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EZ-TIXZ, INC. v. HIT-TIX

July 2, 1997

EZ-TIXZ, INC., Plaintiff, against HIT-TIX, ERIC KREBS THEATRICAL MANAGEMENT, INC., PAUL MORER PRODUCTIONS, INC., ERIC KREBS AND PAUL MORER, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff EZ-TIXZ, Inc. ("EZ-TIXZ") sued Hit-Tix, Inc. ("Hit-Tix"), Eric Krebs Theatrical Management, Inc. ("EKTM"), Paul Morer Productions, Inc. ("PMPI"), Eric Krebs, and Paul Morer for copyright infringement, the breach of a contractual obligation to make royalty and license payments, the non-payment of fees for service calls, the breach of an agreement to design a mailing list, and the misappropriation of trade secrets. The defendants denied the plaintiff's allegations and asserted counterclaims for the making of fraudulent representations and for breach of contract.

 From June 9, 1997 to June 11, 1997, the parties tried this case to the Court in a non-jury trial. At the outset of the trial, the plaintiff withdrew its claim for misappropriation of trade secrets. (Trial Transcript ("Tr.") at 11). At the close of trial, the defendants stipulated to liability, in the amount of $ 2,250.00, plus interest, for their non-payment of fees for service calls. (Tr. at 477; Plaintiff's Exhibit ("PX") 99).

 Pursuant to Federal Rule of Civil Procedure 52, having reviewed the record and assessed the credibility of the witnesses, the Court makes the following Findings of Fact and reaches the following Conclusions of Law.

 FINDINGS OF FACT

 1. EZ-TIXZ is a Florida Corporation with its principal place of business in Palm Harbor, Florida. (Joint Pre-Trial Order Undisputed Facts ("UF") at 3). EZ-TIXZ was assigned all rights to the computer system installed on Hit-Tix's computer ("the System") by Studnicka, Jaufmann & Associates ("SJA"). (PX 120 at P10). SJA was formed by Stephen Studnicka and Edwin Jaufmann, and was assigned the copyright to the System by Studnicka. *fn1" (Id.).

 2. EZ-TIXZ is the owner of a copyright to the System pursuant to a Certificate of Registration issued effective as of March 5, 1993 by the United States Copyright Office. (PX 1.1). On July 13, 1995, EZ-TIXZ filed a supplemental copyright application to correct the year listed as the year of the System's creation. (PX 1.2). The supplemental registration was effective July 31, 1995.

 3. Hit-Tix is a New York corporation with its principal place of business at 450 West 42nd Street in New York, New York. (UF at 3).

 4. EKTM is a New York corporation with its principal place of business at 450 West 42nd Street in New York, New York. (UF at 3). EKTM owns 50% of Hit-Tix. (UF at 4).

 5. Krebs, a New Jersey resident, is a shareholder in EKTM and an officer of Hit-Tix. (UF at 3-4).

 6. PMPI is a New Jersey corporation. (Id. at 3). PMPI owns 25% of Hit-Tix. (UF at 4).

 7. Morer is a shareholder in PMPI and an officer of Hit-Tix. (UF at 4).

 8. Gail Bell was the president of Hit-Tix at its inception, and became an officer and shareholder of EZ-TIXZ on or about August 1991. (UF at 4).

 9. During its years of operation, Hit-Tix was engaged in the business of telephone order theater ticket sales. (UF at 3). When Hit-Tix was first formed, the records regarding its ticket sales were kept manually. (Defendant's Exhibit ("DX") XX at P1). Some time later, Morer and Bell decided to computerize this record-keeping process. (DX XX at P2; PX 122 at P4). Hit-Tix acquired a computer and a "Paradox" software package to keep track of ticket orders. (DX XX at P2; PX 122 at P4). However, after approximately one year, Hit-Tix's computer needs had outgrown the capacity of the Paradox system and Hit-Tix decided to hire a computer consultant to expand its system. (DX XX at P2; PX 122 at P4).


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