United States District Court, W.D. Oklahoma
Miles-LaGrange, United States District Judge
matter is on the Court's September 2017 trial docket.
the Court is Defendant Danny Cox's Motion for Partial
Summary Judgement and Brief in Support, filed July 3, 2017.
On July 24, 2017, plaintiff filed her response, and on August
4, 2017, plaintiff filed her supplemental response. Defendant
filed no reply. Based on the parties' submissions, the
Court makes its determination.
owns the registered copyright for the album Buckhorn Opera,
which features the song “Sleeping My Blues Away”
(“Song”). The copyright was registered on April
25, 2013. In 2010, defendant recorded the Song, and
defendant's recording of the Song was published on a CD
entitled Home Grown Blues by the Oklahoma Blues Society. In
2014, defendant produced a CD which included the Song. While
plaintiff disputes these facts, defendant contends that he
produced 200 of the CDs with the Song on it at a cost of $1,
000. Defendant contends, which plaintiff disputes, that he
gave away approximately 175 of the CDs and did not realize a
profit from the CD that was produced in 2014.
filed this action on November 16, 2016, alleging defendant
infringed on plaintiff's federally registered copyright,
pursuant to 17 U.S.C. § 501 et seq., and that defendant
published or caused to be published false statements
concerning his alleged original authorship of the work in
violation of the Oklahoma Deceptive Trade Practices Act
(“ODTPA”), Okla.Stat. tit. 78, § 51 et seq.
Plaintiff seeks damages and injunctive relief for
defendant's alleged copyright infringement and violation
of the ODTPA. Defendant now moves this Court for partial
summary judgment on plaintiff's claims for damages and
attorney fees and costs, pursuant to 17 U.S.C. §§
504 and 505 and Okla. Stat. Tit. 78, § 53.
II. Summary Judgment Standard
“Summary judgment is appropriate if the record shows
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law. The moving party is entitled to summary judgment where
the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party. When applying this
standard, [the Court] examines the record and reasonable
inferences drawn therefrom in the light most favorable to the
non-moving party.” 19 Solid Waste Dep't Mechs.
v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th
Cir. 1998) (internal citations and quotations omitted).
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Furthermore, the non-movant has a burden of
doing more than simply showing there is some metaphysical
doubt as to the material facts. Rather, the relevant inquiry
is whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066
(10th Cir. 1998) (internal citations and quotations omitted).
United States copyright law provides that:
The copyright owner is entitled to recover the actual damages
suffered by him or her as a result of the infringement, and
any profits of the infringer that are attributable to the
infringement and are not taken into account in computing the
actual damages. In establishing the infringer's profits,
the copyright owner is required to present proof only of the
infringer's gross revenue, and the infringer is required
to prove his or her deductible expenses and the elements of
profit attributable to factors other than the copyrighted
17 U.S.C. § 504(b). Further, “the court in its
discretion may allow the recovery of full costs by or against
any party other than the United States . . . [and] may also
award a reasonable attorney's fee to the prevailing party
as part of the costs.” 17 U.S.C. § 505. A court
with jurisdiction over a civil action alleging copyright
infringement may also “grant temporary and final
injunctions on ...