The opinion of the court was delivered by: Block, Senior District Judge
Roy Den Hollander ("Hollander"), an attorney appearing pro se, sued Deborah Swindells-Donovan ("Donovan") and Paul W. Steinberg ("Steinberg"), also attorneys, for copyright infringement under the Copyright Act of 1976 (the "Copyright Act"), 17 U.S.C. §§ 101-803, in connection with the defendants' submission of six of Hollander's essays ("the Essays") as exhibits in New York state and federal court proceedings. Donovan moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim, and requested an award of costs and attorney's fees; the Court converted the motion to one for summary judgment and afforded the parties an opportunity to submit papers in support. Hollander then cross-moved for summary judgment. For the following reasons, the Court grants Donovan's motion, denies Hollander's, and sua sponte grants summary judgment to Steinberg. In addition, the Court denies Donovan's request for fees and costs.
As confirmed before the Court at oral argument on February 18, 2010, the relevant facts are not in dispute:
Hollander authored the six Essays, which convey his aggressively anti-"Feminazi" world view, and registered each with the United States Copyright Office (the "Office").*fn1 He made the Essays publicly available on his website at some point in 2006 or 2007, at which time Steinberg made a copy.*fn2 On October 19, 2007, Steinberg sent copies of the Essays to Donovan.
A. Donovan's Use of the Essays
Hollander's claims against Donovan arise from Hollander v. Copacabana Nightclub, et al. ("Copacabana"),*fn3 in which Hollander alleged that the "Ladies' Night" promotions hosted by several New York City nightclubs discriminated against men in violation of the Fourteenth Amendment. Donovan represented defendant Lotus Nightclub.
After a contentious status conference, Hollander moved to disqualify District Judge Miriam Cedarbaum, asserting that her conduct had "create[d] the appearance that [she], whether true or not, is biased and prejudiced against men and creates a perception that she is not impartial in these proceedings." Krebs Decl., Ex. 5 (Hollander Aff. in Support). Donovan attached the Essays to her opposition to Hollander's motion, asserting that they supported her argument that Hollander was "challenging Judge Cedarbaum's impartiality simply because she is female, not biased." Id., Ex. 6 (Donovan Decl. in Opp.). Judge Cedarbaum denied Hollander's recusal motion and ultimately dismissed the Copacabana case because the defendants' offering of reduced-priced admission to females did not constitute state action. See Copacabana, 580 F. Supp. 2d 335 (S.D.N.Y. 2008).
B. Steinberg's Use of the Essays
Though the Court did not have the benefit of moving papers or affidavits from Steinberg, the parties' undisputed representations at oral argument and the record before the Court provide a sufficient account of the facts relevant to Steinberg's use of the Essays.
Hollander and Steinberg's sordid history centers primarily around Steinberg's representation of Hollander's upstairs neighbor William Fasano, the object of a number of Hollander's lawsuits. Hollander's claims against Steinberg in this particular case, however, originated out of two particular New York state court actions. In Hollander v. Fasano, et al. ("Fasano I"),*fn4 Hollander brought a defamation action against several parties for statements made in pleadings in a different action;*fn5 Steinberg was a named defendant and also represented Fasano. When Hollander moved to amend the complaint, seeking to add certain female acquaintances of Fasano as defendants, Steinberg submitted the Essays as an exhibit to his affirmation in opposition.
Steinberg asserted that the content of the Essays -- in light of Hollander's alleged "issues with gender identity," "obsession with Fasano's body," and assault of Steinberg -- "addressed matters relating to [Hollander's] motivation in bringing suit and also concern for the physical protection of parties whom [Hollander] was seeking to join in the action." Hollander Decl., Ex. I (Steinberg Affirmation in Opp.).
In Hollander v. Fasano ("Fasano II"),*fn6 Steinberg represented Fasano in a nuisance action brought by Hollander. After Hollander's complaint went unanswered, he moved for a default judgment; Steinberg opposed that motion, appending a verified answer and counterclaims which requested, inter alia, "protective orders ... to safeguard Mr. Fasano and others from potential physical harm by Mr. Den Hollander." Hollander Decl., Ex. J (Verified Answer and Counterclaim). In support of this request, Steinberg attached the Essays, ...