Zorikova v. KineticFlix LLC

ALLA ANATOLYEVNA ZORIKOVA, Plaintiff, v. KINETICFLIX, LLC, Defendant.

No. 2:19-cv-04214-ODW (GJSx)

United States District Court, C.D. California

April 28, 2022

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [137]

OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Alla Anatoleyvna Zorikova owns the copyright in a ballet instruction DVD. She brought suit against Defendant Kineticflix, LLC^[1] for offering the DVD f rental as part of an online DVD rental service. Kineticflix now moves for summar judgment. (Mot. Summ. J. (“Motion” or “Mot.”), ECF No. 137.) Having carefull considered the papers filed in connection to the instant Motion, the Court deemed th matter appropriate for decision without oral argument. Fed.R.Civ.P. 78; C.D. Ca L.R. 7-15. For the following reasons, the Court GRANTS Kineticflix's Motion.

II. FACTUAL BACKGROUND

Zorikova holds a valid copyright in the audiovisual work entitled “Ballet Class Viktor Kabaniaev” (the “Work”). (Def.'s Statement of Uncontroverted Facts (“SUF”) 1-2, ECF No. 139; see Pl.'s Resp. SUF, ECF No. 149.)

Kineticflix was a web-based business that rented physical copies of fitness and dance DVDs by shipping the DVDs to its customers. (Decl. Joshua Parker (“J. Parker Decl.”) ¶ 3, ECF No. 140 (describing Kineticflix as “a tiny version of Netflix when it first started”); Decl. Candee Parker (“C. Parker Decl.”) ¶ 3, ECF No. 141 (same).) Once the customer was finished using the DVD, the customer would return it, and Kineticflix would then send the customer the next DVD on that customer's personally selected queue of DVDs. (Decls. J. & C. Parker^[2] ¶ 6.)

Kineticflix's records indicate that between 2008 and 2014, some other copy of the Work was rented by Kineticflix customers a total of twenty times. (J. & C. Parker Decls. ¶ 4, Encl. D (“Ballet Class Viktor Kabaniaev Rental Record”).) In 2017, Joshua and Candee Parker purchased Kineticflix, and sometime thereafter they noticed that although the Work was in Kineticflix's catalogue of available titles, they could not locate a DVD copy of the Work in the Kineticflix inventory. (J. & C. Parker Decls. ¶ 3.) So, in March 2019, Kineticflix purchased a copy of the Work from Amazon, a large online retailer, for $12.95. (Id. ¶ 3.) Kineticflix never rented out this copy; the only person who ever attempted to rent it was Zorikova herself, but Kineticflix never sent it to her. (SUF 9; J. & C. Parker Decls. ¶ 6.) Kineticflix still owns this DVD copy of the Work. (J. & C. Parker Decls. ¶ 7.)

Kineticflix asserts that it purchased a single DVD copy of the Work and that it has never copied the Work in any way. (Decls. J. & C. Parker ¶¶ 3-4, 6.) However, Zorikova disputes this, asserting that she has not distributed any physical copies of the Work in DVD format since 2014 and has instead made copies available only through streaming and downloads. (SUF 3-4; J. & C. Parker Decls. ¶¶ 2-3, 6; Decl. Alla Zorikova (“Zorikova Decl.”) ¶¶ 15, 24, 26, ECF No. 146.)

On May 15, 2019, Zorikova brought suit against Kineticflix, asserting claims for (1) copyright infringement, (2) vicarious copyright infringement, and (3) unfair competition under California law. (Compl., ECF No. 1.) The parties have already filed their pretrial documents, and trial is currently set for May 24, 2022.

III. LEGAL STANDARD

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A disputed fact is “material” where the resolution of that fact “might affect the outcome of the suit under the governing law, ” and the dispute is “genuine” where “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 (1986). The burden of establishing the absence of a genuine issue of material fact lies with the moving party, and the moving party may meet this burden with arguments or evidence or both. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). The non-moving party must show that there are “genuine factual issues that . . . may reasonably be resolved in favor of either party.” Franciscan Ceramics, 818 F.2d at 1468 (quoting Anderson, 477 U.S. at 250) (emphasis omitted). Provided the moving party has satisfied its burden, the court should grant summary judgment against a party who fails to present evidence establishing an essential element of its claim or defense when that party will ultimately bear the burden of proof on that claim or defense at trial. See Celotex, 477 U.S. at 322.

In ruling on summary judgment motions, courts draw all reasonable inferences in the light most favorable to the nonmoving party, refraining from making credibility determinations or weighing conflicting evidence. Scott v. Harris, 550 U.S. 372, 378 (2007); Hous. Rts. Ctr. v. Sterling, 404 F.Supp.2d 1179, 1183 (C.D. Cal. 2004). However, “uncorroborated and self-serving” testimony will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). “Conclusory” or “speculative” testimony is likewise “insufficient to raise genuine issues of fact and defeat summary judgment.” See Sterling, 404 F.Supp.2d at 1183. The nonmoving party must provide more than a “scintilla” of contradictory evidence to avoid summary judgment. Anderson, 477 U.S. at 251-52; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

IV. DISCUSSION

The Copyright Act protects fixed original works of authorship, 17 U.S.C. § 102, by granting to “copyright owners the ‘exclusive rights' to display, perform, reproduce, or distribute copies of a copyrighted work, to authorize others to do those things, and to prepare derivative works based upon the copyrighted work, ” Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) (quoting 17 U.S.C. § 106). “The copyright, in other words, gives the owner ‘the right to control the work' ....” Id. (quoting Laws v. Sony Music Ent., Inc., 448 F.3d 1134, 1137 (9th Cir. 2006)). Here, the Work at issue is an audiovisual work^[3] consisting of ballet instructional material. Zorikova declares that she did not authorize or license Kineticflix to copy, rent, sell, download, display, or distribute the Work and argues that Kineticflix infringed her copyright by distributing copies of the Work to its customers as part of its DVD rental business. (Pl.'s Statement of Additional Material Facts (“AMF”) 12, 19, ECF No. 148; Zorikova Decl. ¶¶ 20, 32.)

However, the Copyright Act provides that anyone who owns a lawfully made copy of a copyrighted work “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” 17 U.S.C. § 109. This statute codifies the first sale doctrine, under which “a sale of a lawfully made copy terminates a copyright holder's authority to interfere with subsequent sales or distribution of that particular copy.” Adobe Sys., Inc. v. Stargate Software, Inc., 216 F.Supp.2d 1051, 1054 (N.D. Cal. 2002) (quoting Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477, 480 (9th Cir. 1994)). The first sale doctrine limits a copyright owner's exclusive right of distribution to the owner's “first voluntary disposition, ” and it “thus negate[s] copyright owner control over further or ‘downstream' transfer to a third party.” Id. (citing Quality King Distrib. v. L'anza Rsch. Int'l, Inc., 523 U.S. 135 (1998)); Brilliance Audio, Inc. v. Haights Cross Commc'ns, Inc., 474 F.3d 365, 371 (6th Cir. 2007) (“[T]he copyright holder controls the right to the underlying work, but the owner of a particular copy can dispose of it in any manner he or she wishes.”). “The first sale doctrine has its roots in the English common law against restraints on alienation of property.” H.R. Rep. No. 98-987, at 2899 (1984).

With this Motion, Kineticflix argues it is entitled to judgment as a matter of law because the first sale doctrine applies and is a complete defense to copyright infringement. As Kineticflix would bear the burden of demonstrating this affirmative defense at trial, it likewise bears the burden of establishing it at summary judgment. Celotex, 477 U.S. at 322.

A. Kineticflix's Burden

As the Parkers each declare, Kineticflix operates its business by renting physical copies of DVDs to customers. It ships the DVD to the customer, and when the customer is finished using the DVD, the customer ships it back to Kineticflix. (Decls. J. & C. Parker ¶ 6.) Kineticflix purchased a DVD copy of the Work from Amazon in March 2019, and it attaches an order record from Amazon indicating that it paid $12.95 for the copy, that the copy was delivered on March 21, 2019 with two other workout DVDs, and that the copy was advertised as being in “New” condition when Kineticflix purchased it. (Id. Encl. C.) The Parkers further declare that Kineticflix never in fact rented its DVD copy of the Work to anyone (although the mere fact that it might have done so would not change the outcome of this Motion). (Id. ¶¶ 5, 7.)

The first sale doctrine gives the owner of a lawfully made copy the right “to sell or otherwise dispose of the possession of that copy.” 17 U.S.C. § 109. Zorikova first argues that the very...