• Just Get Over It

    by  • August 16, 2009 • copyright

    Janky v. Lake County Convention and Visitors Bureau is not a precedent-changing decision.  But you know you’re in for an entertaining read when a case starts:
    This over-litigated case, involving a song by a doo-wop group, comes to us with 18 district court orders and memorandum opinions spread over a combined 239 pages.  The district court’s 46-page docket contains a staggering 371 entries.  And the briefs of the parties on appeal are a bit unfocused to say the least.  But although it’s a tough job, someone has to do it, so with shoulder to the wheel, we forge on.

    Defendant Lake County Convention Center was commissioning a song to promote the county.  Plaintiff Janky and co-defendant Farag were both members of a doo-wop group called “Stormy Weather,” and Farag suggested that the band write a song.  Janky then wrote a song and lyrics by herself and registered the copyright in it.  Farag suggested some changes, which Janky made.  She then registered the copyright in the revised work, listing Farag as a co-author who provided additional lyrics and characterizing it as a joint work.  She also filed with the American Society of Composers, Authors and Publishers (ASCAP), saying that Farag held a 10 percent ownership share.  Farag subsequently gave the Convention Center a license to use the work, which the Convention Center did for a number of years.  In 2003, Janky filed another copyright registration to correct the previous registration, this time listing herself as the sole author.  Janky then sued the Convention Center, Farag, and others alleging copyright infringement.
    The district court held on summary judgment that Janky was the sole owner of the copyright and awarded her $100,000.  The Court of Appeals for the Seventh Circuit reversed, finding that instead it was a work of joint authorship and thus the Convention Center a licensee, not an infringer.  The lesson seems a pretty easy one – don’t file a copyright application listing someone as a joint author and later claim you didn’t intend that the work be one of joint authorship, especially in a circuit that is quick to substitute its own judgment for that of the trial court:
    More important, however, is the evidence of intent supplied by Janky herself.  We observed in Erickson that crediting another person as a co-author is strong evidence of intent to create a joint work.  In this case, we have such an acknowledgement–Janky named Farag as coauthor and deemed the song a “joint work.”  Janky’s post hoc rationalization–that she only intended to express her gratitude–is simply at odds with the significant contributions made by Farag and Janky’s identification of Farag as a co-author in the copyright registration form.  Just as litigants “cannot create sham issues of fact with affidavits that contradict their prior depositions,” Janky’s affidavit cutting the other way is entitled to little weight.  A reasonable jury could only conclude that Janky and Farag intended to create a joint work.

    So instead of summary judgment for the plaintiff, summary judgment for the defendant.  Judge Ripple, in dissent, criticized the majority for its overreach in deciding that there was both intent to create a work of joint authorship on Farag’s part and that Farag’s portion was independently copyrightable (as required under 7th Circuit precedent).
    But there’s so much more going on in this case.  The appeals court remarked numerous times on the size of the record in its case, but that’s not the half of it.  A few days before the appeals decision, a district court granted sanctions against plaintiffs’ attorneys, Gregory J. Reed and Stephanie L. Hammonds, as well as plaintiff Cheryl Janky, in a subsequent suit between the same parties.  This lower court opinion tells a story of at least three lawsuits, two federal cases and one state case, all about this situation.  It described how the $100,000 award had already been eaten up by attorneys’ fees before trial and described the multiplicity of motions filed by both sides.  It documented other cases where the same lawyers were sanctioned, and further prohibited them from filing any further complaints on behalf of Cheryl Janky.  This is a a blood feud, fed by both the lawyers and the litigants.
    Janky v. Lake County Convention & Visitors BureauNos. 07-2350, 07-2762, 08-1606, — F.3d. —-, 2009 WL 2357929 (7th Cir. Aug. 3, 2009).
    Janky v TatistatosNo. 2:07-CV-339 PPS APR, 2009 WL 2382324 (N.D. Ind. July 31, 2009).

    © 2009 Pamela Chestek