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In Lowe, the Court granted attorneys' fees to Defendants because Plaintiff's testimony and affidavit revealed that he had granted Defendants a nonexclusive license to his copyright.
Summary of this case from Gillan & Hartmann, Inc. v. Kimmel Bogrette Architecture + Site, Inc.Opinion
CIVIL ACTION: No. 01-1797
November 20, 2003
MEMORANDUM
Before this Court are the Motions for Summary Judgment filed by Defendants Loud Records, Alvin Nathanial Joiner ("Joiner") p/k/a/ Xzibit, Hennesy for Everyone Music, Andre Young ("Young") p/k/a/ Dr. Dre, Ain't Nuthin' But Funkin' Music, Melvin F. Bradford ("Bradford"), Hard Workin' Black Folks Music, Columbia Records, Inc., Voco Music d/b/a/ Alexra Music (collectively, "California Defendants") and Scott Storch ("Storch"). Plaintiff Michael A. Lowe ("Lowe") brought this lawsuit alleging copyright infringement under 17 U.S.C. § 501-505 and negligence. For the reasons that follow, the Defendants' Motions are granted.
Lowe's Complaint also contained a claim for unfair competition under Section 43(a) of the Lanham Act, as well as state law claims for unfair competition and conversion. (See Compl.). During the September 9, 2003 oral argument, Lowe's attorney, John F. Innelli, Esq., withdrew both of the unfair competition claims, as well as the conversion claim. (N.T. 9/9/03, p. 12, lines 7-14). Thus, the remaining claims in this action are copyright infringement and negligence.
I. BACKGROUND
Lowe, who currently resides in Philadelphia, Pennsylvania, styles himself as a songwriter. Storch, who also resides in Philadelphia, Pennsylvania, is a songwriter and producer. The California Defendants can be categorized into the following three groups: the Artist Defendants; the Publisher Defendants; and the Record Company Defendants. Included in the Artist Defendants category are the following: Joiner, a rap artist who performs as "Xzibit;" Young, a producer, writer and rapper professionally known as "Dr. Dre;" and Bradford, a writer of rap music. The Publisher Defendant category includes the following: Hennesy for Everyone Music; Ain't Nuthin' But Funkin' Music; Hard Workin' Black Folks Music; and Voco Music doing business as Alexra Music. Lastly, the Record Company Defendants consist of Loud Records and Columbia Records, Inc.
Lowe claims that he wrote the musical composition entitled, "West Coast (Dre Beat)" (hereinafter referred to as "West Coast Beat"). According to Lowe, "West Coast Beat" is the underlying musical composition of "X," a rap song contained on the platinum album entitled "Restless" performed by Xihibit (otherwise known as Alvin Nathanial Joiner). "X" was written by Young, Joiner and Bradford. As for Storch, he was a producer on "X." Lowe, who owns and controls the copyrights for "West Coast Beat," asserts that his music copyrights were violated by all of the Defendants through their use of "West Coast Beat" in "X" without his knowledge or permission. II. STANDARD
The California Defendants explain that "[a] `beat' is the instrumental rhythm portion of a rap song." (Cal. Defs.' Mem. Law Supp. Mot. Summ. J. at 1). "Often, a writer or writers will separately write and record a beat for other writers, producers, musicians and artists, who then add music and lyrical elements to create a song." (Id.).
Lowe is the owner of the copyrights to the musical composition entitled "West Coast (Dre Beat)." (Compl., 28). Lowe's attorney, John T. Robertson, Jr., Esq., filed the requisite copyright registrations with the Copyright Office of the United States on March 5, 2001. (Cal. Defs.' Reply Mem. Supp. Mot. Summ. J., Exs. D-2 and D-3). In this case, the certificates of registration state that Lowe is the author and owner of "West Coast Beat." (Id.).
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-23. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
III. DISCUSSION
The Defendants seek summary judgment regarding Lowe's two remaining claims, copyright infringement and negligence.
A. Copyright Infringement Claim
Plaintiff Lowe cannot prevail on his copyright infringement claim because Plaintiff's own deposition testimony and later affidavit claim that he granted Defendants a nonexclusive license to use "West Coast Beat" in one of Defendants' musical compositions. Defendants are not arguing that Plaintiff did in fact create an implied license (their position in fact is that Plaintiff had nothing to do with the creation of "X"), they are simply pointing out the obvious, that is, that Plaintiff's testimony defeats his own copyright infringement claim.
In addition to the Defendants' implied license argument, they also assert that summary judgment is appropriate because Lowe's testimony that he and Storch co-authored "West Coast Beat" precludes his copyright infringement claim. However, in the California Defendants' Reply to Supplemental Response to Motion for Summary Judgment, they conceded, solely for purposes of their Motion for Summary Judgment, that Lowe is the sole author of "West Coast Beat." (Cal. Defs.' Reply Supp. Resp. Mot. Summ. J. at 2). Therefore, in relation to the outstanding Motions, the issue of whether Lowe and Storch co-authored "West Coast Beat" is moot. As for Storch, although he joins into the California Defendants' Motion for Summary Judgment, he consistently denies that he and Lowe co-authored "West Coast Beat" or that Lowe gave him an implied license to use "West Coast Beat".
1. Copyright Infringement Law
According to Section 501 of the Copyright Act, "[a]nyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 . . . is an infringer of the copyright. . . ." 17 U.S.C.A. § 501(a)(1996). Section 106 of the Copyright Act provides that the owner of a copyright has the exclusive rights "to do and to authorize any of the following:" (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with regard to certain artistic works, (4) perform the work publicly; and (5) display the work publicly. See 17 U.S.C.A. § 106 (1996). AGenerally, `anyone who is authorized by the copyright owner to use the copyrighted work in a way specified in the statute . . . is not an infringer of the copyright with respect to such use.'" Peer Int'1 Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1338 (9th Cir. 1990) (quotingSony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984)). One way in which a copyright owner may authorize the use of a copyrighted work is by granting a license. Thus, if a "[d]efendant had a license to make a particular use of a copyrighted work, defendant cannot have committed infringement." Quinn v. City of Detroit, 23 F. Supp.2d 741, 749 (E.D. Mich. 1998) (citing Peer, 909 F.2d at 1338). As a result, "[a] license is a defense to a claim of copyright infringement." Keane Dealer Servs., Inc. v. Harts, 968 F. Supp. 944, 947 (S.D.N.Y. 1997). "Generally, a `copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement' and can sue only for breach of contract." Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999) (quoting Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998)).
a.) Exclusive License
According to the Copyright Act, "the owner of a copyright has the exclusive right to copy, distribute or display his work." MacLean Assocs., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 779 (3d Cir. 1991) (citing 17 U.S.C.A. § 106). Thus, "[t]he owner of a copyright can transfer ownership of the copyright by selling it or by exclusively licensing it." Id. (citing 17 U.S.C.A. § 101). However, A[e]xclusive licenses must . . . be in writing." Id. (citing 17 U.S.C.A. §§ 204(a)). Regarding the writing requirement, 17 U.S.C.A. §§ 204 provides that A[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." 17 U.S.C.A. §§ 204(a)(1996).
In the instant case, there was no written agreement between the parties for granting an exclusive license to the Defendants.
b.) Implied License
While exclusive licenses are required to be in writing, "a nonexclusive license is expressly removed from the scope of [S]ection 204 because a nonexclusive license does not amount to a `transfer' of ownership." MacLean, 952 F.2d at 779 (citing 17 U.S.C.A. §§ 101). Thus, in contrast to an exclusive license, "a nonexclusive license may be granted orally, or may even be implied from conduct." Id. (quotation and internal quotation marks omitted). "[A] nonexclusive license may arise by implication where the creator of a work at a defendant's request `hand[s] it over, intending that defendant copy and distribute it.'" Id. (quotingEffects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990)). However, delivery of a copy of the creation "does not of itself convey any rights in the copyrighted work embodied in the object." Id. (quoting 17 U.S.C.A. §§ 202) (internal quotation marks omitted). Nevertheless, "[d]elivery of a copy of the creation `is one factor that may be relied upon in determining that an implied license has been granted.'" Id. (quoting Effects Assocs., 908 F.2d at 559 n. 6). "In fact, consent given in the form of mere permission or lack of objection is also equivalent to a nonexclusive license and is not required to be in writing." I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996); see also Keane, 968 F. Supp. at 947. Due to the fact that "a nonexclusive license does not transfer ownership of the copyright from the licensor to the licensee, the licensor can still bring suit for copyright infringement if the licensee's use goes beyond the scope of the nonexclusive license."MacLean, 952 F.2d at 779 (citation omitted).
2. Analysis of Claim
Examination of Lowe's deposition testimony and affidavit reveal that the Defendants cannot be liable for copyright infringement. During Lowe's deposition, he stated that he created "West Coast Beat" with the intention of impressing Dr. Dre. Lowe also stated that he willingly gave "West Coast Beat" to Storch with the understanding that Storch would take the track to Dr. Dre and, in the event that Dr. Dre incorporated "West Coast Beat" into a musical composition, then Lowe, Storch and anyone else involved in the song's creation would receive credit. Lowe's deposition testimony is further bolstered by an affidavit submitted by Lowe in response to the instant Motions for Summary Judgment. Specifically, Lowe's affidavit reaffirms his contention that he gave "West Coast Beat" to Storch. The fact that Lowe's affidavit and deposition testimony declare that he willingly gave "West Coast Beat" to Storch, with the intention that it be utilized by the Defendants, contradicts his copyright infringement claim which is premised upon the basis that "West Coast Beat" was taken from Lowe without either his permission or knowledge.
a.) Lowe's Deposition Testimony Affidavit
Examination of Lowe's own version of the facts reveals that his claim against the Defendants for copyright infringement is misplaced. Relative to the issue of an implied license, Lowe testified as follows:
Q. Consistent with your agreement with Scott [Storch] —
A. Yes.
Q. — it was your impression that any music you created would go to Scott [Storch]. And if Scott [Storch] would turn around and get that music incorporated into, for instance, a Dr. Dre song, you and Scott [Storch] would be co-writers of that song?
A. Exactly.
Q. Okay. And that was your agreement with Scott [Storch], as far as your concerned, as it related to "West Coast Beat," right?
A. Exactly.
Q. So if your story is true —
A. Yes, sir.
Q. — you gave "West Coast Beat" to Scott [Storch] with the understanding, at least in your mind, that Scott [Storch] would take that to Dr. Dre and if Dr. Dre used "West Coast Beat," you would be a co-writer of that beat, of that song, with Scott [Storch] and anybody else who participated, correct?
A. Yes, sir.
(Lowe's Dep. Test. 1/9/03, p. 386, lines 1-22). In describing the process by which he allegedly created "West Coast Beat," Lowe testified that he started with the idea that he "wanted to make something that [Dr.] Dre would like." (Id. 1/8/03, p. 101, lines 8-15). Lowe went on to state, "I was thinking of impressing Dr. Dre with what I was making. And I really wanted to make something that [Dr. Dre] would like and could relate to." (Id., p. 103, lines 7-10).
Lowe also testified that he played "West Coast Beat" for Storch on the night of August 6, 2000, at the Pep-Soul Recording Studios in Philadelphia, Pennsylvania. (Id., p. 194-96, 206). Lowe's testimony regarding Storch's alleged reaction to his initial playing of "West Coast Beat" was that Storch was very excited and stated the following words, "[Dr.] Dre is going to love this track." (Id., p. 194-95). Upon hearing "West Coast Beat," Lowe testified that Storch directed him to go home and return with the Zip disk containing the "West Coast Beat" track. (Id., p. 195-96.). According to Lowe, he took a cab to his house, retrieved the Zip disk containing "West Coast Beat" and immediately returned to the studio. (Id., p. 206). At this time, Lowe stated that he voluntarily loaded the "West Coast Beat" track into Storch's equipment in order for Storch to save it to his own Zip drive. (Id., p. 219-21). After Lowe allegedly loaded the "West Coast Beat" track into Storch's equipment, Lowe testified that Storch saved it on to his own Zip file. (Id., p. 221). When specifically questioned whether he had any expectation of what his share would be regarding "West Coast Beat" when he delivered the track to Storch, Lowe testified that he had "[n]o expectation. If I got something, that would be great." (Id., 1/9/03, p. 435, lines 6-15).
Lowe's testimony that he voluntarily loaded the "West Coast Beat" track into Storch's equipment in order for Storch to save it to his own Zip drive directly contradicts his claim in the Complaint that ADefendant Storch . . . requested that the Pep Soul engineer load Plaintiff Lowe's zip disk and transfer the sounds and music to `West Coast [Beat]' from the zip disk directly to Defendant Storch's MP keyboard." (Compl., 39).
In addition to Lowe's deposition testimony, the Defendants also rely upon an affidavit submitted by Lowe to support their argument for summary judgment. In opposition to the Defendants' Motions for Summary Judgment, Lowe attached an affidavit which states as follows, "[a]fter I created `West Coast [Beat],' I gave it to defendant Storch with the full expectation that I would be credited as the author of the musical composition, be compensated for my work, and benefit from any future projects and other opportunities associated with being the song's author." (Pl.'s Resp. Defs.' Mot. Summ. J., Ex. D, 5). Lowe's affidavit is detrimental to his copyright infringement claim, especially when considered in conjunction with his deposition testimony, because it further supports the argument that the Defendants did not take "West Coast Beat" without Lowe's knowledge or permission, but were given the track by Lowe himself.
b.) Lowe's Arguments Against Summary Judgment
In light of Lowe's testimony and affidavit, the Court acknowledges Lowe's arduous position of defending his copyright infringement claim against his own statements relating to the granting of an implied license. One ground upon which Lowe seeks to defend his copyright infringement claim is that genuine issues of fact exist pertaining to the granting of an implied license. Lowe's argument regarding the existence of issues of fact is based upon Storch's denials that Lowe created "West Coast Beat" or gave an implied license for use of the track. The Court notes that Lowe's argument is based upon Storch's denial of the existence of an implied license, not Lowe's denial. This distinction is significant because of Lowe's posture as plaintiff in this copyright infringement action. As previously stated, "[g]enerally, a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract." Sun, 188 F.3d at 1121. As plaintiff in this action, Lowe's statements regarding the existence of a nonexclusive implied license not only affect his right to sue for copyright infringement, but also belie the premise of his copyright infringement claim, namely that the Defendants acquired "West Coast Beat" without his permission or knowledge. Accepting Lowe's version of the facts, it is clear that his cause of action does not lie in copyright infringement.
Another ground upon which Lowe supports his copyright infringement action is that an implied license cannot be found due to the contention that he and Storch did not have the requisite meeting of the minds to create a nonexclusive license. Relying on Storch's denials that Lowe created "West Coast Beat" or gave an implied license for use of the track, Lowe's argument centers on the assertion that an implied license cannot arise out of the unilateral expectations of Lowe only. In this vain, Lowe argues that "[a]ssuming arguendo, that plaintiff Lowe gave `West Coast [Beat]' to defendants Storch to give it to defendant Young, Lowe had the understanding that he would be credited as a writer, which condition plaintiff Lowe fully expected." (Pl.'s Resp. Defs.' Mots. Summ. J. at 6). Mindful of Lowe's posture as the plaintiff, review of this argument supports the conclusion that Lowe's cause of action involves an alleged licensing, not copyright infringement. And, as noted earlier, an action based upon an alleged licensing agreement, whether seeking an accounting of licensing fees or breach of contract, is not tantamount to a claim for copyright infringement.
Lastly, Lowe argues that he is entitled to a copyright infringement action because the Defendants went beyond the scope of the alleged license. As explained earlier, a "licensor can . . . bring suit for copyright infringement if the licensee's use goes beyond the scope of the nonexclusive license." MacLean, 952 F.2d at 779. Although Lowe asserts that the Defendants went beyond the scope of his alleged license, he fails to offer any explanation or evidence. Lowe cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in order to survive this summary judgment motion. Williams, 891 F.2d at 460. Upon examining Lowe's testimony and affidavit, it appears that the Defendants utilized "West Coast Beat" precisely in the manner that Lowe allotted. Lowe's testimony reveals that he did not require "West Coast Beat" to be incorporated into any particular musical composition, only that it be used in a musical composition by Dr. Dre. That is, Lowe's testimony reveals that he allegedly gave Storch "West Coast Beat" with the intention that it be incorporated into a musical composition by Dr. Dre. Since, according to Lowe, the Defendants allegedly utilized "West Coast Beat" in "X," a musical composition written by Dr. Dre, it appears that the Defendants complied within the scope of the alleged implied license granted by Lowe. Due to Lowe's failure to offer any tangible argument or evidence that the Defendants went beyond the scope of their alleged license, and since it appears that the Defendants used "West Coast Beat" within the parameters of their alleged license, Lowe does not have a viable copyright claim.
3. Court's Conclusion
As mentioned earlier, Lowe's testimony defeats his copyright infringement claim. The Court's review of Lowe's deposition testimony and affidavit reveals that Lowe's cause of action for copyright infringement against the Defendants is improper. Through his own words, Lowe acknowledges that he created "West Coast Beat," and gave it to Storch, with the intention and desire that it be incorporated into a musical composition by Dr. Dre, which is precisely the way in which it was allegedly utilized. In addition to Lowe's own statements, review of Lowe's conduct also indicates that his claim against the Defendants does not lie in copyright infringement. Lowe allegedly created "West Coast Beat" with the intention of impressing Dr. Dre. According to Lowe, he allegedly delivered "West Coast Beat" to Storch. Lowe stated that he voluntarily loaded the "West Coast Beat" track into Storch's equipment so that Storch could save it to his own Zip drive. Lowe's action of delivering "West Coast Beat" to Storch is significant since "[d]elivery of a copy of the creation is one factor that may be relied upon in determining that an implied license has been granted." MacLean, 952 F.2d at 779. Also significant is Lowe's action of loading "West Coast Beat" into Storch's equipment. As mentioned earlier, "a nonexclusive license may arise by implication where the creator of a work at a defendant's request hand[s] it over, intending that defendant copy and distribute it." Id. In light of all of the above, Lowe's version of the facts directly contradicts the basis of his copyright infringement claim, that the Defendants used "West Coast Beat" without his knowledge or permission.
Lowe's various statements and actions pertaining to his alleged granting of an implied license leave him without a viable claim for copyright infringement. Consequently, Lowe's own version of the facts precludes a finding that the Defendants are liable for copyright infringement. Due to unique posture of this case, the Court cannot allow this copyright infringement case to go forward, when it is clear that Lowe's claims against the Defendants are more appropriately addressed in another type of action than one for copyright infringement. As a result, the Court finds that Lowe's copyright infringement claim must be dismissed. Accordingly, the Defendants' Motions for Summary Judgment are granted regarding Lowe's copyright infringement claim.
B. Negligence Claim
Defendants move for summary judgment on Lowe's negligence claim based upon the argument that it is preempted by the Copyright Act. It is not necessary to reach this issue because Lowe's negligence claim arises under state law, and the Court declines to retain jurisdiction. When a federal court has original jurisdiction, it may exercise supplemental jurisdiction over state law claims that arise under "the same case or controversy." See 28 U.S.C.A. §§ 1367(a)(1993). However, "[u]nder 28 U.S.C. § 1367(c), the district court `may decline to exercise supplemental jurisdiction over a claim' if it `has dismissed all claims over which it has original jurisdiction.'" Anserphone, Inc. v. Bell Atl. Corp., 955 F. Supp. 418, 433 (W.D. Pa. 1996) (quoting 28 U.S.C. § 1367(c)(3)). "As a general rule, the Court should decline to exercise supplemental jurisdiction over state law claims where all of the federal claims have been dismissed." Id. (citing Heller v. CACL Fed. Credit Union, 775 F. Supp. 839, 843 (E.D. Pa. 1991)). Thus, in the event that the jurisdictionally sufficient claim is dismissed during the litigation, the court in its discretion may decline to retain jurisdiction over the remaining state law claims. 28 U.S.C.A. §§ 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Whitcraft v. Township of Cherry Hill, 974 F. Supp. 392, 399-400 (D.N.J. 1996) (stating that "instances in which the district court has dismissed all claims over which it has original jurisdiction, courts typically have declined to exercise supplemental jurisdiction over remaining, state-law claims").
The relevant section of 28 U.S.C.A. §§ 1367(a) provides as follows:
in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.28 U.S.C.A. §§ 1367(a).
28 U.S.C.A. §§ 1367(c) provides, in pertinent part, as follows:
(c) [t]he district courts may decline to exercise supplemental jurisdiction over a [state law] claim . . . if —
(3) the district court has dismissed all claims over which it has original jurisdiction.28 U.S.C.A. §§ 1367(c)(3)(1993).
Federal jurisdiction in this case is premised upon 28 U.S.C. § 1338. See 28 U.S.C. § 1338 (a) (providing federal courts with original jurisdiction over federal claims related to copyright infringement and trademark). As explained earlier, Lowe's copyright infringement claim has been dismissed. See supra Part III. A. Since the only claim justifying federal jurisdiction has been dismissed, the Court declines to retain supplemental jurisdiction over Lowe's negligence claim. Accordingly, Lowe's negligence claim is dismissed without prejudice for lack of subject matter jurisdiction.
There is no complete diversity, as required by 28 U.S.C.A. §§ 1332, since Lowe and Storch are both residents of Pennsylvania. See 28 U.S.C.A. §§ 1332 (providing for federal court jurisdiction in "diversity of citizenship" cases). Thus, the only basis for federal jurisdiction is Lowe's copyright infringement claim, which has been dismissed.
IV. CONCLUSION
The Defendants' Motions for Summary Judgment pertaining to Lowe's copyright infringement claim are granted. Through his deposition testimony and affidavit, Lowe has defeated his own copyright infringement claim. As such, the Court grants summary judgment in the Defendants' favor regarding Lowe's claim for copyright infringement. As for Lowe's state law negligence claim, the Court declines to retain supplemental jurisdiction. Accordingly, Lowe's negligence claim is dismissed without prejudice.
An appropriate Order follows.
ORDER
AND NOW, this 20th day of November, 2003, upon consideration of Defendants' Motion for Summary Judgment (Doc. No. 57) and the Motion for Summary Judgment of Defendant Scott Storch and/or to Join in Co-Defendants' Summary Judgment Motion (Doc. No. 58), including all Responses, Replies and the September 9, 2003 oral argument, it is hereby ORDERED that:
1. the Motions for Summary Judgment regarding Lowe's copyright infringement claim are GRANTED and
2. Lowe's negligence claim is DISMISSED without prejudice for lack of subject matter jurisdiction.