Narrative Ark Entertainment LLC v. Archie Comic Publications, Inc. et alRESPONSE re: 136 Memorandum of Law in Opposition to Motion,, Responses to Plaintiff's Counterstatement to Rule 56.1 Statement. DocumentS.D.N.Y.February 7, 2019 1 Edmund J. Ferdinand, III (EF 9885) Alexander R. Malbin (AM 9385) John F. Olsen (JO 8553) 450 Seventh Avenue Suite 1300 New York, NY 10123 Phone: (212) 220-0523 Fax: (212) 905-6747 jferdinand@24iplg.com amalbin@24iplg.com jolsen@24iplg.com UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NARRATIVE ARK ENTERTAINMENT, LLC, Plaintiff, -against - ARCHIE COMIC PUBLICATIONS, INC., Defendant. __________________________________________ ARCHIE COMIC PUBLICATIONS, INC., Counterclaim Plaintiff and Third Party Plaintiff, -against- NARRATIVE ARK ENTERTAINMENT, LLC, Counterclaim Defendant, SCOTT D. FULOP, Third Party Defendant. Civil Action No. 7:16-cv-06109-VB DEFENDANT ARCHIE COMIC PUBLICATIONS, INC.’S RESPONSES TO PLAINTIFF NARRATIVE ARK ENTERTAINMENT LLC AND SCOTT D. FULOP’S COUNTERSTATEMENT TO RULE 56.1 STATEMENT OF MATERIAL FACTS Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 1 of 63 2 Pursuant to Federal Rule of Civil Procedure 56(c) and Local Civil Rule 56.1 of the United States District Court for the Southern District of New York, Defendant Archie Comic Publications, Inc., respectfully submits its responses to Plaintiff Narrative Ark Entertainment LLC & Third Party Defendant Scott D. Fulop’s joint Counterstatement to ACP’s Statement of Undisputed Material Facts (Dkt. 136-10 p. 2-29) (the “Narrative/Fulop Counter-SMF”), addressing Narrative’s & Fulop’s responses to the ninety-five numbered paragraphs of undisputed facts in ACP’s Statement of Undisputed Material Facts, dated November 15, 2018 (“ACP’s SMF”).1 As set forth below, none of the purported factual disputes identified in the Narrative/Fulop Counter-SMF is a genuine issue of material fact precluding the Court from granting ACP’s MSJ. Their asserted factual disputes utterly fail to comply with the standards for raising a factual dispute under Local Rule 56.1, instead largely consisting of: (i) unsupported conclusory assertions citing to inadmissible evidence, frequently nothing more than bare allegations from Narrative’s Amended Complaint, or to nothing at all; (ii) immaterial facts that fail to controvert ACP’s statements, often without any explanation as to how the asserted fact is contended to refute ACP’s statements and/or merely raising issue with semantics rather than disputing the substance of ACP’s statements; (iii) contentions that find no support in their accompanying citations, often without any explanation as to how it is contended the cited material supports the counterstatement (or contravenes ACP’s statement), (iv) assertions contradicted by the record, namely Narrative’s Amended Complaint and/or Fulop’s deposition testimony (as Narrative’s 30[b][6] corporate representative as well as in his personal capacity, and (v) improper claims of lack of knowledge, which fail to raise a genuine dispute. As set forth 1 Capitalized terms used herein have the same meanings attributed to them in ACP’s Statement of Undisputed Material Facts, dated November 15, 2018, and the Reply Memorandum in Further Support of ACP’s Motion for Summary Judgment, dated January 31, 2019. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 2 of 63 3 more fully herein, Narrative & Fulop fail to raise a genuine dispute as to any of the statements in ACP’s SMF. ACP’s SMF should therefore be deemed admitted in its entirety for purposes of its motion for summary judgment. To the extent ACP states that a proposition is disputed or undisputed, it does so only for purposes of the parties’ respective motions for summary judgment; ACP preserves all evidentiary objections and does not agree that any “fact” proffered by Narrative & Fulop or evidence offered by Narrative & Fulop in purported support of a “fact” is either admissible or may be properly considered by this Court. ACP reserves the right to dispute any and all “facts” asserted by Narrative/Fulop, and to make additional evidentiary objections, at the appropriate time if this case proceeds past summary judgment. For the Court’s convenience (so as to avoid unnecessary cross-referencing between multiple documents), ACP has reproduced each numbered paragraph of ACP’s SMF, as well as Narrative’s/Fulop’s counterstatements in response thereto, and sets forth ACP’s replies beneath them in bolded text. Where Narrative & Fulop do not dispute the facts in ACP’s SMF, we indicate “N/A” in the reply. ACP’S RESPONSES TO NARRATIVE/FULOP COUNTER-SMF A. Pleading and Procedural History. ACP Statement No. 1: Narrative commenced this action on August 1, 2016. (Declaration of Edmund J. Ferdinand, dated November 14, 2018 [“Ferdinand Decl.”], ¶ 3, Ex. 1.) Narrative/Fulop Counterstatement to Statement No. 1: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 1: N/A. ACP Statement No. 2: Narrative named Sega as a co-defendant in the original Complaint. (Ferdinand Decl., ¶ 3, Ex. 1.) Narrative/Fulop Counterstatement to Statement No. 2: Agree. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 3 of 63 4 ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 2: N/A. ACP Statement No. 3: The Court dismissed Narrative’s claims against Sega for lack of personal jurisdiction. (Ferdinand Decl., ¶ 3, Ex. 14.) Narrative/Fulop Counterstatement to Statement No. 3: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 3: N/A. ACP Statement No. 4: In its Amended Complaint, Narrative asserted causes of action against ACP for violations of the Lanham Act and New York state law deceptive business practices, unfair competition, and unjust enrichment. (Ferdinand Decl., ¶ 3, Ex. 2, ¶¶ 93-125.) Narrative/Fulop Counterstatement to Statement No. 4: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 4: N/A. ACP Statement No. 5: ACP moved to dismiss the Lanham Act and state law claims asserted against it by Narrative under Fed. R. Civ. P. 12(b)(6). (Ferdinand Decl., ¶ 3, Ex. 11.) Narrative/Fulop Counterstatement to Statement No. 5: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 5: N/A. ACP Statement No. 6: The Court granted ACP’s motion to dismiss the Lanham Act and state law claims asserted against it by Narrative. (Ferdinand Decl., ¶ 3, Ex. 15.) Narrative/Fulop Counterstatement to Statement No. 6: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 6: N/A. ACP Statement No. 7: Narrative’s Amended Complaint presently contains two causes of action against ACP: Count I, alleging copyright infringement of eleven U.S. Copyright Registrations owned by Narrative (collectively, the “Narrative Registrations”; the works covered by the Narrative Registrations are collectively Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 4 of 63 5 referred to hereinafter as the “Narrative Registered Works”), and Count VII, seeking a declaratory judgment as to the validity of certain copyright registrations obtained by ACP covering works allegedly owned by Narrative. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 38; Ferdinand Decl. ¶ 3, Ex. 3; Ferdinand Decl., ¶ 3, Ex. 15.) Narrative/Fulop Counterstatement to Statement No. 7: Agree in Part as to Count I and Dispute in Part as to Count VI. The statement as to Count VII, seeking a declaratory judgment is misleading because (i) the Narrative Registrations are not “allegedly owned” by Narrative but are copyright registrations duly issued by the Copyright Office to Scott Fulop and assigned to Narrative. See, Dkt 36, Amended Complaint Ex. A & B and (ii) Count VII requests a declaratory judgement that certain registrations obtained by ACP are invalid and should be canceled. (See, Dkt 36, Amended Complaint, Count VII). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 7: The counterstatement fails to controvert ACP’s statement. Part (i) of the counterstatement, that “the Narrative Registrations are not ‘allegedly owned’ by Narrative but are copyright registrations duly issued by the Copyright Office to Scott Fulop and assigned to Narrative”, fails to controvert ACP’s statement that Count VII of Narrative’s Amended Complaint alleges that works owned by Narrative are covered by the ACP-obtained copyright registrations at issue in that cause of action, and therefore fails to raise a genuine factual dispute. Narrative’s & Fulop’s legal conclusion as to the ownership of the Narrative Registrations does not refute that, as a factual matter, Narrative’s ownership is alleged in its Amended Complaint. Geoghan v. Long Island R.R., No. 06 CV 1435(CLP), 2009 WL 982451, *5-6 (E.D.N.Y. Apr. 9, 2009) (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”); Risco v. McHugh, 868 F.Supp,2d 75, 82 n. 2 (S.D.N.Y. 2012) (“[T]he [Rule 56.1] Statement improperly injects arguments and/or immaterial facts in response to facts asserted by Defendant, without specifically controverting those facts”); Baity v. Kralik, 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (“[A] number of Plaintiff’s purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants”). Part (ii) of the counterstatement, that “Count VII requests a declaratory judgment that certain registrations obtained by ACP are invalid and should be cancelled”, likewise does not dispute ACP’s factual assertion that Count VII of Narrative’s Amended Complaint seeks a declaratory judgment as to the validity of certain copyright registrations obtained by ACP. The stated registration invalidity/cancellation relief sought in Narrative’s declaratory judgment claim does not refute that, as a factual matter, the claim seeks a declaratory judgment as to the validity of certain copyright registrations obtained by ACP covering works allegedly owned by Narrative, and the counterstatement fails to set forth how Narrative & Fulop contends its counterstatement disputes ACP’s assertion. Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 5 of 63 6 assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”); Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 7 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 8: Narrative’s copyright infringement cause of action is predicated on its alleged claim of copyright-ownership of the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 49-53, 77-80.) Narrative/Fulop Counterstatement to Statement No. 8: Disagree. Statement mischaracterizes Narrative’s claim. Narrative’s cause of action is predicated on alleged claims of copyright infringement. See, (Dkt 36, Amended Complaint, Count I). Narrative owns the Narrative Registrations and the Narrative Registered Works by operation of law. See, (Dkt 36, Amended Complaint, Ex. A & B). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 8: The counterstatement fails to controvert ACP’s statement that Narrative’s copyright infringement cause of action is predicated on its alleged claim of copyright-ownership of the Narrative Registered Works. Narrative’s Amended Complaint plainly alleges copyright-ownership of the Narrative Registered Works in connection with its infringement allegations (see, e.g., Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 48-49, 52); that Narrative also alleges infringing acts does not rebut that its infringement cause of action is also predicated on ownership.2 Ofudu v. Barr Labs., Inc., 98 F.Supp.2d 510, 512 (S.D.N.Y. 2000) (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Furthermore, Narrative’s counter-statement that “Narrative owns the Narrative Registrations and the Narrative Registered Works by operation of law”, is an improper legal conclusion, not a material fact, and also fails to controvert ACP’s assertion that the declaratory judgment is predicated upon that ownership. Montauk Oil Transp. Corp. v. Sonat Marine Inc., No. 84-CV-4405, 1986 WL 1805, *8 (S.D.N.Y. Feb. 3, 1986) (“‘[R]eliance on legal conclusions – unsupported by specific facts – and general denials do[] not create a genuine factual dispute under Rule 56’”) (citations omitted); Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported 2 This is not unexpected given that, as Narrative & Fulop argue in their Combined Memorandum of Law in Opposition to ACP’s Motion for Summary Judgment and in Support of Narrative’s and Fulop’s Combined Motion for Summary Judgment (Dkt. 136; the “Opposition”), “Every copyright infringement claim must be based upon claims of ownership because copyright ownership is a fundamental element of such a claim” (id. p. 12) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 6 of 63 7 denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 8 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 9: Narrative’s declaratory judgment cause of action is predicated on its alleged claim of copyright-ownership of the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 127-128, 133.) Narrative/Fulop Counterstatement to Statement No. 9: Disagree. Statement mischaracterizes Narrative’s claim. Narrative’s declaratory judgment cause of action is predicated on its alleged claim of copyright infringement and wrongful conduct on the part of ACP. See, (Dkt 36, Amended Complaint, Count VII). Narrative owns the Narrative Registrations and the Narrative Registered Works by operation of law. See, (Dkt 36, Amended Complaint, Ex. A & B). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 9: The counterstatement fails to controvert ACP’s statement that Narrative’s declaratory judgment cause of action is predicated on its alleged claim of copyright- ownership of the Narrative Registered Works. Narrative’s Amended Complaint plainly alleges copyright-ownership of the Narrative Registered Works in connection with its declaratory judgment cause of action (see, e.g., Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 127-28) – as alleged, Narrative’s declaratory judgment cause of action seeks a declaration of invalidity of ACP’s copyright registrations for “fail[ing] to disclose material facts to the Copyright Office that portions of the materials being claimed as exclusively owned by Defendants were created and owned by Plaintiff and Plaintiff’s predecessor in title” (id. at ¶ 128, emphasis added). That Narrative also alleges “copyright infringement and wrongful conduct on the part of ACP” does not rebut that its declaratory judgment cause of action is also predicated on ownership. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) Furthermore, the counterstatement’s contention that “Narrative owns the Narrative Registrations and the Narrative Registered Works by operation of law” is an improper legal conclusion, not a material fact, and also fails to controvert ACP’s assertion that the declaratory judgment is predicated upon that ownership. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 9 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 10: ACP has asserted a counterclaim against Narrative seeking a declaration that the Narrative Registrations are invalid for lack of ownership, and a Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 7 of 63 8 third-party claim against Fulop for slander of title. (Ferdinand Decl., ¶ 3, Ex. 9, pp. 17- 24; Ferdinand Decl., ¶ 3, Ex. 10.) Narrative/Fulop Counterstatement to Statement No. 10: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 10: N/A. ACP Statement No. 11: ACP’s declaratory judgment counterclaim and slander of title third-party claim are predicated on its contention that Narrative is not copyright-owner and Fulop was never copyright-owner of the Narrative Registered Works. (Ferdinand Decl., ¶ 3, Ex. 9, Counterclaim ¶¶ 6-12; Ferdinand Decl., ¶ 3, Ex. 10, ¶¶ 5-19.) Narrative/Fulop Counterstatement to Statement No. 11: Disagree. This statement is misleading as used in this matter and mischaracterizes the nature of the claim. Paragraph 6 of ACP’s Declaratory Judgment Count provides that the basis of this controversy stems from Narrative Ark’s assertion that ACP has infringed its works as described in the Narrative Ark Registrations. See, (Dkt 36, ACP Amended Counterclaim/Third Party Complaint, ¶ 6). This statement also mischaracterizes the nature of the slander of title claim. While ownership is an element of a slander of title claim, and lack of title is a defense, slander of title claim is predicated on whether or not slanderous statements were made about the property in question. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 11: The counterstatement fails to controvert ACP’s statement that its declaratory judgment and slander of title claims are predicated on its contention that Narrative is not copyright-owner and Fulop was never copyright-owner of the Narrative Registered Works. As to ACP’s declaratory judgment claim, the counterstatement, that ACP alleges that the controversy arose from Narrative’s infringement allegations, does not refute that the claim is also predicated on allegations that Narrative is not copyright-owner and Fulop was never copyright-owner of the works – as ACP plainly alleges in its pleading (see Ferdinand Decl. ¶ 3, Ex. 9, ¶¶ 8-10). Likewise with respect to ACP’s slander of title third-party claim, the counterstatement, that the claim is predicated on whether or not slanderous statements were made, does not refute that the claim is predicated on Narrative’s and Fulop’s lack of ownership – that is, the falsity (i.e., the slanderous nature) of the allegedly-slanderous statements – as ACP plainly alleges in its pleading (see id. ¶ 3, Ex. 10, ¶¶ 6-7, 10-12, 14, 17). (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 11 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 8 of 63 9 B. The Parties. ACP Statement No. 12: ACP is in the business of producing and publishing comic books, including under license from third-party intellectual property owners. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 9- 11.) Narrative/Fulop Counterstatement to Statement No. 12: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 12: N/A. ACP Statement No. 13: Beginning in or about 1992, ACP produced and published a series of comic books based on the popular video game “Sonic the Hedgehog” (the “Sonic Comic Series”), utilizing elements of the “Sonic the Hedgehog” video game pursuant to a licensing relationship with the game’s producer, Sega of America, Inc. (“Sega”). (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 12.) Narrative/Fulop Counterstatement to Statement No. 13: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 13: N/A. ACP Statement No. 14: ACP employed Scott D. Fulop as a staff editor from about August 1988 to May 1991, and again from February 1994 to January 1996. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 16.) Narrative/Fulop Counterstatement to Statement No. 14: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 14: N/A. ACP Statement No. 15: From February 1994 to January 1996, Fulop worked with ACP’s freelance writers, artists and creators for the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 18.) Narrative/Fulop Counterstatement to Statement No. 15: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 15: N/A. ACP Statement No. 16: ACP engaged Fulop as a freelance writer and artist for the Sonic Comic Series from 1996 to 1998. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 17.) Narrative/Fulop Counterstatement to Statement No. 16: Agree. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 9 of 63 10 ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 16: N/A. ACP Statement No. 17: Fulop assigned all of his claimed copyrights in the Narrative Registered Works to Narrative on October 5, 2015. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 45; Ferdinand Decl. ¶ 3, Ex. 4.) Narrative/Fulop Counterstatement to Statement No. 17: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 17: N/A. ACP Statement No. 18: Fulop is Narrative’s principal and sole owner. (Ferdinand Decl. ¶ 3, Ex. 17 at 10:3-4, 11:22-23.) Narrative/Fulop Counterstatement to Statement No. 18: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 18: N/A. ACP Statement No. 19: Narrative has no employees, has no freelancers or subcontractors, has no clients or customers, and has not published anything. (Ferdinand Decl. ¶ 3, Ex. 17 at 9:21-24, 10:5-7, 10:14-15, 11:3-10.) Narrative/Fulop Counterstatement to Statement No. 19: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 19: N/A. C. The Works At Issue. ACP Statement No. 20: Narrative alleges that during Fulop’s time as an ACP freelancer, he created and developed, either individually or jointly with other freelancers, a number of stories, scripts, artwork, and characters for the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 21.) Narrative/Fulop Counterstatement to Statement No. 19: Agree in part and Dispute. Agee [sic] that as a freelancer working for ACP, Fulop created either individually or jointly with other freelancers a number of stories and scripts for Sonic comic books. Dispute that the artwork and new characters were created jointly with other freelancers. See, (Dkt 36, Amended Complaint, ¶ ¶ 33, 39). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 20: The counterstatement fails to cite to any admissible evidence in support of its Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 10 of 63 11 contention, thus failing to raise a genuine dispute of fact. See L.R. 56.1(d); Fed. R. Civ. P. 56(c); U.S. Info. Sys., Inc. v. Int’l Bhd. Of Elec. Workers Local Union No. 3, No. 00 Civ. 4763(RMB)(JCF), 2006 WL 2136249, *3 (S.D.N.Y. Aug. 1, 2006) (“A non-moving party cannot create a factual dispute merely by denying a movant party’s factual statement; rather, the non-moving party must identify controverting evidence for the court”); Baity, 51 F.Supp.3d at 418 (“responses that ‘do not point to any evidence in the record that may create a genuine issue of material fact[] do not function as denials, and will be deemed admissions of the stated fact”), citing Risco, 868 F.Supp.2d at 86 n. 2; Forbes v. Lighthouse Intern., No. 11 CV 7065(VB), 20113 WL 1811960, *1 n. 1 (S.D.N.Y. May 1, 2013) (“The Court disregards plaintiff’s Local Rule 56.1 counter statement of material facts and additional statement of material facts to the extent they fail to cite to admissible evidence or couch argument and analysis as fact”). The counterstatement cites only to bare allegations in Narrative’s Amended Complaint, and not to any admissible evidence whatsoever. Such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. Continental Ins. Co. v. Atlantic Cas. Ins. Co., No. 07 Civ. 3635(DC), 2009 WL 1564144, *1 n. 1 (S.D.N.Y. Jun. 4, 2009) (“[The] Rule 56.1 Statement repeatedly cites to allegations contained in the unverified complaint … On a motion for summary judgment, however, allegations in an unverified complaint cannot be considered as evidence”), citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Fitzgerald v. Henderson, 251 F.3d 345, 360-61 (2d Cir. 2001) (“[A] party opposing a properly supported motion for summary judgment is not entitled to rely solely on the allegations of her pleading, but must show that there is admissible evidence sufficient to support a finding in her favor on the issue that is the basis for the motion”), citing Fed. R. Civ. P. 56(e). Furthermore, the counterstatement “[d]isput[ing] that the artwork and new characters were created jointly with other freelancers” is plainly contradicted by Narrative’s Amended Complaint, in which Narrative alleged that Fulop “created and developed, either individually or in collaboration with other freelance writers, various stories, scripts, artwork, and other original expressions fixed in tangible form including new and original characters …. as contributions to the Sonic Comic Book Series” (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 21; emphasis added). “[A]llegations in the Complaint are judicial admissions to which Plaintiffs are bound.” Wu v. John Wiley & Sons, Inc., No. 14 Civ. 6746(AKH)(AJP), 2015 WL 5254885, *16, (S.D.N.Y. Sept. 10, 2015), quoting Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 223, 248 (S.D.N.Y. 2014). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 20 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 21: The copyrights at issue in this litigation are for stories, scripts, artwork, and characters in the Sonic Comic Series that Fulop allegedly created or developed during his time as an ACP freelancer. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 21, 38.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 11 of 63 12 Narrative/Fulop Counterstatement to Statement No. 21: Dispute as to the word “allegedly” because it is not disputed that Fulop created the stories, scripts, artwork, and characters in the Sonic Comic during his time as an ACP freelancer. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 21, 38.) ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 21: The counterstatement fails to controvert ACP’s statement. The contention that Fulop’s creation of the works is undisputed, even if true, does not refute that Fulop’s creation is alleged in Narrative’s Amended Complaint (at the paragraphs cited in ACP’s statement), nor that the copyrights at issue in this litigation are for those works. Risco, 868 F.Supp.2d at 82 n. 2 (“[T]he [Rule 56.1] Statement improperly injects arguments and/or immaterial facts in response to facts asserted by Defendant, without specifically controverting those facts”); Baity, 51 F.Supp.3d at 418 (“[A] number of Plaintiff’s purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 21 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 22: Fulop allegedly created certain stories, scripts, artwork, and characters in the Sonic Comic Series during his time as an ACP freelancer, which are covered by the eleven Narrative Registrations. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 38; Ferdinand Decl. ¶ 3, Ex. 3.) Narrative/Fulop Counterstatement to Statement No. 22: Disagree. Statement mischaracterizes the facts. It is not disputed that Fulop created the stories, scripts, artwork and characters covered by the eleven Narrative Registrations. and copyrighted my works. See, (ACP SMF #16, Amended Complaint ¶ 21). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 22: The counterstatement fails to controvert ACP’s statement. The contention that Fulop’s creation of the works is undisputed, even if true, does not controvert that Fulop’s creation is alleged in Narrative’s Amended Complaint (at the paragraphs cited in ACP’s statement), nor that those works are covered by the eleven Narrative Registrations. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 21 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 22 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 23: The Narrative Registered Works were first published in the following issues of the Sonic Comic Series on the following dates: Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 12 of 63 13 Narrative Registration Registered Works’ Issue of First Publication in Sonic Comic Series Date of First Publication VA 1-716-908 “Sonic The Hedgehog # 46” February 25, 1997 VA 1-720-516 “Sonic The Hedgehog # 48” April 8, 1997 VA 1-720-514 “Sonic The Hedgehog # 50” June 10, 1997 VA 1-720-518 “Sonic Super Special # 6” July 7, 1998 VA 1-737-472 “Sonic The Hedgehog # 38” June 4, 1996 VA 1-737-477 “Sonic The Hedgehog # 42” September 3, 1996 VA 1-737-483 “Sonic Live #1” November 5, 1996 VA 1-737-485 “Sonic The Hedgehog # 45” January 7, 1997 VA 1-737-471 “Sonic & Knuckles Mecha Madness Special # 1” July 2, 1996 VA 1-737-480 “Sonic Super Special Battle Royal # 1” April 8, 1997 VA 1-737-470 “Sonic The Hedgehog # 56” January 6, 1998 (Declaration of William Mooar, dated November 14, 2018 [“Mooar Declaration”], ¶ 3; Ferdinand Decl., ¶ 3, Ex. 3, pp. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, & 21.) Narrative/Fulop Counterstatement to Statement No. 23: Agree and Dispute. Agree the information in the first and second columns of the chart regarding Narrative Registrations and title/issue # are correct but lacks sufficient information to respond to the respective dates of first publication in column three. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 23: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks sufficient information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)- (d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. See, e.g., Tomizawa v. ADT LLC, No. 13-CV-6366(MKB)(LB), 2015 WL 5772106, at *8 n. 1 (E.D.N.Y. Sept. 29, 2015) (“In his counter-Rule 56.1 Statement, Plaintiff claims that he ‘lacks information sufficient to respond’ to a number of Defendants’ statements. This is not a proper response to a Rule 56.1 statement. Plaintiff must either admit or deny the statements with citations to admissible evidence … The Court therefore deems the facts that have not been admitted or denied as undisputed”), citing Fed. R. Civ. P. 56(c)(1)-(e), Copeland v. Sears Roebuck & Co., 25 F.Supp.2d 412, 419 n. 2 (S.D.N.Y. 1998), Parks v. Lebhar-Friedman Inc., No. 04 CV 7133, 2008 U.S. Dist. LEXIS 63019, a *21 (S.D.N.Y. Aug. 11, 2008) (striking Plaintiff’s responses that she “lacked knowledge sufficient to form a belief about [defendant’s Rule 56.1] assertions” and deeming the 56.1 paragraphs admitted); Univ. Church, Inc. v. Univ. Life Church/ULC Monastery, No. 14 Civ. 5213(NRB), 2017 WL 3669625, at *1 n. 3 Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 13 of 63 14 (S.D.N.Y. Aug. 8, 2017) (“Plaintiff responded to and/or disputed several statements in defendants’ 56.1 statement by noting that it ‘lacks information sufficient to form a belief as to the truth of this unverified assertion’ … We treat such statements as undisputed for purposes of summary judgment”), citing L.R. 56.1(c)-(d). Moreover, the “dates of first publication in column three” as to which information is claimed to be lacking were reproduced from the faces of the Narrative Registrations, which were attached as an exhibit to Narrative’s Amended Complaint (see Dkt. 38-1)., and expressly incorporated by reference into Narrative’s Amended Complaint (see id. ¶ 38). Narrative is bound to its allegations. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 23 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 24: Fulop testified that he was responsible for final review of the Sonic Comic Series’ comic book issues before publication in his role as ACP’s editor, and that indicia were supposed to be in every issue (Ferdinand Decl. ¶ 3, Ex. 17 at 135:9-25, 136:20-137:12.) Narrative/Fulop Counterstatement to Statement No. 24: Disagree. Statement mischaracterizes the testimony. Fulop never testified that he was responsible for final review (not exact words) or that the indicia was supposed to be in every issue (not his exact words). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 24: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 20 supra.) While the counterstatement contends that Fulop’s testimony is mischaracterized, it fails to point to any testimony refuting the characterization set forth in ACP’s statement or explain how ACP’s characterization was substantively wrong. Merely pointing out that Fulop did not use the same exact words as those used in ACP’s statement fails to controvert the accuracy of ACP’s statement. Edmonds v. Seavey, No. 08-CV-5646, 2009 WL 2949757, *1 n. 2 (S.D.N.Y. Sept. 15, 2009) (“Failure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement, or failure to support any such response with record references allows the Court to deem the facts proffered by the moving party admitted for purposes of a summary judgment motion”); Baity, 51 F.Supp.3d at 418 (“[A] number of Plaintiff’s purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants”) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 24 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 25: The only copyright notice appearing in each of the Sonic Comic Series Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 14 of 63 15 issues identified at Paragraph 23 hereinabove, appearing in each issue’s indicia section, identifies Sega as copyright owner. (Mooar Decl. ¶¶ 4-15, Exs. A-K; Ferdinand Decl. ¶ 3, Ex. 17 at 200:8- 13, 200:23-202:6.) Narrative/Fulop Counterstatement to Statement No. 25: Agree in Part and Dispute. Calls for a conclusory interpretation and statement about the meaning of the copyright notice and ownership. Agree that the copyright notice identifies Sega but disputes that this means Sega is the copyright owner. See, (Excerpts of the transcript of Scott D. Fulop Dep., pg 138), 17 U.S.C. 201 C, 17 U.S.C. 103 (b). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 25: As an initial matter, the only evidence cited in support of the counterstatement, certain excerpts of Fulop’s deposition testimony, were not submitted with Narrative’s & Fulop’s Opposition or the Narrative/Fulop Counter-SMF, and are thus not part of the summary judgment record. Accordingly, the counterstatement fails to cite to any admissible evidence in support of its contention which may be considered, and thus fails to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Moreover, even if the cited deposition testimony could be considered, and even if that testimony supported the counterstatement, the counterstatement fails to controvert ACP’s statement. The contention that “the copyright notice identifies Sega but [it] disputes that this means Sega is the copyright owner” does not refute ACP’s statement that the copyright notices identify Sega as copyright owner, instead improperly raising legal argument concerning the meaning of the copyright notices. The question of whether the copyright notices identifying Sega “means Sega is the copyright owner” is a separate issue from, and in no way disputes, that the copyright notices do in fact identify Sega as copyright owner. Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”); Emanuel v. Griffin, No. 13-CV-1806(JMF), 2015 WL 1379007, *1 (S.D.N.Y. Mar. 25, 2015) (“Plaintiffs’ Rule 56.1 statement [also] routinely recites facts that are irrelevant to the paragraph … they ostensibly correspond to and, just as often, engages in inappropriate legal argument”), appeal dismissed (May 19, 2015); Montauk, 1986 WL 1805 at *8 (“‘[R]eliance on legal conclusions – unsupported by specific facts – and general denials do[] not create a genuine factual dispute under Rule 56’”) (citations omitted); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”);. Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 25 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 15 of 63 16 ACP Statement No. 26: No copyright notice identifying Fulop or Narrative as a copyright owner appears in any of the Sonic Comic Series issues identified at Paragraph 23 hereinabove. (Mooar Decl. ¶¶ 4-14 16, Exs. A-K; Ferdinand Decl. ¶ 3, Ex. 17 at 200:8-13, 200:23-202:6.) Narrative/Fulop Counterstatement to Statement No. 26: Agree as to there being no copyright notice identifying Fulop or Narrative but disagrees that the copyright notice identifies any and all copyright owners. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 26: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement, “disagree[ing] that the copyright notice identifies any and all copyright owners”, constitutes improper legal argument and in no way rebuts ACP’s statement that no copyright notice identifying Fulop or Narrative as copyright owner appears in any of the Sonic Comic Series issues identified at Paragraph 23 of ACP’s SMF. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 25 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 26 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). D. The ACP/Penders Litigation. ACP Statement No. 27: Ken Penders is a former ACP freelance writer and artist who worked with Fulop on the Sonic Comic Series. (Ferdinand Decl. ¶ 3 Ex. 2 ¶¶ 24, 26, 36; Ferdinand Decl. ¶ 3, Ex. at 44:9-11; Ferdinand Decl. ¶ 3, Ex. 21, ¶¶ 17-26.) Narrative/Fulop Counterstatement to Statement No. 27: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 27: N/A. ACP Statement No. 28: In 2010, ACP filed suit against Penders seeking, inter alia, a declaration that it (and Sega), not Penders, owned the rights to his contributions to the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 19.) Narrative/Fulop Counterstatement to Statement No. 28: Agree in Part and Dispute. Agree that a litigation was filed by ACP against Ken Penders in 2010 but lacks information sufficient to respond as to the remainder of the statement. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 28: The counterstatement fails to cite to any admissible evidence in support of its Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 16 of 63 17 contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks sufficient information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)- (d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Moreover, the ACP-Penders pleading cited in ACP’s SMF in support of this statement was submitted as an exhibit in connection with ACP’s MSJ (see Ferdinand Decl., ¶ 3, Ex. 19). As such, even if “lack[ing] sufficient information” was a viable basis to raise a factual dispute (which it is not), Narrative & Fulop clearly had sufficient information to respond to ACP’s statement of the declaratory relief sought in ACP’s litigation with Ken Penders. Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 28 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 29: In the ACP-Penders litigation, ACP brought declaratory judgment claims in response to Penders’ claims of ownership of works first published in the Sonic Comic Series and later published by ACP in reprints and compilations thereof, seeking a declaration that Penders did not own those works. (Ferdinand Decl. ¶ 3, Ex. 19, ¶¶ 74-85.) Narrative/Fulop Counterstatement to Statement No. 29: Agree in Part and Disagree. Agree to so much of the statement that certain claims for declaratory relief were requested by ACP but lacks information sufficient to respond to the remainder of the statement. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 29: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks information sufficient to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)- (d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Moreover, the ACP-Penders pleading cited in ACP’s SMF in support of this statement was submitted as an exhibit in connection with ACP’s MSJ (see Ferdinand Decl., ¶ 3, Ex. 19). As such, even if “lack[ing] sufficient information” was a viable basis to raise a factual dispute (which it is not), Narrative & Fulop clearly had sufficient information to respond to ACP’s statement of the nature of the Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 17 of 63 18 declaratory claims asserted in ACP’s litigation with Ken Penders. Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 29 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 30: In the ACP-Penders litigation, Penders accused ACP of infringing upon his alleged copyrights in his contributions to the Sonic Comic Series by ACP’s publication of reprints and compilations of the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 19, Counterclaims ¶¶ 14-75.) Narrative/Fulop Counterstatement to Statement No. 30: Lacks information sufficient to respond. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 30: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks information sufficient to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)- (d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Moreover, the ACP-Penders pleading cited in ACP’s SMF in support of this statement was submitted as an exhibit in connection with ACP’s MSJ (see Ferdinand Decl., ¶ 3, Ex. 19). As such, even if “lack[ing] sufficient information” was a viable basis to raise a factual dispute (which it is not), Narrative & Fulop clearly had sufficient information to respond to ACP’s statement of the nature of Ken Penders’ allegations in his litigation with ACP. Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 30 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 31: Fulop admitted in deposition testimony in this case that the infringement claims Penders asserted against ACP with respect to reprints in the prior ACP-Penders litigation are similar to Narrative’s claims against ACP in this litigation. (Ferdinand Decl. ¶ 3, Ex. 17 at 173:7-19.) Narrative/Fulop Counterstatement to Statement No. 31: Agree in Part but Fulop also stated that I don’t know what the totality of Ken Penders case was. See, (Excerpt to Fulop Deposition, page 174). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 18 of 63 19 ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 31: The counterstatement fails to controvert ACP’s statement. The counterstatement, reciting testimony that Fulop “also stated” in addition to the testimony described in ACP’s statement, does not refute ACP’s statement of Fulop’s testimony. Fulop’s testimony that “I don’t know what the totality of Ken Penders case was” in no way controverts that he also admitted in deposition testimony that Penders’ infringement claims against ACP with respect to reprints in the ACP- Penders litigation are similar to Narrative’s claims against in ACP in this litigation. Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 31 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 32: Fulop researched the ACP-Penders litigation from 2010-2012 (Ferdinand Decl. ¶ 3, Ex. at 162:24-164:5.) Narrative/Fulop Counterstatement to Statement No. 32: Disagree. Statement mischaracterizes what was done and said by Fulop as “research”. This word was not used by Fulop. See, Excerpt to Fulop Deposition, pgs 161 – 168 ). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 32: The counterstatement misrepresents the record and thus fails to contravene ACP’s statement. Contrary to the contention that ACP mischaracterized Fulop’s testimony – and specifically that the word “research” was not used by Fulop – Fulop in fact testified as follows: Q. So why did the result of that litigation, the outcome of that litigation, why did that matter to you? A. Just part of a research of understanding what had transpired between two parties. Q. And what did you do to monitor the Penders litigation? Is it fair to say you monitored it? A. No. Q. Okay. What did you do to research the Penders litigation? A. Read what was available online in the public eye. (See Ferdinand Decl. ¶ 3, Ex. 17, 162:14-163:3.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 19 of 63 20 Thus contrary to the counterstatement, Fulop’s deposition testimony cited therewith3 clearly supports ACP’s statement that Fulop researched the ACP- Penders litigation. Ofudu, 98 F.Supp.2d at 512 (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”); Baity, 51 F.Supp.3d at 418 (“[A] number of Plaintiff’s purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 32 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 33: On March 6, 2012, Fulop executed and submitted an affidavit in support of Penders in his litigation with ACP, in which Fulop made factual assertions regarding copyright ownership and the legal/contractual relationship between himself and other freelancers who contributed to the Sonic Comic Series, and ACP. (Ferdinand Decl. ¶ 3, Ex. 21, ¶¶ 4, 6, 29- 31, 33.) Narrative/Fulop Counterstatement to Statement No. 33: Agree in Part and Dispute. Admit that Fulop executed and submitted an affidavit in the Penders litigation with ACP which document speaks for itself but disputes the characterization of the factual assertions claimed. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 33: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement itself does not explain the basis for its dispute; merely “disput[ing] the characterization of the factual assertions claimed”, while failing to explain how such characterization was incorrect, fails to raise a genuine dispute. Attenborough v. Constr. & Gen. Bldg. Laborers’ Local 79, 691 F.Supp.2d 372, 383 (S.D.N.Y. 2009) (“The law is clear that ‘blanket denials,’ wholesale evidentiary objections, and counterstatements unsupported by any citations are insufficient to create genuine issues of material fact”); Edmonds, 2009 WL 2949757 at *1 n. 2 (“Failure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement, or failure to support any such response with record references allows the Court to deem the facts proffered by the moving party admitted for purposes of a summary judgment motion”); U.S. Info. Sys., 2006 WL 2136249 at *3 (“A non-moving party cannot create a factual dispute merely by denying a movant party’s factual statement; rather, the non-moving party must identify controverting evidence for the court”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 33 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). 3 The reproduced testimony appears in the very portion of Fulop’s deposition transcript cited in support of the counterstatement’s proposition that the word “research” was not used by Fulop. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 20 of 63 21 ACP Statement No. 34: Fulop understood that the ACP-Penders litigation was “a copyright litigation lawsuit that involve[d] characters or stories that I worked on, specifically for Sonic the Hedgehog for Archie Comics” (Ferdinand Decl. ¶ 3, Ex. 17 at 162:5-8.) Narrative/Fulop Counterstatement to Statement No. 34: Dispute. Statement mischaracterizes the nature of Fulop testimony. See, Excerpt of the deposition of Scott D. Fulop, pgs 162 and 0175. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 34: The counterstatement fails to controvert ACP’s statement. The counterstatement contends that ACP’s factual assertion “mischaracterizes the nature of Fulop[’s] testimony”, but fails to explain such purported mischaracterization in any manner, nor how its cited deposition testimony supports its claimed mischaracterization. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) Moreover, ACP’s factual assertion sets forth a verbatim reproduction of Fulop’s testimony – which appears in the very deposition excerpt cited in support of the counterstatement – which in full reads as follows: Q. Why does [the outcome of the Penders litigation] have anything to do with your lawsuit? A. Because it’s a copyright litigation lawsuit that involves characters or stories that I worked on, specifically for Sonic the Hedgehog for Archie Comics. (See Ferdinand Decl. ¶ 3, Ex. 17, 162:3-8.) Thus contrary to the counterstatement, Fulop’s deposition testimony cited with the counterstatement clearly supports ACP’s statement that Fulop understood that the ACP-Penders litigation was “a copyright litigation lawsuit that involves characters or stories that I worked on, specifically for Sonic the Hedgehog for Archie Comics.” (See ACP’s Reply to Narrative/Fulop Counterstatement No. 32 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 34 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 35: Fulop understood the basis of the ACP-Penders litigation to be “that Archie and Ken Penders were arguing over who owned the copyrights”. (Ferdinand Decl. ¶ 3, Ex. 17 at 173:20-174:4; 174:25-175:5.) Narrative/Fulop Counterstatement to Statement No. 35: Dispute.Statement mischaracterizes the nature of Fulop testimony. See, Excerpt of the deposition of Scott D. Fulop, pgs 162 and 0175. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 35: Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 21 of 63 22 The counterstatement fails to controvert ACP’s statement. The counterstatement contends that ACP’s factual assertion “mischaracterizes the nature of Fulop[’s] testimony”, but fails to explain such purported mischaracterization in any manner, nor how its cited deposition testimony supports its claimed mischaracterization. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) Moreover, ACP’s factual assertion sets forth a verbatim reproduction of Fulop’s testimony, which in full reads as follows: Q. And you’re aware that Archie claimed to own Penders’ copyrights in the Sonic work, right? A. I’m not formally aware that they claimed it. Q. What do you mean by that? A. I assume, as a consumer and somebody who reads, that the basis of the litigation was over argument over who owns the copyright. (See Ferdinand Decl. ¶ 3, Ex. 17, 173:20-174:4; emphasis added.) Q. Are you aware that Archie claimed ownership rights in Penders’ copyright – copyrights that Penders has asserted against them? A. I didn’t read any of the documentation other than what was public knowledge. Q. Okay. A. So I can only imagine from a consumer’s point of view that’s what the litigation was about, and that Archie and Ken Penders were arguing over who owned the copyrights. (See id. at 174:18-175:5; emphasis added.) Thus contrary to the counterstatement, Fulop’s deposition testimony clearly supports ACP’s statement that Fulop understood the basis of the ACP-Penders litigation to be “that Archie and Ken Penders were arguing over who owned the copyrights.” (See ACP’s Reply to Narrative/Fulop Counterstatement No. 32 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 35 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 36: On June 27, 2013, ACP and Penders entered into a settlement agreement resolving their litigation (the “ACP-Penders Agreement”). (Ferdinand Decl. ¶ 3, Ex. 22.) Narrative/Fulop Counterstatement to Statement No. 36: Agree and Dispute. Agree that Exhibit 22 purports to be a final settlement agreement between ACP and Penders but lacks information as to whether this is the final agreement. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 36: The counterstatement fails to cite to any admissible evidence in support of its Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 22 of 63 23 contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks sufficient information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)- (d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 36 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 37: Under the ACP-Penders Agreement, Penders agreed that ACP could use his works published in certain issues of the Sonic Comic Series in exchange for payment from ACP. (Ferdinand Decl. ¶ 3, Ex. 22, Article I, Ex. 1.) Narrative/Fulop Counterstatement to Statement No. 37: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 37: N/A. ACP Statement No. 38: On June 27, 2013, ACP and Penders entered into a settlement agreement resolving their litigation (the “ACP-Penders Agreement”). (Ferdinand Decl. ¶ 3, Ex. 22.) Narrative/Fulop Counterstatement to Statement No. 38: Agree and Dispute. Agree that Exhibit 22 purports to be a final settlement agreement between ACP and Penders but lacks information as to whether this is the final agreement. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 38: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The portion of the counterstatement that Narrative/Fulop “lacks sufficient information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)-(d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Moreover, the ACP-Penders pleading cited in ACP’s SMF in support of this statement was submitted as an exhibit in connection with ACP’s MSJ (see Ferdinand Decl., ¶ 3, Ex. 19). As such, even if “lack[ing] sufficient information” was a viable basis to raise a factual dispute (which it is not), Narrative & Fulop clearly Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 23 of 63 24 had sufficient information to respond to ACP’s statement of the terms of the ACP- Penders Agreement. The portion of the counterstatement contending that ACP’s statement “calls for a legal conclusion” also fails to raise a genuine dispute. A denial based solely on such an evidentiary objection, absent any material fact contended to controvert ACP’s statement, fails to raise a genuine dispute under L.R. 56.1(c). Senno v. Elmsform Union Free School Dist., 812 F.Supp.2d 454, 465 n. 9 (S.D.N.Y. 2011) (evidentiary objection “does not suffice as a denial of a statement of undisputed fact”), citing U.S. Info. Sys., 2006 WL 2136249 at *4 (holding that tactic where one party “dispute[s] the factual assertions in the [other party’s] corresponding paragraphs with objections alone” and fails to cite evidence “directly violates” Rule 56.1). Furthermore, the contention that ACP’s assertion “calls for a legal conclusion” is absent any explanation as to how ACP’s statement purportedly calls for a legal conclusion, thus failing to genuinely dispute the factual accuracy of ACP’s statement. Narrative & Fulop admit in their Response to ACP’s Statement No. 37 (see supra) that under the ACP-Penders Agreement, Penders agreed that ACP could use his works published in certain Sonic Comic Series issues in exchange for payment. Given the admitted existence of such usage agreement, it is entirely unclear, and the counterstatement fails to argue in any manner, how ACP’s statement of the scope of authorization under the agreement is a legal conclusion. As such, the counterstatement fails to genuine dispute ACP’s statement. U.S. v. Egan, No. 10 Cr. 191(JFK), 2012 WL 2705013, *10 (S.D.N.Y. Aug. 28, 2012) (overruling objection to 56.1 Statement made on ground of “improper legal conclusions” because objecting party “fail[ed] specifically to identify any objectionable legal conclusions”); cf. Leeber Realty LLC v. Trustco Bank, 316 F.Supp.3d 594, 600 (S.D.N.Y. 2018) (finding objection to 56.1 statement’s recitation of mathematical calculations under lease agreement as legal conclusion to be “without merit”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 38 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). E. The Narrative Registrations. ACP Statement No. 39: Narrative Registrations were each filed by Fulop or Penders during the period of February 2009 to May 2010. (Ferdinand Decl. ¶ 3, Ex. 3.) Narrative/Fulop Counterstatement to Statement No. 39: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 39: N/A. ACP Statement No. 40: The effective dates of the Narrative Registrations and dates of first publication of their respective Narrative Registered Works, obtained from the face of their Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 24 of 63 25 respective certificates of registration attached to Narrative’s Amended Complaint at Exhibit A, are as follows: U.S. Copyright Reg’n No. Effective Date Date of 1st Publication VA 1-716-908 February 19, 2009 February 25, 1997 VA 1-720-516 April 30, 2010 April 8, 1997 VA 1-720-514 April 30, 2010 June 10, 1997 VA 1-720-518 April 30, 2010 July 7, 1998 VA 1-737-472 May 3, 2010 June 4, 1996 VA 1-737-477 May 3, 2010 September 3, 1996 VA 1-737-483 May 3, 2010 November 5, 1996 VA 1-737-485 May 3, 2010 January 7, 1997 VA 1-737-471 May 3, 2010 July 2, 1996 VA 1-737-480 May 3, 2010 April 8, 1997 VA 1-737-470 May 3, 2010 January 6, 1998 Narrative/Fulop Counterstatement to Statement No. 40: Agree in Part. Agree that the information in column one and column two is correct; but lacks information to respond to the publication dates in the third column. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 40: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)-(d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Moreover, the “publication dates in the third column” as to which information is claimed to be lacking were reproduced from the faces of the Narrative Registrations, which were attached as an exhibit to Narrative’s Amended Complaint (see Dkt. 38-1)., and expressly incorporated by reference into Narrative’s Amended Complaint (see id. ¶ 38). Narrative is bound to its allegations. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 40 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 41: The Narrative Registered Works were each first published more than five years before the effective dates of their respective Narrative Registrations. (Ferdinand Decl. ¶ 3, Ex. 3.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 25 of 63 26 Narrative/Fulop Counterstatement to Statement No. 41: Disagree. Many of the works were published after that period. See, Dkt 36, Amended Complaint, Ex. D & E. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 41: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. The counterstatement cites only to two exhibits to Narrative’s Amended Complaint – which consist only of tables of alleged information unsubstantiated by any admissible evidence. Such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to controvert ACP’s statement. That “[m]any of the works were published after” the period referenced in ACP’s statement in no way rebuts that the works were all first published more than five years before the effective dates of their respective Narrative Registrations. As such, the counterstatement fails to raise a genuine dispute. Edmonds, 2009 WL 2949757 at *1 n. 2 (“Failure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement, or failure to support any such response with record references allows the Court to deem the facts proffered by the moving party admitted for purposes of a summary judgment motion”); Baity, 51 F.Supp.3d at 418 (Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 41 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). E. Narrative & Fulop Ownership/License Claims. ACP Statement No. 42: Narrative claims that it – and not ACP or Sega – owns copyrights to the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 48.) Narrative/Fulop Counterstatement to Statement No. 42: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 42: N/A. ACP Statement No. 43: Narrative alleges that the Narrative Registered Works were not created by Fulop as works-made-for-hire to be owned by ACP. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 20, 22, 28-30.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 26 of 63 27 Narrative/Fulop Counterstatement to Statement No. 43: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 43: N/A. ACP Statement No. 44: Narrative alleges that Fulop owned the Narrative Registered Works upon their creation. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 38.) Narrative/Fulop Counterstatement to Statement No. 44: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 44: N/A. ACP Statement No. 45: Narrative alleges that ACP paid Fulop for rights to use the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 27.) Narrative/Fulop Counterstatement to Statement No. 45: Agree in Part, Dispute in Part. This statement is misleading as stated and used in the motion because Fulop was paid only for the one time right to use the Narrative Registered Works for first publication rights in North America. See, (Dkt 36, Amended Complaint ¶ 27). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 45: The counterstatement fails to cite to any admissible evidence to rebut ACP’s factual assertion, thus failing to raise a genuine dispute of fact. The counterstatement cites only to allegations in Narrative’s Amended Complaint, and not to any admissible evidence whatsoever. Such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The unsupported contention that “Fulop was paid only for the one time right to use the Narrative Registered Works for first publication rights in North America,” even if true or supported by admissible evidence (which it is not), does not refute – and in fact supports – ACP’s statement, that ACP paid Fulop for rights to use the Narrative Registered Works. As such, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 45 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 46: Narrative alleges that, in exchange for payment from ACP, Fulop granted ACP a license to use the Narrative Registered Works in the first publication of the Sonic Comic Series in North America only. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 27.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 27 of 63 28 Narrative/Fulop Counterstatement to Statement No. 46: Dispute. This statement is misleading as stated and used in the motion as it characterizes what was granted as a “license”. Fulop disputes that a license was ever granted. See, Dkt 36, Amended Complaint ¶ 49, 50); Excerpt of transcription of the deposition of Scott D. Fulop, [pg 233] . ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 46: The counterstatement and cited evidence fail to contravene ACP’s statement. First, Narrative’s citation to certain paragraphs in its Amended Complaint do not contravene ACP’s statement of Narrative’s allegations. Neither of the cited paragraphs of the Amended Complaint refute that Narrative (also) alleges that, in exchange for payment from ACP, Fulop granted ACP a license to use the Narrative Registered Works in the first publication of the Sonic Comic Series in North America. And to the contrary, the paragraph of Narrative’s Amended Complaint cited by ACP in support of its statement – “Fulop was paid a fixed sum for each accepted story/artwork covering first publication rights in North America” (see Ferdinand Decl. ¶ 3, Ex. 2, ¶ 27) – plainly shows that ACP’s statement accurately states Narrative’s allegation. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) Next, Narrative’s citation to certain deposition testimony of Fulop also fails to contravene ACP’s statement of Narrative’s allegations. The counterstatement fails to explain in any manner how the cited Fulop deposition testimony contravenes ACP’s statement of allegations made by Narrative in its pleading. And moreover, the cited deposition testimony –“It was an understanding that I gave them rights, as I state, in the amended complaint for first rights in North America to publish my stories in a Sonic Hedgehog publication” (see Ferdinand Decl. ¶ 3, Ex. 17, 233:4-8) – does not refute, and in fact corroborates, ACP’s statement that Narrative alleges that, in exchange for payment from ACP, Fulop granted ACP a license to use the Narrative Registered Works in the first publication of the Sonic Comic Series in North America. Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Furthermore, the counterstatement itself fails to contravene ACP’s statement. As noted above, the assertion that “Fulop disputes that a license was ever granted” is not supported by any of the counterstatement’s citations -- and in fact is refuted by the allegation of Narrative’s Amended Complaint cited in support of ACP’s statement. To the extent the counterstatement takes issue with ACP’s characterization of Narrative’s allegation as alleging a grant of license, the term “license” is routinely used to refer to a copyright owner’s authorization of another to engage in use of their work. See, e.g., Wu v. Pearson Educ., Inc., No. 10 Civ. 6537(KBF), 2013 WL 145666, *4 (S.D.N.Y. Jan. 11, 2013) (“A claim for infringement will fail if the challenged use of the copyrighted work is authorized by a license”), citing Graham v. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 28 of 63 29 James, 144 F.3d 229, 236 (2d Cir. 1998); Davis v. Blige, 505 F.3d 90, 98 (2d Cir. 2007) (“Owners may license others to exercise [their § 106] rights or assign the rights to others”), citing T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964). In deposition, Fulop – the individual who the counterstatement asserts “disputes that a license was ever granted” – repeatedly testified that he does not understand the meaning of the term “license” (see Ferdinand Decl. ¶ 3, Ex. 17, 112:11-12, 140:11-12). To the contrary, Fulop repeatedly testified that he intended and gave authorization for ACP to use the Narrative Registered Works in the first publication of the Sonic Comic Series in North America (see supra at Nos. 48, 49, & 53, and deposition testimony cited therein). And, other responses in the Narrative/Fulop Counter-SMF concede that Fulop authorized ACP’s use of the works. See, e.g., supra at No. 47 (“Agree that first publication of the Narrative Registered Works for the Sonic Comics series was authorized”), No. 53 (“Fulop intended that ACP would pay him and use, copy, and distribute his contributions in first publication of the Sonic comics for North America”). Thus, while complaining of the use of the term “license”, Narrative’s counterstatement fail to refute that, as a substantive matter, Narrative did indeed allege that Fulop gave authorization – that is, granted a license – for ACP to use the Narrative Registered Works in the first publication of the Sonic Comic Series in North America.4 As such, the counterstatement fails to raise a genuine dispute of fact. Baity v. Kralik, 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (“[A] number of Plaintiff’s purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 46 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 47: Narrative alleges that ACP’s first publications of the Narrative Registered Works in the Sonic Comic Series were authorized by Fulop. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 27.) Narrative/Fulop Counterstatement to Statement No. 47: Agree in Part and Dispute in Part. Agree that first publication of the Narrative Registered Works for the Sonic Comics series was authorized but such use only covered one time first publication of the Sonic comics in North America. See, Dkt 36, Amended Complaint ¶ 27, Fulop Dep., [pg 233] ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 47: As an initial matter, the counterstatement is vague, ambiguous, and unintelligible (“…such use only covered one time first publication…”), and as such the basis for the purported dispute is unclear. As best as ACP understands it, the counterstatement fails to contravene ACP’s 4 Narrative’s apprehension at conceding that it alleged the existence of a license likely reflects its recognition of the burden-shifting implication of that admission with respect to ACP’s MSJ (see Dkt. 131 at p. 18-21). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 29 of 63 30 statement. The assertion that “first publication of the Narrative Registered Works for the Sonic Comics series was authorized” in no way refutes, and in fact supports, ACP’s statement that Narrative alleges that ACP’s first publications of the Narrative Registered Works in the Sonic Comic Series were authorized by Fulop. The purported limited nature of such authorization does not contravene, and instead confirms, ACP’s statement that Narrative alleges that ACP’s first publications of the works were authorized. As such, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Moreover, the counterstatement’s citations fail to support the existence of a factual dispute. First, the counterstatement fails to explain in any manner how the cited Fulop deposition testimony contravenes ACP’s statement of allegations made by Narrative in its pleading. Baity, 51 F.Supp.3d at 418 (“several of Plaintiff’s purported denials lack citations to … any evidence to support his contention, in violation of Fed. R. Civ. P. 56(c) and Local Rule 56.1”), citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73- 74 (2d Cir. 2001) (“where the cited materials do not support the factual assertions in the [56.1] Statements, the Court is free to disregard the assertion”) (citations omitted). Furthermore, neither the cited deposition testimony – “It was an understanding that I gave them rights, as I state, in the amended complaint for first rights in North America to publish my stories in a Sonic Hedgehog publication” (see Ferdinand Decl. ¶ 3, Ex. 17, 233:4-8); nor the cited allegation in Narrative’s Amended Complaint – “Fulop was paid a fixed sum for each accepted story/artwork covering first publication rights in North America” (see id. ¶ 3, Ex. 2, ¶ 27) – refute, and to the contrary are consistent with, ACP’s statement that Narrative alleges that ACP’s first publications of the Narrative Registered Works in the Sonic Comic Series were authorized by Fulop. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 32 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 47 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 48: Fulop testified that ACP received the right to publish freelancers’ work after they were paid for it (Ferdinand Decl. ¶ 3, Ex. 17 at 115:14-16.) Narrative/Fulop Counterstatement to Statement No. 48: Agree in Part, Dispute in Part. This statement is misleading as stated and used in the motion because Fulop testified that the right to publish was limited to first publication of the Sonic comics in North America. See, Dkt 36, Amended Complaint ¶ ¶ 27, 49, 50, Excerpt of transcription of the deposition of Scott D. Fulop, [pg 233] ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 48: Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 30 of 63 31 The counterstatement fails to contravene ACP’s statement. The contention that “Fulop testified that the right to publish was limited to first publication of the Sonic comics in North America”, in no way refutes ACP’s statement that Fulop testified that ACP received the right to publish freelancers’ work after paying them. Fulop’s testimony of the purported limited nature of such rights does not contravene, and instead confirms, ACP’s statement that Fulop testified that ACP received publication rights from freelancers. As such, the counterstatement and cited deposition testimony fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 32 supra.) The counterstatement’s citation to allegations in its Amended Complaint fail to raise a genuine dispute because such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, even if allegations in Narrative’s Amended Complaint could create a factual dispute, the counterstatement fails to explain in any manner how the cited allegations in Narrative’s pleading contravene ACP’s statement of Fulop’s deposition testimony. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 47 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 48 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 49: Fulop intended for ACP to use, copy, and distribute his contributions to the Sonic Comic Series after compensating him. (Ferdinand Decl. ¶ 3, Ex. 17 at 110:19-111:6.) Narrative/Fulop Counterstatement to Statement No. 49: Agree in Part, Dispute in Part. This statement is misleading as stated and used in the motion as Fulop has testified that ACP was granted only one time limited one time first publication rights of the Sonic Comics Book Series in North America. See, Dkt 36, Amended Complaint ¶ 27, Excerpt of transcription of the deposition of Scott D. Fulop, [pg 233] ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 49: As an initial matter, the counterstatement is vague, ambiguous, and unintelligible (“…only one time limited one time first publication rights…”), and as such the basis for the purported dispute is unclear. As best as ACP understands it, the counterstatement itself, and deposition testimony cited in support, fail to contravene ACP’s statement. The contention that “Fulop has testified that ACP was granted only one time limited one time first publication rights of the Sonic Comics Book Series in North America”, in no way refutes ACP’s statement that Fulop intended for ACP to use, copy, and distribute his contributions to the Sonic Comic Series after compensating him. The disputed scope of use, copying, and distribution does not dispute that Fulop intended ACP to engage in use, copying, and distribution, which Narrative’s counterstatement implicitly Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 31 of 63 32 concedes, and which Fulop expressly testified (see Ferdinand Decl. ¶ 3, Ex. 17, 110:19-111:6). And in fact, the Fulop deposition testimony cited in support of the counterstatement supports ACP’s statement that Fulop intended for ACP to use, copy, and distribute his contributions to the Sonic Comic Series after compensating him; “It was an understand that I gave [ACP] rights … to publish my stories in a Sonic Hedgehog publication” (id. at ¶ 3, Ex. 17, 233:4-8). As such, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 32 supra.) The counterstatement’s citation to allegations in its Amended Complaint fail to raise a genuine dispute because such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, even if allegations in Narrative’s Amended Complaint could create a factual dispute, the counterstatement fails to explain in any manner how the cited allegations contravene ACP’s statement that Fulop intended ACP to use, copy and distribute his contributions to the Sonic Comic Series after compensating him. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 49 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 50: Fulop created the Narrative Registered Works at ACP’s request, after ACP’s staff editor assigned him that work. (Ferdinand Decl. ¶ 3, Ex. 17 at 104:20-10.5:14, 112:12-13.) Narrative/Fulop Counterstatement to Statement No. 50: Dispute. This statement is misleading as stated and used in the motion because it mischaracterizes how the concepts for the works were created. The concepts were developed by Fulop …. and then pitched to ACP. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 50: The counterstatement fails to cite to any admissible evidence in support, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The (unsupported) contention that “[t]he concepts were developed by Fulop … and then pitched to ACP” in no way rebuts, and is consistent with, ACP’s statement that ACP requested that Fulop create the Narrative Registered Works and ACP’s staff editor assigned him that work, as ACP’s request and assignment would have been made after Fulop’s purported development and pitching of the underlying concepts. As such, even looking past its lack of support by admissible evidence, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 32 of 63 33 Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 50 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 51: After receiving assignments for the Sonic Comic Series and creating the Narrative Registered Works, Fulop delivered the Narrative Registered Works to ACP’s staff editor who assigned him that work. (Ferdinand Decl. ¶ 3, Ex. 17 at 110:14-17, 140:23-24.) Narrative/Fulop Counterstatement to Statement No. 51: Dispute. This statement is misleading as stated and used in the motion because it mischaracterizes how the works were created. Story concepts were first developed by Fulop and then brought to ACP. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 51: The counterstatement fails to cite to any admissible evidence in support, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to rebut ACP’s statement. The (unsupported) contention that “[s]tory concepts were first developed by Fulop and then brought to ACP” in no way rebuts, and is consistent with, ACP’s statement that Fulop delivered the Narrative Registered Works to ACP’s staff editor who assigned him that work after receiving assignments to create, and creating, those works, as Fulop’s receipt of assignments to create the Narrative Registered Works and creation thereof, and subsequent delivery of the works to ACP’s staff editor, would have occurred after Fulop purportedly developed story concepts and “brought [them] to ACP”. As such, even looking past its lack of support by admissible evidence, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 51 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 52: Fulop was compensated for all of his work on the Sonic Comic Series assigned by ACP, including the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 17 at 111:15-25, 112:12-16, 232:12-21.) Narrative/Fulop Counterstatement to Statement No. 52: Agree in Part, Dispute In Part. Fulop was only compensated for his work on the Sonic Comic Series for one time use in first publications of the Sonic comics in North America. See, (Dkt 36, Amended Complaint, ¶ 27) ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 52: The counterstatement fails to cite to any admissible evidence to rebut ACP’s factual assertion, thus failing to raise a genuine dispute of fact. The counterstatement cites only to bare allegations in Narrative’s Amended Complaint, and not to any admissible evidence whatsoever. Such unsupported allegations cannot raise a Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 33 of 63 34 genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The (unsupported) contention that “Fulop was only compensated … for one time use in first publications of the Sonic comics in North America” does not controvert ACP’s statement that Fulop was compensated for all of his work on the Sonic Comic Series assigned by ACP, including the Narrative Registered Works. The disputed scope of use granted for such compensation in no way refutes that ACP did in fact compensate Fulop for his work. As such, even looking past its lack of support by admissible evidence, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 52 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 53: Fulop intended that ACP would pay him for his contributions, and then use, copy, and distribute in the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 17 at 110:19- 111:6.) Narrative/Fulop Counterstatement to Statement No. 53: Admit in Part, Dispute In Part. Fulop intended that ACP would pay him and use, copy and distribute his contributions in first publication of the Sonic comics for North America. . See, (Dkt 36, Amended Complaint, ¶ 27) ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 53: The counterstatement fails to cite to any admissible evidence to rebut ACP’s factual assertion, thus failing to raise a genuine dispute of fact. The counterstatement cites only to bare allegations in Narrative’s Amended Complaint, and not to any admissible evidence whatsoever. Such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The (unsupported) contention that “Fulop intended that ACP would pay him and use, copy and distribute his contributions in first publication of the Sonic comics for North America” does not controvert ACP’s statement that Fulop intended that ACP would pay him for his contributions and then use, copy, and distribute them in the Sonic Comic Series. The disputed scope of intended use in no way refutes that Fulop intended ACP to use, copy and distribute his contributions in the Sonic Comic Series after compensating him. As such, even looking past its lack of support by admissible evidence, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 53 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 34 of 63 35 ACP Statement No. 54: Fulop is not aware of any documents evidencing that the usage rights of the Narrative Registered Works he granted to ACP for its payments to him were limited to first publication in North America. (Ferdinand Decl. ¶ 3, Ex. 16, Response No. 49 [p. 15].) Narrative/Fulop Counterstatement to Statement No. 54: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 54: N/A. ACP Statement No. 55: Fulop has no written document showing his alleged agreement with ACP that their payments to him for use of the Narrative Registered Works were for first publication rights in North America only. (Ferdinand Decl. ¶ 3, Ex. 17 at 129:5-18, 130:6-11.) Narrative/Fulop Counterstatement to Statement No. 55: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 55: N/A. ACP Statement No. 56: Fulop has no documentation showing that ACP understood that its payments to him for use of the Narrative Registered Works were for one-time use only. (Ferdinand Decl. ¶ 3, Ex. 17 at 130:6-11.) Narrative/Fulop Counterstatement to Statement No. 56: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 56: N/A. ACP Statement No. 57: Fulop does not recall ever having a conversation with anyone at ACP while a freelancer that its payments to him for use of the Narrative Registered Works were for one-time use only. (Ferdinand Decl. ¶ 3, Ex. 17 at 129:19-130:5.) Narrative/Fulop Counterstatement to Statement No. 57: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 57: N/A. ACP Statement No. 58: The only thing identified by Fulop as showing ACP’s understanding that it was paying him for one-time use only is the alleged lack of a work-for-hire contract or other assignment of rights between himself and ACP. (Ferdinand Decl. ¶ 3, Ex. 17 at 130:12- 131:11.) Narrative/Fulop Counterstatement to Statement No. 58: Dispute. Fulop has pointed to his Declaration in the ACP-Penders litigation as well as Declarations from other freelance creators working on the Sonic comics that they never signed work-for-hire contracts and obtained Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 35 of 63 36 copyright registrations for the works they created. See, (Burstein Decl. Ex. 1-5). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 58: The counterstatement and cited declarations fail to contravene ACP’s statement. Fulop’s declaration submitted during the ACP-Penders litigation (see Ferdinand Decl. ¶ 3, Ex. 21) does not refute ACP’s statement that “The only thing identified by Fulop as showing ACP’s understanding that it was paying him for one-time use only is the alleged lack of a work-for-hire contract or other assignment of rights between himself and ACP”. The cited declaration by Fulop contains no statements whatsoever going towards ACP’s understanding of the scope of rights it received for its payments to Fulop. Ofudu, 98 F.Supp.2d at 512 (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”). Moreover, the counterstatement fails to explain how Fulop’s declaration from the ACP-Penders litigation disputes ACP’s assertion – i.e., shows ACP’s understanding that it was paying Fulop for one-time use only – and does not identify any specific statements in the declaration to this effect. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) The citation to declarations from other former ACP freelance creators who worked on the Sonic Comic Series, representing that they (that is, the other freelance creators, not Fulop) never signed work-for-hire contracts and obtained copyright registrations for the works they created, has no bearing on ACP’s understanding that it was paying Fulop (not any of these other freelancers) for one-time use only. Moreover, even if other ACP freelancers’ declarations of their own alleged lack of work-for-hire contract and copyright registrations had relevance to ACP’s understanding as to Fulop, these do not raise a genuine dispute because, as is also the case with Fulop’s declaration, the purported lack of a work-for-hire agreement and obtaining of copyright registrations are entirely irrelevant to whether Fulop’s ability to point to anything showing that ACP understood that it was paying Fulop (or, for that matter, any of the other freelancers) for one-time use only as oppose to a broader scope of use. Emanuel, 2015 WL 1379007 at *1 (“Plaintiffs’ Rule 56.1 statement … routinely recites facts that are irrelevant to the paragraph … they ostensibly correspond to and, just as often, engages in inappropriate legal argument”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Finally, the cited declarations make no assertion claiming to have personal knowledge of ACP’s understanding as to the rights it received for its payments to Fulop. As such, the declarations cannot serve as admissible evidence of ACP’s purported understanding, and thus cannot genuine dispute ACP’s statement. Flaherty v. Filardi, No. 03 Civ. 2167(LTS)(HBP), 2007 WL 163112, *4-5 (S.D.N.Y. Jan. 24, 2007) (“[A] court may, in considering a motion for summary judgment, simply decline to consider those aspects of a supporting affidavit that do not appear Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 36 of 63 37 to be based on personal knowledge or are otherwise inadmissible … The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge”) (internal citations & quotation marks omitted). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 58 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 59: Fulop never entered into any kind of contract or agreement, whether oral or written, with ACP. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 22; Ferdinand Decl. ¶ 3, Ex. 14, ¶¶ 3, 6; Ferdinand Decl. ¶ 3, Ex. 21, ¶ 33.) Narrative/Fulop Counterstatement to Statement No. 59: Agree in Part and Dispute. Agree that there was no written agreement. Oral agreement as to right to use for first publication rights in North America. See, (Dkt 36, Amended Complaint ¶ 27). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 59: The counterstatement fails to cite to any admissible evidence to rebut ACP’s statement, thus failing to raise a genuine dispute of fact. The counterstatement cites only to bare allegations in Narrative’s Amended Complaint, and not to any admissible evidence whatsoever. Such unsupported allegations cannot raise a genuine dispute of fact on a motion for summary judgment. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the cited allegation (even if it could raise a genuine dispute, which it cannot) lends no support to the (unsupported) counterstatement asserting the existence of an “[o]ral agreement as to right to use for first publication rights in North America”. The cited allegation, for which Narrative cites no admissible evidence in support, states that: “Fulop was paid a fixed sum for each accepted story/artwork covering first publication rights in North America. Payment did not cover any other rights. Fulop was paid only for those stories accepted by Defendant ACP and Defendant ACP was under no obligation to pay for any works not accepted.” (See Ferdinand Decl. ¶ 3, Ex. 2, ¶ 27.) Nothing in this allegation supports the counterstatement’s assertion of the existence of an oral agreement. Ofudu, 98 F.Supp.2d at 512 (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”). And additionally, the (unsupported) counterstatement asserting the existence of an “[o]ral agreement as to right to use for first publication rights in North America” is refuted by representations made by Narrative & Fulop during this litigation – including: [a] Narrative’s Amended Complaint – see Ferdinand Decl. ¶ 3, Ex. 2, ¶ 22 (alleging that Fulop “never entered into any kind of contract or agreement, whether oral or written, with Defendant ACP”) (emphasis added); [b] Fulop’s deposition testimony – see Supplemental Declaration of Edmund Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 37 of 63 38 J. Ferdinand, III, dated February 6, 2019, submitted herewith (“Supp. Ferdinand Decl.”), ¶ 3, Ex. 6, 234:12-13 (testifying that “I don’t recall any oral conversation about rights”); and, [c] Narrative/Fulop Counter-SMF, Response No. 57 (agreeing that “Fulop does not recall ever having a conversation with anyone at ACP while a freelancer that its payments to him for use of the Narrative Registered Works were for one-time use only”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 59 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 60: Narrative alleges that no written document exists memorializing the relationship between ACP and Fulop. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 30.) Narrative/Fulop Counterstatement to Statement No. 60: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 60: N/A. ACP Statement No. 61: Narrative alleges that Fulop retained his copyrights to the Narrative Registered Works until transferring them to Narrative, their current owner. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 38, 45, 48.) Narrative/Fulop Counterstatement to Statement No. 61: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 61: N/A. ACP Statement No. 62: Narrative’s asserted U.S. Copyright Registration Nos. VA 1-720-514, VA 1-720-516, and VA 1-720-518 are each presently co-owned by Penders. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 36; Ferdinand Decl. ¶ 3, Ex. 3, pp. 17-22.) Narrative/Fulop Counterstatement to Statement No. 62: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 62: N/A. ACP Statement No. 63: Narrative’s asserted U.S. Copyright Registration Nos. VA 1-720-514, VA 1-720-516, and VA 1-720-518 were each co-owned by Penders on June 27, 2013. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 36; Ferdinand Decl. ¶ 3, Ex. 3, pp. 17-22.) Narrative/Fulop Counterstatement to Statement No. 63: Agree in Part and Dispute in Part as to dates. Narrative’s U.S. Copyright Registration Nos. VA 1-720-514, VA 1- 720-516 and VA 1- Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 38 of 63 39 720-518 were each co-owned by by Fulop, Narrative’s predecessor in title and by Penders from the date the works were created and subsequently first published in 1996- 1997. Fulop and Penders registration with the U.S. Copyright Office for each of the works was on April 30, 2010. See, (Dkt 36, Amended Complaint, Ex. A). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 63: The counterstatement fails to controvert ACP’s statement. The contentions that the registrations referenced in ACP’s statement were co-owned by Fulop and Penders from their creation and first publication in 1996-1997, and that Fulop and Penders registered the works with the Copyright Office on April 30, 2010, are entirely immaterial to whether the referenced registrations were co-owned by Penders on June 27, 2013. Moreover, the counterstatement’s only citation, to the exhibit to its Amended Complaint where the registration certificates are reproduced, in no way refutes that Penders co-owned the registrations on June 27, 2013. Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 63 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). F. Infringement Allegations & Competing Ownership Claims to the Works. ACP Statement No. 64: Fulop, acting through Narrative, first asserted a claim against ACP with respect to the Narrative Registered Works in an October 2015 demand letter to ACP. (Ferdinand Decl. ¶ 3, Ex. 5; Ferdinand Decl. ¶ 3, Ex. 17 at 141:23-142:11.) Narrative/Fulop Counterstatement to Statement No. 64: Agree in Part but dispute the characterization that Fulop was acting through Narrative. Admit that Narrative Ark Entertainment LLC, owner of Fulop’s copyrighted works, first asserted a claim against ACP in the October 25, demand letter to ACP. See, Amended Complaint, Ex. C). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 64: The portion of the counterstatement “disput[ing] the characterization that Fulop was acting through Narrative”, fails to cite to any admissible evidence contravening ACP’s statement, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The only citation, to the exhibit to Narrative’s Amended Complaint reproducing Narrative’s October 2015 demand letter to ACP, supports ACP’s statement that Narrative first asserted a claim against ACP by that letter. To the extent the letter Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 39 of 63 40 is cited in support of the disputed “characterization that Fulop was acting through Narrative”, Narrative & Fulop fail to explain how this letter disputes the characterization that Fulop was acting through Narrative. To the contrary, it is undisputed that Fulop is Narrative’s principal and sole owner (see Narrative/Fulop Counter-SMF, Response No. 18). As such, even if Fulop was acting in his capacity as Narrative’s principal and owner, the record supports that Fulop acted through Narrative by the demand letter. The counterstatement’s mere citation to the letter fails to refute that Fulop was acting through Narrative by the demand letter. Baity, 51 F.Supp.3d at 418 (“several of Plaintiff’s purported denials lack citations to admissible evidence or any evidence to support his contention, in violation of Fed. R. Civ. P. 56(c) and Local Rule 56.1”). Furthermore, as cited in support of ACP’s statement, Fulop testified in his personal capacity, and not as Narrative’s 30(b)(6) corporate representative, that the letter was his first notice to ACP of his claims (see Ferdinand Decl. ¶ 3, Ex. 17, 141:23- 142:11). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 64 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 65: Narrative alleges that ACP engaged in infringing re-use and re- publication of the Narrative Registered Works in various forms, including reprints and compilations of the Sonic Comic Series issues in which the Narrative Registered Works were first published with Fulop’s authorization, beginning in 2004 and continuing to the present. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 33, 49, 51-53; Ferdinand Decl. ¶ 3, Exs. 6 & 7.) Narrative/Fulop Counterstatement to Statement No. 65: Agree in Part, Dispute in Part. Agree that Narrative alleges, in part, that ACP engaged in infringing re-use and re-publcations [sic] of the Narrative Registed [sic] Works. Disputes the date and this statement as being misleading as it characterizes the infringing uses as only being “re-use and re-publication” when in fact other and different infringing uses have been alleged. See, (Dkt 36, Amended Complaint ¶ 50, Ex. D & E). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 65: The counterstatement fails to contravene ACP’s statement. First, the counterstatement “disputes the date”, which is presumably directed at the portion of ACP’s statement that Narrative alleges infringements “beginning in 2004”. However, the counterstatement does not set forth any material fact supported by its citations that controverts this date (nor assert what it contends to be the correct date), and therefore fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) Second, the counterstatement seeks to raise a dispute that ACP’s statement “characterizes the infringing uses as only being ‘re-use and re-publication’ when in fact other and different infringing uses have been alleged.” However, ACP’s statement contends that infringing re-use and re-publication have been alleged, not Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 40 of 63 41 that only infringing re-use and re-publication have been alleged. As such, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 65 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 66: Narrative alleges that ACP has published infringing reprints and compilations of the Sonic Comic Series containing the Narrative Registered Works from 2008 to the present. (Ferdinand Decl. ¶ 3, Ex. 6, pp. 60-131.) Narrative/Fulop Counterstatement to Statement No. 66: Disputes. Disputes the date and characterization of the infringing uses as being only reprints and compilations. See, Dkt 36, (Amended Complaint, ¶ 49, 50, Ex. D & E) ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 66: The counterstatement fails to contravene ACP’s statement. First, the counterstatement “disputes the date”, which is presumably directed at the portion of ACP’s statement that Narrative alleges publication of infringing reprints and compilations “from 2008 to the present”. However, the counterstatement does not set forth any material fact supported by its citations that controverts this timeframe (nor assert what it contends to be the correct date), and therefore fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) Second, the counterstatement seeks to raise a dispute that ACP’s statement characterizes the allegedly-infringing uses “as being only reprints and compilations”. However, ACP’s statement contends that infringing reprints and compilations have been alleged, not that only infringing reprints and compilations have been alleged. As such, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 41 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 66 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 67: ACP has not paid royalties or other compensation to Fulop for its allegedly-infringing use of the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 50). Narrative/Fulop Counterstatement to Statement No. 67: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 67: N/A. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 41 of 63 42 ACP Statement No. 68: Neither Fulop nor Narrative ever made any claims against, raised any objections to, or demanded royalties from ACP with respect to their alleged copyright rights to the Narrative Registered Works until Narrative’s lawyer sent a demand letter to ACP in October 2015. (Ferdinand Decl. ¶ 3, Ex. 17 at 141:23-142:11, 203:13-17.) Narrative/Fulop Counterstatement to Statement No. 68: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 68: N/A. G. Fulop’s Awareness of Sega/ACP’s Ownership Claims to the Works. ACP Statement No. 69: Narrative alleges a substantial number of infringing acts by ACP occurring more than three years prior to the August 1, 2016 commencement of this lawsuit, as early as 2004. (Ferdinand Decl. ¶ 3, Exs. 6 & 7; see also Ferdinand Decl. ¶ 3, Ex, 7, p. 10.) Narrative/Fulop Counterstatement to Statement No. 69: Agree in Part. Dispute. Narrative also alleges that a substantial number of the infringing acts by ACP occurred less than three years prior to the August 1, 2016 commencement of this lawsuit, See, Dkt 36, Amended Complaint, Ex. D & E). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 69: The counterstatement fails to contravene ACP’s statement. The contention that Narrative “also” alleges infringing acts less than three years prior to the commencement of this lawsuit in no way refutes ACP’s statement that Narrative alleges a substantial number of infringing acts more than three years prior to the commencement of this lawsuit. As such, the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 69 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 70: Fulop became aware of ACP’s allegedly-infringing use of the Narrative Registered Works in reprints and compilations of the Sonic Comic Series sometime between 2008 and 2010. (Ferdinand Decl. ¶ 3, Ex. 17 at 119:24-121:7, 121:20-24.) Narrative/Fulop Counterstatement to Statement No. 70: Agree in part that Fulop became aware but dispute as to the time period. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 70: The counterstatement fails to cite to any admissible evidence contravening ACP’s statement, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 42 of 63 43 Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to specifically controvert ACP’s statement as required by L.R. 56.1(c). The counterstatement purports to “dispute as to the time period” set forth in ACP’s statement – but does not set forth any material fact that controverts this date (nor assert what it contends to be the correct date). Therefore, even if supported by admissible evidence (which it is not), the counterstatement fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 70 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 71: Fulop knew of ACP’s publication of reprints of the Sonic Comic Series containing his work prior to November 2010. (Ferdinand Decl. ¶ 3, Ex. 17 at 120:7-121:7, 121:20-24.) Narrative/Fulop Counterstatement to Statement No. 71: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 71: N/A. ACP Statement No. 72: Fulop viewed ACP’s reprints of the Sonic Comic Series containing his work between November 2010 and June 2013. (Ferdinand Decl. ¶ 3, Ex. 17 at 123:11-19, 124:24- 125:11.) Narrative/Fulop Counterstatement to Statement No. 72: Dispute. This statement mischaracterizes the time period. Fulop stated that he viewed some during the Penders litigation. A specific time period was not specified. See, Excerpt of deposition transcript of Scott D. Fulop, pg 122). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 72: The counterstatement and cited deposition testimony fail to contravene ACP’s statement. First, the cited Fulop deposition testimony, even if it does support the claim that “[a] specific time period was not specified”, does not in any way controvert ACP’s statement that Fulop viewed the reprints between November 2010 and June 2013. Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”); Ofudu, 98 F.Supp.2d at 512 (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”). Moreover, the counterstatement’s contention, that “Fulop stated that he viewed Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 43 of 63 44 some during the Penders litigation. A specific time period was not specified”, fails to controvert ACP’s statement that Fulop viewed the reprints between November 2010 and June 2013. As cited in support of ACP’s statement, Fulop expressly and repeatedly testified that he first saw reprints “during the Penders litigation” (see Ferdinand Decl. ¶ 3, Ex. 17, 123:11-14, 124:24-125:11). It is undisputed that the ACP-Penders litigation occurred during the time period of November 2010 to June 2013. (See Narrative/Fulop Counter-SMF, Response No. 28 (“Agree[ing] that a litigation was filed by ACP against Ken Penders in 2010”); Supplemental Statement of Undisputed Material Facts dated February 7, 2019, submitted concurrently herewith, at ¶ 108.) The admitted fact that Fulop viewed reprints during the ACP- Penders litigation, along with the undisputed facts that the ACP-Penders litigation began in November 2010 and ended in June 2013, establishes beyond dispute that Fulop viewed the reprints between November 2010 and June 2013. Edmonds, 2009 WL 2949757 at *1 n. 2 (“Failure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement, or failure to support any such response with record references allows the Court to deem the facts proffered by the moving party admitted for purposes of a summary judgment motion”); U.S. Info. Sys., 2006 WL 2136249 at *3 (“A non-moving party cannot create a factual dispute merely by denying a movant party’s factual statement; rather, the non-moving party must identify controverting evidence for the court”); Baity, 51 F.Supp.3d at 418 (“[A] number of Plaintiff’s purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 72 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 73: Fulop sought legal representation beginning around August 2011 because he believed that his copyrights were being infringed by ACP at that time. (Ferdinand Decl. ¶ 3, Ex. 17 at 56:13-24, 57:11-58:11, 60:3-22.) Narrative/Fulop Counterstatement to Statement No. 73: Dispute. Fulop testimony is not clear on the time frame and dates, and dispute characterization of words “legal representation”. See, Excerpt of deposition transcript of Scott D. Fulop, pg 56). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 73: The counterstatement and cited deposition testimony fail to contravene ACP’s statement. The counterstatement seems to dispute ACP’s statement on the basis that Fulop was not clear on the timeframe/dates when he sought legal representation and/or that Fulop did not in fact that he sought legal representation. This fails to specifically controvert the accuracy of ACP’s statement, that Fulop did in fact seek legal representation beginning around August 2011, and therefore fails to satisfy L.R. 56.1(c)’s standard for genuinely disputing a material fact. Edmonds, 2009 WL 2949757 at *1 n. 2 (“Failure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement … allows the Court to deem the facts proffered Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 44 of 63 45 by the moving party admitted for purposes of a summary judgment motion”). Moreover, the Fulop deposition testimony cited in support of the counterstatement does not in any way controvert ACP’s statement – and to the contrary, supports ACP’s statement that Fulop sought legal representation beginning around August 2011: Q. The date of this deposition was August 2011. A. Uh-huh. Q. Were you in the process of engaging New York attorneys at that time? A. I may have been at that time. (See Ferdinand Decl. ¶ 3, Ex. 17, 56:13-18.) (See ACP’s Reply to Narrative/Fulop Counterstatement No. 32 supra.) And notably, the counterstatement does not even purport to dispute that Fulop already believed his copyrights were being infringed by ACP around August 2011. Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 73 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 74: Fulop made a conscious decision to wait to assert his claims against ACP with respect to the Narrative Registered Works until 2015. (Ferdinand Decl. ¶ 3, Ex. 17 at 161:14- 162:19; 164:11- 19.) Narrative/Fulop Counterstatement to Statement No. 74: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 74: N/A. ACP Statement No. 75: Fulop chose to wait to assert his claims against ACP with respect to the Narrative Registered Works until the ACP-Penders litigation reached an outcome. (Ferdinand Decl. ¶ 3, Ex. 17 at 161:14-162:19) Narrative/Fulop Counterstatement to Statement No. 75: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 75: N/A. ACP Statement No. 76: Fulop testified that he is not credited as owning copyright in any of the allegedly infringing reprints and compilations of the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 17 at 226:11-227:2). Narrative/Fulop Counterstatement to Statement No. 76: Agree. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 45 of 63 46 ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 76: N/A. ACP Statement No. 77: Narrative alleges that ACP made allegedly-infringing uses of each of the Narrative Registered Works in the following reprints and compilations of the Sonic Comic Series, each published by ACP beginning on the following dates: Narrative Reg’n Sonic Comic Series Reprint/Compilation Date Record Cite VA 1-716-908 Sonic Archives Vol. 12, Print Version January 27, 2010 Ferdinand Decl. ¶ 3, Ex. 6, p. 61. VA 1-720-516 Sonic Archives Vol. 12, Print Version January 27, 2010 Ferdinand Decl. ¶ 3, Ex. 6, p. 61 VA 1-720-514 Best of Sonic the Hedgehog Vol. 1, Hardcover Version May 23, 2012 Ferdinand Decl. ¶ 3, Ex. 6, p. 123 VA 1-720-518 Sonic Archives Vol. 13, Print Version July 28, 2010 Ferdinand Decl. ¶ 3, Ex. 6, p. 63 VA 1-737-472 Sonic Archives Vol. 10, Print Version March 2, 2009 Ferdinand Decl. ¶ 3, Ex. 6, p. 60 VA 1-737-477 Sonic Archives Vol. 11, Print Version August 5, 2009 Ferdinand Decl. ¶ 3, Ex. 6, p. 60 VA 1-737-483 Sonic Select Book 2, Print Version February 11, 2008 Ferdinand Decl. ¶ 3, Ex. 6, p. 72 VA 1-737-485 Sonic Archives Vol. 12, Print Version January 27, 2010 Ferdinand Decl. ¶ 3, Ex. 6, p. 61 VA 1-737-471 Sonic Select Book 2, Print Version February 11, 2008 Ferdinand Decl. ¶ 3, Ex. 6, p. 72 VA 1-737-480 Sonic Select Book 3, Print Version February 9, 2011 Ferdinand Decl. ¶ 3, Ex. 6, p. 72 VA 1-737-470 Sonic Archives Vol. 15, Print Version May 18, 2011 Ferdinand Decl. ¶ 3, Ex. 6, p. 64 Narrative/Fulop Counterstatement to Statement No. 77: Agree but lacks information to respond as to “beginning” dates. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 77: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks sufficient information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)- (d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 46 of 63 47 Counterstatement No. 23 supra.) Moreover, as set forth in the “Record Cite” column of the table accompanying ACP’s statement (reproduced above), the “beginning dates” of ACP’s alleged infringements as to which information is claimed to be lacking were reproduced from an exhibit of Narrative’s Amended Complaint, which was expressly incorporated by reference into Narrative’s Amended Complaint (see Ferdinand Decl. ¶ 3, Ex. 2, ¶ 54). Narrative is bound to its allegations. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 77 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 78: The only copyright notice appearing in each of the reprints and compilations of the Sonic Comic Series identified at Paragraph 77 hereinabove identifies Sega. (Ferdinand Decl. ¶ 3, Ex. 17 at 226:11-227:2; Mooar Decl. ¶¶ 17-18, Exs. L-S.) Narrative/Fulop Counterstatement to Statement No. 78: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 78: N/A. ACP Statement No. 79: No copyright notice identifying Fulop or Narrative as a copyright owner appears in any of the reprints and compilations of the Sonic Comic Series listed at Paragraph 77 hereinabove. (Ferdinand Decl. ¶ 3, Ex. 17 at 226:11-227:2; Mooar Decl. ¶¶ 17, 19, Exs. L-S.) Narrative/Fulop Counterstatement to Statement No. 79: Agree that no notice identifying Fulop or Narrative but dispute that the copyright notice identifies any and all copyright owners. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 79: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement, “disput[ing] that the copyright notice identifies any and all copyright owners”, constitutes improper legal argument and in no way refutes ACP’s statement that no copyright notice identifying Fulop or Narrative as copyright owner appears in any of the reprints and compilations of the Sonic Comic Series listed at Paragraph 77 of ACP’s SMF. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 25 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 26 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 47 of 63 48 ACP Statement No. 80: Narrative’s Amended Complaint alleges infringing uses by ACP of eight of the Narrative Registered Works prior to the effective dates of the Narrative Registrations covering each such work, as follows: a. Registration No. VA 1-720-516 (effective Apr. 30, 2010): o Sonic Archives trade paperback, Vol. 12, print version: January 27, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 61.) b. Registration No. VA 1-720-518 (effective Apr. 30, 2010): o Sonic Mega Collection Plus video game: November 2, 2004. (Ferdinand Decl. ¶ 3, Ex. 7, p. 11.) c. Registration No. VA 1-737-472 (effective May 3, 2010): o Sonic Archives trade paperback, Vol. 10, print version: March 4, 2009. (Ferdinand Decl. ¶ 3, Ex. 6, p. 60.) d. Registration No. VA 1-737-477 (effective May 3, 2010): o Sonic The Hedgehog 32-page comic book, #100, iVerse Digital Version: February 2, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 16.) o Sonic The Hedgehog 32-page comic book, #101, iVerse Digital Version: February 2, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 16.) o Sonic The Hedgehog 32-page comic book, #102, iVerse Digital Version: February 2, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 17.) o Sonic Universe 32-page comic book, #13, NOOK Digital Version: February 17, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 50.) o Sonic Archives trade paperback, Vol. 11, print version: August 5, 2009. (Ferdinand Decl. ¶ 3, Ex. 6, p. 60.) o Sonic Mega Collection Plus video game: November 2, 2004. (Ferdinand Decl. ¶ 3, Ex. 7, p. 10-11.) e. Registration No. VA 1-737-483 (effective May 3, 2010): o Sonic Select trade paperback, Book 2, print version: February 11, 2008. (Ferdinand Decl. ¶ 3, Ex. 6, p. 72.) o Sonic Mega Collection Plus video game: November 2, 2004. (Ferdinand Decl. ¶ 3, Ex. 7, p. 10-11.) f. Registration No. VA 1-737-485 (effective May 3, 2010): o Sonic Archives trade paperback, Vol. 12, print version: January 27, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 61.) g. Registration No. VA 1-737-471 (effective May 3, 2010): o Sonic The Hedgehog 32-page comic book, #100, iVerse Digital Version: February 2, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 16.) o Sonic Universe 32-page comic book, #14, NOOK Digital Version: March 17, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 51.) o Sonic Universe 32-page comic book, #15, NOOK Digital Version: April 14, 2010. (Ferdinand Decl. ¶ 3, Ex. 6, p. 51.) o Sonic Select trade paperback, Book 2, print version: February 11, 2008. (Ferdinand Decl. ¶ 3, Ex. 6, p. 72.) o Sonic Mega Collection Plus video game: November 2, 2004. (Ferdinand Decl. ¶ 3, Ex. 7, p. 10-11.) h. Registration No. VA 1-737-480 (effective May 3, 2010): o Sonic Mega Collection Plus video game: November 2, 2004 (Ferdinand Decl. ¶ 3, Ex. 7, p. 11.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 48 of 63 49 Narrative/Fulop Counterstatement to Statement No. 80: Dispute as it attempts to reinterprets and categorize information already clearly defined in Amended Complaint, Ex. D & E. (Dkt 36, Amended Complaint, Ex. D & E). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 80: The counterstatement fails to contravene ACP’s statement. The contention that ACP’s statement “attempts to reinterpret and categorize information already clearly defined in Amended Complaint, Ex. D & E”, does not set forth any material fact specifically controverting ACP’s statement, explain how the cited exhibits refute the accuracy of ACP’s statement, or explain how ACP’s purported “reinterpret[ing] and categoriz[ing]” of information set forth in the Amended Complaint’s exhibits is incorrect, misleading, or otherwise improper, therefore failing to raise a genuine dispute. See L.R. 56.1(b)-(c); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”); Edmonds, 2009 WL 2949757 at *1 n. 2 (“Failure to specifically controvert facts contained in the moving party’s Local Rule 56.1 Statement, or failure to support any such response with record references allows the Court to deem the facts proffered by the moving party admitted for purposes of a summary judgment motion”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 80 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 81: Beginning in 2011, ACP filed and obtained a number of copyright registrations covering certain of the Narrative Registered Works, in which it identified Sega as copyright claimant. (Ferdinand Decl. ¶ 3, Ex. 8.) Narrative/Fulop Counterstatement to Statement No. 81: Agree in part but lacks information to respond to the beginning date. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 81: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) The contention that Narrative/Fulop “lacks information to respond” fails to raise a genuine dispute. Lack of information is not a valid basis to raise a dispute of fact on a motion for summary judgment; rather, pursuant to Local Rule 56.1(c)-(d), a counterstatement specifically controverting the statement, with citations to admissible supporting evidence, is required. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 23 supra.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 49 of 63 50 Moreover, as cited in ACP’s SMF, the “beginning date” of ACP’s copyright registration filings as to which information is claimed to be lacking was reproduced from an exhibit of Narrative’s Amended Complaint (see Ferdinand Decl. ¶ 3, Ex. 8), which was expressly incorporated by reference into Narrative’s Amended Complaint (see id. ¶ 3, Ex. 2, ¶ 72). Narrative is bound to its allegations. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 81 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 82: Narrative’s Amended Complaint identifies ACP copyright filings naming itself as author and Sega as copyright claimant covering works alleged to infringe five of the Narrative Registrations, filed by ACP between September 2011 and July 2013, as follows: a. Registrations alleged to infringe Registration No. VA 1-737-471: o Reg. No. TXu001803283, 9/12/2011 (Ferdinand Decl. ¶ 3, Ex. 8, p. 1.) o Reg. No. TXu001795030, 11/18/2011 (Ferdinand Decl. ¶ 3, Ex. 8, p. 1.) o Reg. No. TXu001795005, 11/18/2011 (Ferdinand Decl. ¶ 3, Ex. 8, p. 1.) o Reg. No. TXu001820480, 1/17/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 1.) o Reg. No. TXu001818463, 4/30/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 2.) o Reg. No. TXu001818467, 4/30/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 2.) o Reg. No. TXu001868131, 12/28/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831131, 6/20/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831268, 8/9/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831033, 1/10/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 4.) o Reg. No. TXu001831033 [sic], 11/5/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 5.) o Reg. No. TXu001860672, 12/26/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 6.) o Reg. No. TXu001858368, 2/25/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 7.) o Reg. No. TXu001858405, 5/14/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 7.) o Reg. No. TXu001886096, 5/13/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 8.) o Reg. No. TXu001910109, 7/10/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 8.) b. Registrations alleged to infringe Registration No. VA 1-737-477: o Reg. No. TXu001795005, 11/18/2011 (Ferdinand Decl. ¶ 3, Ex. 8, p. 1.) o Reg. No. TXu001818463, 4/30/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 2.) o Reg. No. TXu001818467, 4/30/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 2.) o Reg. No. TXu001831131, 6/20/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831268, 8/9/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831033, 1/10/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 4.) o Reg. No. TXu001831033 [sic], 11/5/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 5.) o Reg. No. TXu001860672, 12/26/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 6.) o Reg. No. TXu001858368, 2/25/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 7.) o Reg. No. TXu001858405, 5/14/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 7.) o Reg. No. TXu001886096, 5/13/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 8.) c. Registrations alleged to infringe Registration No. VA 1-737-483:s o Reg. No. TXu001818463, 4/30/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 2.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 50 of 63 51 o Reg. No. TXu001868131, 12/28/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831268, 8/9/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 3.) o Reg. No. TXu001831033, 1/10/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 4.) o Reg. No. TXu001831033 [sic], 11/5/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 5.) o Reg. No. TXu001860672, 12/26/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 6.) o Reg. No. TXu001886096, 5/13/2013 (Ferdinand Decl. ¶ 3, Ex. 8, p. 8.) d. Registrations alleged to infringe Registration No. VA 1-720-514: o Reg. No. TXu001818467, 4/30/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 2.) o Reg. No. TXu001860672, 12/26/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 6.) e. Registrations alleged to infringe Registration No. VA 1-737-485: o Reg. No. TXu001831033, 1/10/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 4.) o Reg. No. TXu001831033 [sic], 11/5/2012 (Ferdinand Decl. ¶ 3, Ex. 8, p. 5.) Narrative/Fulop Counterstatement to Statement No. 82: Dispute as it attempts to reinterprets and categorize information already clearly defined in Amended Complaint, Ex. F (Dkt 36, Amended Complaint, Ex. F). ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 82: The counterstatement fails to contravene ACP’s statement. The contention that ACP’s statement “attempts to reinterpret[] and categorize information already clearly defined in Amended Complaint, Ex. F”, does not set forth any material fact specifically controverting ACP’s statement, explain how the cited exhibit refute the accuracy of ACP’s statement, or explain how ACP’s purported “reinterpret[ing] and categoriz[ing]” of information set forth in the Amended Complaint’s exhibit is incorrect, misleading, or otherwise improper, therefore failing to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 80 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 82 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 83: Narrative alleges that by ACP’s copyright filings identifying itself as author and Sega as copyright claimant, ACP wrongfully claimed authorship and ownership of the Narrative Registered Works which were created by Fulop and are now owned by Narrative. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 64, 69.) Narrative/Fulop Counterstatement to Statement No. 83: This statement is misleading and mischaracterizes the allegations of Narrative about the nature of the infringement. Narrative alleges ACP infringed by using parts of the works covered in the Narrative Registered Works as part of the ACP registrations. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 83: Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 51 of 63 52 The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The contention that “Narrative alleges ACP infringed by using parts of the works covered in the Narrative Registered Works as part of the ACP registrations” in no way refutes that Narrative alleges that ACP wrongfully claimed authorship and ownership of the Narrative Registered Works by its copyright filings – as Narrative’s Amended Complaint plainly alleges (see Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 64, 69). That Narrative alleged infringement by ACP’s use of the Narrative Registered Works in connection with its copyright filings does not refute that Narrative also alleged that ACP’s copyright filings wrongfully claimed authorship and ownership of the Narrative Registered Works. Thus even if supported by admissible evidence (which it is not), the counterstatement does not controvert ACP’s statement and therefore fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 83 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 84: Narrative alleges that by ACP’s copyright filings naming Sega as copyright claimant, ACP has “asserted and continue to assert a plain and express claim of … ownership of works which were in fact … owned by Fulop and which are now owned by Plaintiff”. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 71.) Narrative/Fulop Counterstatement to Statement No. 84: Agree in Part and Dispute. This statement is misleading because it deleted information and mischaracterizes the allegations of Narrative about the nature of the infringement. Narrative alleges ACP infringed by using parts of the works covered in the Narrative Registered Works as part of the ACP registrations. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 84: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The portion of the counterstatement contending that “Narrative alleges ACP infringed by using parts of the works covered in the Narrative Registered Works as part of the ACP registrations” in no way controverts ACP’s statement that Narrative alleges that ACP’s copyright filings naming Sega as copyright claimant “asserted and continue to assert and plain and express claim of … ownership of works which were in fact … owned by Fulop and which are now owned by Plaintiff” – as Narrative’s Amended Complaint plainly alleges (see Ferdinand Decl. ¶ 3, Ex. 2, ¶ 71). That Narrative alleged infringement by using the Narrative Registered Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 52 of 63 53 Works in connection with ACP registrations does not refute that Narrative also alleged that ACP’s copyright filings asserted claims of ownership of the works. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) The portion of the counterstatement contending that ACP’s factual assertion “deleted information” fails to identify such deleted information and, more importantly, fails to explain how the omission of certain parts of Narrative’s allegation renders ACP’s assertion misleading or inaccurate, or creates a factual dispute as to the veracity of ACP’s statement (without the omitted portions of the allegation). (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) ACP further notes that the portions of Narrative’s allegation omitted from ACP’s statement in no way rebut the accuracy of ACP’s assertion. The cited allegation in its entirety, with the portions omitted from the quotation in ACP’s statement underlined for ease of reference, reads as follows: “On information and belief, by claiming the entire authorship of the works listed in the aforesaid copyright registrations and naming Defendant Sega as the copyright claimant in each of the registrations, Defendant ACP and Defendant Sega have jointly asserted and continue to assert a plain and express claim of authorship and ownership in works which were in fact created and owned by Fulop and which are now owned by Plaintiff, in violation of the exclusive copyright rights of Plaintiff.” (See Ferdinand Decl. ¶ 3, Ex. 2, ¶ 71.) Thus even if supported by admissible evidence (which it is not), the counterstatement does not controvert ACP’s statement, and therefore fails to raise a genuine dispute. Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”); Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 84 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 85: Narrative alleges that “wrongful assertions of copyright ownership by Defendant ACP and Defendant Sega in works owned … by Fulop and now owned by Plaintiff constitute … infringements of the [Narrative Registered Works]”. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 73.) Narrative/Fulop Counterstatement to Statement No. 85: This statement is misleading because it deleted information and mischaracterizes the allegations of Narrative about the nature of the infringement. Narrative alleges ACP infringed by using parts of the works covered in the Narrative Registered Works as part of the ACP registrations. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 53 of 63 54 ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 85: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The portion of the counterstatement contending that “Narrative alleges ACP infringed by using parts of the works covered in the Narrative Registered Works as part of the ACP registrations” in no way controverts ACP’s statement that Narrative alleges that wrongful assertions of copyright ownership by ACP and Sega in works owned by Fulop and now owned by Narrative constitute infringements of the Narrative Registered Works – as Narrative’s Amended Complaint plainly alleges (see Ferdinand Decl. ¶ 3, Ex. 2, ¶ 73). That Narrative alleged infringement by using the Narrative Registered Works in connection with ACP registrations does not refute that Narrative also alleged that ACP and Sega infringed by making wrongful assertions of copyright ownership in such works. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 8 supra.) The portion of the counterstatement contending that ACP’s factual assertion “deleted information” fails to identify such deleted information and, more importantly, fails to explain how the omission of certain parts of Narrative’s allegation renders ACP’s assertion misleading or inaccurate, or creates a factual dispute as to the veracity of ACP’s statement (without the omitted portions of the allegation). (See ACP’s Reply to Narrative/Fulop Counterstatement No. 33 supra.) ACP further notes that the portions of Narrative’s allegation omitted from ACP’s statement in no way rebut the accuracy of ACP’s assertion. The cited allegation in its entirety, with the portions omitted from the quotation in ACP’s statement underlined for ease of reference, reads as follows: “On information and belief, that such actions and wrongful assertions of copyright ownership by Defendant ACP and Defendants Sega in works owned and created by Fulop and now owned by Plaintiff constitutes distinct, independent and continuing acts of infringements of the registered Copyrighted Works of Plaintiff.” (See Ferdinand Decl. ¶ 3, Ex. 2, ¶ 73.) Thus even if supported by admissible evidence (which it is not), the counterstatement does not controvert ACP’s statement, and therefore fails to raise a genuine dispute. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 84 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 85 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 86: Narrative alleges that Sega infringed Narrative’s rights “by … accepting Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 54 of 63 55 … claims and transfers of copyright ownership” of the Narrative Registered Works from ACP. (Ferdinand Decl. ¶ 3, Ex. 2, ¶ 86.) Narrative/Fulop Counterstatement to Statement No. 86: Dispute as not being a material fact because these allegations no longer part of lawsuit. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 86: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The contention that the fact set forth in ACP’s statement is “not … a material fact” does not refute the veracity of ACP’s statement in any manner. Instead, the counterstatement only makes inappropriate (and unsupported) legal argument on the “material[ity]” of ACP’s statement, rather than identifying material facts supported by admissible evidence to controvert ACP’s statement, and thus fails to raise a genuine dispute under Local Rule 56.1. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 314 (2d Cir. 2008) (“An objection to the admissibility of a document is not the equivalent of a contention that the document’s contents are untrue,” and such objections are “clearly insufficient to show a genuine issue to be tried as to the matters described in the documents”); Risco, 868 F.Supp.2d at 82 n. 2 (“[T]he [Rule 56.1] Statement improperly injects arguments and/or immaterial facts in response to facts asserted by Defendant, without specifically controverting those facts”); Montauk, 1986 WL 1805 at *8 (“‘[R]eliance on legal conclusions – unsupported by specific facts – and general denials do[] not create a genuine factual dispute under Rule 56’”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). To the extent the counterstatement’s attack on the materiality of ACP’s statement is effectively an evidentiary objection on relevance grounds, such an objection, absent any material fact contended to controvert ACP’s statement, fails to raise a genuine dispute under L.R. 56.1(c). Senno, 812 F.Supp.2d at 465 n. 9 (evidentiary objection “does not suffice as a denial of a statement of undisputed fact”), citing U.S. Info. Sys., 2006 WL 2136249 at *4 (holding that tactic where one party “dispute[s] the factual assertions in the [other party’s] corresponding paragraphs with objections alone” and fails to cite evidence “directly violates” Rule 56.1). Furthermore, the counterstatement is incorrect and plainly refuted by the record. Contrary to the claim that the allegation attributed to Narrative in ACP’s statement is “no longer part of the lawsuit”, the allegation is indeed set forth in Narrative’s presently-operative Amended Complaint (see Ferdinand Decl. ¶ 3, Ex. 2, ¶ 86). The fact that the party and cause of action with respect to which Narrative made this allegation have been dismissed by the Court (as the counterstatement seems to contend) does not refute that, as a factual matter, the allegation was made. Ofudu, Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 55 of 63 56 98 F.Supp.2d at 512 (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 86 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 87: Narrative alleges that ACP engaged in false designation of origin by using the Narrative Registered Works in “publications and advertisements … in which false credit as to the source of the authorship is given to Defendants ACP and Sega” and registering copyrights which “claim ownership and authorship credit for certain works … owned by Plaintiff”, leading the public to believe that the Narrative Registered Works “are in fact … owned by Defendant ACP and Defendant Sega”. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 94-95.) Narrative/Fulop Counterstatement to Statement No. 87: Dispute as not being a material fact because these allegations no longer part of lawsuit. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 87: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The contention that the fact set forth in ACP’s statement is “not … a material fact” does not refute the veracity of ACP’s statement in any manner. Instead, the counterstatement only makes inappropriate (and unsupported) legal argument on the “material[ity]” of ACP’s statement, rather than identifying material facts supported by admissible evidence to controvert ACP’s statement, and thus fails to raise a genuine dispute under Local Rule 56.1. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 86 supra.) To the extent the counterstatement’s attack on the materiality of ACP’s statement is effectively an evidentiary objection on relevance grounds, such an objection, absent any material fact contended to controvert ACP’s statement, fails to raise a genuine dispute under L.R. 56.1(c). (See ACP’s Reply to Narrative/Fulop Counterstatement No. 86 supra.) Furthermore, the counterstatement is incorrect and plainly refuted by the record. Contrary to the claim that the allegations attributed to Narrative in ACP’s statement are “no longer part of the lawsuit”, the allegations are indeed set forth in Narrative’s presently-operative Amended Complaint (see Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 94-95). The fact that the cause of action with respect to which Narrative made this allegation have been dismissed by the Court (as the counterstatement seems to contend) does not refute that, as a factual matter, the allegation was made. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 86 supra.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 56 of 63 57 Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 87 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 88: Count VII of Narrative’s Amended Complaint seeks a declaration that copyright registrations filed by ACP & Sega are invalid for claiming ownership of works owned by Narrative. (Ferdinand Decl. ¶ 3, Ex. 2, ¶¶ 127-128, 133). Narrative/Fulop Counterstatement to Statement No. 88: Admit in Part, Dispute in Part. Admit that Count VII of Narrative’s Amended Complaint seeks a declaration that the copyrights filed by ACP and Sega are invalid but disputes the remainder of the statement. Narrative alleges the copyrights are invalid for using parts of the works covered in the Narrative Registered Works as part of the ACP registrations. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 88: The counterstatement fails to cite to any admissible evidence to rebut ACP’s factual assertion, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to controvert ACP’s statement. The contention that “Narrative alleges the copyrights are invalid for using parts of the works covered in the Narrative Registered Works as part of the ACP registration” in no way refutes ACP’s statement that Count VII seeks a declaration that that copyright registrations filed by ACP & Sega are invalid for claiming ownership of works owned by Narrative. Narrative’s Amended Complaint plainly shows that Narrative alleged the ACP/Sega copyright registrations to be invalid for using parts of the Narrative Registered Works, as the counterstatement contends, AND for claiming ownership of works owned by Narrative, as set forth in the paragraphs of the Amended Complaint cited in support of ACP’s statement. To wit, see Paragraph 128 of the Amended Complaint (Ferdinand Decl. ¶ 3, Ex. 2), where Narrative alleges that: “the asserted copyright registrations of Defendants failed to disclose material facts to the Copyright Office that portions [of] the materials being claimed as exclusively owned by Defendants were created and owned by Plaintiff and Plaintiff’s predecessor in title” (emphasis added). As such, Narrative fails to controvert ACP’s statement, therefore failing to raise a genuine dispute. Baity, 51 F.Supp.3d at 418 (“Many of Plaintiff’s purported denials … improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 88 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 57 of 63 58 ACP Statement No. 89: Narrative argued in opposing ACP’s Motion to Dismiss that “Defendants have claimed false authorship and ownership of [the works Narrative claims to own]”, that “ACP has wrongfully purported to transfer by contract to Defendant Sega certain copyright interests belonging to Plaintiff”, and that “ACP wrongfully used Plaintiff’s property [in copyright filings] and that such actions … constituted false claims of authorship and ownership of the works”. (Ferdinand Decl. ¶ 3, Ex. 13, pp. 7-8) Narrative/Fulop Counterstatement to Statement No. 89: Dispute as not being a material fact because these allegations no longer part of lawsuit. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 89: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The contention that the fact set forth in ACP’s statement is “not … a material fact” does not refute the veracity of ACP’s statement in any manner. Instead, the counterstatement only makes inappropriate (and unsupported) legal argument on the “material[ity]” of ACP’s statement, rather than identifying material facts supported by admissible evidence to controvert ACP’s statement, and thus fails to raise a genuine dispute under Local Rule 56.1. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 86 supra.) To the extent the counterstatement’s attack on the materiality of ACP’s statement is effectively an evidentiary objection on relevance grounds, such an objection, absent any material fact contended to controvert ACP’s statement, fails to raise a genuine dispute under L.R. 56.1(c). (See ACP’s Reply to Narrative/Fulop Counterstatement No. 86 supra.) Furthermore, the counterstatement is incorrect and plainly refuted by the record. Contrary to the claim that the arguments attributed to Narrative in ACP’s statement are “no longer part of the lawsuit”, the arguments were plainly made in Narrative’s Opposition to ACP’s Motion to Dismiss (see Ferdinand Decl. ¶ 3, Ex. 13, p. 7-8). The fact that the cause of action with respect to which Narrative made these arguments has been dismissed by the Court (as the counterstatement seems to contend) does not refute that, as a factual matter, the arguments were made. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 86 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 89 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 90: Fulop testified as Narrative’s corporate representative that Narrative accuses ACP and Sega of falsely putting themselves out as copyright-owners of the Narrative Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 58 of 63 59 Registered Works. (Ferdinand Decl. ¶ 3, Ex. 17 at 315:4-21.) Narrative/Fulop Counterstatement to Statement No. 90: Agree in Part, Dispute in Part. This statement is misleading as stated and used in the motion as it mischaracterizes Fulop’s testimony. Fulop testified that the nature of the litigation was about ACP’s infringing uses. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 90: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The contention that “Fulop testified that the nature of the litigation was about ACP’s infringing uses” does not refute that Fulop also testified that Narrative accuses ACP and Sega of falsely putting themselves out as copyright-owners of the Narrative Registered Works. The counterstatement does not controvert the accuracy of ACP’s statement – which it could not, as Fulop plainly gave the testimony described in ACP’s statement: Q. Your amended complaint alleges that ACP or Archie and Sega have falsely put themselves out as copyright owners, correct? A. One more, I’m sorry, one more time on the question, please. (Record read) Yes. (See Ferdinand Decl. ¶ 3, Ex. 17, 315:14-21.) The counterstatement instead improperly describes other (uncited) testimony of Fulop, which itself does not dispute ACP’s statement either. The counterstatement thus fails to genuinely dispute ACP’s statement. Ofudu, 98 F.Supp.2d at 512 (a party “cannot raise a genuine issue of fact by asserting that the contents of a document are other than what they are”); Risco, 868 F.Supp.2d at 82 n. 2 (S.D.N.Y. 2012) (“[T]he [Rule 56.1] Statement improperly injects arguments and/or immaterial facts in response to facts asserted by Defendant, without specifically controverting those facts”); Geoghan, 2009 WL 982451 at *5-6 (“Since plaintiff’s response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion”). Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 90 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 91: Fulop testified as Narrative’s corporate representative that he understands that ACP alleges that it and Sega owned the copyrights to the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 17 at 316:25-317:10.) Narrative/Fulop Counterstatement to Statement No. 91: Agree in Part, Dispute in Part. Mischaracterizes Fulop testimony. Fulop testified that Narrative owns the copyrights as Fulop’s Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 59 of 63 60 predecessor in title. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 91: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement fails to contravene ACP’s statement. The contention that “Fulop testified that Narrative owns the copyrights as Fulop’s predecessor in title” does not refute that Fulop also testified that he understands that ACP alleges that it and Sega owned the copyrights to the Narrative Registered Works. The counterstatement does not controvert the accuracy of ACP’s statement – which it could not, as Fulop plainly gave the testimony described in ACP’s statement: Q. In this case, as far as you – your understanding or Narrative’s understanding, is that ACP and – ACP and Archie has alleged that it or Sega and Sega owned the copyrights to the woerks that are covered by Narrative’s registrations from their creation based on a work for hire. Do you understand that to be Archie’s position? A. Yes. (See Ferdinand Decl. ¶ 3, Ex. 17, 316:25-317-10.) The counterstatement instead improperly describes other (uncited) testimony of Fulop, which itself does not dispute ACP’s statement either. The counterstatement thus fails to genuinely dispute ACP’s statement. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 90 supra.) Because Narrative & Fulop fail to raise a genuine dispute, ACP’s Statement No. 91 should be deemed admitted for purposes of its motion for summary judgment. L.R. 56.1(c). ACP Statement No. 92: Fulop testified as Narrative’s corporate representative that ACP and Sega claim ownership of the Narrative Registered Works. (Ferdinand Decl. ¶ 3, Ex. 17 at 308:24-309:3). Narrative/Fulop Counterstatement to Statement No. 92: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 92: N/A. ACP Statement No. 93: ACP entered into licensing agreements with Sega to publish and exploit the Sonic Comic Series during the period 2010 to October 2015. (Ferdinand Decl. ¶ 3, Ex. 23.) Narrative/Fulop Counterstatement to Statement No. 93: Agree. Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 60 of 63 61 ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 93: N/A. ACP Statement No. 94: Under its licensing agreement with Sega to publish and exploit the Sonic Comic Series, ACP agreed to assign to Sega the copyrights in the Sonic Comic Series. (Ferdinand Decl. ¶ 3, Ex. 23, Section 6.) Narrative/Fulop Counterstatement to Statement No. 94: Agree. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 94: N/A. ACP Statement No. 95: Under its licensing agreement with Sega to publish and exploit the Sonic Comic Series, ACP agreed to indemnify Sega for claims arising from disputes over ownership of the works subject to the agreement. (Ferdinand Decl. ¶ 3, Ex. 23, Section 8.1). Narrative/Fulop Counterstatement to Statement No. 95: Admit in Part, Dispute in Part. .Admit that the licensing agreement with Sega to publish and exploit the Sonic Comic Series contained certain reciprocal indemnifications between Sega and AP but disputes the remainder of the statement which calls for a legal conclusion. ACP’s Reply to Narrative/Fulop Counterstatement to Statement No. 95: The counterstatement fails to cite to any admissible evidence in support of its contention, thus failing to raise a genuine dispute of fact. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 20 supra.) Moreover, the counterstatement’s denial based solely on the evidentiary objection that ACP’s statement “calls for a legal conclusion”, absent any material fact contended to controvert ACP’s statement, fails to raise a genuine dispute under L.R. 56.1(c). (See ACP’s Reply to Narrative/Fulop Counterstatement No. 38 supra.) Furthermore, the contention that ACP’s assertion “calls for a legal conclusion” is absent any explanation as to how ACP’s statement purportedly calls for a legal conclusion, thus failing to genuinely dispute the factual accuracy of ACP’s statement. The counterstatement admits the existence of reciprocal indemnifications in the agreements, but contends that “the remainder of the statement … calls for a legal conclusion”. The only portion remaining in that sentence is that the (admitted) indemnification covers claims arising from disputes over ownership of works subject to the agreement – but given the admitted existence of an indemnification, it is entirely unclear, and the counterstatement fails to argue in any manner, how ACP’s statement of the scope of indemnification under the agreement is a legal conclusion. As such, the counterstatement fails to genuine dispute ACP’s statement. (See ACP’s Reply to Narrative/Fulop Counterstatement No. 38 supra.) Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 61 of 63 Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 62 of 63 CERTIFICATE OF ELECTRONIC FILING I hereby certify that on February 7, 2019, the foregoing DEFENDANT ARCHIE COMIC PUBLICATIONS, INC.’S RESPONSES TO PLAINTIFF NARRATIVE ARK ENTERTAINMENT LLC AND SCOTT D. FULOP’S COUNTERSTATEMENT TO RULE 56.1 STATEMENT OF MATERIAL FACTS was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. ___s/ Alexander Malbin _______________ Case 7:16-cv-06109-VB-LMS Document 144 Filed 02/07/19 Page 63 of 63
