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Drewry v. Cox

United States District Court, W.D. Oklahoma

August 21, 2017

KAREN DREWRY, an individual, Plaintiff,
v.
DANNY COX, an individual doing business as THE BROTHERS DUPREE, Defendant.

          ORDER

          Vicki Miles-LaGrange, United States District Judge

         This matter is on the Court's September 2017 trial docket.

         Before 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.

          I. Introduction

         Plaintiff 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.

         Plaintiff 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.[1]

          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).

         “Only 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).

         III. Discussion

         A. Copyright Claim

          The 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 work.

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 ...


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