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In the Matter of the Complaint of Josepha A. Campinha-Bacote v. Annette Rearden

April 3, 2011

IN THE MATTER OF THE COMPLAINT OF JOSEPHA A. CAMPINHA-BACOTE
D/B/A/ TRANSCULTURAL C.A.R.E
PLAINTIFF,
v.
ANNETTE REARDEN, DEFENDANT.



The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY ASSOCIATES, JUDGMENT [26] AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT [19 & 31] Dockets 19, 26 & 31

There are three pending motions for summary judgment in this case. This order address all three of the motions in turn. The parties were heard at oral argument on the pending motions on March 18, 2011. This order reflects the positions argued at the hearing and the pleadings filed relating to each motion. Due to the many disputed material facts, considering that the parties have not yet concluded discovery, and for the reasons articulated below, all motions for summary judgment are HEREBY DENIED.

I. Factual Background

Ms. Campinha-Bacote, the Plaintiff, is the President and founder of Transcultural C.A.R.E., d/b/a Transcultural C.A.R.E. Associates, a sole proprietorship. Plaintiff filed the instant action alleging copyright infringement on June 19, 2010. In her Complaint (Docket 1) she alleges that the Defendant, Ms. Rearden, used a copyrighted image without permission in a student project. The item in question is a graphic image the Plaintiff uses as the logo in her business, a globe held up by five (5) hands with the words "Transcultural C.A.R.E." appearing on the image.

The Plaintiff paid Cynthia Thomas $1,000.00 to design the logo in 1991. According to an affidavit filed by the Plaintiff, the arrangement was a work for hire and Ms. Thomas agreed that she would "retain no interest or rights" to the work upon its completion.*fn1 The Plaintiff then used the logo in her book, The Process of Cultural Competence: A Culturally Competent Model of Care, which she subsequently submitted to the U.S. Patent Office for a copyright. The logo was used on the cover of the copyrighted document. A copyright was given to the Plaintiff as to the items submitted, including the logo. The copyright application contained a question as to whether the item submitted was a work for hire. The Plaintiff did not indicate that the submitted work included a work made for hire, the logo which was created by Ms. Thomas.

At the time of the alleged infringement, the Defendant was a student at the University of Alaska Anchorage studying for an advanced degree in nursing. She was taking a course in distance education and gave a presentation on Trans Cultural Care in Nursing. She made a slide-show presentation as part of her assignment for class. Included in that slide-show, on page 13, was the logo in question.*fn2 She did not have permission from the Plaintiff to use the image.

II. Summary Judgment Standard

The parties have filed their motions for summary judgment in accordance with Federal Rule of Civil Procedure 56(a).*fn3 That Rule states, in part:

. . . A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. . . .

In deciding a motion for summary judgment, the court views the evidence, and the inferences therefrom, in the light most favorable to the non-moving party.*fn4 Three United States Supreme Court cases have clarified what a non-moving party must do to withstand a summary judgment motion. As explained by the Ninth Circuit in California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc.:

First, the Court has made clear that if the non-moving party will bear the burden of proof as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317 [citations omitted] (1986). Second, to withstand a motion for summary judgment, the non-moving party must show that there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242 [citations omitted] (1986) (emphasis added). Finally, if the factual content makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 [citations omitted] (1986). No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.*fn5

Finally, "[a] trial court can only consider admissible evidence in ruling on a motion for summary judgment."*fn6

Some of the facts in this case are agreed-upon. The parties agree that the Plaintiff is the owner of the business Transcultural C.A.R.E. Associates and that she submitted the copyright application attached to the complaint. It is undisputed that Cynthia Thomas created the globe logo. It is also undisputed that the Plaintiff paid Ms. Thomas to create that logo. It is undisputed that the Plaintiff did not give a notice of copyright of the logo on her website. It is undisputed that the Defendant used the logo in a student presentation without the permission of the Plaintiff.

The three pending summary judgment motions are reviewed individually below.

A. Defendant's Motion for Summary Judgment at Docket 19

In 1991 Dr. Campinha-Bacote paid Cynthia Thomas to develop a logo with five hands holding a globe and the words "Transcultural C.A.R.E." Plaintiff applied for and received a Certificate of Registration for her book, presumably including the logo, in 1991.

Defendant's Motion for Summary Judgment at Docket 19 makes three arguments for summary judgment: 1) That there is no evidence of a work made for hire; 2) That there is no evidence of a transfer of interest in the logo from Cynthia Thomas to the Plaintiff; and, 3) That the copyright paperwork does not establish Plaintiff's copyright in the logo.

1. Work Made for Hire

The Copyright Act establishes a means for an employer to hire a person to complete a work made for hire wherein the copyright for the work will vest in the employer.*fn7 Defendant argues that the Plaintiff must establish she has exclusive rights to the logo copyright. Since Ms. Thomas created the logo the copyright of it vested and remains with her unless the Plaintiff can prove Ms. Thomas's work was a valid work made for hire under 17 ...


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