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McNeese v. Access Midstream Partners, L.P.

United States District Court, W.D. Oklahoma

March 10, 2017




         Plaintiff David McNeese (McNeese) brings this action against Defendant Access Midstream Partners, L.P. (Access) for copyright infringement and fraud. Before the Court is Access's Motion for Summary Judgment (“Mot.”) [Doc. No. 71], to which McNeese has filed his response in opposition (“Resp.”) [Doc. No. 91]. A hearing was held on January 9, 2017 and the parties submitted supplemental briefs [Doc. Nos. 142, 143] in response to certain questions from the Court. The matter is fully briefed and at issue.

         The material facts set forth infra are undisputed and, along with all reasonable inferences, are viewed in the light most favorable to McNeese. Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015). To determine which facts are not in genuine dispute, the Court disregarded any unsupported allegations, legal conclusions, or legal arguments couched as facts which appeared in either party's statement of material facts or response thereto. See 1st Source Bank v. Village of Stevensville, 947 F.Supp.2d 934, 937 (N.D. Ind. 2013) (“The purpose of [Rule 56] statements is to identify the relevant evidence supporting the material facts, not to make factual or legal arguments. ... In reviewing a party's statement of material facts, a court must ‘eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement.'”) (citations omitted); Chavez v. County of Bernalillo, 3 F.Supp.3d 936, 949 n. 4 (D.N.M. 2014) (same).

         Access contends certain facts are undisputed because McNeese was one day late in responding to its First Requests for Admissions and, according to Access, such requests are deemed admitted. Mot. at 2, n. 2. It is true that under Rule 36, when a party fails to make a timely response to a request for admission, the truth of the matter contained in the request is generally deemed “admitted” and “conclusively established.” Fed.R.Civ.P. 36(a)(3), (b).[1] However, the purpose of Rule 36 is to expedite trial by eliminating the necessity of proving undisputed and peripheral issues, Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (10th Cir. 1978), and courts should not employ the rule “to establish facts which are obviously in dispute or to answer questions of law.” Lakehead Pipe Line Co. v. Am. Home Assur. Co., 177 F.R.D. 454, 458 (D. Minn. 1997) (citations omitted); Champlin v. Okla. Furniture Mfg. Co., 324 F.2d 74, 76 (10th Cir. 1963) (responses to requests for admission may be established “as undisputed material facts in the case, provided, the parties are in agreement about such facts.”). Thus, courts should admit untimely answers to requests for admission where it would aid in determining the material facts and not unfairly prejudice the opposing party. U.S. Bank Nat'l Ass'n v. Gunn, 23 F.Supp.3d 426, 433 (D. Del. 2014); 8B Wright, Miller & Marcus, Federal Practice and Procedure § 2257 at 345 (3d ed. 2010).[2]

         Accordingly, the Court exercises its discretion and considers McNeese's responses in determining the merits of Access' motion. Access has not been substantially prejudiced, since the delay - one day - was not excessive, and Access makes no argument to the contrary. Moreover, the Court finds that consideration of McNeese's responses would aid in determining the material facts at issue.


         McNeese owns and operates McNeese Photography, a company specializing in photography and videography. Access is a natural gas services provider. In 2011, McNeese took 285 photographs of Chesapeake Energy Corporation's property, equipment, and employees, which he collectively entitled “contactsheet.pdf” (hereinafter “Group 1”). The photographs contained in Group 1 were taken at different angles, degrees, depths, and in various shades of lighting. McNeese filed an application with the United States Copyright Office to register Group 1 for copyright protection, and on June 12, 2011, the United States Copyright Office issued a Certificate of Registration with registration number VA 1-777-187. According to the copyright certificate, the images contained in Group 1 were first published on May 11, 2011.[3]

         From 2011 to 2013, McNeese granted Chesapeake a non-transferable limited license for certain photographs he took. McNeese, however, retained all copyright and ownership rights in the images. In December 2012, Chesapeake sold a subsidiary, Chesapeake Midstream Development, LLC, to Access. In connection with the sale, Chesapeake copied and transferred many of McNeese's photographs to Access. In 2013, McNeese took an additional 48 photos of Access's property, equipment, and employees which he entitled “01221448 photos” (hereinafter “Group 2”). Like Group 1, the photographs in Group 2 were taken at different angles, degrees, depths, and various shades of lighting. McNeese filed an application with the United States Copyright Office to register Group 2 for copyright protection, and on January 22, 2014, the Copyright Office issued a Certificate of Registration for the photographs with the registration number VAu 1-157-473.[4] Three photographs in Group 1, entitled “midstream045.jpg, ” “midstream068.jpg, ” and “midstream110.jpg, ” were inadvertently included in Group 2.

         Unknown to McNeese, Access used a number of photographs from Group 1 and Group 2 in its business materials, including a recruiting brochure, trade booth graphic, email invitation, computer wallpaper, investor relations folder, and Access webpages. McNeese sued Access and Chesapeake[5] for copyright infringement, aiding and abetting copyright infringement, and fraud, alleging, inter alia, that Access wrongfully reproduced the photographs without his permission and concealed the extent of its use of the photographs.

         Access moved for summary judgment on each of McNeese's claims. It contended that (1) McNeese's copyright registrations were invalid; (2) McNeese did not own valid copyrights in the photographs, (3) McNeese could not establish the requisite “substantial similarity” necessary to establish his copyright infringement claim, (4) McNeese's derivative claims for infringement failed as a matter of law, and (5) McNeese's fraud claim lacked evidentiary support.

         Subsequent to Access' motion, McNeese submitted new registration applications for the photographs contained in Group 2 and obtained nine (9) new copyright registrations [Doc. No. 140-1]. These new registrations were in part the subject of a January 9, 2017 hearing in which the Court heard argument from counsel regarding (1) what images were included in McNeese's new registration applications; (2) what responsive action was taken on said applications; and (3) whether the Court should utilize the certification procedure set forth in 17 U.S.C. § 411(b) in response to Access' allegations that McNeese's copyright registration for Group 2 was invalid due to its inclusion of previously published photos. After reviewing the parties' principal and supplemental briefs, the Court rules as follows.


         Summary judgment is proper “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.” Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016) (quoting Fed.R.Civ.P. 56(a)). The movant may make such a showing through the pleadings, depositions, other discovery materials, and affidavits. Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1142 (10th Cir. 2013). At the summary judgment stage, the Court views all of the facts in the light most favorable to the non-movant and draws all reasonable inferences from the record in favor of the non-moving party. Schaffer v. Salt Lake city Corp., 814 F.3d 1151, 1155 (10th Cir. 2016).

         Although the nonmoving party is entitled to all reasonable inferences from the record, the nonmovant must still identify sufficient evidence requiring submission to the jury in order to survive summary judgment. Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). Thus, if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue. Water Pik, 726 F.3d at 1143-44. “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and “[a]n issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).


         Copyright protection extends to original works of authorship fixed in any tangible medium of expression. 17 U.S.C. § 102(a); Blehm v. Jacobs, 702 F.3d 1193, 1200 (10th Cir. 2012) (noting that § 102 enshrines the “fundamental tenet” that copyright “protection extends only to the author's original expression and not to the ideas embodied in that expression.”) (quoting Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 836 (10th Cir. 1993)). In order to establish a prima facie case of copyright infringement, a plaintiff must prove two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1138 (10th Cir. 2016).[6] The plaintiff bears the burden of proof as to both elements. La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1171 (10th Cir. 2009).

         With respect to the first element, “[a] plaintiff's presentation of a certificate of registration from the U.S. Copyright Office usually constitutes prima facie evidence of a valid copyright and of the facts stated in the certificate.” Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005) (citing 17 U.S.C. § 410(c)). “Upon presentation of such a certificate, the defendant bears the burden to overcome the presumption of validity. ... To rebut the presumption, however, a defendant sued for infringement ‘must simply offer some evidence or proof to dispute or deny the plaintiff's prima facie case of infringement.'” Id. (citations omitted).

         In rebutting the presumption of validity, a defendant may “contend that a copyright registration is invalid because of noncompliance with formal registration requirements or rules, such as the withholding or misstatement of information in connection with the registration application.” Lumos, Inc. v. LifeStrength, LLC, No. 2:12-cv-1196, 2014 WL 4355451, at *2 (D. Utah Sept. 3, 2014) (quoting L.A. Printex Indus., Inc. v. Le Chateau, Inc., No. 11 Civ. 4248(LTS), 2012 WL 987590, *4 (S.D.N.Y. Mar. 23, 2012)).

         The second element consists of multiple inquiries:

First [the Court] must determine whether, as a factual matter, the defendant copied plaintiff's work. ... Second, as a mixed question of law and fact, [the Court] must evaluate whether the elements copied by the defendant are protected by copyright. ... In essence, this second consideration asks whether defendant took “too much” of plaintiff's work; it asks what the level of “sameness” is between the two works.

Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1204 (10th Cir. 2014) (citations and internal quotations omitted). The Court may address either step first. GatesRubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d ...

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