In Brownmark Films, LLC v. Comedy Partners, 2011 WL 2648600, --- F.Supp.2d --- (E.D. Wisc. July 6, 2011), on a motion to dismiss a copyright infringement claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court resolved two important issues. First, the district court tackled the issue of whether two joint authors had standing to commence a copyright infringement proceeding when a third sat the litigation out. In this case, plaintiff Brownmark was an assignee of two of the three authors. The district court, taking issue with the Ninth Circuit’s holding and reasoning in the Sybersound case, held that two of the three joint authors could proceed. Since the district court unravels some tricky language in the Copyright Act regarding who may grant an “exclusive license” and since this is likely to be an issue upon which circuits will split, this decision is worth reading (the district court adopts the views of Nimmer and Patry, both of whom criticize Sybersound).
Second, the district court took the unusual step of resolving a “fair use” defense on a Rule 12(b)(6) motion. Ordinarily, affirmative defenses are not considered on Rule 12(b)(6) motions. The exception is where the affirmative defense is fully pleaded in the complaint. The district court found that two videos were referred to in the complaint and the circumstances warranting a finding of “fair use” under 17 U.S.C. 107, the Copyright Act’s fair use section, were pleaded.
The facts involved the creation of a video for the television series South Park from the episode “Canada on Strike” using the song “What What In the Butt”. The opinion is well written, but may concern those who find that Iqbal and Twombly have unduly shifted burdens onto plaintiffs too early in the game.
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2 comments:
Ei incumbit probatio qui dicit, non qui negat. ("The burden of the proof lies upon him who affirms, not he who denies.")
How is it possible to shift burdens onto the plaintiff too early in the proceeding? If the plaintiff raises an issue, then the burden should lie upon him. If for whatever reason the plaintiff pleads the elements which would prove an affirmative defense, stealing a march on the defendant and defining the terms of the engagement, then he should be held responsible for showing why that defense is inadequate, and if he fails, then the defense should stand. The defendant should enjoy the privilege of an incompetent plaintiff: we should not protect the plaintiff from himself. Otherwise we both promote excessive litigation and encourage plaintiffs to shoddily argue the defendant's case and see if the defendant notices it and fixes it in time.
Marcw - The plaintiff did not plead fair use, the plaintiff pleaded copyright infringement. Ordinarily in motion papers on a Rule 12(b)(6) motion, a plaintiff is not supposed to submit evidence. If the court wishes to consider evidence, it it required by Rule 12(d) to convert to summary judgment to permit the plaintiff to do exactly what you say. The district court denied plaintiff this opportunity.
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