first published before 19 January 1, 1978 and thus obtained statutory copyright 20 protection under the 1909 Act, but was not registered until 21 after the 1976 Act became effective, and more than five years 22
24 6 While the registration certificates list dates of first publication as 1991 and 1990, these dates are plainly 25 inconsistent with the titles of the documents themselves. Further, with respect to Item 10, the "original work" of LRH 26 (attached as 13B to McShane 2/24 Decl.) includes a copyright notice date of 1982. With respect to Item 9, neither 27 Mr. Erlich's purported copy nor the "original,, of this allegedly infringed work was provided with Mr. McShane's 28 declaration.
DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES 6
1 elapsed between its first publication and its registration 2 under the current Act, the weight accorded the certificate is 3 entirety within the discretion of the court. 2 Nimmer on 4 Copyright, 7.16[D] (1994); Dollcraft Industries, Ltd. v. 5 Well-Made Toy Mfg., 479 F. Supp. 1105, 1108, 1114 (E.D.N.Y. 6 1978); Eisenman Chem. Co. v. NL Indus., Inc., 7 595 F. Supp. 141, 144 (D. Nev. 1984). Therefore, the work 8 listed as Item 1 on Exhibit A is not entitled to the prima 9 facie evidence benefit as the registration indicates the work 10 was published in February 1966, but not registered until 11 September 1989.7 Likewise, Items 2 and 4 to 8 evidently were 12 first published more than five years earlier than these works 13 were registered as part of a larger compilation and, thus, are 14 not likely to give rise to any evidentiary presumptions.8 15 Further, Items 1, 3 and 4 on Exhibit B would not be 16 entitled to the evidentiary benefit as they were created in 17 18 7 Also, the "original" (Exhibit 12A to McShane) includes a 19 copyright notice date of 1966.
20 8 Item 2 was published in 1965 (copyright notice on Exhibit 5B to McShane 2/24 Decl.) and the registration 21 certificate identified by plaintiffs was obtained in 1974; Item 4 was published in 1961 (copyright notice on Exhibit 15B 22 to McShane 2/24 Decl.) and the registration certificate identified by plaintiffs was obtained in 1976; Item 5 was 23 published in 1965 (copyright notice on Exhibit 10B to McShane 2/24 Decl.) and the registration certificate identified by 24 plaintiffs was obtained in 1974; Item 6 was published in 1967 (copyright notice on Exhibit 3B to McShane 2/24 Decl.) and the 25 registration certificate identified by plaintiffs was obtained in 1987; Item 7 was published in 1965 (copyright notice on 26 Exhibit 2B to McShane 2/24 Decl.) and the registration certificate identified by plaintiffs was obtained in 1987; and 27 Item 8 was published in 1976 (copyright notice on Exhibit 4B to McShane 2/24 Decl.) and the registration certificate 28 identified by plaintiffs was obtained in 1987.
DEFENDANT ERLICH'S APPENDIX RE COPYRIGHT ISSUES 7
1 1968, 1968 and 1966, respectively, but were not registered 2 until 1994, 1987 and 1987, respectively. 3 In addition, absent the renewal registrations for 4 works in their renewal copyright term (Items 1, 2, 5 and 7 on 5 Exhibit A), plaintiffs are not entitled to any evidentiary 6 presumptions for those works respecting validity or ownership. 7 17 U.S.C. SS 304; 2 Nimmer on Copyright, 9.05[DI[21 (1994). 8 Also, to the extent that information on supplemental 9 registrations (which can be used to correct information in an 10 original registration) contradicts original registrations, 11 plaintiffs are not entitled to a prima facie presumption as to 12 those elements. Id. 7.20. Supplemental corrective 13 registrations were filed for at least four of the 14 registrations plaintiffs cite in Exhibits A and B and attach 15 to the complaint. 16 Without the benefit of the prima facie presumption, 17 plaintiffs have the burden of proving likelihood of success on 18 the issues of the validity and ownership of the copyrights, 19 and, where necessary, that any published copies of the works 20 bore a proper copyright notice and thus did not fall into the 21 public domain. 3 Nimmer on Copyright 12.11[BI[21 (1994); 22 Dollcraft Industries, Ltd., 479 F. Supp. at 1115. 23 24 25 26 27 28 end of part 1 of 3