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Copyright Litigation - Kwan v Schlein

Copyright Litigation - Kwan v Schlein

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Published by Ray Dowd
Decision of the Second Circuit Court of Appeals. Purported co-author failed to bring copyright ownership claims within the applicable three-year limitations period. Thus, later copyright infringement claims were barred.
Decision of the Second Circuit Court of Appeals. Purported co-author failed to bring copyright ownership claims within the applicable three-year limitations period. Thus, later copyright infringement claims were barred.

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Published by: Ray Dowd on Feb 06, 2011
Copyright:Attribution Non-commercial

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09-5202-cvKwan v. Schlein
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT ____________________ August Term, 2010(Argued: October 14, 2010 Decided: January 25, 2011)Docket No. 09-5205-cv ____________________ SHIRLEY Y. KWAN,
Plaintiff-Counter-Defendant-Appellant 
,v.ALAN M. SCHLEIN, BUSINESS RESOURCE BUREAU, INC.,
 Defendants-Counter-Claimants-Appellees
,FACTS ON DEMAND PRESS, MICHAEL SANKEY, BRB PUBLICATIONS, JANE/JOHNDOE, CARL R. ERNST, J.J. NEWBY, SCHLEIN NEWS BUREAU, PETER J. WEBER,
 Defendants-Appellees
. _____________________ Before: KEARSE, POOLER, and WESLEY,
Circuit Judges
.Appeal from two orders of the United States District Court for the Southern District of  New York (Stein,
 J 
.). One order, entered on July 16, 2009, granted summary judgment onAppellant’s claim for copyright infringement on the ground that the claim was time-barred. Theother, entered on November 23, 2009, dismissed without prejudice Appellees’ counterclaims. Wehold that a time-barred ownership claim will bar a claim for copyright infringement where, ashere, the infringement claim cannot be decided without adjudication of a genuine dispute as to the plaintiff’s ownership of the copyright. Accordingly, the district court did not err in grantingsummary judgment on this ground, and because we find Appellant’s remaining claims to bewithout merit, we affirm.
AFFIRMED
.
 
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 ____________________ JEFFREY SONNABEND, SonnabendLaw, Brooklyn, NY,
 for Plaintiff-Counter-Defendant-Appellant 
.LAWRENCE D. BERNFELD, Graubard Miller, New York, NY,Scott Christopher Patton, McNamee, Lochnew, Titus & Williams,P.C., Albany, NY,
 for Defendant-Counter-Claimants-Appellees
and
 Defendants-Appellees
.
 POOLER
, Circuit Judge:Appeal from two orders of the United States District Court for the Southern District of  New York (Stein,
 J 
.). One order, entered on July 16, 2009, granted summary judgment onAppellant’s claim for copyright infringement on the ground that the claim was time-barred. Theother, entered on November 23, 2009, dismissed without prejudice Appellees’ counterclaims. Wehold that a time-barred ownership claim will bar a claim for copyright infringement where, ashere, the infringement claim cannot be decided without adjudication of a genuine dispute as to the plaintiff’s ownership of the copyright. Accordingly, the district court did not err in grantingsummary judgment on this ground, and because we find Appellant’s remaining claims to bewithout merit, we affirm.
BACKGROUND
In early 1998, Business Resources Bureau, Inc. (d/b/a BRB Publications and Facts OnDemand Press, hereinafter “BRB”)—a publisher of books and websites used for locating publicrecords—approached Alan M. Schlein regarding a concept for a book on the use of the internet.Schlein agreed to author the book, which was to be called
 Find It Online
(“FIOL”).In August 1998, BRB hired Shirley Y. Kwan, at Schlein’s request, to perform 100 hoursof editing. An email sent from Michael L. Sankey, CEO of BRB, to Kwan, on August 18, 1998,confirmed the arrangement and noted that Kwan would “be given a credit or byline on the title page as editor on the project.” When Kwan had billed the 100 hours for which BRB had agreed
 
3
to pay, Schlein advised BRB that he wanted Kwan to continue to provide editorial assistance for FIOL. BRB, Schlein and Kwan agreed that Kwan would continue editing the book, and would be compensated based upon a percentage of Schlein’s royalties. The rate amounted to 2.5% of the book’s royalties for the first 5000 copies sold, and 3% thereafter.Pursuant to their editing agreement, Schlein would prepare first drafts of FIOL chaptersand send them to Kwan for editing. Kwan would comment on these chapters and then returnthem to Schlein for further work. After Schlein had revised the chapters based upon Kwan’scomments, he would return them to her for a second round of editing.On December 14, 1998, as they approached the publication day for FIOL, Sankey sent anemail to Kwan and Schlein about cover billing, which stated in relevant part:** On cover, we were planning to put both names - AMS [Schlein]and SKK [Kwan]...Alan has brought it up that he may wantsomething different. Need to have the two of you to agree on howyou want your names listedAMS and SKK AMS with SKK ???? need to know this week That same day, Schlein responded to Sankey, but not Kwan, with the following:As we discussed, I want the authorship to read as followsBy Alan M. Schlein Edited by Shirley ....If this is not the way you plan to do the book I would like to talk toyou about it immediately!!Please contact me ASAP Tuesday if you have any plans otherwise.your offering a co-authorship to Shirley has put me in an awkward position. She was brought in as a contract editor, and while Iappreciate all her significant efforts, it was her and my agreement tohave her listed as an editor.On December 15, Kwan responded to Sankey’s email, explaining that: “After due consideration,I’ve decided to request the following title credit: by Alan Schlein with Shirley Kwan Kisaichi,” because “[e]ssentially, I have ghostwritten this book.” Two days later, an attorney sent Sankey aletter on Kwan’s behalf demanding that she be credited as requested—“by Alan Schlein with

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