United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
This is an action for copyright infringement and related claims. Pending before the Court is the Motion for Partial Summary Judgment (ECF No. 53) filed by Plaintiff Reno-Tahoe Specialty, Inc. ("Plaintiff' or "RTSI") against Defendant Mungchi, Inc. ("Mungchi"). Mungchi filed a Response (ECF No. 59), and an Errata (ECF No. 60), and Plaintiff filed a Reply (ECF No. 62). Subsequently, Mungchi filed a Sur-Reply (ECF No. 63) without requesting leave of the Court. Having first obtained leave, Plaintiff then filed its Sur-Reply (ECF No. 66).
Plaintiff initiated this action on June 20, 2012, with its Complaint (ECF No. 1) against Defendant Mungchi, to which Mungchi filed an Answer (ECF No. 19) along with third-party claims against business entity Top Design and individual Kyung Su Lee. Plaintiff then filed an Amended Complaint (ECF No. 31) naming Top Design and Kyung Su Lee as additional Defendants, but with no changes to its claims against Defendant Mungchi.
Now before the Court is Plaintiff's motion requesting partial summary judgment in its favor as to its claims against Mungchi arising under Title 17, United States Code, for copyright infringement under the Copyright Act, and for removal or alteration of copyright management information under the Digital Millenium Copyright Act. (Mot. Partial Summ. J., ECF No. 53.)
Plaintiff alleges that in or around 1997, it took pictures of various landmarks on the area commonly known as the Las Vegas Strip, which it used to create an original artistic work entitled the "695 View, " a "true and accurate copy" of which is attached at Exhibit A. (Compl., 2:¶6, ECF No. 1.) Plaintiff alleges that at this time it began selling postcards of the 695 View to gift shops in the Las Vegas area, and began including the 695 View in its yearly Las Vegas calendars. ( Id. at 2:¶8.) Plaintiff alleges that "[o]ver time, [it] added the 695 View to many of its hard' items, such as key chains, picture frames, ashtrays, snow globes, beach towels and kitchen wares, " and that the "695 View is its best-selling work." ( Id. at 3:¶8.)
In December 1999, Plaintiff alleges that it obtained a U.S. copyright registration ("Reg. No. VA 993-271") "in the 695 View, " a "true and accurate copy" of which is attached as Exhibit B, that depicts modifications to the original 695 View work, including the addition of the "Mandalay Bay" resort hotel casino. ( Id. at 3:¶9.) In the same month, Plaintiff alleges that it obtained a U.S. copyright registration ("Reg. No. VA 993-270") "on the 695 View in... cut-out postcards, " a "true and accurate copy" of which is attached at Exhibit C, that depict modifications to the original 695 View work, including the addition of the "Walgreens" sign. ( Id. at 3: ¶ 10.)
In 2003, Plaintiff obtained an additional copyright registration for a 2003-2004, 24-month calendar, a "Limited Collectors Edition, " created in 2002 ("Reg. No. VA X-XXX-XXX" Ex. C to Gates Decl.), which Plaintiff alleges incorporated the 695 View. (Compl., 3:¶¶11-12.) Plaintiff has submitted a "true and accurate copy of the 695 image" from this calendar at Exhibit E. ( Id. at 3:¶12; see also Ex. B to Williams Decl., ECF No. 53-3.)
Plaintiff alleges that "[o]ver the past few years, [it] has updated the 695 View from time to time to add new images, including, but not limited to, THEhotel at Mandalay Bay, differently-angled shots of Bellagio, the Caesars Palace tower and Coliseum, The Mirage hotel tower, as well as the infamous Welcome to Las Vegas' sign." ( Id. at 3:¶13.)
Plaintiff has submitted a "true and accurate copy" of its 2010 update to the 695 View ("the 2010 Version") at Exhibit F. ( Id .; see also Ex. D to Gates Decl.)
Plaintiff identifies "intentional artistic changes" that "differ from the reality of the Las Vegas Strip, " including: "the building sitting in the place of THEhotel at Mandalay Bay, " which is "merely a copy of the left wing of the Mandalay Bay hotel image next to it, " as shown by, "among other things, the duplication of the MANDALAY BAY name at the top of the building, " and that "the real THEhotel at Mandalay Bay does not have the MANDALAY BAY name on it"; as well as "the Walgreens and CVS signs; the Statue of Liberty, which is not to scale; a blurred image of Stevie Nicks on the Caesars Palace marquee; and, the images of KA and Studio 54 on the MGM Grand marquee, " none of which "would be visible in the sightline of a normal photo of the Las Vegas Strip taken from the angle in the 695 View." (Compl., 3-4:¶15.)
Plaintiff also alleges that "[a] copyright notice is displayed on the back of all [its] paper products and publications in which the 695 View appear, and on most hard items upon which the these [sic] images are place." ( Id. at 4:¶16.)
Plaintiff alleges that, without its knowledge or consent, Mungchi has infringed upon Plaintiff's copyrights by "cop[ying] the 695 View, namely the 2010 version of the 695 View, into some storage medium, " "manipulat[ing] copies of the 695 View to create derivative works for use on t-shirts, " and selling products depicting an unauthorized reproduction of the 695 View. ( Id. at 4:¶¶19-21, 5:¶¶23-24, 27.)
Plaintiff also alleges that, without its knowledge or consent, Mungchi intentionally removed the copyright management information from the 695 View, and distributed infringing products without authorization from Plaintiff. ( Id. at 4-5:¶22.)
Plaintiff alleges that Mungchi continued to violate Plaintiff's copyrights even after cease and desist letters were sent to Mungchi by Plaintiff's counsel on February 7, 2008, and May 25, 2012 ( see id. at Exs. H-I), and infringement was acknowledged by Mungchi in 2008 ( see id. at Ex. J). ( Id. at 5:¶¶23-27.)
Now, Plaintiff moves for summary judgment in its favor as to its copyright infringement claims and as to its claim for removal or alteration of copyright management information against Mungchi, arguing that there is no genuine dispute of material fact as to these claims. (Mot. Summ. J., ECF No. 53.) Plaintiff includes in its motion a statement of undisputed material facts pursuant to Rule II.56-1 of the Local Rules of Civil Practice for the District of Nevada ( id. ); however Mungchi fails to include such a statement in its Response (ECF No. 59) or in any other briefing on the motion, and fails to specifically dispute any of Plaintiff's claimed undisputed facts.
These undisputed facts include the material allegations described above, and as stated in Plaintiff's Complaint, as well as the following facts relevant to Mungchi:
1. Mungchi owns and registered a trademark described as the "CHELONA" trademark, No. 3, 160, 452, for which Mungchi manufactured, imported, sold, and distributed clothing bearing the trademark.
2. Prior to the current lawsuit, Mungchi knew of Plaintiff, was familiar with Plaintiff's merchandise, was aware of Plaintiff's copyrighted images, and had infringed Plaintiff's copyright in the cover artwork for Plaintiff's 2008 limited edition calendar.
3. The t-shirt depicted in Plaintiff's photo (Ex. G to Compl.) and any and all similar t-shirts bear the CHELONA trademark, feature an image of the Las Vegas Strip; and that in relation to these t-shirts, and without Plaintiff's knowledge or consent, Mungchi: imported; manufactured; distributed; offered for sale; sold at least one; caused to be manufactured by a third party; entered into an agreement or agreements for manufacture, distribution and sale by and to a third party; and distributed, offered for sale, and sold to and through at least one Walgreens store located in Las Vegas, Nevada.
( See also Williams Decl., ECF No. 53-3; Order, June 18, 2013, ECF No. 50.)
Although not specifically cited in its Response (ECF No. 59), Mungchi appears to contest the following facts asserted by Plaintiff:
1. The pictorial work appearing on Mungchi's t-shirts contains most, if not all, of the unique designs contained in the 695 View.
2. Munchi's products are substantially similar to the 695 View, containing the exact same artistic elements.
3. Munchi's products do not contain a copyright notice even though Plaintiff's 695 View does; therefore Mungchi removed the copyright management information from the 695 View before copying it to create the products.
Mungchi argues that genuine issues of material fact exist as to: "whether the artistic enhancements' made to the subject image are sufficient to qualify it as an original artwork" and therefore whether Plaintiff owns a valid copyright in the image; whether any copied elements from Plaintiff's image were original elements of Plaintiff's image; and "whether any copyright ...