Issue:
What does it take for a Defendant to prove that a Plaintiff abandoned their copyright and thus have no rights to sue for infringement?
Conclusion:
Abandonment of a copyright must be manifested by an overt act indicative of a right holder's intent to completely abandon their copyright and allow the public to copy. (Taylor Holland LLC v. MVMT Watches, Inc., 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097 (C.D. Cal. August 11, 2016), Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018), Dolores Press, Inc. v. Robinson, No. 17-55071 (9th Cir. 2019))
Abandonment of copyright occurs only if there is an intent by the copyright holder to surrender their rights in the work. (Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018), A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001), Taylor Holland LLC v. MVMT Watches, Inc., 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097 (C.D. Cal. August 11, 2016), Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006, Copy. L. Rep. (CCH) P30,913 (C.D. Cal. April 8, 2016))
Overt acts include wide and general circulation of copies of a work by the copyright owner, or with the owner's acquiescence, without a copyright notice affixed. An overt act can also consist of public statements by the copyright owner renouncing their interest in a work. (Taylor Holland LLC v. MVMT Watches, Inc., 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097 (C.D. Cal. August 11, 2016))
A copyright owner's public statement renouncing their interest and the general circulation of copies of a work without copyright notices at the copyright owner's direction is an overt act of abandonment. (Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018))
A copyright holder's statement must be viewed in context to determine whether it manifests an intent to abandon rights. (Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006, Copy. L. Rep. (CCH) P30,913 (C.D. Cal. April 8, 2016))
Allowing the public to make copies of the works alone is insufficient to establish abandonment. Permitting copying of a work may be an overt act showing abandonment if it is coupled with an expression of intent to abandon the owner's copyright interest, or if the copying is permitted without restriction or reservation of rights. But a copyright holder does not abandon their copyright by allowing free dissemination without also manifesting an intent to relinquish the copyright interest. (Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018))
Abandonment is a highly fact-specific inquiry. A copyright owner can abandon some rights without abandoning all rights. (Taylor Holland LLC v. MVMT Watches, Inc., 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097 (C.D. Cal. August 11, 2016))
An author's requiring attribution is incompatible with copyright abandonment. (Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018))
The burden of proof lies with the party alleging that the copyright was abandonded. (Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018))
In Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018), the United States District Court for the Central District of California dealt with a dispute regarding whether Dr. Gene Scott, a pastor and the author and copyright owner of a number of audiovisual recordings of his religious teachings, had abandoned his copyright. In 1979, Dr. Scott conveyed his worldly possessions to his church with the exception of his copyright interests. He took steps to protect his copyright interests, such as instructing his followers not to record his sermons and placing copyright notices on all of his works. Beginning in the late 1990s, Dr. Scott distributed some of his audiovisual recordings (the "Works") for free on his websites. Dr. Scott expressed that publishing the Works on his websites was aimed to disseminate his works broadly and he encouraged the download, reproduction, and redistribution of his Works, but he requested that his followers attribute the Works to him and not use the Works for commercial gain. The webpages on Dr. Scott's websites all contained notices expressing reservations of rights, and the Works themselves displayed similar notices identifying Dr. Scott as the copyright owner. The plaintiff took the position that Dr. Scott had abandoned his copyright interest in the works he freely distributed on his website. The Court denied the plaintiff's claim for judgment declaring that the Works were in the public domain and that the defendants own no copyright interest in the Works. The Court noted that there was no evidence that Dr. Scott intended to abandon his copyright interest in the Works aside from the very act of making the Works available online. Nothing in the record showed that Dr. Scott's online distribution of the Works was done with the intent to abandon his intellectual property interests in the Works. Although Dr. Scott made his Works freely available through his websites, he restricted the use of the Works by requiring attribution - an act which is inconsistent with the abandonment of copyright.
In Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006, Copy. L. Rep. (CCH) P30,913 (C.D. Cal. April 8, 2016), the defendants contended that the plaintiff, by his statements in an interview, waived his right to the musical composition at issue. According to TIME magazine, in the interview, the plaintiff was asked about the possibility that Led Zeppelin had copied the opening of the composition at issue for its song Stairway to Heaven. The plaintiff responded that he and Led Zeppelin members became friends, and "if they wanted to use [the composition], that's fine." Later in the interview, the plaintiff reiterated, "I'll let [Led Zeppelin] have the beginning of [the composition] for their song without a lawsuit". The Court denied summary judgment based on the defense of abandonment. The Court noted that the plaintiff never received or reviewed the interview notes before the article was published and that the plaintiff acted in a manner inconsistent with an intent to abandon his rights.
In Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084-CRB (N.D. Cal. 2017), the defendant argued that the plaintiff abandoned his rights in the contested video game by making it open source and posting the source code online. The Court refused to grant summary judgment on the issue of copyright abandonment and held that the online post was not necessarily enough in itself to abandon copyright. The Court noted that the plaintiff's online post asked for "a nod in the credits to your map" which suggested that he wanted credit for creating the video game even after open-sourcing it, which cut against abandonment. Further, the reference to a "map" suggested that the post granted a limited license as opposed to abandonment.
Research Description:
A priest created religious sermons in both audio and video format. This content was registered with the United States Copyright Office. Later, the priest died and his heirs took over all rights to the copyright portfolio. The priest told his views that anyone could use his work and share it with anyone. He said his works were for the world to enjoy. Later, the heirs sued a Defendant for copyright infringement for sharing the priest's files online. Defendant claims the copyright to the works was abandoned.
Law:
In Dolores Press, Inc. v. Robinson, No. 17-55071 (9th Cir. 2019), the United States Court of Appeals for the Ninth Circuit noted that rights gained under the Copyright Act may be abandoned. Abandonment must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy (at 10-11):
"[R]ights gained under the Copyright Act may be abandoned." Micro Star v. Formgen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998). Abandonment "must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy." Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). Doc's Dream's theory of abandonment shifted during the summary judgment proceedings. Initially, its position was that Dr. Scott (the author of the works) abandoned all of his rights under copyright law. That position was well refuted by evidence that Dr. Scott during his life was consistent (and adamant) in asserting copyright protection in his works. Doc's Dream then changed its theory by claiming that a limited abandonment (what Doc's Dream calls a "Naked License") occurred. Under Doc's Dream's narrowed theory, Dr. Scott abandoned the right to control non-commercial dissemination of his works by allowing the public to view his works on the Internet, while retaining other rights afforded by the Copyright Act. The district court did not err in refusing to entertain Doc's Dream's limited abandonment theory, which was raised for the first time during the summary judgment briefing. We affirm the grant of summary judgment in favor of Dolores Press and Pastor Scott on Doc's Dream's claim of a
Page 11
complete abandonment without reaching the merits of the theory of a limited abandonment.
In A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001), the United States Court of Appeals for the Ninth Circuit stated that abandonment of copyright occurs only if there is an intent by the copyright proprietor to surrender rights in their work (at 1026):
"Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it." United States v. King Features Entm't, Inc., 843 F.2d 394, 399 (9th Cir. 1988). In copyright, waiver or abandonment of copyright "occurs only if there is an intent by the copyright proprietor to surrender rights in his work." 4 Melville B. Nimmer & David Nimmer, Nimmer On Copyright ¶ 13.06 (2000); see also Micro Star v. Formgen, Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (discussing abandonment).
In Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018), the United States District Court for the Central District of California dealt with a dispute regarding whether Dr. Gene Scott, a pastor and the author and copyright owner of a number of audiovisual recordings of his religious teachings, had abandoned his copyright. In 1979, Dr. Scott conveyed his worldly possessions to his church with the exception of his copyright interests. He took steps to protect his copyright interests, such as instructing his followers not to record his sermons and placing copyright notices on all of his works. Beginning in the late 1990s, Dr. Scott distributed some of his audiovisual recordings (the "Works") for free on his websites. Dr. Scott expressed that publishing the Works on his websites was aimed to disseminate his works broadly and he encouraged the download, reproduction, and redistribution of his Works, but he requested that his followers attribute the Works to him and not use the Works for commercial gain. The webpages on Dr. Scott's websites all contained notices expressing reservations of rights, and the Works themselves displayed similar notices identifying Dr. Scott as the copyright owner. The plaintiff took the position that Dr. Scott had abandoned his copyright interest in the works by freely distributing them on his website. The United States District Court for the Central District of California noted that abandonment must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy. Abandonment of copyright occurs only if there is an intent by the copyright proprietor to surrender rights in his work. Examples of overt acts of abandonment include a copyright owner's public statement renouncing his interest and the general circulation of copies of a work without copyright notices at the copyright owner's direction. Allowing the public to make copies of the works alone is insufficient; instead, the dispositive issue is whether that act manifests the copyright holder's intent to abandon the copyright. Permitting copying of a work may be an overt act showing abandonment if it is coupled with an expression of intent to abandon copyright interest, or if the copying is permitted without restriction or reservation of rights. But a copyright holder does not abandon his copyright by allowing free dissemination without also manifesting an intent to relinquish the copyright interest. The Court denied the plaintiff's request for summary judgment declaring that the Works were in the public domain and that the defendants owned no copyright interest in the Works. The Court noted that there was no evidence that Dr. Scott intended to abandon his copyright interest in the Works aside from the very act of making the Works available online. Nothing in the record showed that Dr. Scott's online distribution of the Works was done with the intent to abandon his intellectual property interests in the Works. Although Dr. Scott made his Works freely available through his websites, he restricted the use of the Works by requiring attribution, an act inconsistent with the abandonment of copyright. Even if Dr. Scott overtly acted by uploading and allowing the public to copy the Works, such an act would not manifest a purpose to surrender his rights in the Works because he expressly reserved his intellectual property rights by affixing copyright notices to all the Works (at 2, 6-12):
Plaintiff seeks a judgment declaring that Defendants do not own any interest in certain works of Dr. Gene Scott, a minister and producer of various video and audio recordings of his ministry, and that the works are in the public domain. The thrust [*3] of Plaintiff's claim is that Dr. Scott abandoned his copyright interest in works he freely distributed on his website (the "Works"), so he could not have transferred his copyright interest in the Works to Defendants upon his death.
[...]
"Abandonment [*6] . . . must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy." Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960); accord Nat'l Comics Publ'ns, Inc. v. Fawcett Publ'ns, Inc., 191 F.2d 594, 598 (2d Cir. 1951) ("[H]e must 'abandon' [the copyright] by some overt act which manifests his purpose to surrender his rights in the 'work,' and to allow the public to copy it."). Examples of overt acts of abandonment include a copyright owner's public statement renouncing his interest and the general circulation of copies of a work without copyright notices at the copyright owner's direction. See Taylor Holland LLC v. MVMT Watches, Inc., No. 2:15-cv-03578-SVW-JC, 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097, at *9 (C.D. Cal. Aug. 11, 2016). "[W]aiver or abandonment of copyright occurs only if there is an intent by the copyright proprietor to surrender rights in his work." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001).
Plaintiff misunderstands the copyright abandonment doctrine and the substance of its own claim. In its opposition brief, Plaintiff states that "Plaintiff has never argued that Defendants lost all rights to the Works, only the rights pursuant to the Works being freely distributed and reproduced in the Internet." But Plaintiff asks for this Court to declare that Dr. Scott's Works are in the public domain. Thus, the crux of Plaintiff's claim for declaratory judgment is that Dr. Scott abandoned [*7] the entirety of his copyright interest in the Works. See Public Domain, Black's Law Dictionary (10th ed. 2014) ("The universe of inventions and creative works that are not protected by intellectual-property rights and are therefore available for anyone to use without charge."). Plaintiff misconstrues the Ninth Circuit's decision in Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998). There, the Ninth Circuit held that the copyright holder may have waived its exclusive right to certain aspects of its protected expression, but it had not abandoned its copyright interest entirely because it had not waived all rights protected by the interest. See id. at 1114. Here, it may be true that Dr. Scott waived some aspect of the rights afforded by his copyright interest by making the Works available online. Even if that were the case, it is not the case that Plaintiff makes in its First Amended Complaint.
Instead, Plaintiff claims Dr. Scott abandoned his copyright interest in the Works. It is Plaintiff's burden to prove Dr. Scott's intent to abandon his copyright interest in the Works, and Plaintiff has failed to do so. Plaintiff misconstrues the abandonment doctrine by suggesting that "what's controlling as to abandonment are the overt acts committed by [*8] the owner." Allowing the public to make copies of the works alone is insufficient; instead, the dispositive issue is whether that act manifests the copyright holder's intent to abandon the copyright. See Hampton, 279 F.2d at 104. That is, permitting copying of a work may be an overt act showing abandonment if it is coupled with an expression of intent to abandon copyright interest, or if the copying is permitted without restriction or reservation of rights. See Taylor Holland, 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097, at *9. But a copyright holder does not abandon his copyright by allowing free dissemination without also manifesting intent to relinquish the copyright interest. See Nat'l Comics Publ'ns, 191 F.2d at 598 (casting the abandonment rule in the conjunctive, requiring an "overt act which manifests his purpose to surrender his rights in the 'work,' and to allow the public to copy it" (emphasis added)). Here, Plaintiff offers no evidence that Dr. Scott intended to abandon his copyright interest in the Works aside from the very act of making the Works available online and stating they would remain available "until Jesus comes." Nothing in the record shows that Dr. Scott's online distribution of the Works was done with the intent to abandon his intellectual property interests in the Works. All evidence [*9] before the Court, including Dr. Scott's 1979 declaration that he would relinquish all his earthly possessions but his copyright interests and his final will and testament giving his copyright interests to Melissa Scott, indicates that Dr. Scott intended to retain his intellectual property interests in the Works at all times, even if the Works were free to view online for the last nine years of his life.
Plaintiff's assertion that Dr. Scott's online distribution of the Works "evidenced his intent to abandon his rights" is further undercut by the declarations it submitted in opposition to Defendants' motion. Plaintiff's declarants note that although Dr. Scott made his Works freely available through his websites, he restricted use of the Works by requiring attribution. This attribution requirement is incompatible with copyright abandonment. The free distribution of the Works is more consistent with a license for use of the copyrighted Works or some other relinquishment or grant of some but not all of Dr. Scott's exclusive rights. See Micro Star, 154 F.3d at 1114 ("[A]bandoning some rights is not the same as abandoning all rights . . . ."); cf. Worldwide Church of God v. Phila. Church of God, 227 F.3d 1110, 1114-15 (9th Cir. 2000) (weighing whether encouraging dissemination of a religious text created [*10] a copyright license). That is, had Dr. Scott intended to abandon his copyright interest in the Works, he would not have placed an attribution restriction on his Works.
Nor would he have affixed copyright notices to all the Works, which Plaintiff admits he did at all times. Contrary to Plaintiff's position that the copyright notices "are not relevant," the notices Dr. Scott placed on his followers' use of the Works are probative to determining whether Dr. Scott intended to abandon his copyright interest in the Works by making them available online. Thus, even if Dr. Scott overtly acted by uploading and allowing the public to copy the Works, such an act would not "manifest[] his purpose to surrender his rights in the 'work'" because he expressly reserved his intellectual property rights. Nat'l Comics Publ'ns, 191 F.2d at 598.
[...]
In sum, viewing the facts in the light most favorable to Plaintiff, no reasonable jury could find that Dr. Scott abandoned his copyright interests in the Works by making them publically available on his website and encouraging his followers to disseminate the works while requiring attribution and reserving rights. Because these are the only overt acts by which Dr. Scott allegedly [*12] abandoned his copyright interests, and because this abandonment theory is the only one Plaintiff advances to support its allegation that the Works are in the public domain, Plaintiff's claim for a judgment declaring that the Works are in the public domain and that Defendants own no copyright interest in the Works must fail.
In Taylor Holland LLC v. MVMT Watches, Inc., 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097 (C.D. Cal. August 11, 2016) ("Taylor"), the United States District Court for the Central District of California noted that waiver or abandonment of copyright occurs only if there is an intent by the copyright proprietor to surrender rights in their work. Abandonment is a highly fact-specific inquiry. A copyright owner can abandon some rights without abandoning all rights. Abandonment of a copyright must be manifested by an overt act indicative of a right holder's intent to completely abandon those rights and allow the public to copy. Overt acts include wide and general circulation of copies of a work by the copyright owner, or with the owner's acquiescence, without a copyright notice affixed. An overt act can also consist of public statements by the copyright owner renouncing an interest in a work (at 16-17):
Abandonment of copyright (sometimes referred to as waiver) also constitutes an effective defense [*17] in an infringement action. See 4-13 Nimmer on Copyright § 13.06. Waiver or abandonment of copyright "occurs only if there is an intent by the copyright proprietor to surrender rights in his work."A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001) (quoting Nimmer on Copyright § 13.06). Abandonment is a "highly fact specific inquiry." Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 3d 975, 992 (C.D. Cal. 2015). And the Ninth Circuit has stated that a copyright owner can abandon some rights without abandoning all rights. Micro Star v. FormGen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (finding that copyright holder did not abandon all rights to profit commercially from its computer game, even though it encouraged players to make and freely distribute new game levels).
But an abandonment of a copyright must be manifested by an overt act indicative of a right-holder's intent to completely abandon those rights and allow the public to copy. Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). Overt acts include wide and general circulation of copies of a work by the copyright owner, or with his acquiescence, without a copyright notice affixed. See White v. Kimmell, 193 F.2d 744, 745 (9th Cir. 1952); Lopez v. Elec. Rebuilders, Inc., 416 F. Supp. 1133, 1135 (C.D. Cal. 1976). An overt act can also consist of public statements by the copyright owner renouncing an interest in a work. See Marya, 131 F. Supp. 3d at 993 (finding author's statement to journalist that she had surrendered any claim she had to copyrighted lyrics was an overt act upon which a reasonable fact finder could base a finding of abandonment); Melchizedek v. Holt, 792 F. Supp. 2d 1042, 1051-54 (D. Ariz. 2011) (finding author's public [*18] statements indicating he was not interested in protecting his work were overt acts that could be indicative of intent to abandon copyright protection). Evidence of inaction alone is insufficient to abandon a right. Marya, 131 F. Supp. 3d at 992; see Hampton, 279 F.2d at 104 (finding no overt act where there was no consent to public use and no permission given to sell the copyrighted works).
In Taylor, the defendant argued that by providing a photograph without a copyright notice and with knowledge of the defendant's intent to use it, the plaintiff expressed an intent to surrender his rights. However, the Court noted that the plaintiff made no statements and took no action indicative of intent to completely abandon his rights in the photograph and allow the public to copy it. Therefore, the Court held that there was no overt act indicative of intent to abandon or surrender his rights in the photograph at issue and granted summary judgment on the defense of abandonment in favor of the plaintiff (at 18-20):
Holland did not take an overt act indicative of intent to abandon or surrender his rights in the Photograph. MVMT contends that by providing the Photograph without copyright notice and with knowledge of MVMT's intent to use it, Holland expressed an intent to surrender his rights. Dkt. 66 at 16. But Holland made no statements and took no action indicative of intent to completely abandon his rights in the Photograph and allow the public to copy it. See, e.g., Wyatt Tech. Corp. v. Malvern Instruments Inc., No. CV 07-08298DDP(MANX), 2009 U.S. Dist. LEXIS 66097, 2009 WL 2365647, at *12 (C.D. Cal. July 29, 2009), aff'd, 526 F. App'x 761 (9th Cir. 2013) (finding abandonment when plaintiff stated "[c]urrently, there are no restrictions on this material. You may install it on as many PC systems as you like, and you may distribute it freely to your colleagues."); Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1399 (C.D. Cal. 1990) (finding abandonment after two days where copyright notice clearly limited copyright protection to two days). [*19] Rather, here the undisputed evidence does not provide support for a theory of abandonment by merely sending the Photograph to Marchese. Holland required Marchese to sign the Naked Earth Contract and inquired about what the Photograph would specifically be used for. And after he became aware of MVMT's actual use of the Photograph he requested that it be taken down in a short period of time.
Even assuming, arguendo, that Defendant's abandonment defense was based on Holland's purported representations to Marchese, there is no evidence to support abandonment of his right to pursue an infringement action. Marchese testified that Holland "expressly approved" of MVMT's use of the Photograph. Marchese Dep. at 35:13-18; 47:10-48:13. But this testimony does not directly support the notion that Holland waived his exclusive right to bring an infringement action. See Micro Star, 154 F.3d at 1114 (stating "abandoning some rights is not the same as abandoning all rights"). Conferring specific rights to a party is simply not the same as abandoning other rights are logically related to those rights.19
Accordingly, the Court finds that there is no genuine issue of material fact and grants summary judgment on [*20] this defense in favor of Plaintiff.
In Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006, Copy. L. Rep. (CCH) P30,913 (C.D. Cal. April 8, 2016), United States District Court for the Central District of California noted that waiver or abandonment of copyright occurs only if there is an intent by the copyright proprietor to surrender their rights in the work. To find abandonment, the copyright owner must have clearly manifested that intention through some affirmative act. In this case, the defendants contended that the plaintiff, by his statements in an interview, waived his right to the musical composition at issue. In the interview, the plaintiff was asked about the possibility that Led Zeppelin had copied the opening of the composition at issue for its song Stairway to Heaven. The plaintiff responded that he and Led Zeppelin members became friends, and "if they wanted to use [the composition], that's fine." Later in the interview, the plaintiff reiterated, "I'll let [Led Zeppelin] have the beginning of Taurus for their song without a lawsuit. The Court explained that a copyright holder's statement must be viewed in context to determine whether it manifests an intent to abandon rights. In this case, the Court held that there was a genuine issue of fact existed as to the abandonment defense, and denied summary judgment based on abandonment. The Court noted that the plaintiff never received or reviewed the interview notes before the article was published and that the plaintiff acted in a manner inconsistent with an intent to abandon his rights (at 14-17):
Defendants contend that Wolfe waived his right to the Taurus musical composition. "In copyright, waiver or abandonment of copyright 'occurs only if there is an intent by the copyright proprietor to surrender rights in his work.'" A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001). "Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it." United States v. King Features Entm't, Inc., 843 F.2d 394, 399 (9th Cir. 1988). "To find abandonment, 'the copyright owner must have clearly manifested that intention through some affirmative act.'" Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1398 (C.D. Cal. 1990).
On April 2, 1991, Wolfe was interviewed in connection with a new album of Spirit recordings titled, Time Circle. In the interview, Wolfe was asked about the possibility that Led Zeppelin had copied the opening of Taurus for its song Stairway to Heaven. Wolfe responded that Led Zeppelin members "used to come up [*15] and sit in the front row of all [Spirit's] shows and became friends[,] and if they wanted to use [Taurus], that's fine." (Freeman Decl. Ex. 6 at 7, ECF No. 97.) Later in the interview, Wolfe reiterated, "I'll let [Led Zeppelin] have the beginning of Taurus for their song without a lawsuit." (Freeman Decl. Ex. 6 at 8, ECF No. 97.) Defendants submit the original article, audio recordings of the interview, and deposition testimony from the journalist who conducted the interview, and argue that Wolfe's public statement demonstrates abandonment of his right in Taurus. (Freeman Decl. Exs. 3-7, ECF No. 97.)
Two district court cases have addressed similar arguments of abandonment premised on a copyright holder's public statements. In Melchizedek v. Holt, the copyright holder of several videos was quoted at a workshop saying, "I don't care about copyrights or any of that stuff, that doesn't matter. Forget it, just take it and you'll understand what this is all about by tomorrow." 792 F. Supp. 2d 1042, 1053 (D. Ariz. 2011). The court held that the remark was ambiguous as to which copyrights the plaintiff had supposedly abandoned and concluded that "questions of fact exist as to whether the overt acts . . . are indicative of Plaintiff's [*16] intent to abandon copyright protection in the [videos]." Id. at 1054.
In Marya v. Warner/Chappell Music, Inc, the copyright holder, who owned the lyrics to the famed Happy Birthday song, was mentioned in a Time magazine article as having "no complaint to make on the use of the words because she long ago resigned herself to the fact that her ditty had become common property of the nation." No. CV134460, 131 F. Supp. 3d 975, 2015 U.S. Dist. LEXIS 129575, 2015 WL 5568497, at *11 (C.D. Cal. Sept. 22, 2015). In addressing whether this quote constituted abandonment, the court held, "A public statement like this, if believed, is an overt act on which a reasonable fact finder could base a finding that Patty abandoned her copyright interest in the lyrics. However, we cannot say that this evidence is sufficient [for] a directed verdict at trial inasmuch as it is not a direct quote from [the copyright holder]." Id.
At the outset, the Court notes that both Marya and Melchizedek are factually distinguishable from the instant case. Unlike the copyright holder in Melchizedek who did not specify which work was supposedly abandoned, Wolfe explicitly referred to Taurus and Led Zeppelin in his interview. Marya is similarly distinguishable because the public statement was paraphrased whereas Wolfe's statement was [*17] a direct quote, according to deposition testimony from the journalist who conducted the interview. (Ruhlmann Depo. 17:17-25, ECF No. 124.) While neither Marya nor Melchizedek squarely governs the instant case, they provide guidance as to how this Court should approach the issue of abandonment. Both cases stand for the larger proposition that a copyright holder's statement must be viewed in context to determine whether it manifests an intent to abandon rights.
Here, Plaintiff has proffered sufficient evidence to raise a triable issue of fact as to whether Wolfe's statement evinced his intent to abandon rights in Taurus. For starters, the journalist who conducted the interview testified that Wolfe never received or reviewed the interview notes before the article was published. (Ruhlmann Depo. 17:17-25, ECF No. 124.) Plaintiff also points to the tenor of the interview, which indicates that Wolfe felt cheated by Led Zeppelin and was merely trying to save face and make light of a bad situation. Additionally, Plaintiff submits several pieces of evidence demonstrating that Wolfe acted in a manner inconsistent with an intent to abandon his rights. First, David Waterbury, Spirit's bass player [*18] from 1985 to 1988, testified that Wolfe told him that he was upset about the theft and wanted to sue, but was deterred and intimidated. (Waterbury Decl. ¶¶3-9, ECF No. 118.) Next, Wolfe's longtime friend, Tracy Longo, testified that Wolfe had been contemplating a lawsuit against Led Zeppelin for some time before his death. (Longo Decl. ¶26-27, ECF No. 118.)1 Finally, Plaintiffs proffer testimony from Linda Mensch, an entertainment attorney in Chicago, Illinois, who testified that Wolfe came to see her in the 1990's to inquire about the possibility of bringing a lawsuit against Led Zeppelin. (Mensch Decl. ¶¶2-6, ECF No. 118.)2
In sum, a genuine issue of fact exists as to the abandonment defense, and the Court denies summary judgment on this basis.
In Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084-CRB (N.D. Cal. 2017), the defendant argued that the plaintiff abandoned his rights in a contested video game by making it open source. The United States District Court for the Northern District of California refused to grant summary judgment on the issue of copyright abandonment and held that the online post was not necessarily enough in itself to abandon copyright. The Court noted that the plaintiff's online post asked for "a nod in the credits to your map" which suggested that he wanted credit for creating DotA even after open-sourcing it, which cut against abandonment. Further, the reference to a "map" suggests that the post granted a limited license as opposed to abandonment (at 20-21):
uCool argues that, by making DotA "open source," Eul abandoned any and all of his rights in DotA as a matter of law. See MPSJ at 12-14. And indeed, a reasonable jury could conclude that Eul's 2004 online post was an "overt act" indicating complete abandonment. See Micro Star, 154 F.3d at 1114. It said, "Whoever wishes to release a version of DotA may without my consent," which might mean that anyone had permission to build their own versions of DotA on any platform—and to sell their versions of Eul's creation.
Or it might not. Eul's post also asked "for a nod in the credits to your map." That suggests two things. First, the request for a "nod" suggests that Eul wanted credit for creating DotA even after open-sourcing it, which cuts against abandonment. Second, and more importantly, the reference to a "map"—a synonym for "mod"—suggests that the post was in fact a limited license. Although Eul intended to let others build further DotA mods using the World Editor, he might not have intended to let them build stand-alone DotA
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games for sale.33 See Micro Star, 154 F.3d at 1114 (holding, in a copyright case about video game mods, that "abandoning some rights is not the same as abandoning all rights"). uCool, the story goes, exceeded the scope of this license by building a smart-phone version of DotA and selling it.34 See S.O.S., 886 F.2d at 1087. What is more, a reasonable jury could also conclude that the word "whoever" referred only to the motley group of modders making up an informal DotA online community. Eul's post, in other words, was aimed only at fellow teenagers building fantasy worlds for fun—not companies exploiting them for financial gain. So uCool was arguably no licensee at all.
The upshot: the question of copyright abandonment must go to the jury.35
Authorities:
Dolores Press, Inc. v. Robinson, No. 17-55071 (9th Cir. 2019)
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001)
Doc's Dream, LLC v. Dolores Press, Inc., 2018 U.S. Dist. LEXIS 243663 (C.D. Cal. March 1, 2018)
Taylor Holland LLC v. MVMT Watches, Inc., 2016 U.S. Dist. LEXIS 187379, 2016 WL 6892097 (C.D. Cal. August 11, 2016)
Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006, Copy. L. Rep. (CCH) P30,913 (C.D. Cal. April 8, 2016)
Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., No. 3:15-cv-04084-CRB (N.D. Cal. 2017)