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PLAYBOY ENTERPRISES, INC. v. STARWARE PUBL. CORP.

May 8, 1995

PLAYBOY ENTERPRISES, INC., Plaintiff,
v.
STARWARE PUBLISHING CORP., and D. ANDREW KASANICKY, Defendants.



The opinion of the court was delivered by: RYSKAMP

 I. INTRODUCTION

 The cause is before this Court on Plaintiff's, Playboy Enterprises, Inc. ("PEI"), Motion under Fed. R. Civ. P. 56 for partial summary judgment of liability for copyright infringement against Defendant Starware Publishing Corp ("Starware"). PEI's Motion was filed on November 2, 1994. Defendant Starware filed its opposition on November 18, 1994, to which PEI filed a reply on November 29, 1994. Oral argument on PEI's Motion was held before this Court on December 20, 1994.

 By its Motion, PEI requests that the Court grant partial summary judgment that Starware's distribution of its CD-ROM disk entitled "Private Pictures I" infringed PEI's copyrights protected by fifty-three (53) copyright registrations. *fn1" The copyright registrations at issue are identified as Nos. 1-39 and 41-54 in Exhibit A to PEI's Verified Complaint, filed May 26, 1994, and true copies thereof are attached as Exhibits B1-B39 and B41-B54 to PEI's Verified Complaint. Specifically, PEI asserts that images contained on the "Private Pictures I" CD-ROM disk, as reproduced in Exhibits D1-D39 and D41-D54 to PEI's Verified Complaint, respectively infringe PEI's above-identified copyright registrations.

 II. FACTUAL BACKGROUND

 PEI submitted a Local Rule 7.5 Concise Statement of Undisputed Facts in support of its Motion. Those facts are essentially set forth below. Starware does not controvert most of the undisputed facts set forth in PEI's Local Rule 7.5 statement, except in a few limited instances as noted herein. ("All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the opposing party's statement." S.D. Fla. Local Rule 7.5.) Rather, Starware relies only on its assertions that PEI may not be the owner of certain underlying material to some of its copyrighted works at issue, and that the works are not copyrightable. As discussed below, the Court finds no merit to these arguments.

 PEI has secured copyright registrations for the PEI publications listed in Column I of Exhibit A to PEI's Verified Complaint. True and correct copies of the registrations for the PEI publications listed in Column I of Exhibit A are attached as Exhibit B to the Verified Complaint. (Verified Complaint PP 11-16). *fn2" Each copyright registration was registered before or within five years after first publication of the respective work, pursuant to 17 U.S.C. § 410(c). The copyrights to the PEI publications at issue and identified in Column I of Exhibit A are valid and subsisting and in full force and effect. (17 U.S.C. § 410(c); Verified Complaint P 16).

 PEI's photographs identified in Column II of Exhibit A were published in the corresponding publications listed in Column I of Exhibit A. (Verified Complaint P 14). Copies of PEI's photographs identified in Column II of Exhibit A along with the cover page and copyright notice page from the corresponding PEI publication listed in Column I of Exhibit A, are attached as Exhibit C to PEI's Verified Complaint. (Verified Complaint P 38). The photographs identified in Column II of Exhibit A and shown in Exhibit C are covered by the copyrights of the corresponding publications listed in Column I of Exhibit A. (Verified Complaint P 14). The publications listed in Column I of Exhibit A have been widely sold throughout the United States, including Florida. (Verified Complaint PP 11 and 41; and Starware's Answer, filed July 1, 1994, at P 41).

 Photographs can be "digitized" and later displayed on monitors connected to properly equipped computers. Such digitized photographs can be collected on "CD ROMs," each photograph being stored as a separate "graphic interchange format" file or "GIF file." Defendant Starware has distributed and sold in the U.S. a CD-ROM disk entitled "Private Pictures I." The "Private Pictures I" disk contains the images shown (as displayed on a computer monitor) in Exhibit D to the Verified Complaint. (Verified Complaint P 38; and Affidavit of Andrew N. Tesnakis, P 4, filed concurrently with PEI's Motion on November 2, 1994 (hereinafter "Tesnakis Affidavit")). Each image shown in Exhibits D-1 through D-54 is "digitized" and contained in a GIF file on the "Private Pictures I" disk. (Verified Complaint P 38; and Tesnakis Affidavit, P 4). Anyone with a properly equipped computer can display those GIFs on a computer monitor as a high quality, computerized reproduction of an actual photographic image. (Verified Complaint P 29; Answer P 29; and Tesnakis Affidavit, P 4). Starware admitted and does not deny that it has distributed and/or sold approximately 9,611 copies of the "Private Pictures I" disk.

 The Exhibits to PEI's Verified Complaint allow the Court to confirm that all of the accused images on "Private Pictures I" are in fact copies of the corresponding PEI photographs at issue. Each accused image of Exhibit D is substantially and strikingly similar, if not virtually identical, to the corresponding PEI photograph of Exhibit C. (Verified Complaint P 38). Indeed, Starware does not dispute that the accused images are strikingly similar to PEI's subject photographs. Nor does Starware suggests that the ultimate source for its accused images was anything other than PEI's copyrighted photographs. Starware did not request nor obtain PEI's permission, either explicitly or impliedly, to put "digitized" copies of PEI's copyrighted photographs on the "Private Pictures I" disk. (Verified Complaint PP 49-50).

 III. STANDARDS FOR SUMMARY JUDGMENT

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of showing by reference to materials on file that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). A moving party discharges its burden by showing that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S. Ct. at 2554. If a moving party has discharged its burden, the nonmoving party must then "go beyond the pleadings," and by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file," establish that there is a genuine issue of material fact for trial. Id. at 324. A "genuine" dispute as to a material fact exists if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S. Ct. at 2511-12.

 IV. COPYRIGHT INFRINGEMENT

 To prevail on a claim for copyright infringement, a claimant must prove its ownership of the asserted copyrights and Defendant's "copying" of the original or a "copy" of the copyrighted work. Southern Bell Tel. & Tel. v. Assoc. Telephone Directory Publishers, 756 F.2d 801, 810 (11th Cir. 1988); Evans v. Continental Homes, Inc., 785 F.2d 897, 903 (11th Cir. 1986). The copyright owner need not prove any knowledge or intent on the part of the Defendant to establish liability for copyright infringement. See, e.g., Playboy ...


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