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Teller v. Dogge

United States District Court, D. Nevada

March 20, 2014

TELLER, an individual, Plaintiff(s),
v.
GERARD DOGGE (p/k/a Gerard Bakardy) an individual, Defendant(s)

Page 1229

For Teller, Plaintiff: Mark G Tratos, Nancy Ayala, Peter H. Ajemian, Tyler Andrews, Greenberg Traurig LLP, Las Vegas, NV.

Gerard Dogge, formerly known as Gerard Bakardy, Defendant, Pro se, Belgium.

OPINION

Page 1230

ORDER

JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE.

Presently before the court is plaintiff Teller's motion for summary judgment as to his copyright infringement claim. (Doc. # 122).

Page 1231

Pro se defendant Gerard Dogge filed a response in opposition (doc. # 151), and Teller filed a reply (doc. # 172).

Also before the court is Teller's motion for summary judgment as to his unfair competition claim. (Doc. # 123). Dogge filed a response in opposition (doc. # 150), and Teller filed a reply (doc. # 174).

I. Background

The instant action is a suit by Teller, a world-renowned magician, against Gerard Dogge, a Dutch performer who created two YouTube videos offering to sell the secret to one of Teller's signature illusions.

The illusion at the center of this case is called " Shadows," and has been an integral part of Teller's act for over three decades. It consists of a spotlight trained on a vase containing a single rose. The light falls in such a manner that the shadow of the rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene, picks up a large knife, and proceeds to use the knife to dramatically sever the leaves and petals of the rose's shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at the point where Teller cut the shadow.

The scene closes with Teller pricking his thumb with the knife, and holding his hand in front of the canvas. A silhouette of a trail of blood appears, trickling down the canvas just below the shadow of Teller's hand. Teller then wipes his hand across the " blood" shadow, leaving a crimson streak upon the canvas.

Teller registered " Shadows" as a dramatic work with the United States Copyright Office on January 6, 1983. (Doc. 122-2 p. 4). The copyright registration states that Teller began performing the trick in 1976, and describes the action of the performance down to its most subtle detail. Id. at 4-6.

On March 15, 2012, Dogge uploaded two videos to YouTube in which he performed a strikingly similar illusion entitled " The Rose and Her Shadow." His videos open with a spotlight trained on a glass bottle containing a single rose. The light falls in such a manner that the rose of the flower is projected onto a white screen positioned some distance behind it. Dogge then enters the otherwise still scene, picks up a large knife, and proceeds to use the knife to dramatically sever the leaves and petals of the rose's shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the bottle fall to the ground, breaking from the stem at the point where Dogge cut the shadow. After all of the petals are severed from the rose, Dogge removes the stem from the bottle and pours the water from the bottle into a drinking glass. After the performance concludes, a caption appears, stating " Magic in Las Vegas style! Now available," followed by " A Double illusion for the price of 'One' !!" The videos also display an email address at which Dogge can be reached.

In order to allow individuals to locate his videos using YouTube's search functions, Dogge tagged the videos with keywords including " Penn" and " Teller." Dogge's caption for the videos stated " I've seen the great Penn & Teller performing a similar trick and now I'm very happy to share my version in a different and more impossible way with you." Dogge later stated that he posted the YouTube videos in an attempt to sell the illusion's secret " to customers in various countries, including the United States."

Though there are organizations, taken seriously by many in the magic community, that blackball any performer who reveals a magician's secret, Teller has opted to pursue this action with copyright infringement and unfair competition claims

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arising under federal law. In the instant motions, Teller requests that the court grant summary judgment as to both of these claims.

II. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that " there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is " to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. " When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To demonstrate the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is " to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is ...


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