• You Have to Own the Copyright

    by  • June 24, 2013 • copyright

    Short and sweet: after seven years of litigation, partial summary judgment, and an award against the defendant for $100,000, the court vacated it all because, a year after the award, the defendant’s new lawyer noticed the plaintiff didn’t actually own the copyrights, its subsidiaries did.

    In light of the recently unearthed determination that Plaintiff lacks of standing [sic], Rules 60(b)(1) and 60(b)(4) provide appropriate bases in this case to vacate the judgment. The “mistake” in this case was that all parties and the Court assumed jurisdiction over Plaintiff based on Plaintiff’s representations that it was the owner of the copyrights at issue. Although Defendant could have raised this issue at an earlier stage in the proceeding, and even admitted that Plaintiff controlled the copyrights at issue, (Pl. Opp. at 7–9, 12), standing cannot be waived by either party, and the Court has an obligation to raise the matter sua sponte. See Mancuso v. Consol. Edison Co. of N.Y., 130 F. Supp. 2d 584, 588–89 (S.D.N.Y. 2001). Because of this jurisdictional flaw, the judgment is void.

    And it was too late to add the subsidiaries as parties:

    Defendants state that they alerted Plaintiff to the jurisdictional defect in April 2012, only to be directed in circles to the original copyright notices and other sources over the course of several months. Plaintiff’s counsel, who has been representing Plaintiff throughout the entire course of this litigation beginning in 2005, did not seek to remedy the situation procedurally. Thus, the reasonable period of time for joinder of the subsidiaries has passed. Additionally, Plaintiff has not identified a reasonable basis for failing to name the subsidiaries as plaintiffs initially. The identities of the real parties in interest have been known to Plaintiff since the initiation of the lawsuit, as demonstrated in the copyright papers Plaintiff submitted to the court.

    EMI Enter. World, Inc. v. Karen Records, Inc., No. 05 Civ. 390 (LAP) (S.D.N.Y. June 10, 2013).

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