Farkas v. Rich Coast Corporation et al

REPLY BRIEF re MOTION for Partial Summary Judgment in favor of Plaintiff on Counts I

M.D. Pa.March 13, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ABBEY FARKAS, Plaintiff CIVIL ACTION NO.: 1:14-cv-00272-JEJ-MCC v. Judge John E. Jones, III RICH COAST CORPORATION, Chief Magistrate Judge Martin C. Carlson JULIE O. UFEMA, and LANCE J. UFEMA d/b/a GROUP 13 PRODUCTIONS, Defendants. REPLY BRIEF TO MATTERS ARGUED IN DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS ON PLAINTIFF’S COUNTS I, III, and IV, and DEFENDANTS’ COUNTERCLAIMS I and II The application of Copyright jurisprudence to the uncontroverted judicial admissions, affidavits, pleadings, and testimony of record in this action requires this Honorable Court, as a matter of law, to grant Plaintiff’s Motion for Partial Summary Judgment because there exists no genuine dispute of triable material fact.1 Plaintiff enjoys a Registered Copyright over Plaintiff’s film editing work.2 (Doc. 22) As such, Plaintiff enjoys a statutory presumption of the validity of Copyright Registration 1 Defendants present five (5) substantially similar issues each challenging the validity of Plaintiff’s copyright premised upon their contention that the Defendants’ antecedent creative work in generating the raw Caveat video footage subsumes the Plaintiff’s subsequent film editing work. (Doc. 189, pp. 3-4) 2 The practice of the Copyright Office “reflects a ‘body of experience and informed judgment to which Courts and litigants may properly resort for guidance.’” Yates v. Hendon, 124 S.Ct. 1330, 1342 (2004) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 1 of 16 Page 2 of 16 Number PA 1-844-775 and of the facts stated in the Certificate. 17 U.S.C. § 410(c); Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290-291 (3rd Cir. 1991). Further, Defendants admit that they distributed Caveat which contained Plaintiff’s film editing. (Docs. 77, p. 2, ¶3; 78, p. 2, ¶3) It is the Defendants’ burden of proof to establish any invalidity of Plaintiff’s registered copyright through probative and admissible evidence. Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663 (3rd Cir. 1990); M. Nimmer & D. Nimmer, Nimmer on Copyright, § 12.11[A], at 12-83-85 (1990). With the appropriate statutory presumption and burden of proof in mind, the application of the law to the judicial admissions and uncontroverted facts dispositively requires summary judgment for the reasons set forth below. PLAINTIFF CREATED A COPYRIGHTABLE DERIVATIVE WORK It is undisputed that the Ufema Defendants publicly held themselves out as producers who are specialists in feature length films.3 (Doc. 190, p. 16, ¶¶70-1) Defendants’ leading argument is that Plaintiff did not have permission to perform film editing on the raw Caveat video footage that the Defendants provided to the Plaintiff for that purpose. The assertion that Plaintiff lacked permission to manipulate the raw Caveat video footage and make an independent, creative, and copyrightable contribution is objectively unsupported both factually and legally. Defendants knew or should have known that, under the Copyright Act, Plaintiff’s creative film editing 3 It is a well established principle of law that those who publicly hold themselves out as specialists are held to higher standards of knowledge. Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 2 of 16 Page 3 of 16 contribution was copyrightable. Dumas v. Gommerman, 865 F.2d 1093, 1101 (9th Cir. 1989); Easter Seal Society v. Playboy Enters., 815 F.2d 323, 329 (5th Cir. 1987), cert. denied, 485 U.S. 981, 108 S.Ct. 1280 (1988). Defendants admit in their Objections and Responses to Plaintiff’s Concise Statement of Material Facts that they provided Plaintiff with the raw Caveat video footage in order to perform professional film editing. (Doc. 190, pp. 1-2, ¶¶16-17, 19) The Defendants’ numerous and consistent judicial admissions, regarding the intent of the parties, establish the presence of an implied license to manipulate the raw Caveat video footage beyond dispute.4 (Doc. 190, pp. 1-2, ¶¶16-17, 19) Copyright jurisprudence confers an implied license to effectuate the objectively manifested clear intent of the parties. National Assoc. for Stock Car Auto Racing, Inc. v. Scharle, 184 Fed.Appx. 270 (3rd Cir. 2006). The implied license that Defendants conferred to the Plaintiff permitted Plaintiff to create the derivative film editing work from the raw Caveat footage. 17 U.S.C. § 203(b). A derivative work, i.e., Plaintiff’s film editing, prepared under the authority of the grant to prepare a derivative film editing work before its termination may continue to be utilized under the terms of the grant after its termination and Plaintiff enjoys the full panoply of exclusive rights to the film editing derivative work 4 The Defendants’ assertion that Plaintiff never sought permission to use their raw Caveat video footage is of no logical significance as Defendants clearly impliedly licensed Plaintiff to perform film editing for Caveat and, therefore, there would be no reasonable basis to seek a permission which Plaintiff already had. Moreover, the Ufema Defendants would not be countersuing Plaintiff for breach of contract if, as a preliminary matter, Plaintiff lacked permission to perform film editing on Caveat. (Doc. 78, pp. 41-42, ¶¶254-263) Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 3 of 16 Page 4 of 16 subject to PA 1-844-775 under the Copyright Act. 17 U.S.C. §§ 203(b) and 304(c)(6)(A). Thus, any exclusive rights in the raw Caveat video footage are separate and distinct from any exclusive rights to Plaintiff’s copyrighted film editing. Plaintiff specifically excluded pre-existing footage from the subject registered copyright at issue.5 (Doc. 22) As such, the arguments that conflate copyright ownership of the antecedent raw Caveat video footage with that of the copyright ownership of Plaintiff’s subsequent film editing work are spurious as to the copyright ownership of Plaintiff’s creative film editing work. THERE IS NO EVIDENCE THAT PLAINTIFF INTENTIONALLY DECEIVED THE UNITED STATES COPYRIGHT OFFICE Defendants have repeatedly alleged that the Plaintiff intentionally deceived and perpetrated a fraud on the United States Copyright Office. There is absolutely no evidentiary support whatsoever for these allegations. Specifically, Defendants allege that Plaintiff misrepresented to the United States Copyright Office that (1) the film editing subject to PA 1-844-775 work was not a “work made for hire” and that (2) Plaintiff claimed legal ownership over all of the film editing work in Caveat. Defendants’unsupported allegations do not create triable issues of fact. 5 Defendants allege that Plaintiff cited no probative and admissible evidence that Plaintiff excluded script/screenplay, pre-existing footage, and pre-existing music from the Copyright application (Doc. 190, p. 5, ¶27), however the filed Certificate on the docket (Doc. 22) expressly indicates the specific material excluded from Plaintiff’s film editing copyright. Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 4 of 16 Page 5 of 16 PLAINTIFF’S FILM EDITING WAS NOT A “WORK MADE FOR HIRE” Defendants claim that the Plaintiff intentionally deceived the United States Copyright Office because they allege that Plaintiff’s film editing work was a “work made for hire.” The criteria for a “work made for hire” is statutorily defined as (1) a work prepared by an employee within the scope of employment or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work “made for hire.” 17 U.S.C. § 101. Absent an express transfer of ownership, a contributor who is not an employee retains ownership of their copyright.6 Community for Creative Non-Violence, 109 S.Ct. 2166, 2173 (1989) (Where a non-employee contributes to a movie, the exclusive rights of copyright ownership vest in the creator of the contribution unless there is a written agreement to the contrary). The Third Circuit, together with Professor Nimmer, adopts a literal interpretation of 17 U.S.C. § 101 to determine whether an individual is an employee or an independent contractor in applying the Copyright statute in order to establish whether a work is a ‘work for hire.’ Whelan Associates v. Jaslow Dental Lab, 609 F.Supp. 1307, 1319 (E.D. Pa. 1985), aff’d on other grounds, 797 F.2d 1222 (3rd Cir. 1986), cert. denied, 107 S.Ct. 877 (1987); Easter Seal Soc., 815 F.2d at 329. 6 Defendants admit that Plaintiff did not enter into any written license or assignment with the Defendants for the Defendants to use Plaintiff’s copyrighted film editing. (Docs. 77, p. 10, ¶49; 78, p. 11, ¶49, and 81-1, p. 4, ¶18; 156, p. 25, ¶47; 190, p. 10, ¶47) Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 5 of 16 Page 6 of 16 Defendants fail to elaborate upon the evidence of record in order to meet their burden of proof as to how Plaintiff’s work qualified as a “work made for hire” such that the Plaintiff’s denial of same could reasonably formulate an underlying basis for their accusation of fraud and misrepresentation. Nevertheless, Defendants testified that Plaintiff was not an employee. (Docs. 141-8; 141-9) In fact, Defendants do not dispute that they deny that Plaintiff was an employee. (Doc. 190, p. 9, ¶46) Plaintiff reasonably and specifically relied upon the Defendants’ representations from their produced discovery in Plaintiff’s May 23, 2013 application for copyright protection for the subject film editing at issue. (Docs. 81-1, p. 4, ¶¶16-7; 84-3, p. 4, ¶¶16-7; 156, p. 29, ¶59) The Defendants’ representations, both that of the Ufemas Defendants and that of Defendant Rich Coast Corporation, before and after Plaintiff registered the subject film editing copyright, cannot possibly qualify as an intentional misrepresentation by the Plaintiff. (Docs. 77, p. 1, ¶1; 78, p. 1, ¶1; 190, p. 9, ¶46, p. 12, ¶56) Even in arguendo, were Plaintiff an ‘employee,’ Defendants have failed to produce any evidence to controvert the fact that they unlawfully paid Plaintiff as an ‘employee’ violating Plaintiff’s fundamental labor law rights for a minimum wage and overtime. (Docs. 156, p. 26, ¶51; 190, p. 11, ¶51) Pursuant to the United States Supreme Court, the maxim, ex dolo malo non oritur actio applies which is interpreted to mean that no Court will lend its aid to an individual who founds his relief upon an immoral or Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 6 of 16 Page 7 of 16 illegal act as Defendants urge the Middle District to do. Pullman’s Palace Car Co. v. Central Transportation Co., 171 U.S. 138 (1898). There is no dispute that the Plaintiff did not enter into any written license or assignment with the Defendants for the Defendants to use Plaintiff’s copyrighted film editing. (Docs. 77, p. 10, ¶49; 78, p. 11, ¶49; 190, p. 10, ¶47; 156, p. 28, ¶55) As such, regardless of whether Plaintiff was an illegally compensated ‘employee’ or an ‘independent contractor,’ the Plaintiff’s work fails to satisfy the statutory criteria for a “work made for hire.” Thus, the Defendants’ contention that Plaintiff intentionally misrepresented to the United States Copyright Office that the subject film editing was not a “work made for hire” is fallacious and unfounded. To be sure, Defendant Julie O’Connor Ufema testified that Plaintiff “screwed up the paperwork”7 and that she did not know Plaintiff’s intention which is decidedly different from a ‘knowing’ or ‘intentional’ misrepresentation that is required in order to invalidate a registered copyright: 5 Q: Did [Plaintiff] lie to the Copyright Office? 6 A: I don't know enough about the 7 copyright situation to know whether or not she -- 8 and I don't know her intention. (Exhibit A - 5/16/2016 Julie O. Ufema Depo., p. 184:5-8) 7 20 Q: Is that your intentional 21 representation -- is that what you're saying was 22 the intentional misrepresentation? 23 A: I don't believe she has copyright, 24 and I do know she screwed up the paperwork. (5/16/2016 Julie O. Ufema Depo., p. 183:20-24) Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 7 of 16 Page 8 of 16 As such, through judicial admission, as a matter of law, Defendants are unable to demonstrate a triable issue of fact that Plaintiff’s film editing was a “work made for hire” or that Plaintiff intentionally misrepresented that the subject film editing work qualified as a “work made for hire” based on a corrected clerical error. (Docs. 77-1; 78-1) PLAINTIFF’S COPYRIGHT COVERS ONLY PLAINTIFF’S WORK Plaintiff’s copyright covers only Plaintiff’s film editing work. The Defendants present absolutely no evidence whatsoever to support their repeated allegation that Plaintiff intentionally deceived the United States Copyright Office by claiming authorship over the work of others. The Defendants pled as follows: Upon information and belief, in her Copyright Registration Application, Plaintiff designated herself as the sole author of the film editing of the film Caveat. (Docs. 77, p. 43, ¶243; 78, p. 39, ¶245) (Emphasis added) Not only has Plaintiff presented a Certificate of Registration (Doc. 22) which is presumptively valid, Plaintiff has presented uncontroverted probative and admissible affidavit and testimonial evidence in support of the assertion that Plaintiff only uploaded the specific film editing files of scenes that Plaintiff edited. (Doc. 156, p. 20, ¶26)8 Notwithstanding their burden of proof, Defendants failed to present any evidence of any ‘knowing misrepresentation’ or any evidence that the work subject to Plaintiff’s copyright was anything other than that of the Plaintiff. 8 Defendants’ Objections and Responses to Plaintiff’s Concise Statement of Material Facts erroneously states that “Plaintiff has cited no probative and admissible evidence that Plaintiff only uploaded the specific film editing files of scenes that she had edited” when the specifically cited docketed documents clearly contradict their response. Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 8 of 16 Page 9 of 16 DEFENDANTS VIOLATED PLAINTIFF’S COPYRIGHT Defendants argue that they did not violate Plaintiff’s copyright. To that end, they urge this Court to impute an implied license for the use of Plaintiff’s film editing work after the Defendants have expressly and repeatedly disclaimed any written license or assignment through multiple judicial admissions. (Docs. 77, p. 10, ¶49; 78, p. 11, ¶49; 190, p. 10, ¶47).9 In furtherance of the Defendants’ argument that this Honorable Court should selectively disregard the multiple and specific judicial admissions on point and impute an implied license, Defendants cite to the fact- specific sister Circuit opinion of Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990).10 For several reasons, most namely, the illegal remuneration involved herein, the Ninth Circuit opinion is significantly distinguishable, and, thus, the Defendants’ reliance on Effects, under the circumstances at bar, is misplaced. In Effects, there were no disclaimers of any written license or assignment by the Defendant as is the case in the matter sub judice. Effects, 908 F.2d at 558. In Effects, the contributor received $56,000 of $64,033.92 invoiced, or approximately 88% of the total amount for the seven (7) special effect scenes ordered, leaving 12% of the total 9 A fact asserted in a pleading which is both unequivocal and which would normally require evidentiary proof constitutes a judicial admission. In re Teleglobe Commc’ns Corp., 493 F.3d 345, 377 (3 rd Cir. 2007), as amended (Oct. 12, 2007); Parilla v. IAP Worldwide Servs., VI, Inc. 368 F.3d 269, 275 (3 rd Cir. 2004) (facts “expressly conceded” constitute judicial admissions). 10 The producer in Effects conceded that he licensed the contributor to prepare the work at issue as a derivative work and that the contributor had a valid copyright in their work. Effects, 908 F.2d 555, 556, n. 3 (9 th Cir. 1990). Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 9 of 16 Page 10 of 16 amount unpaid.11 Here, Plaintiff received a total of $651.07 for all of the film editing work that Plaintiff performed on the feature length picture, Caveat, from August 2011 to November 2011.12 The amount that the Defendants paid Plaintiff represents less than 33% of an unlawful wage in violation of fundamental state and federal labor law and leaves over 77% of the unlawful compensation outstanding.13 The Defendant in Effects did not demand enforcement of an unconscionable agreement, contravene public policy,14 or 11 Defendants in this matter erroneously describe that the Defendant in Effects, Larry Cohen, paid only half of the agreed upon amount. (Doc. 189, p. 11) However, Cohen paid the full amount for six (6) of the seven (7) shots ordered and half (½) of the invoiced amount for one (1) scene with which he was dissatisfied. Effects, 908 F.2d 555, 556 (9 th Cir. 1990). 12 Doc. 78, p. 9, ¶42. 13 Defendants’ position suggests that the Ninth Circuit’s decision would not be modified by the illegality of the compensation or the percentage of remitted compensation. 14 Fair Labor Standards Act of 1938 - 29 U.S.C. §202. Congressional Finding and Declaration of Policy (a) The Congress finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; and (5) interferes with the orderly and fair marketing of goods in commerce. That Congress further finds that the employment of persons in domestic service in households affects commerce. The Minimum Wage Act of 1968 - 43 P.S. § 333.101. Declaration of Policy -- Employees are employed in some occupations in the Commonwealth of Pennsylvania for wages unreasonably low and not fairly commensurate with the value of the services rendered. Such a condition is contrary to public interest and public policy commands its regulation. Employees employed in such occupations are not as a class on a level of equality in bargaining with their employers in regard to minimum fair wage standards, and "freedom of contract" as applied to their relations with their employers is illusory. Judged by any reasonable standard, wages in such occupations are often found to bear no relation to the fair value of the Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 10 of 16 Page 11 of 16 implicate any illegality whatsoever. Lastly, the Effects court noted that, pursuant to 17 U.S.C. § 202, delivery of the subject work does not of itself convey any rights in the copyrighted work as Defendants seem to argue in their brief, but rather it is one factor that may be relied upon in determining that an implied license has been granted. Effects, 908 F.2d at 559, n. 6. In this matter, the multiple disclaimers of licensure by all parties, the illegality of the contract under state and federal law, the extreme contravention of public policy, and the striking insubstantiality of the Defendants’ less than 33% partial performance present a markedly different set of facts from those adjudicated by the Ninth Circuit. Any implied license that could exist fails under the legal maxim commodum ex injuria sua nemo habere debet, interpreted to mean that a wrongdoer should not be enabled by law to take any advantage from his actions to prevent injustice. Moreover, an implied license is provided to effectuate the clear intent of the parties. National Assoc. for Stock Car Auto Racing, Inc. v. Scharle, 184 Fed.Appx. 270 (3rd Cir. 2006) Defendants present no evidentiary support for the preposterous presupposition that the parties clearly intended to circumvent fundamental state and federal labor law enacted services rendered. In the absence of effective minimum fair wage rates for employees, the depression of wages by some employers constitutes a serious form of unfair competition against other employers, reduces the purchasing power of the workers and threatens the stability of the economy. The evils of unreasonable and unfair wages as they affect some employees employed in the Commonwealth of Pennsylvania are such as to render imperative the exercise of the police power of the Commonwealth for the protection of industry and of the employees employed therein and of the public interest of the community at large. Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 11 of 16 Page 12 of 16 for the protection of the American worker nor does there exist any authority for a Court to enforce such an unconscionable accord contrary to public policy. Pullman’s Palace Car Co. v. Central Transportation Co., 171 U.S. 138 (1898). DEFENDANTS ARE GUILTY OF CONTRIBUTORY COPYRIGHT INFRINGEMENT The Defendants state in their brief that “no Defendant was ever aware of Plaintiff’s alleged copyright claims until this action was brought before this Court.”15 (Doc. 189, p. 13) However, Defendants Julie O’Connor Ufema and Lance Jason Ufema admit that their legal representative received written notice that the Plaintiff claimed a copyright in Plaintiff’s film editing work as early as August 29, 2012.16 (Docs. 90-17, p. 5, First Set of Admissions, Request # 9; 142-9, p. 8) The Ufema Defendants further admit that they induced, caused, and materially contributed to the film Caveat being sold through the distributor, Indie Rights, even after receiving written notice that Plaintiff claimed a copyright in Plaintiff’s film editing. (Docs. 90- 17, p. 5, First Set of Admissions, Request # 10; 142-9, p. 8) Defendants admit that Rich Coast Corporation sold Caveat at its retail coffee stores and on its website. (Doc.78, p. 18, ¶¶96-7) The Ufema Defendants sold tickets to Caveat at Rich Coast Corporation’s retail location, through Rich Coast 15 This action was filed on July 1, 2013. (Doc. 1) See Exhibit B – May 21, 2013 Email to Defendants asserting a Copyright prior to these federal proceedings. 16 Defendants objected to Paragraph 77 of Plaintiff’s Statement of Facts (Docs. 156, p. 34, ¶77; 190, p. 17, ¶77) notwithstanding the specific citation to their produced discovery docketed at 90- 17 which states the Ufema Defendants’ response to Plaintiff’s First Set of Requests for Admission #9-10. Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 12 of 16 Page 13 of 16 Corporation’s credit card machines, and Indie Rights, Inc. (Doc. 156, pp. 1-3, ¶1; p. 34, ¶¶75, 77) Rich Coast’s sole shareholder testified that he intentionally didn’t concern himself about the goings-on with his business. (Doc. 190, p. 17, ¶79) Providing site and facilities for known infringing activity is sufficient to establish contributory liability. Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59 (3rd 1986); William F. Patry, Copyright Law & Practice 1147 (“Merely providing the means for infringement may be sufficient” to incur contributory copyright liability). Thus, the only defense presented to second element of contributory copyright infringement is demonstrably false. Defendants knew of the distributor’s infringing activity. The Ufema Defendants and Defendant Rich Coast Corporation created materials containing Plaintiff’s copyrighted work and admittedly provided said materials to Indie Rights, Inc. for distribution. Thus, Defendants knew of its distributor’s infringing activities and took steps that were substantially certain to result in such direct infringement. Leonard v. Stemtech Int’l. Inc., 15, No. 15-3198 (3rd Cir. 2016); Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1171-2 (9th Cir. 2007). DEFENDANTS ARE GUILTY OF VICARIOUS COPYRIGHT INFRINGEMENT Defendant Julie O’Connor Ufema and Defendant Lance Jason Ufema co-own an unincorporated partnership that produced Caveat together with the resources of Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 13 of 16 Page 14 of 16 Defendant Rich Coast Corporation. (Docs. 12-3, p. 2, ¶4; 12-4, p. 2, ¶4; 156, pp. 1-3, ¶1) The Ufema Defendants are agents and principals of Group 13 Productions and Defendant Rich Coast Corporation. Defendant Lance Jason Ufema, a corporate officer, had authority to bind Defendant Rich Coast Corporation pursuant to the testimony of its sole shareholder, Lance Waychoff Ufema. (Doc. 156-18) Defendants had the right and ability to supervise the infringing activity. (Docs. 90-17, p. 5, First Set of Admissions, Request #10; 156, p. 34, ¶76-7; 156-16; 190, p. 16, ¶¶69-75, 78- 79) Defendants had a direct financial interest in the exploitation of the copyrighted materials. Financial benefit exists where the availability of infringing material acts as a draw for customers. Ellison v. Robertson, 357 F.3d 1072, 1078, 1079 (9th Cir. 2004) Defendant Lance Jason Ufema advertised, marketed, and sold Caveat through the Rich Coast Corporation website as well as through other websites. There is no requirement that the draw be substantial. Id. Plaintiff has dispositively demonstrated beneficial transactions for the Ufema Defendants and Defendant Rich Coast Corporation. (Docs. 92-9 and 156-16) CONCLUSION Plaintiff has demonstrated that there exists no genuine issue of material fact regarding the Defendants’ tortious and illegal conduct as to Plaintiff’s registered copyright. As a matter of law, this Honorable Court must grant Plaintiff summary judgment as to Counts I, III, and IV and dismiss Defendants’ counterclaims I and II. Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 14 of 16 Page 15 of 16 Plaintiff is entitled to either actual damages and profits or statutory damages and has presented evidence in this regard. (17 U.S.C. § 504; Doc. 156-16) Plaintiff is also entitled to reasonable attorney fees. Id. Defendants argue that Plaintiff is time-barred from statutory damages and attorney fees, however, the Third Circuit recognizes fraudulent concealment as an equitable basis for tolling in Copyright cases which applies as indicated in Plaintiff’s Motion. (Doc. 156, pp. 28-9, ¶58) Respectfully submitted, /s/ Robert S. Richman, Esq. ROBERT S. RICHMAN, ESQUIRE Attorney for Plaintiff Pa.I.D.: 88673 Law Offices of Robert Richman 711 Woodland Drive Pittsburgh, PA 15238 Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 15 of 16 Page 16 of 16 CERTIFICATE OF SERVICE I, Robert S. Richman, certify that on March 13, 2017, all counsel of record were sent a true and correct copy of the foregoing via electronic service: Stephen S. Snook, Esq. Bierbach McDowell Zanic 20 South Wayne Street Lewistown, PA 17044 ssnook@bmzlaw.com Thomas P. Heeney, Jr., Esq. Heeney & Associates, P.C. 103 Grandview Road Boyerstown, PA 19512 theeneyjr@gmail.com By: /s/ Robert S. Richman Robert S. Richman, Esquire Pa.I.D. No.: 88673 Law Offices of Robert Richman 711 Woodland Drive Pittsburgh, PA 15238 Case 1:14-cv-00272-JEJ-MCC Document 191 Filed 03/13/17 Page 16 of 16 Exhibit A Case 1:14-cv-00272-JEJ-MCC Document 191-1 Filed 03/13/17 Page 1 of 5 Case 1:14-cv-00272-JEJ-MCC Document 191-1 Filed 03/13/17 Page 2 of 5 Case 1:14-cv-00272-JEJ-MCC Document 191-1 Filed 03/13/17 Page 3 of 5 Case 1:14-cv-00272-JEJ-MCC Document 191-1 Filed 03/13/17 Page 4 of 5 Case 1:14-cv-00272-JEJ-MCC Document 191-1 Filed 03/13/17 Page 5 of 5 Farkas v. Rich Coast Corporation et al Mr. Cahillane: While I would like to move this matter forward, as a matter of efficiency, I will not be providing any proposed deposition dates until we can clarify the issues surrounding the removal of the Plaintiff's claim to federal court. As discussed before Judge Folino, I will be filing an Amended Complaint shortly which will include copyright claims that divest the Court of Common Pleas of its jurisdiction. When this case is transferred to federal court, we can proceed with discovery in accordance with the Federal Rules. Additionally, I would like to review Judge Folino's Order once it is received to confirm how I wish to proceed. Be advised that my client has a copyright on her film editing work for the motion picture film, Caveat. As such, your clients are not permitted to use her copyrighted work without my client's expressed written consent. To date, there exists no such written consent. Therefore, you should advise your clients to govern themselves accordingly. As previously (and repeatedly) indicated, should you wish to discuss the possibility of an amicable resolution, taking into account the considerable fees and costs which have accrued as a result of the continued litigation, I have been and remain open to reasonable settlement offers. If you have any questions, concerns, or thoughts, please do not hesitate to contact me. Thanks. Rob robrichman@hotmail.com (412) 401-0326 Richman Rob Tue 5/21/2013 1:39 PM To:Cahillane, Chris ; Cc:Stephen Snook ; Bcc:Rob Richman ; Abbey Farkas ; Abbey Farkas ; Exhibit B Case 1:14-cv-00272-JEJ-MCC Document 191-2 Filed 03/13/17 Page 1 of 1