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TC Reiner v. Ryon Nishimori and Trustees of Watkins Institute

United States District Court, M.D. Tennessee, Nashville Division

April 28, 2017

TC REINER, Plaintiff,
v.
RYON NISHIMORI and THE TRUSTEES OF WATKINS INSTITUTE, Defendants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         TC Reiner brought this action against Ryon Nishimori and the Trustees of Watkins Institute (“Watkins”) asserting multiple claims arising from alleged copyright infringements. (Doc. No. 1.) Before the Court is Defendants' Motion for Summary Judgment. (Doc. No. 47.) For the following reasons, Defendants' motion is GRANTED.

         I. REINER'S OBJECTIONS TO DEFENDANTS' STATEMENT OF UNDISPUTED FACTS

         Reiner raises five objections to Defendants' Statement of Undisputed Facts: (1) Watkins' interrogatory responses are inadmissible because they were not made on personal knowledge; (2) Nishimori's unverified interrogatory responses are inadmissible because they were not made under oath or on personal knowledge; (3) Jeffery Sedlik's Preliminary Report is inadmissible because it was not made under oath; (4) Defendants' expert opinions are inadmissible because they do not comply with the Federal Rules of Civil Procedure and Evidence; and (5) Kai Chiang's testimony should be disregarded because Defendants did not timely disclose him as a witness. (Doc. No. 54 at 5-11.)

         An interrogatory must “be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). As to Watkins, interrogatories served on it must be answered by an authorized agent “who must furnish the information available to” Watkins. Id. at (b)(1)(B). Parties may use interrogatory answers as evidence in support of a motion for summary judgment. Fed.R.Civ.P. 56(c)(1)(A).

         Reiner's first objection to Watkins' supplemental interrogatory answers is overruled. Reiner provides no evidence that the responses were not made by an agent furnishing information available to Watkins. Indeed, Watkins' interrogatory answers fully comply with Federal Rule of Civil Procedure 33(b)(3) because they appear to be signed by an agent authorized to do so and there is no evidence to the contrary. (Doc. No. 47-12 at 14.) Therefore, Watkins' interrogatory answers will be considered at summary judgment.

         Reiner's second objection to Nishimori's supplemental interrogatory responses is sustained. Nishimori's unsworn interrogatory answers do not include the “statutorily-required affirmation” and will not be considered at the summary judgment stage. Lauderdale v. Wells Fargo Home Mortg., 552 Fed.Appx. 556, 571 (6th Cir. 2014).

         Reiner's third objection is sustained. To be admissible at the summary judgment stage, an expert must swear under oath that everything contained in his or her report is true and correct. Sigler v. Am. Honda Motor Co., 532 F.3d 469, 480 (6th Cir. 2008). While Jeffrey Sedlik's expert report is signed, it is not sworn, and therefore the Court cannot consider it at the summary judgment stage. See id. (reversing the district court's granting of summary judgment after the district court improperly relied on three signed but not sworn expert reports). This Court reviewed the expert reports that the Sigler court held the district court improperly relied on, and each expert signed his or her report but did not swear that the information was true and correct under oath. Sigler v. Am. Honda Motor Co., Inc., No. 1:05-cv-296, ECF Nos. 26-3, 26-4, 26-5 (E.D. Tenn. Jan. 31, 2007). As those are the same facts here, the Court cannot consider Sedlik's report at this stage.

         Reiner's fourth objection is overruled as moot. The Court already excluded Sedlik's report based on the third objection.

         Reiner's fifth objection is also overruled as moot. As explained in Section III, even with Chiang's testimony, the Court finds a disputed issue of material fact on the authenticity of the independent contractor agreement. As such, Chiang's testimony is not critical to any issue of material fact.

         II. UNDISPUTED FACTS

         1. The Agreement

         In 1997, Reiner entered into an independent contractor agreement with SuperStock, Inc. (Doc. No. 56 at 1.) In 1997, photographers who signed independent contractor agreements with SuperStock generally assigned all copyrights for photographs taken under the agreement to SuperStock in exchange for expenses and a fee. (Id. at 2.) Kai Chiang, the Director of Photography for SuperStock, signed the independent contractor agreement (“Agreement”) with Reiner.[1] (Id.)

         There is a dispute as to the contents of the Agreement that both parties signed. Each party submitted a different copy of the signed Agreement. (Doc. Nos. 47-2, 57-1.) Defendants' submission is signed by both parties, with Reiner's signature appearing twice and parts of the Agreement appearing to have been copied over in other sections. (Doc. No. 47-2.) Reiner submitted a copy of the Agreement that only he signed, in which he crossed out the entire paragraph that required “the photographs produced under the agreement become the sole property of SuperStock, and all rights, including the copyright, are hereby assigned to SuperStock.” (Doc. No. 57-1.) There are other handwritten sections in Reiner's submission that are also included in Defendants' submission. (Doc. Nos. 47-2 and 57-1.) Reiner does not remember signing the Agreement twice, and does not confidently recognize at least one of the signatures on Defendants' submission purported to be his signature. (Doc. No. 56 at 4.)

         Nevertheless, the parties agree that the Agreement contained the following provisions: an effective date of January 16, 1997; a term of one month from February 3, 1997, to March 3, 1997; an obligation of SuperStock to pay Reiner $3, 000 and ten percent of sales of photographs taken under the Agreement; an agreement by SuperStock to provide Reiner with access to equipment and materials and to pay “all costs and fees incurred by Reiner . . . limited to model fees, location fees, purchasing and/or rental or props and wardrobe, and hiring of special talent”; an agreement by SuperStock to provide Reiner with a furnished apartment, a vehicle for transportation around Jacksonville, Florida, and a round-trip airline ticket from Santa Barbara, California, to Jacksonville to take the photograph; SuperStock's permission to Reiner to use any photograph produced under the Agreement for his self-promotion or publicity without payment to SuperStock; and SuperStock's agreement to credit Reiner with creating any photographs used by SuperStock. (Doc. No. 56 at 3-4.)

         2. The Photograph

         During the time period covered by the Agreement, Reiner created a photograph that he named “Casablanca.” (Id. at 4.) Reiner does not have any documentation showing who paid the expenses for “Casablanca” or who participated in the shoot. (Id. at 5.) The parties dispute whether Reiner or SuperStock paid the expenses, and what percentage of the expenses each paid. (Doc. No. 64 at 12-13.) Reiner intended to market “Casablanca” to a high-end liquor company, but has never licensed or sold the piece for private use. (Doc. No. 56 at 5; Doc. No. 64 at 11.) Other than licensing “Casablanca” to SuperStock, Reiner has not licensed or refused to license the photograph. (Doc. No. 56 at 5.)

         Within a few months of March 1997, Reiner provided “Casablanca” to SuperStock for distribution and sale through SuperStock and its agents. (Doc. No. 47-5 at 19; Doc. No. 57 at 3-4.) He understood that “Casablanca” would be sent to SuperStock, which would then try to sell the photograph to certain liquor companies. (Doc. No. 47-5 at 15-16.) In 2003, Reiner believed SuperStock put “Casablanca” in a catalogue to offer it for licensing and sale. (Doc. No. 56 at 6.) SuperStock did not license any copies of “Casablanca, ” and Reiner never received any royalties from SuperStock for sales of copies of “Casablanca.” (Doc. No. 64 at 20.)

         On December 1, 2004, Reiner signed a copyright registration application for “2004 Music & Fashion, ” a collection of works. (Doc. No. 56 at 6.) On December 6, 2004, the Copyright Office registered his work under the catalog reference “VAu651-781.” (Id.) Reiner contends that he included “Casablanca” in the registration for “2004 Music & Fashion.” (Id.) While Reiner was in the process of applying to register his compilation, he called the United States Copyright Office twice to ask whether he should register the compilation as published or unpublished, and, if as published, what date to assign the publication. (Doc. No. 64 at 21.) The Copyright Office responded that because Reiner had not published the compilation as a whole, he should register the compilation as unpublished, and the date of completion should be the year of the most recently created photograph. (Id.)

         3. The Assignment

         Watkins is a nonprofit corporation that operates a private college in Nashville, Tennessee, focusing on fine and practical art. (Id.) In 2008, Judith Sweeney O'Bryan, an adjunct professor at Watkins, presented the students in her graphic design class with an assignment called “Synergy.” (Id. at 7; Doc. No. 64 at 2.) She required her students to choose one photograph from a set provided to them to create a mock advertisement for a real company. (Doc. No. 56 at 7; Doc. No. 64 at 3.) She created this set of photographs by cutting stock photographs out of magazines and stock photography catalogues and scanning them on her computer. (Doc. No. 64 at 4.) O'Bryan included “Casablanca” in her set, which she removed from a stock photography catalog and scanned onto her computer. (Id.) Nishimori was a student in O'Bryan's class. (Doc. No. 56 at 7.) He chose “Casablanca” from O'Bryan's set for his mock advertisement. (Id. at 7-8.) At this time, “Casablanca” included the title SuperStock had assigned to it, “Play 212U, ” Reiner's name, and SuperStock's control number. (Doc. No. 64 at 5.) O'Bryan did not contact SuperStock to inquire about licensing “Casablanca.” (Id.) O'Bryan did, however, contact her Dean at Watkins to ask whether using any of the photographs would infringe a copyright, and the Dean assured her that it would not. (Id. at 6.)

         O'Bryan gave Nishimori a copy of “Casablanca” on a computer file that he used to create a mock advertisement. (Id. at 9; Doc. No. 64 at 7; Doc. No. 47-16 (mock advertisement)). Nishimori removed the title, photographer name, and control number from the photograph to make it fit and work for the assignment. (Doc. No. 64 at 8; Doc. No. 59-5 at 15.) Nishimori uploaded his mock advertisement to his “Flickr” account to archive his work so that it would be available if he needed to access it somewhere else.[2] (Doc. No. 56 at 9.) Watkins swore that neither it nor O'Bryan used “Casablanca” or the mock advertisement to advertise or promote O'Bryan's class, the Graphic Design department, or the college. (Doc. No. 47-12 at 11.) Watkins further swore that it did not introduce “Casablanca” into any market for photographs or use the photograph to avoid licensing fees, save money for Watkins, keep tuition low, or devalue the photograph. (Id.) In 2011, Watkins stopped ...


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