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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