Case 1:22-cv-02185-RLY-CSW Document 49 Filed 10/06/23 Page 1 of 5 PageID #: 932

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

THE CENTER FOR GESTALT )

DEVELOPMENT, INC., )
Plaintiff )
v. )
) Cause No. 1:22-CV-2185-RLY-CSW
CHARLES BOWMAN )
Defendant. )

Motion for leave to file early summary judgment motion

Defendant Charles Bowman moves for leave to file an early motion for

summary judgment on the issue Plaintiff’s lack of ownership of the copyright

infringement cause of action against Bowman.

As previewed below, and as will be addressed in Bowman’s brief in support of

summary judgment, this case should never have been brought. It lacks the merit to

justify forcing Bowman or the Court to continue to spend time and financial resources.

Bowman recognizes that most cases are appropriately resolved by proceeding through

a typical schedule (e.g., with discovery, summary judgment and, if necessary, trial). But

this is not a typical case. It is more akin to Talon Wall Holdings LLC v. Reflection Window

& Wall LLC, 1:21-cv-06618 (ND IL Nov. 8, 2022). There the Court granted an

infringement defendant leave to file an early summary judgment motion because, “[i]f

granted, Defendants’ proposed summary judgment motion will dispose of the entire

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case, saving the parties immense time, effort, and money and conserving the resources

of this Court.”

Here, Plaintiff alleges that Bowman helped a French publisher create the

scholarly book Psychopathology of Awareness: An unfinished and unpublished manuscript

with commentaries by contemporary gestalt therapists (the “Book”). This was published in

France in December 2019. Bowman, a gestalt therapist, authored one of eleven

“comments” included in the Book. 1 Plaintiff claims that Bowman’s actions infringed a

1991 copyright registration for a manuscript included in the book. But Plaintiff did not

own the copyright in the manuscript until long after the book was published. According

to the Complaint, Plaintiff was not assigned the copyright registration to manuscript

until January 2021. More importantly, that assignment did not include causes of action for

infringement. This is undisputed, as the assignments are attached to the Complaint. 2 At

best, Plaintiff can only assert claims for infringements occurring after January 2021. The

Complaint does not allege any infringing acts after then, and in fact, there were none.

Resolving one simple question by summary judgment now will dispose of this

entire case: Does Plaintiff own any cause of action for copyright infringement occurring

before the copyright was assigned to it? If not, as Bowman contends, the case is over. It

is undisputed that the copyright assignments to Plaintiff did not include then-existing

1
Accused Book Dkt. 1-2, at 5.
2 See, Assignments, Dkt. 1-3, at pp. 2, 3.

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causes of action. The assignments state, “Assignor hereby assigns and transfer all the

Assignor’s right, title and interest in the Copyright Work to Assignee.” As a matter of

law, it follows that Plaintiff has no claim against Bowman.

“The words `right, title and interest' in an assignment have been construed by
the courts not to carry with it the right to sue for past trespass or infringement."
Prather v. Neva Paperbacks, Inc., 410 F.2d 698, 700 (5th Cir. 1969);

"[I]f the accrued causes of action are not expressly included in the assignment,
the assignee will not be able to prosecute them." ABKCO Music, Inc. v. Harrisongs
Music, Ltd. , 944 F.2d 971, 980 (2d Cir. 1991);

“[A]ssignment of a copyright does not include an assignment of existing causes

of action for infringement,” Co-Opportunities v. National Broadcasting Co., 510
F.Supp. 43, 46 (N.D. Cal. 1981);

“To bring an infringement action, Plaintiff must have been the owner of the
copyright at the time the infringement occurred or have received an assignment
of the right to sue for copyright infringement that occurred before ownership
was transferred. See 17 U.S.C. § 501(b) (providing that the "legal or beneficial
owner of an exclusive right under a copyright" may bring an infringement action
for "any infringement of that particular right committed while he or she is the
owner of it")” Design Ideas, Ltd. v. Meijer, Inc. 15-cv-03093 at 22 (C.D. Ill. Aug, 25,
2016); Kriger v. MacFadden Publications, Inc., (S.D.N.Y., 1941) 43 F.Supp. 170
(S.D.N.Y., 1941);

DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184, 192 (M.D.Fla., 1962), quoting
Ball, Copyright and Literary Property 543: "A mere assignment of a copyright
does not of itself transfer to the assignee any cause of action for infringements
that occurred prior to the assignment. Unless the assignment of copyright
contains language explicitly transferring causes of action for prior infringements,
the assignee cannot maintain a suit for infringements which happened before the
effective date of the assignment."

Plaintiff needs no additional discovery to address this argument, and there is no

reason to delay resolving this dispositive issue.

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Instead, if this Motion is not granted, complex and expensive international

discovery and motion practice will ensure which will burden the parties and this Court.

The parties and their principals are in Maine, New York, Indiana and France. Key

witnesses are in New York and New Mexico. In addition to the issues of “access” and

“substantial similarity,” the “fair use” defense has been asserted, which is repeatedly

characterized as the thorniest issue in copyright infringement. Local Rule 56-1 allows

only one summary judgment motion per party. While Bowman is confident that the

above early summary judgment will be granted, if it is not, he will need file a second

summary judgment on these other issues.

Bowman engaged in a lengthy meet-and-confer with Plaintiff to inquire as to

whether they had any reasonable grounds to oppose this motion. Plaintiff failed to

identify any such grounds. Nor could it. The Plaintiff has known about this specific

issue for months and has obtained all the evidence it needs to address it. At no point

has Plaintiff contended that it lacks necessary discovery to support their (baseless)

infringement claim.

Accordingly, Bowman requests that the Court grant its motion for leave to file an

early, narrowly tailored summary judgment motion. Upon an order granting this

motion, Bowman will be prepared to promptly file that motion.

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Respectfully submitted,

Overhauser Law Offices LLC

By: s/Paul B. Overhauser

Paul B. Overhauser
Overhauser Law Offices LLC
18 E. Main Street, Suite 202
Greenfield, IN 46140
P: 317-467-9100
poverhauser@overhauser.com
Attorney for Defendant, Charles Bowman