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ICG-Internet Commerce Group, Inc. v. Wolf

September 25, 2007



Before the Court is Plaintiff's Motion for Summary Judgment (Dkt. 12). Defendant James Wolf*fn1 ("Defendant Wolf") filed the only response.*fn2 (Dkt. 21). For the reasons discussed herein, Plaintiff's Motion for Summary Judgment (Dkt. 12) is granted in-part, and denied in-part.

I. Background

The following facts are undisputed except as otherwise indicated. Plaintiff is the operator of several adult-oriented websites, including a site located at (Plaintiff's Separate Statement of Facts "PSOF" ¶ 1). In late 2005, Plaintiff acquired an interest in the copyright to a video featuring supermodel Carolyn Murphy (the "Murphy Video"). (PSOF ¶ 2; Abbate Decl. ¶ 3). On April 24, 2006, the Copyright Office issued a Certificate of Registration (No. PAu3-019-056) for an audiovisual work entitled "Home Video." (Dkt. 1, Ex. A). The Certificate of Registration indicates that the work was authored by Jack R. Schroeder as "camera operator" and Carolyn Murphy as "camera operator" in 1999. (Dkt. 1, Ex. A). Plaintiff's ownership interest in the work derives from a transfer of Jack R. Schroeder's rights "per written contract." (Dkt. 1, Ex. A). The work referred to in Certificate of Registration No. PAu3-019-056 is the Murphy Video. (PSOF ¶ 5).

Defendant Wolf is the owner of Defendant Prose Only, Inc. ("Prose"). (PSOF ¶ 3). Defendants Wolf and Prose operated an adult-oriented website called, which was hosted by Cologuys, a Texas-based sole-proprietorship operated by Defendant Jon Montroll. (PSOF ¶ 4). On or about May 9, 2006, Plaintiff discovered that had a 3-minute excerpt of the Murphy Video available for viewing for free via the website.*fn3 (PSOF ¶ ). Plaintiff did not grant Defendants any license to display, distribute, or reproduce the Murphy Video.*fn4 Salvatore Abbate avows that he instructed his attorneys to contact Defendant Wolf to ask him to cease any and all use of the Murphy Video. (Abbate Decl. ¶ 6). Defendant Wolf's Answer (Dkt. 5) states that he was first contacted by Jon Montroll at Cologuys on or about May 15, 2006 and that he removed the Murphy Video from his website within 48 hours. Plaintiff contends that a statement on the website is proof that Defendant Wolf was aware that he was making an unauthorized use of the Murphy Video. (PSOF ¶ 8). The website contained a statement that "AZ based ICG is expecting huge sales from the steamy sex tape," and "even though this is going to cost me another child - the Carolyn Murphy sex tape is still up. Despite the threats. Tell your friends!!!" (PSOF ¶ 8).

Defendant Wolf contends that prior to April 24, 2006, he received a phone call from a "blocked number at after [sic] 6 PM in the evening[]...[from] a person who screamed obscenities at [him]" and told him that he would be "[s]o f***ing sued if [he] did not remove the video immediately[.]" (Dkt. 21). Defendant Wolf also contends that the caller would "not identify himself other than" by stating, "I am a lawyer." (Dkt. 21). Defendant Wolf told the anonymous caller that he "knew of no such copyrights and would gladly remove any copyrighted material immediately upon receipt of such" knowledge. (Dkt. 21). Defendant Wolf states, "Shortly after April 24th, Jon Montrol [sic] received a notice of copyright. He phoned me, I removed the video immediately. Shortly after that, I received my own notice of copyright from ICG." (Dkt. 21). Plaintiff filed suit against Defendants on May 22, 2006.

(Dkt. 1).

II. Summary Judgment Standard

Summary judgment is appropriate "when there is no genuine issue of material fact" such that "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56.

Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn in favor of the non-movant. Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

If the moving party presents evidence that, taken by itself, would establish the right to a directed verdict at trial, the motion for summary judgment must be granted in the absence of any significant probative evidence tending to support the opposing party's theory of the case. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968); THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 993-94 (9th Cir. 1980). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. A factual dispute is genuine if the evidence is such that a rational trier of fact could resolve the dispute in favor of the nonmoving party. Anderson, 477 U.S. at 248. A fact is material if determination of the issue might affect the outcome of the case under the governing substantive law. Anderson, 477 U.S. at 248. Thus, a party opposing a motion for summary judgment cannot rest upon bare allegations or denials in the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party's evidence is merely colorable or not significantly probative, a court may grant summary judgment. See Anderson, 477 U.S. at 249; see also Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987).

III. Copyright Infringement

Plaintiff alleges that Defendants Wolf and Prose infringed upon its exclusive rights to reproduce (17 U.S.C. § 106(1)), prepare derivative works (17 U.S.C. § 106(2)), distribute (17 U.S.C. § 106(3)), and publicly display (17 U.S.C. § 106(5)). (Dkt. 1, ¶¶ 24-28). Pursuant to Section 501(a) of the Copyright Act, "[a]nyone who violates any of the exclusive rights of the copyright owner as provided by [17 U.S.C. § 106] an infringer of the copyright or right of the author." 17 U.S.C. § 501(a). To prove that Defendants Wolf and Prose infringed upon its exclusive rights, Plaintiff must establish: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985)).

It is undisputed that Plaintiff has established both of these elements. First, Plaintiff has established ownership of a valid copyright, as evidenced both by its Certificate of Registration for the Murphy Video and Defendant Wolf's Answer to the Complaint, which admits that Plaintiff is the lawful co-owner of the copyright in the Murphy Video. (Dkt. 5, ¶¶ 9,10). In addition, Defendant Wolf admits that he "posted the video" and "allowed it to be viewed publicly." (Dkt. 5, ¶ 25). Defendant Wolf's posting of the Murphy Video to the Internet was an act of direct copying in violation of 17 U.S.C. §§ 501, 106(1). The display of the Murphy Video on Defendant Wolf's website was an act of public display in violation of 17 U.S.C. §§ 501, 106(5). Plaintiff's allegation that Defendants Wolf and Prose prepared unauthorized derivative works from the Murphy Video in violation of 17 U.S.C. § 106(2) by editing its content and/or altering it to include the URL "" went unanswered by Defendants Wolf and Prose. (Dkt 1, ¶ 13). The Court construes this failure to admit or deny as an admission. See Fed. R. Civ. P. 8(d). Thus, the Court finds that Defendants Wolf and Prose infringed upon Plaintiff's rights to reproduce, publicly display, and prepare derivative works.

Plaintiff also contends that the Murphy Video was distributed via, and was available for downloading, which is a violation of Plaintiff's rights pursuant to 17 U.S.C. § 106(3). Defendant Wolf maintains, however, that he did not allow the Murphy Video to be downloaded. (Dkt. 5, ¶ 25; Dkt 21). The May 9, 2006, screenshot of, which Plaintiff offers as evidence of distribution, contains apparent hyperlinks to "[s]ex tape download souces [sic]." Nonetheless, the Court cannot determine the target of those links based on the screenshot alone, whether they directed visitors to a source on or another URL, or whether they linked to a streaming or downloadable source file. Drawing all reasonable ...

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