Opinion
CASE NO. 21-21286-CIV-SMITH/DAMIAN
2023-03-27
SEVENTH CHAKRA FILMS, LLC, Plaintiff, v. Francesca ALESSE, Defendant.
Alan Keith Fertel, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Miami, FL, Richard Bradlee Rosengarten, Weiss Serota Helfman Cole & Bierman, Coral Gables, FL, for Plaintiff. Richard Charles Wolfe, Wolfe Law Miami, P.A., Miami, FL, for Defendant.
Alan Keith Fertel, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Miami, FL, Richard Bradlee Rosengarten, Weiss Serota Helfman Cole & Bierman, Coral Gables, FL, for Plaintiff. Richard Charles Wolfe, Wolfe Law Miami, P.A., Miami, FL, for Defendant. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT RODNEY SMITH, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment [DE 37], Defendant's Response [DE 42], and Plaintiff's Reply [DE 49]. Plaintiff moves for summary judgment on the following counts of its Complaint [DE 1]: Count 1 seeking a declaratory judgment that Plaintiff is the sole owner of the copyright of the film, "1986: The Act" ("Film"); Count 2 for copyright infringement; and Count 4 for civil theft in violation of Florida Statutes, section 812.014. Plaintiff also moves for summary judgment on all four counts of Defendant's Amended Counterclaim [DE 19]: Count I for breach of oral contract; Count II for an accounting for 50% of net proceeds from the Film; Count III seeking a declaratory judgment that Defendant is the co-owner of the Film; and Count IV for unjust enrichment. Having carefully considered the parties' submissions, the record, and the applicable law, the Court grants in part and denies in part Plaintiff's Motion for Partial Summary Judgment.
The late U.S. District Judge Marcia Cooke presided over this matter from the time it was filed on April 5, 2021, until it was reassigned to the Undersigned in January 2023.
I. FAILURE TO COMPLY WITH LOCAL RULES
At the outset, the Court notes that Defendant failed to cite a single piece of record evidence in her Response in Opposition to Plaintiff's Statement of Material Facts [DE 43], in violation of Southern District of Florida Local Rule 56.1. Local Rule 56.1 requires that the opponent to a summary judgment motion file a response to the movant's statement of material facts and that each separately numbered material fact that the opponent contests shall be "supported by specific, pinpoint references to particular parts of record material, including depositions, documents, electronically stored information, affidavits, stipulations, . . . admissions, and interrogatory answers . . ." Local Rule 56.1(b)(1)(B). "All material facts in any party's Statement of Material Facts may be deemed admitted unless controverted by the other party's Statement of Material Facts, provided that: (i) the Court finds that the material fact at issue is supported by properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does not apply." Local Rule 56.1(c).
The procedure provided for in Local Rule 56.1 "is intended to reduce confusion and prevent the Court from having to scour the record and perform time-intensive fact searching. The rule thus reflects a clear policy that it is not the Court's obligation to scour the record for a factual dispute that precludes summary judgment." Joseph v. Napolitano, 839 F. Supp. 2d 1324, 1329 (S.D. Fla. 2012) (emphasis in original). "Rather, it is the non-movant's obligation to specifically bring the factual dispute to the court's attention by rebutting the movant's factual statements on a paragraph by paragraph basis and with specific citations to the record." Id. To this end, the Eleventh Circuit has stated that
The proper course in applying Local Rule 56.1 at the summary judgment
stage is for a district court to disregard or ignore evidence relied on by the respondent—but not cited in its response to the movant's statement of undisputed facts—that yields facts contrary to those listed in the movant's statement. That is, because the non-moving party has failed to comply with Local Rule 56.1—the only permissible way for it to establish a genuine issue of material fact at that stage—the court has before it the functional analog of an unopposed motion for summary judgment.Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008).
Defendant has failed to establish a genuine issue of material fact because she has failed to cite a single piece of record evidence in her Response in Opposition to Plaintiff's Statement of Material Facts [DE 43]. Defendant did file an Affidavit of Francesca Alesse [DE 42-1], which she attached to her Response in Opposition to Plaintiff's Motion for Partial Summary Judgment [DE 42]. In the Affidavit, Defendant recited certain facts of the case from her perspective. However, this Affidavit makes no "specific, pinpoint references to particular parts of record material . . ." that support her version of facts. See Local Rule 56.1(b)(1)(B). Therefore, the Affidavit violates Local Rule 56.1 in the same way as Defendant's Opposition to Plaintiff's Statement of Material Facts and, for this reason, also fails to controvert Plaintiff's Statement of Material Facts under the Local Rules and Eleventh Circuit precedent. See Reese, 527 F.3d at 1268. The Court therefore has before it the equivalent of an unopposed motion for summary judgment. See id.
Local Rule 56.1 also requires the opponent's statement of material facts to use, as the very first word in each paragraph-by-paragraph response, "disputed" or "undisputed." Local Rule 56.1(b)(2)(B). Defendant has failed to do so here: not a single response contains as the first word "disputed" or "undisputed."
Needless to say, this Affidavit was not cited in Defendant's Opposition Statement of Facts.
Defendant has had ample time to move for leave to correct its deficient Opposition Statement of Material Facts, but she has not done so.
Even though the Court has concluded that Plaintiff's statement of material facts is undisputed, "the movant is not absolved of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported by the record." Reese, 527 F.3d at 1268-69 (internal quotation marks and citation omitted). In other words, the Court must find that the movant's statement of material facts is supported by the record. See Boigris v. EWC P&T, LLC, No. 19-21148-Civ, 2020 WL 1695462, at *2 (S.D. Fla. Feb. 25, 2020), aff'd, 7 F.4th 1079 (11th Cir. 2021); see also Goldman v. Talavera Ass'n, Inc., No. 15-80872-Civ, 2016 WL 11544466, at *1 (S.D. Fla. Oct. 24, 2016).
The Court notes that nearly every exhibit citation in Plaintiff's Statement of Material Facts was made to an incorrect exhibit number and multiple exhibits that Plaintiff cited were not attached. The Court used other identifying information provided by Plaintiff to identify those exhibits that were attached.
II. MATERIAL FACTS
The work that is the subject of the ownership dispute in this case is a documentary film titled 1986: The Act ("Film"). The Film is described as a dramatic forensic examination of the 1986 National Childhood Vaccine Injury Act and its consequences. At the time the Complaint was filed, Dr. Andrew Wakefield ("Wakefield") was the owner of Plaintiff, Seventh Chakra Films, LLC ("Seventh Chakra").
The timing and circumstances of Plaintiff's hiring of Defendant, Francesca Alesse ("Alesse"), are unclear. Plaintiff claims that Alesse worked as a salaried employee for Wakefield at Autism Media Channel ("AMC") in 2014 "until her employment was transferred to Seventh Chakra Films in August of 2018." (Pl.'s Statement of Facts [DE 36] ¶ 3.) Plaintiff also claims that Wakefield hired Alesse "on a full-time basis to work on [the Film] beginning in January 2018." (Id. ¶ 4.) Plaintiff supports neither of these seemingly conflicting propositions with pinpoint citations to record evidence. Nonetheless, Alesse admitted in her Amended Answer that, before working on the Film, she was hired to work with Wakefield as a salaried employee at AMC and that "she was employed to work at the sole direction and supervision of Wakefield to light, film, and audio record interviews for the Film . . . She was also employed to edit the Film . . ." (Compl. [DE 1] ¶ 8; Am. Answer [DE 19] ¶ 8 (admitted).) According to Wakefield, he and Alesse agreed orally that Alesse would be paid a monthly salary, subject to the availability of funds. (Wakefield Decl. [DE 37-8] ¶¶ 4-5.)
Alesse drafted a written agreement "to confirm the terms of their oral agreement" (Am. Countercl. [DE 19] ¶ 14) and presented it to Wakefield at some point prior to November 2018. (Contract of Service Provision [DE 37-1].) The draft agreement specifies that Wakefield is the owner of the intellectual property and copyright of the Film. (Id. at § 6.1.) Alesse admitted that Wakefield did not offer, and there was no agreement, in any ownership or copyright interest in the Film. (Pl.'s Statement of Facts ¶ 7; Def.'s Opp'n Statement of Facts [DE 43] ¶ 7 ("This is correct, but Alesse never waived her copyright interest either."); Wakefield Decl. ¶ 25.)
Over the next several months, Wakefield and Alesse exchanged at least two more drafts of the agreement, but the agreement was never signed. (See Draft Agreement 1 [DE 37-1]; Draft Agreement 2 [DE 37-2]; Draft Agreement 3 [DE 37-4].) Each of the three drafts Plaintiff attached to its motion contain the following provisions:
• § 6.1: "Andrew Wakefield is both DIRECTOR of THE ACT and CONTRACTOR since he is currently the sole proprietor of Seventh Chakra Films LLC. CONTRACTOR has been responsible for conceptualizing, formulating, and writing THE ACT and as such, is owner of the intellectual property and copyright on THE ACT . . . As the financier of THE ACT, CONTRACTOR has responsibility for oversight and final decision-making rights over all aspects of production, post-production, marketing, personnel employment and management, and distribution of THE ACT." (Draft Agreement 1; Draft Agreement 2; Draft Agreement 3.)Plaintiff attached to its motion email communications in which the draft agreements were circulated and none of the communications reflect that Alesse raised the issue of her ownership or copyright interest in any of the accompanying emails. (Draft Agreement 1; Draft Agreement 2; May 15, 2019 Email Exchange [DE 37-3]; Draft Agreement 3.) Alesse testified during her April 6, 2022 deposition that she and Wakefield did not reach an agreement as to the amount of points that she might be entitled to or how they would be paid. (Alesse 2022 Dep. [DE 37-7] 83:17-83:19; 84:12-84:16.) In an apparent contradiction, Alesse later answered affirmatively that an oral agreement was reached before she drafted the written agreement in which she would have a 50% copyright ownership of the Film. (Id. at 136:12-137:21.)
• § 10: "CONTRACTOR and ARTIST [Alesse] further represent that: (a) the Material was written solely by and is original with CONTRACTOR . . . ." (Draft Agreement 1 at p. 8; Draft Agreement 2 at p. 8; Draft Agreement 3.)
Only the third draft agreement [DE 37-4] labels this provision with the Section 10 heading, but all three versions of the draft agreement contain the provision.
Alesse testified that it was her understanding that "points" and "royalties" were the same thing. (Alesse 2022 Dep. [DE 37-7] 83:23-83:24.)
During production of the Film, Wakefield was Alesse's boss and supervisor at all times, and Alesse performed the tasks she was assigned generally competently, with the exception of an issue regarding editing of the Film. (Wakefield Decl. ¶ 8.) Alesse's tasks included technical work associated with making a film: "operating a camera, sound and lighting for the interviews with subject matter experts; editing the Film, . . . and all the administrative tasks associated with carrying out the work of a small start-up film company. This included tasks such as arranging travel, booking hotels and venues for shooting and scheduling interviews." (Id. ¶ 10.) Alesse did not deny that Wakefield "had the right to assign all necessary tasks to her associated with the Film and she did not have the discretion to choose among those that she would accomplish." (Pl.'s Statement of Facts ¶ 28; Wakefield Decl. ¶ 10; see Def.'s Opp'n Statement of Facts ¶ 28.) Alesse provided some of her own equipment, but Seventh Chakra provided her with substantial additional equipment, including cameras, lights, and the computer and drives necessary for the editing process. (Wakefield Decl. ¶ 15.)
Although Alesse made some suggestions for the Film, many of her suggestions were unworkable and rejected. (Id. ¶ 8.) Alesse played no role in researching the subject matter for the Film or reviewing materials essential to planning and conducting interviews, nor did she play any role in developing the timeline of events and facts that Wakefield put together as part of creating the Film's storyline. (Id.)
Alesse did not deny that she had no role, authority, or decision-making responsibility as to the final content of the Film. (Pl.'s Statement of Facts ¶ 27; Wakefield Decl. ¶ 8; Def.'s Opp'n Statement of Facts ¶ 27.) Alesse also explicitly admitted that, "[a]s the Screenwriter and Director, Dr. Wakefield retained complete and exclusive control over the final content of the Film." (Pl.'s Statement of Facts ¶ 29; Wakefield Decl. ¶ 11; Def.'s Opp'n Statement of Facts ¶ 29.) Additionally, Alesse did not deny that Wakefield was the sole author of the screenplay (Pl.'s Statement of Facts ¶ 36; Wakefield Decl. ¶ 18; see Def.'s Opp'n Statement of Facts ¶ 36) and she acknowledged that she did not work under her own independent creative control. (Pl.'s Statement of Facts ¶ 40; Wakefield Decl. ¶ 21; see Def.'s Opp'n Statement of Facts ¶ 40.)
While working on the Film, Alesse was unable to produce edited sequences of properly linked files of footage for Wakefield to review using AVID editing software. (Wakefield Decl. ¶¶ 61-67.) Alesse's editing work was discarded and the Film was edited by a different team of editors using Adobe Premiere Pro software. (Dec. 20, 2019 Email Exchange [DE 37-12]; Nov. 20, 2019 Email Exchange [DE 37-20]; Wakefield Decl. ¶ 82.) Wakefield made the decision to discard Alesse's AVID editing work on December 20, 2019. (Dec. 20, 2019 Email Exchange.) Wakefield terminated Alesse on December 29, 2019. (Wakefield Decl. ¶ 87.)
At the time Alesse was terminated, she had some of Plaintiff's equipment and digital content assets at her apartment. (Id. ¶ 88.) Wakefield asked for the immediate return of this equipment and digital content and tried on numerous occasions thereafter to recover the equipment and footage without success. (Id.) In a February 18, 2020 letter from Alesse's former counsel to Plaintiff's counsel, Alesse's former counsel "acknowledge[d] that [Alesse] [was] in possession of some of [Seventh Chakra's] equipment." (2020 Correspondence Between Counsel [DE 37-10] p. 7.) Alesse acknowledged that her counsel's letter indicated that Plaintiff's equipment would remain with her pending settlement negotiations. (Compare Pl.'s Statement of Facts ¶ 60 with Def.'s Opp'n Statement of Facts ¶ 60.) Alesse also testified in her October 29, 2020 state court deposition that, at the time of the deposition, she had equipment of Wakefield and/or Seventh Chakra in her apartment. (Alesse 2020 Dep. [DE 10-7] 317:25-322:15.)
On February 20, 2020, Alesse filed a copyright registration, Pau004022925, for a motion picture, "The Act," listing herself and Wakefield as authors. (February 2020 Copyright Registration [DE 19-1].) On May 11, 2020, Seventh Chakra and Wakefield filed a copyright registration, Pau004028880, for the dramatic work (written script) "1986: The Act," awarded to Wakefield. (May 2020 Copyright Registration [DE 19-2].) On June 23, 2020, Alesse filed a state court action claiming a 50% ownership interest in the Film. (Wakefield Decl. ¶ 96.) The Film was completed in July 2020. (Id. ¶ 82.) The by-line on the cover of the DVD of the final product reads, "A FILM BY ANDY J. WAKEFIELD." (DVD Case [DE 38-1].) The credits on the back cover of the DVD state that the Film was "written[,] directed[,] and produced by Andy J. Wakefield." (Id.) Lori Martin Gregory is also listed as a producer. (Id.) Alesse and Sam Painter are credited with cinematography. (Id.) On August 28, 2020, Seventh Chakra and Wakefield filed a copyright registration, PU0002264550, for the motion picture "1986: The Act," awarded to Seventh Chakra. (August 2020 Copyright Registration [DE 19-3].)
The case was dismissed without prejudice in March 2021 in part because the state court lacked jurisdiction over Alesse's copyright claims. (Wakefield Decl. ¶ 102.)
Plaintiff claims that Alesse's competing copyright has prevented distribution of the Film. In support, Plaintiff claims that Lori Martin Gregory, Seventh Chakra's CEO, "has reviewed all of the distribution and sale agreements, which unfortunately have included representations and warranties that the purported licensor of the film and its various rights have clear title to copyright and ownership." (Pl.'s Statement of Facts ¶ 54.) However, Plaintiff does not provide these agreements or otherwise support the statement with record evidence.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). The Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether " 'the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505).
In opposing a motion for summary judgment, the non-moving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere "scintilla" of evidence supporting the opposing party's position will not suffice; instead, there must be a sufficient showing that the jury could reasonably find for that party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
IV. DISCUSSION
A. Count 1: Declaratory Judgment that Plaintiff Owns the Copyright/Counterclaim III: Declaratory Judgment that Defendant Co-owns the Copyright
Count 1 of the Complaint seeks a declaratory judgment that Plaintiff is the sole holder of the copyright of the Film, 1986: The Act. Count III of Defendant's Amended Counterclaim seeks a declaratory judgment that Alesse is co-author of the Film and thus co-owner of the copyright of the Film. The parties' arguments regarding ownership of the copyright of the Film center on two main issues, which the Court will proceed to address in turn. First, the parties disagree about whether Alesse was an employee of Plaintiff or an independent contractor. Under the Copyright Act, an employee has no copyrightable interest in a work made for hire, absent a written agreement specifying otherwise. If Alesse was an employee of Plaintiff, her claim of co-ownership would fail. Second, the parties disagree about whether the Film constitutes a "joint work" under the Copyright Act. If the Film is considered a joint work created by Wakefield and Alesse, then they would be co-owners of the copyright. In order to determine whether the Film is a joint work, the Court will analyze whether Wakefield and Alesse fully intended to be co-authors and whether each made independently copyrightable contributions.
1. Employee vs. Independent Contractor
Under the Copyright Act, "[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." 17 U.S.C. § 201(b). In Defendant's Amended Answer, she admitted that "She was employed to work at the sole direction and supervision of Wakefield to light, film, and audio record interviews for the Film . . ." and that "[s]he was also employed to edit the Film . . ." (emphasis added) (Compl. ¶ 8; Am. Answer ¶ 8.) Plaintiff is entitled to summary judgment as to Count 1 and Counterclaim III based on this admission alone. Defendant has not sought leave to correct her Amended Answer, nor did she make any argument to dispute this contention in her opposition to Plaintiff's motion for partial summary judgment. "Admissions in pleadings are binding upon the parties unless withdrawn or amended." Matter of the Complaint of Gozleveli, No. 12-61458-Civ, 2014 WL 12479976, at *3 (S.D. Fla. Feb. 11, 2014), aff'd sub nom. Gozleveli v. Kohnke, 573 F. App'x 883 (11th Cir. 2014). Due to Alesse's admission, she must be regarded as an employee of Seventh Chakra, meaning that her contribution to the Film, however creative or copyrightable, belongs to Seventh Chakra. See 17 U.S.C. § 201(b). However, regardless of the Court's conclusion as to Alesse's status as an employee or independent contractor, the Court need not further analyze the employment relationship between Seventh Chakra and Alesse because Seventh Chakra is entitled to summary judgment on the independent basis that Alesse's claim to co-authorship fails as a matter of law.
2. Joint Work
The Copyright Act does not define "author," but it defines "joint work." "A 'joint work' is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. "Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression," including motion pictures. 17 U.S.C. § 102(a). "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, . . . method of operation, concept, . . . or discovery, regardless of the form in which it is . . . illustrated[ ] or embodied in such work." 17 U.S.C. § 102(b). "Copyright in a work . . . vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work." 17 U.S.C. § 201(a).
The parties do not cite nor is the Court aware of applicable Eleventh Circuit precedent that interprets the Copyright Act's "joint work" definition and related provisions that have a bearing on co-authorship. Therefore, the Court looks to the law of other circuits that have analyzed co-authorship claims. In the Second and Seventh Circuits, "[a] co-authorship claimant bears the burden of establishing that each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be coauthors." Thomson v. Larson, 147 F.3d 195, 200 (2d Cir. 1998) (citing Childress v. Taylor, 945 F.2d 500, 507-08 (2d Cir. 1991)); see Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071 (7th Cir. 1994); see also Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008) (finding that the contribution of a fourteen-page original, creative, copyrightable story which became a substantial portion of the motion picture at issue in the case did not give the authors of the story co-author status with regards to the motion picture because the authors of the story did not supervise the movie by exercising control, nor was there mutual intent that the authors of the story would be co-authors of the motion picture.). To prevail on its motion for summary judgment as to Defendant's counterclaim for co-ownership, Plaintiff must show that Alesse has failed to satisfy either of the two elements: independently copyrightable contributions or mutual intent for co-authorship.
The Court notes that this standard has been applied by a district court in this circuit. See Aretz v. Douglas, No. 12-246-Civ, 2013 WL 12123678, at *2 (M.D. Fla. Nov. 27, 2013).
a. Mutual Intent/Co-Authorship
Citing the Second and Seventh Circuit precedent regarding co-authorship claims, the Ninth Circuit has set forth three factors among the criteria to be weighed when determining joint authorship under 17 U.S.C. § 101 in the context of a motion picture production, and in the absence of a contract: "First, an author superintends the work by exercising control." Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (internal quotation marks and footnote omitted). This may likely be "the inventive or master mind who creates, or gives effect to the idea." Id. (internal quotation marks and footnote omitted). "Second, putative coauthors make objective manifestations of a shared intent to be coauthors." Id. (footnote omitted). "Third, the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised." Id. (internal quotation marks and footnote omitted). "Control in many cases will be the most important factor." Id.
The Court will proceed to evaluate the Aalmuhammed factors in order to determine whether Alesse should be considered a co-author of the Film. The first factor strongly favors Plaintiff. Independent of Alesse's failure to cite record evidence, Alesse's admissions and her failures to explicitly dispute certain key facts that were presented and supported by Plaintiff establish that Wakefield was the mastermind of the Film and superintended the work by exercising control:
• Alesse admitted that she was employed to work on the Film at the sole direction and supervision of Wakefield. (Compl. ¶ 8; Am. Answer] ¶ 8 (admitted).)The way the parties' relationship ended also confirms that Wakefield had complete control over the Film. Wakefield decided to terminate Alesse due to the AVID software editing issue and chose to use a different software to complete the Film. (Dec. 20, 2019 Email Exchange; Wakefield Decl. ¶ 87.) Although Alesse disagreed with the decision, she did not have authority to change the outcome. (Dec. 20, 2019 Email Exchange.) The record establishes as a matter of law that it was Wakefield who possessed and exercised control over the final product of the Film for purposes of the joint work analysis.
• Alesse did not deny that Wakefield had the right to assign all necessary tasks to her associated with the Film and she did not have the discretion to choose among those that she would accomplish. (Pl.'s Statement of Facts ¶ 28; Wakefield Decl. ¶ 10; see Def.'s Opp'n Statement of Facts ¶ 28.)
• Alesse did not deny that she had no role, authority, or decision-making responsibility as to the final content of the Film. (Pl.'s Statement of Facts ¶ 27; Wakefield Decl. ¶ 8; Def.'s Opp'n Statement of Facts ¶ 27.)
• Alesse admitted that Wakefield had the final decision-making power as to the final cut of the Film. (Pl.'s Statement of Facts ¶ 27; Wakefield Decl. ¶ 8; Def.'s Opp'n Statement of Facts ¶ 27.)
• Alesse admitted that Wakefield retained complete and exclusive control over the final content of the Film. (Pl.'s Statement of Facts ¶ 29; Wakefield Decl. ¶ 11; Def.'s Opp'n Statement of Facts ¶ 29.)
• Alesse did not deny that Wakefield was the sole author of the screenplay. (Pl.'s Statement of Facts ¶ 36; Wakefield Decl. ¶ 18; see Def.'s Opp'n Statement of Facts ¶ 36.)
The second factor—objective manifestations of a shared intent to be coauthors—also favors Plaintiff. Alesse has not presented any evidence of a mutual intent to co-author the Film, and the record does not reveal any objective manifestation of that intent. Indeed, Alesse admits that Wakefield did not offer, and there was no agreement, in any ownership or copyright interest in the Film. (Pl.'s Statement of Facts ¶ 7; Def.'s Opp'n Statement of Facts ¶ 7 ("This is correct, but Alesse never waived her copyright interest either."); Wakefield Decl. ¶ 25.) As already discussed, Alesse does not deny that Wakefield was the sole author of the screenplay and admits that Wakefield had the final decision-making power and retained complete and exclusive control over the final content of the Film. Based on the existing record, no reasonable fact finder could conclude that the parties objectively manifested an intent to be co-authors.
Although Alesse testified that she was promised either an unspecified amount of the net proceeds of the Film or a 50% ownership in the Film, this testimony does not reflect an objective manifestation of co-authorship intent. Indeed, Alesse and Wakefield exchanged a series of draft written agreements to confirm the terms of their oral agreement and all three versions of the draft contain provisions that Wakefield is the owner of the copyright on the Film, was responsible for conceptualizing, formulating, writing the Film, had final decision-making authority over all aspects of production of the Film, and that the Film was written solely by Wakefield. Although the agreements were never signed, the fact that there is no evidence that Alesse ever objected to these provisions supports the finding that the parties did not intend Alesse to be a co-author of the Film. See Brooks v. Dash, 454 F. Supp. 3d 331, 337 (S.D.N.Y. 2020) (finding no mutual intent of co-authorship where, although the agreements were never signed, all three drafts contained identical work-for-hire provisions), aff'd, 852 F. App'x 40 (2d Cir. 2021). Alesse has failed to raise a genuine issue of material fact regarding a mutual intent to be co-authors.
As to the third factor, the Court has been made aware of no particular audience appeal for the Film that would turn on Alesse's contributions to the Film. Given the preceding analysis that Wakefield was the mastermind of the Film, it would not be unreasonable to draw the conclusion that, to the extent any audience appeal exists for the Film and could be attributed to either Wakefield or Alesse, it would be attributed to Wakefield.
The Court finds that two of the three factors outlined in Aalmuhammed weigh heavily in favor of Plaintiff, with a dearth of evidence regarding the third factor. The most important factor—who had control over the final product—strongly favors Plaintiff. Plaintiff has provided evidence, which Alesse has failed to dispute, that Wakefield was the author of the Film and Alesse was not a co-author. Alesse's claim that the Film is a joint work therefore fails as a matter of law.
b. Independently Copyrightable Contribution
Regardless of the Court's conclusion regarding mutual intent of co-authorship and application of the Aalmuhammed factors, Plaintiff is also entitled to summary judgment on the co-authorship counterclaim because Alesse made no independently copyrightable contributions to the Film. "Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression," including motion pictures. 17 § U.S.C. 102(a). "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, . . . method of operation, concept, . . . or discovery, regardless of the form in which it is . . . illustrated[ ] or embodied in such work." 17 § U.S.C. 102(b).
In evaluating whether a putative co-author made independently copyrightable contributions to a joint work, the "copyrightable subject matter test" formulated by Professor Paul Goldstein has been adopted, in some form, by a majority of the courts that have considered the issue, including in this circuit. See M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990); see also Childress v. Taylor, 945 F.2d 500, 507 (2d Cir. 1991); Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520-21 (9th Cir. 1990). According to Professor Goldstein, "[a] collaborative contribution will not produce a joint work, and a contributor will not obtain a co-ownership interest, unless the contribution represents original expression that could stand on its own as the subject matter of copyright." Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1070 (7th Cir. 1994) (footnote omitted) (quoting Paul Goldstein, Copyright: Principles, Law, and Practice § 4.2.1.2, at 379 (1989)).
Alesse contends that her ideas and suggestions were used in the script for the Film repeatedly, and that she and Wakefield together came up with the idea to use a fictional couple bearing a child as the central thread for the narrative of the Film. Even assuming Alesse supported this position with record evidence, any argument that this constituted copyrightable contributions to the Film would fail because ideas and suggestions cannot be copyrighted until they are fixed in a medium of expression. See 17 U.S.C. § 102.
Alesse argues for the first time in her summary judgment opposition brief that she contributed "audio-visual photographs, which she staged, created and edited." (Def.'s Opp'n to Mot. for Partial Summ. J. p. 4.) Alesse provides no evidence to support this proposition and points to no place in the record where such photographs can be identified. In any case, it is improper to insert this new claim into the litigation at this juncture.
Alesse was hired to light, film and audio record interviews for the Film. This included specifically: operating a camera, providing sound and lighting for the interviews, and editing the Film. Alesse argues that an exhibit she created and attached to her summary judgment opposition brief "demonstrates that she created, authored and is the owner of large portions of the final film." (Def.'s Opp'n to Mot. for Partial Summ. J. p. 9; Alesse Aff. [DE 42-1] (Exhibit A).) However, even if this had been properly cited as evidence in opposition to Plaintiff's statement of facts and is read in the light most favorable to Alesse, it does not support an argument that Alesse contributed independently copyrightable material to the Film. First, the exhibit is for the most part incomprehensible. Alesse seeks to represent the parts of the Film that she shot by denoting those parts with color font and color highlighting, but the exhibit is in black and white. For portions of the Film she did shoot, she describes that she recorded audio and made choices regarding various aspects of the shooting including lighting, location, lens and aperture. However, Alesse provides no argument nor evidence for why this work would satisfy the minimum creativity requirement for copyright protection. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 363, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ("copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.") Alesse's counterclaim that she is a co-author of the Film therefore also fails because Plaintiff has provided evidence, which Alesse has failed to dispute, that Alesse did not make independently copyrightable contributions to the Film.
B. Count 2: Copyright Infringement
Plaintiff claims that Alesse has infringed on its copyright to the Film. Under the Copyright Act, "the owner of copyright . . . has the exclusive rights . . . to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. § 106(3). "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 . . . is an infringer of the copyright." 17 U.S.C. § 501(a).
The parties cite no caselaw regarding the meaning of "distribute" under 17 U.S.C. § 106(3) and the Court is aware of none in this circuit. Other courts have held that infringement of the distribution right under the Copyright Act requires an actual dissemination of either copies or phonorecords. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007); Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 434 (8th Cir. 1993); London-Sire Recs., Inc. v. Doe 1, 542 F. Supp. 2d 153, 168 (D. Mass. 2008); Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 981 (D. Ariz. 2008).
The parties' arguments miss the mark regarding the issue of distribution. Plaintiff argues that Alesse is infringing its copyright of the Film by seeking 50% ownership in the Film, attempting to enforce this interest in a state court action and in her amended counterclaim, and filing a fraudulent application for copyright registration. Alesse argues that Plaintiff must show that she "copied protected elements of the copyrighted material without authorization," Mizioznikov v. Forte, No. 16-61616-Civ, 2017 WL 5642383, at *3, 2017 U.S. Dist. LEXIS 45587, at *6 (S.D. Fla. Mar. 27, 2017), and that Plaintiff failed to show Alesse used any part of the Film. Plaintiff responds that its right to distribute the Film under 17 U.S.C. § 106(3) has been violated. However, Plaintiff has not provided any evidence that Alesse distributed the Film without authorization in violation of 17 U.S.C. § 106(3). Instead, Plaintiff claims that because of Alesse's copyright registration, a "cloud on the title to the Film has prevented distribution." Plaintiff elaborates that its CEO, Lori Martin Gregory, reviewed all of the distribution sale agreements, "which unfortunately have included representations and warranties that the purported licensor of the film . . . [has] clear title to copyright and ownership." (Pl.'s Statement of Facts ¶ 54.) Even if this were a basis for establishing copyright infringement, Plaintiff would need to support it with record evidence in order to prevail on summary judgment. Plaintiff has failed to do so. Plaintiff does not provide any of the alleged distribution and sale agreements, and the only record evidence provided is Wakefield's declaration that he reviewed the distribution and sale agreements and they contain the alleged representations and warranties. (Wakefield Decl. ¶ 86.) While this does not necessarily contradict Plaintiff's statement of fact, it does not support it either. Accordingly, Plaintiff has failed to establish that it should be granted summary judgment as to its claim for copyright infringement.
Plaintiff also claims that it was "in negotiations with a notably large distribution network to license the film in October 2020. However, once terms were reached by email and the licensee learned via telephone a few days later of the false copyright claim, the licensee went radio silent on all negotiations." (Pl.'s Statement of Facts ¶ 54.) Although it appears that Plaintiff's contention here amounts to no more than speculation as to the reason that the licensee allegedly went radio silent, Plaintiff also fails to support this alleged fact with record evidence.
C. Count 4: Civil Theft
Plaintiff claims Alesse has committed civil theft in violation of Florida Statutes, section 812.014. "A person commits theft if he or she knowingly obtains or uses . . . the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property." Fla. Stat. § 812.014.
At the time she was terminated, Alesse had some of Plaintiff's equipment at her apartment and Wakefield tried to obtain its return without success. In a February 18, 2020 letter to Plaintiff's counsel, Alesse's former counsel acknowledged she was in possession of some of Plaintiff's equipment. Alesse acknowledged that her counsel's letter indicated that Plaintiff's equipment would remain with her pending settlement negotiations. As a prerequisite required by Florida Statutes, section 772.11, Plaintiff's counsel sent a letter demanding return of the property on September 29, 2020. Additionally, Alesse testified in her October 29, 2020 state court deposition that, at the time of the deposition, Plaintiff's equipment remained in her apartment. (Alesse 2020 Dep. 317:25-322:15.) Alesse's attempt to create a dispute of fact through the general denials in her affidavit that some of the equipment was hers fails because even if "some" of the equipment was Alesse's, some was still Plaintiff's. Thus, Alesse knowingly kept Plaintiff's equipment and deprived Plaintiff of its use. Plaintiff is therefore entitled to summary judgment on its count for civil theft.
In any event, the Affidavit was in violation of the Local Rules, which the Court has explained, infra at Section I.
D. Counterclaim I: Breach of Oral Contract
Alesse claims that Plaintiff breached an oral agreement regarding her work on the Film. Under Florida law, "[t]he elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages." People's Tr. Ins. Co. v. Valentin, 305 So. 3d 324, 326 (Fla. 3d DCA 2020) (internal quotation marks and citation omitted). "An oral contract . . . is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms." St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004) (citation omitted). "In order to be binding, a contract must also be definite and certain as to the parties' obligations to one another." Dreyfuss v. Dreyfuss, 701 So. 2d 437, 439 (Fla. 3d DCA 1997) (citation omitted); see also Hawaiian Airlines, Inc. v. AAR Aircraft Servs., Inc., 167 F. Supp. 3d 1311, 1317 (S.D. Fla. 2016) (citation omitted) ("To create a contract, it is essential that there be reciprocal assent to a certain and definite proposition."). "Indefiniteness regarding the duration of an agreement can be fatal to its enforceability as a binding contract." Dreyfuss, 701 So. 2d at 438-39 (citation omitted). "While it is not necessary that all details of an agreement be fixed in order to have a binding agreement between parties, if there has been no agreement as to essential terms, an enforceable contract does not exist." Jacksonville Port Auth., City of Jacksonville v. W.R. Johnson Enters., Inc., 624 So. 2d 313, 315 (Fla. 1st DCA 1993) (citation omitted). For example, in Dreyfuss v. Dreyfuss, the Florida District Court of Appeal held that the plaintiff failed to prove the existence of a binding contract where he could not define the parties' corresponding rights and duties, could not identify the duration of the contract, and could not recall the financial specifics of the alleged partnership, such as whether the profits would be gross or net, split equally, or stated as revenue, profit or income. See Dreyfuss, 701 So. 2d at 438-39.
Here, Alesse reiterated multiple times during her April 6, 2022, deposition that she and Wakefield did not agree on an amount of ownership interest she would receive in the Film or how and when the alleged points she would receive to satisfy that interest would be paid:
• Alesse and Wakefield "didn't discuss how much" she was going to receive in ownership interest in the Film; they were "going to see at the end
how much that was going to be." (Alesse 2022 Dep. 82:2-10.)Additionally, Alesse could not recall when the alleged oral agreement was agreed to or any other exact terms. (Id. 100:18-23.) Alesse also could not specify a specific duration of the alleged agreement, instead testifying that it would go until "the very end of [the] project," which could have been after "international distribution" or could have been after tours "around the world," if they were going to do them. (Id. 133:11-21.)
• "[W]e talked about points but we didn't agree to how many because we needed to see how the documentary was going to perform once released to the public." (Id. 83:12-15.)
• "What was not agreed was the amount. If it was going to be 50 percent, 70/30, 40/60. It was agreed that I would have those points. It wasn't agreed that -- how many." (Id. 84:20-25.)
• "We never worked to that deep discussion" about how the alleged points would be paid: over what period of time, when the payments were due, or what triggers would cause the payments to be made. (Id. 85:1-11.)
• "[Q:] . . . So the only thing that you can testify under oath to is that you and Mr. Wakefield had an agreement that you would be entitled to points but not an amount of points or how those points would be paid? [A:] Correct." (Id. 85:12-16.)
In an apparent contradiction, Alesse later answered affirmatively during her deposition that an oral agreement was reached in which she would have a 50% copyright ownership of the Film. (Alesse 2022 Dep. 136:12-137:21.) This apparent contradiction does not help establish an enforceable contract, and nonetheless, Alesse admitted in response to Plaintiff's statement of facts that Wakefield did not offer, and there was no agreement, in any ownership or copyright interest in the Film. (Pl.'s Statement of Facts ¶ 7; Def.'s Opp'n Statement of Facts ¶ 7 ("This is correct, but Alesse never waived her copyright interest either.").)
As in Dreyfuss, Alesse could not define the parties' corresponding rights and duties, could not identify the duration of the contract, and could not recall the financial specifics of the alleged agreement. Alesse's response is unavailing, as it argues only that the duration of an oral agreement is not necessarily always an essential term. Accordingly, Plaintiff is entitled to summary judgment with respect to Alesse's counterclaim for breach of oral contract.
E. Counterclaim II: Accounting for 50% of Net Proceeds From the Film
Alesse seeks an accounting for 50% of the net proceeds from the Film. "To state a claim for an equitable accounting, the plaintiff must allege that the contract demands between litigants involve extensive or complicated accounts and it is not clear that the remedy at law is as full, adequate and expeditious as it is in equity." Bankers Tr. Realty, Inc. v. Kluger, 672 So. 2d 897, 898 (Fla. 3d DCA 1996) (internal quotation marks and citation omitted); see also Zaki Kulaibee Establishment v. McFliker, 771 F.3d 1301, 1311 (11th Cir. 2014). Because Alesse's contract claim fails, she is not entitled to the alleged contractual 50% of net proceeds from the Film, so there is no basis for an accounting.
F. Counterclaim IV: Unjust Enrichment
Alesse claims she is entitled to equitable relief because Plaintiff has been unjustly enriched as a result of her work on the Film. "In Florida, a claim for unjust enrichment is an equitable claim based on a legal fiction which implies a contract as a matter of law even though the parties to such an implied contract never indicated by deed or word that an agreement existed between them." 14th & Heinberg, LLC v. Terhaar & Cronley Gen. Contractors, Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010) (citation omitted). Under Florida law, "[t]he elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Hillman Const. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. DCA 4th 1994) (citation omitted).
In order to prevail on its motion for summary judgment as to this counterclaim, Plaintiff must show that at least one of those elements has not been satisfied. Plaintiff argues that Alesse's admission that her monthly salary was limited by the availability of funds defeats her claim but does not provide further clarifying elucidation. Plaintiff does, however, provide a declaration of its Financial Controller, Diane Janes, regarding payments to Alesse. (Janes Decl. [DE 37-24].) Janes describes the total salary and expense reimbursement that Alesse received for her work on the Film and provides a breakdown of these amounts in a spreadsheet. (Id.) Janes notes that Alesse's salary was subject to the availability of funds and that Alesse was paid in full for salary and expenses at the conclusion of her employment and did not request any additional compensation upon her departure. (Id. ¶¶ 3, 5.)
Indeed, Alesse admitted that "the amount [of her monthly salary] would change depending on the availability of funds and the amount of work/hours" (Def.'s Opp'n Statement of Facts ¶ 5) and that a critical limitation on her monthly salary was the availability of funds. (Pl.'s Statement of Facts ¶ 23; Def.'s Opp'n Statement of Facts ¶ 23 (admitted).)
In her opposition statement of facts, Alesse stated that she could not confirm the amount Seventh Chakra claimed to pay her "without a more decretive breakdown" and that she is "owed a total of $105,487.00 in unpaid work, plus studio rental fees of $13,800." (Def.'s Opp'n Statement of Facts ¶ 49.) Alesse provides no record evidence to support her attempt to dispute Plaintiff's statement of facts, and her vague and conclusory statement is not significantly probative. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (evidence that is "merely colorable" or is not "significantly probative" will not prevent summary judgment.). As a result, Alesse is unable to establish that Plaintiff has retained a benefit without paying her fair value for that benefit. Because Alesse cannot prevail on an essential element of her unjust enrichment counterclaim, Plaintiff is entitled to summary judgment as to this counterclaim.
The Court believes the word "decretive" is used in error and that Alesse means to suggest that she needs a more definitive breakdown.
Alesse's statement that she is "owed a total of $105,487.00 in unpaid work, plus studio rental fees of $13,800" also appears in the Alesse Affidavit (¶ 19). However, no evidence is cited in support of this vague and conclusory statement in the Affidavit, either. Additionally, the Affidavit was in violation of the Local Rules, which the Court has explained, infra at Section I.
The only counterargument Alesse appears to make in her opposition brief is that she has adequately stated a claim for unjust enrichment because she performed work on the promise of payment which was not forthcoming. This argument is unavailing. As Plaintiff accurately points out, Alesse must plead the unavailability of an adequate remedy at law because unjust enrichment is an equitable remedy, and she failed to do so. Denarii Sys., LLC v. Arab, No. 12-24239-Civ, 2013 WL 6162825, at *6 (S.D. Fla. Nov. 25, 2013) (citation omitted) ("to properly state a claim for unjust enrichment, a party must allege that no adequate legal remedy exists"). This provides an independent basis for the Court to grant Plaintiff's motion for summary judgment on this claim.
V. CONCLUSION
Accordingly, it is hereby
ORDERED AND ADJUDGED that Seventh Chakra's Motion for Partial Summary Judgment [DE 37] is GRANTED in part and DENIED in part as follows:
1. The Motion is granted as to Counts 1 and 4 and Counterclaims I, II, III and IV.The Court will issue a separate order scheduling trial on the remaining claims.
2. The Motion is denied as to Count 2.
DONE AND ORDERED in Fort Lauderdale, Florida this 27th day of March, 2023.