Candy Snatchers

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  UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - FILM CHEST MEDIA GROUP, INC.,Plaintiff,-against-LISA MICHELLE HYDE and LMHENTERTAINMENT, Defendants.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x::::::x14 Civ. 0368 (LAK) (AJP) REPORT AND RECOMMENDATIONANDREW J. PECK, United States Magistrate Judge:To the Honorable Lewis A. Kaplan, United States District Judge: Plaintiff Film Chest Media Group, Inc. brings this declaratory judgment actionagainst Lisa Michelle Hyde   and her alter ego LMH Entertainment. (Dkt. No 37: Am. Compl.) Ina dispute arising out of Film Chest' s licensing to Turner Entertainment Networks, Inc. ( Turner )of a 1970s film named The Candy Snatchers for television broadcast, Film Chest alleges that Hydedoes not own the film's copyright because it has fallen into the public domain. (Am. Compl. ¶¶ 24-28.) In the alternative, Film Chest argues both that the srcinal copyright holder for The CandySnatchers, Marmot Productions, did not validly convey its rights to Hyde (Am. Compl. ¶¶ 33-37),and that Hyde cannot assert Marmot's rights because Marmot is a suspended corporation under California law (Am. Compl. ¶¶ 30-31). Hyde counterclaims for copyright infringement on theground that Film Chest licensed the film to Turner for broadcast on cable television without her  permission. (Dkt No. 30: Am. Ans. ¶¶ 83-92.)Presently before the Court are the parties' cross-motions for summary judgment. (Dkt. No. 39: Film Chest Motion for Partial Summary Judgment; Dkt. No. 46: Hyde Motion for  Case 1:14-cv-00368-LAK-AJP Document 78 Filed 10/22/14 Page 1 of 17  2Summary Judgment.) For the reasons set forth below, Film Chest's motion for summary judgmentshould DENIED in part but GRANTED to the extent that Hyde's counterclaim for copyrightinfringement should be DISMISSED without prejudice for lack of a copyright registration. Hyde'smotion for summary judgment should be DENIED for lack of a copyright registration. FACTSThe History of The Candy Snatchers The Candy Snatchers is a low-budget feature length 1970s exploitation film. (Dkt. No. 48: Def. 56.1 Stmt. ¶ 1; Dkt. No. 73: Pl. 56.1 Counter-Stmt ¶ 1.) The film was written and produced by Hyde's cousin, Bryan Gindoff, and directed by Guerdon Trueblood. (Def. 56.1 Stmt.& Pl. 56.1 Counter-Stmt. ¶ 2.) Hyde's maternal grandfather, Robert Misrach, was the film'sexecutive producer and her father also worked on the film. (Def. 56.1 Stmt. & Pl. 56.1 Counter-Stmt. ¶ 4.)Gindoff, Trueblood and Kenneth Goldman formed Marmot Productions, Inc. to produce the film; Marmot was incorporated on or about September 15, 1972. (Def. 56.1 Stmt. &Pl. 56.1 Counter-Stmt. ¶ 3; Dkt. No. 45: Pl. 56.1 Stmt. ¶ 16; Dkt. No. 66: Def. 56.1 Counter-Stmt. ¶ 16.) Gindoff, Goldman and Trueblood named themselves as Marmot's incorporators and directors. (Def. 56.1 Stmt. & Pl. 56.1 Counter-Stmt. ¶ 3; Dkt. No. 56: Trueblood Aff. ¶ 3 & Ex. A at 6-8.) 1 On November 1, 1974, Marmot was suspended pursuant to California law andremains suspended to the present day. (Pl. 56.1 Stmt. & Def. 56.1 Counter-Stmt. ¶ 17.) Truebloodremains a shareholder and director of Marmot. (Trueblood Aff. ¶ 3.)The parties dispute when The Candy Snatchers first appeared in theaters. Film Chest 1/ Citations to exhibits to affidavits cite to the page numbers assigned by the ECF system. Case 1:14-cv-00368-LAK-AJP Document 78 Filed 10/22/14 Page 2 of 17  3claims that the film debuted in May 1972, based on statements in a 2005 copyright renewalapplication on Hyde's behalf, discussed at pages 4-5 below. (Pl. 56.1 Stmt. ¶ 5; see Dkt. No. 40:Sioris Aff. Exs. B & C: at 2005 copyright Application & Addendum.) Hyde maintains that the film debuted in June 1973 and that the date on the 2005copyright application was an error. (Def. 56.1 Stmt. ¶ 6; Dkt. No. 49: Hyde Aff. ¶ 8.) Misrach'sex-wife stated that The Candy Snatchers debuted in Miami, Florida in June 1973. (Dkt. No. 50:Charnas Aff. ¶¶ 1-5.) Trueblood submitted an early cut of the film to the Motion PictureAssociation of America in February 1973 and attending the film's debut in Miami, Florida later thatyear. (Def. 56.1 Stmt. ¶¶ 5, 6; Trueblood Aff. ¶¶ 5, 6.) According to Trueblood, the final theatricalversion of the The Candy Snatchers bore a notice stating that it was copyright MCMLXXIII byMARMOT PRODUCTIONS, INC. (Trueblood Aff. ¶ 5 & Ex. C at 72: Screen capture from thefilm showing copyright notice.) Online film databases identify 1973 at the release date for TheCandy Snatchers, as do online promotional materials from both Film Chest and Turner. (Dkt. No.64: Self Aff. Ex. A at 3-15; Self. Aff. Ex. B at 4-19.) Newspaper clippings of movie listings thatHyde claims date to 1973 refer repeatedly to The Candy Snatchers. (Self Aff. Ex. C at 7-11.) Finally, the August 22, 2013 letter agreement in which Film Chest purported to license The CandySnatchers to Turner for television broadcast identifies 1973 as the film's release date. (Self Aff. ¶6 & Ex. D at 3.) Film Chest disputes Hyde's claims to a 1973 date on the grounds that no documentssubstantiate the claim that the picture was submitted to the Motion Picture Association of Americain 1973, that Hyde's claims contradict the 2005 copyright renewal application, and that much of Hyde's evidence (e.g., newspaper clippings) is inadmissible hearsay. (Pl. 56.1 Counter-Stmt. ¶¶ 5,6.) Case 1:14-cv-00368-LAK-AJP Document 78 Filed 10/22/14 Page 3 of 17  4The Candy Snatchers first appeared on home video in 2005, when Hyde's mother licensed DVD rights to Subversive Cinema, Inc.; Film Chest disputes however, whether Hyde'smother was empowered to do so. (Pl. 56.1 Stmt. & Def. 56.1 Counter-Stmt. ¶¶ 21, 23; Def. 56.1Stmt. & Pl. 56.1 Counter-Stmt. ¶¶ 8-11.) Packaging for the DVD of The Candy Snatchers released by Subversive in 2005, as well as the DVD itself, contain a copyright notice stating that the film iscopyright 2005 LMH, with [a]rtwork and design copyright 2005 Subversive Cinema, Inc. (Dkt. No. 71: Stevens Aff. Ex. BB at 8-9.) Attempted Registration of the Film's Copyright and Transfer to Hyde While The Candy Snatchers DVD was in production, Hyde sought to register the filmwith the United States Copyright Office. (Dkt. No. 48: Def. 56.1 Stmt.¶ 13; Dkt. No. 73: Pl. 56.1Counter-Stmt. ¶ 13.) Hyde's application to the Copyright Office for copyright renewal for TheCandy Snatchers named Hyde as the renewal claimant/owner. (Dkt. No. 45: Pl. 56.1 Stmt.¶ 5; Dkt. No. 66: Def. Counter-Stmt. ¶ 5; Dkt. No. 40: Sioris Aff. Exs. B-C: Copyright Applications; Def.56.1 Stmt. & Pl. 56.1 Counter-Stmt. ¶¶ 13-15; Dkt. No. 49: Hyde Aff. ¶ ¶ 6-7.) The application andaddendum state that the film was first published on May 6, 1972. (Pl. 56.1 Stmt. & Def. Counter-Stmt. ¶¶ 5-6; Sioris Aff. Exs. B-C: Copyright Application & Addendum; Dkt. No. 51: Hill Aff. ¶¶5-7.) Hyde asserts that the May 1972 date was incorrect and the result of inadvertent error. (Hyde Aff. ¶ 8.)In August 2005, Trueblood verbally affirmed that Marmot was transferring copyrightownership of the film to Hyde. (Def. 56.1 Stmt. ¶ 16; Hyde Aff. ¶¶ 3, 7; Dkt. No. 56: TruebloodAff. ¶ 18.) Film Chest disputes whether Marmot, as a suspended corporation, could transfer rights.(Pl. 56.1 Counter-Stmt. ¶ 16.) In January 2014, Trueblood signed a written assignment, effectiveas of August 11, 2005, that retroactively memorialized the transfer of ownership of the film's Case 1:14-cv-00368-LAK-AJP Document 78 Filed 10/22/14 Page 4 of 17
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