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Brent H. Blakely (SBN 157292) bblakely@blakelylawgroup.com BLAKELY LAW GROUP 915 North Citrus Avenue Los Angeles, California 90038 Telephone: (323) 464-7400 Facsimile: (323) 464-7410 Oscar Michelen (OM 5199) omichelen@cumollc.com 200 Old Century Road, Suite 2 S Mineola, NY 11501 Telephone: (516) 741-3223 Facsimile: (516) 741-3223 (Motion to be admitted pro hac vice-pending) Attorneys for Defendants UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MASTERFILE CORPORATION, Plaintiffs, v. CHAGA INTERNATIONAL, a Nevada Corporation, STEVE GOULD, an individual, and MICHAEL TIDD, an individual, Defendants. ) CASE NO. CV 12-00850 R (Ex) ) ) DECLARATION OF OSCAR ) MICHELEN IN SUPPORT OF ) DEFENDANTS MOTION TO ) DISMISS COMPLAINT ) ) ) HEARING ) ) Date: Monday, May 7, 2012 ) Time: 10:00 a.m. ) Courtroom: 8-2nd Floor ) ) ) )

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DECLARATION OF OSCAR MICHELEN I, Oscar Michelen declare as follows: 1. I am a member in good standing of the bar of the Southern District of New York as well as the bar of the State of New York and I am of counsel to the law firm of Cuomo LLC, counsel for the defendants in this action. 2. I submit this declaration in support of the defendants pre-answer motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and to transmit to the court the exhibits in support of the motion. 3. Exhibit 1 to the motion is the complaint of the plaintiff filed in this action. The complaint contains an Exhibit A which purports to consist of the copyright registrations relied upon by the plaintiff. 4. Exhibit A does not contain the complete registrations the plaintiff filed with the Copyright Office. The copyright registrations plaintiff filed were transmitted to me via an email from Masterfile Corporation employee John MacDougall on September 27, 2011. 5. Exhibit 2 to the motion is the Copyright Registration VA 1-023-866, upon which plaintiff relies for copyright registration of five (5) images. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a four amount of additional authors. 6. Exhibit 2 does not identify which author is the author of which image nor does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 7. Exhibit 3 to the motion is the Copyright Registration VA 1-023-869, upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a three page continuation sheet which lists an unnumbered amount of additional authors.
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page continuation sheet which lists an unnumbered

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8.

Exhibit 3 does not identify which author is the author of which image nor

does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 9. Exhibit 4 to the motion is Copyright Registration VA 1-023-877 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a four page continuation sheet which lists an unnumbered amount of additional authors. 10. Exhibit 4 does not identify which author is the author of which image nor does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 11. Exhibit 5 to the motion is Copyright Registration VA 1-023-872 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a two page continuation sheet which lists an unnumbered amount of additionalauthors. 12. Exhibit 5 does not identify which author is the author of which image nor does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 13. According to the chart in plaintiffs complaint the next image was registered under Copyright Registration VA 1-108-991. I was not previously provided this registration. According to the face sheet attached to Exhibit A of the complaint this registration lists Masterfile Corporation as the author of the images covered by the registration along with a three page continuation sheet which lists an unnumbered amount of additional authors. 14. Presumably, it follows the pattern of the other registrations and does not identify which author is the author of which image nor does it contain any other

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information about the author other than their name. It does not appear to contain an image of the work of art being registered. 15. Exhibit 6 to the motion is Copyright Registration VA 1-145-766 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a three page continuation sheet which lists an unnumbered amount of additional authors. 16. Exhibit 6 does not identify which author is the author of which image nor does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 17. Exhibit 7 to the motion is Copyright Registration VA 1-199-166 upon which plaintiff relies for copyright registration of two (2) images. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a seventeen page continuation sheet which lists an unnumbered amount of additional authors. 18. Exhibit 7 does not identify which author is the author of which image nor does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 19. Exhibit 8 to the motion is Copyright Registration VA 1-229-219 upon which plaintiff relies for copyright registration of four (4) images. This registration lists Masterfile Corporation as the author of the images covered by the registration along with a six page continuation sheet which lists an unnumbered amount of additional authors. 20. Exhibit 8 does not identify which author is the author of which image nor does it contain any other information about the author other than their name. It does not contain an image of the work of art being registered. 21. Exhibit 9 to the motion is Copyright Registration VA 1-301-526 upon which plaintiff relies for copyright registration of one (1) image. This registration lists
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Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 217 others as additional authors with no continuation sheet listing the additional authors. 22. Exhibit 9 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 23. Exhibit 10 to the motion is Copyright Registration VA 1-301-527 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 575 others as additional authors with no continuation sheet listing the additional authors. 24. Exhibit 10 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 25. Exhibit 11 to the motion is Copyright Registration VA 1-303-399 upon which plaintiff relies for copyright registration of two (2) images. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 125 others as additional authors with no continuation sheet listing the additional authors. 26. Exhibit 11 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 27. Exhibit 12 to the motion is Copyright Registration VA 1-308-886 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 125 others as additional authors with no continuation sheet listing the additional authors.

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28.

Exhibit 12 does not identify which author is the author of which image

nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 29. According to the chart in plaintiffs complaint the next image was registered under Copyright Registration VA 1-308-866. I was not previously provided this registration, nor does the complaint contain any copy of this registration. It is possible that this numbering is a typographical error and the registration for this image is the same as he previous one 1-308-886. 30. 31. If that is the case, then the same factual description would apply as to the Exhibit 13 to the motion is Copyright Registration VA 1-316-378 upon registration of this image. which plaintiff relies for copyright registration of three (3) images. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 131 others as additional authors with no continuation sheet listing the additional authors. 32. Exhibit 13 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 33. Exhibit 14 to the motion is Copyright Registration VA 1-326-965 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 111 others as additional authors with no continuation sheet listing the additional authors. 34. Exhibit 14 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 35. Exhibit 15 to the motion is Copyright Registration VA 1-345-179 upon which plaintiff relies for copyright registration of two (2) images. This registration
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lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 109 others as additional authors with no continuation sheet listing the additional authors. 36. Exhibit 15 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 37. Exhibit 16 to the motion is Copyright Registration VA 1-367-783 upon which plaintiff relies for copyright registration of five (5) images. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming three individuals and 123 others as additional authors with no continuation sheet listing the additional authors. 38. Exhibit 16 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 39. Exhibit 17 to the motion is Copyright Registration VA 1-407-986 upon which plaintiff relies for copyright registration of one (1) image. This registration lists Masterfile Corporation as the author of the images covered by the registration along with naming no individuals and listing and additional authors as additional authors with no continuation sheet listing the additional authors. 40. Exhibit 17 does not identify which author is the author of which image nor does it contain any other information about the author other than the name of the first three. It does not contain an image of the work of art being registered. 41. 42. All of the purported registrations list the works as parts of a group All of the purported registrations list one date as the date of registration and/or a compilation. representative publication of the previously published photographs.

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43.

All of the registrations appear to rely on a phone call and fax between the

Copyright Office and a Kathy Burgess identified as Secretary of the plaintiff on some of the registrations. The complaint does not set forth the fax. 44. 45. 46. Exhibit 18 is a copy of Circular 62, Copyright Registration for Single Exhibit 19 is a copy of Circular 4, Copyright Fees. There has been extensive litigation in courts within the Ninth and Second Serial Issues.

Circuits over the validity and invalidity of this format of registration for digital images and whether such registration provides protection for the individual images contain within the compilations and groups registered as opposed to protection for just the compilations themselves as a whole. 47. This issue was first decided by the Southern District of New York, in the case of Muench Photography Inc. v. Houghton Mifflin Harcourt Publishing Company, et. ano, 712 F. Supp2d 84 (SDNY 2010)(holding this method of registration as invalid for protection of the individual images in the compilations and dismissing the complaint for lack of subject matter jurisdiction). While the legal ramifications and reasoning of Muench are discussed in the accompanying Memorandum of Law, the facts of Muench are nearly identical to the facts of this case and I believe they explain why this method of registration was chosen by the plaintiff herein as opposed to individual registration by each author of his or her own digital images. 48. method:
Corbis [a digital image warehouse that has been assigned the copyright to the images by the individual authors] registered several automated databases of photographs, including the Images [at issue], with the Copyright Office on [various dates]. Form VA, the form used by Corbis to register the Images, contains nine spaces that request certain identifying information from the registering party. Space 2 requests information concerning the author(s) of the material. In each of the forms, Corbis listed itself as one author, and in the second space provided, Corbis listed the names of three individuals and included the phrase & others, or and
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The court in Muench described the facts that led to this registration

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(number) other photographers. . . .. In addition, Corbis listed itself as the Copyright Claimant on each registration form. . .. In an effort to ensure the validity of the copyright registration procedure utilized by Corbis, Nancy Wolff, counsel to the Picture Agency Council of America, Inc. (PACA), a photographer trade association, wrote a letter dated January 29, 2002 to Marybeth Peters, Register of Copyrights. Nanette Petruzzelli, the Copyright Office's Chief of the Examining Division, replied to Ms. Wolff's inquiry on February 12, 2002 . . .. Ms. Petruzzelli confirmed that the Copyright Office considers the copyright claim to extend [ ] to the photographs themselves because, assuming that the claimant [owner of copyright] listed at space 4 is the author of the compilation [usually the stock photo agency], an acceptable transfer statement is also provided in space 4 of the form VA. Thus, the Office interprets the claim to extend to the individual photographic authorship for which the names indicated as space 2b of the form VA are the responsible authors. ( Id. at 1-2.) In the letter, though, Ms. Petruzzelli stated that the Copyright Office preferred, but did not require, the registration application to contain the names of all of the photographers on continuation sheets. ( Id. at 2.) She analogized the registration process to that of serial works ( e.g., magazines, periodicals, etc.) which do not require the listing of the names of individual contributors where all rights have been transferred in writing to the claimant of the entire serial issue. ( Id.) Muench, 712 F.Supp2d. at 87-88.

49.

The District Court for the State of Arizona similarly invalidated this

method of registration in Bean v. Houghton Mifflin Harcourt Publishing Co. 2010 WL 3168624 (D.Ariz. 2010). 50. In the Bean action, the plaintiffs counsel submitted an affidavit from Nancy Wolff, referenced in Judge Preskas decision in Muench. I believe that affidavit further explains how this method of registration was chosen. Exhibit 20 is a copy of Ms. Wolffs affidavit from the Bean litigation. 51. Exhibit 21 is a copy of an article written by Nancy Wolff entitled New instructions for completing an application to register a stock photo catalog. This article was part of the above-referenced affidavit of Ms. Wolff. 52. Exhibit 22 is a copy of letter to Nancy Wolff from Nanette Petruzzelli, Chief of the Examining Division of the United States Copyright Office. This letter was
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also a part of the above-referenced affidavit of Ms. Wolff and was also specifically mentioned in the Muench decision. 53. Ms. Wolff. 54. Exhibit 24 is the defendants Memorandum of Law in support of the motion to dismiss for lack of subject matter jurisdiction filed in Muench. It contains a further recitation of the facts leading to this method of registration being adopted by the stock photo industry. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this ____ day of March 2012 at New York, New York. Exhibit 23 is an article authored by Nancy Wolff entitled Update on Catalog Registration. This article was also a part of the above-referenced affidavit of

OSCAR MICHELEN By: _________________________ Oscar Michelen

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