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Huurman v. Foster

June 21, 2010

KAREN JEANETTE HUURMAN, PLAINTIFF,
v.
EMRIE BROOKE FOSTER, DEFENDANT.



The opinion of the court was delivered by: Michael H. Dolinger United States Magistrate Judge

MEMORANDUM & ORDER

Pro se plaintiff Karen Huurman has moved for summary judgment to establish her exclusive ownership rights in certain intellectual property pursuant to the Copyright Act. Huurman seeks, in substance, a declaratory judgment stating that she is the sole copyright owner of a Chinese-language educational movie. She also seeks a judgment declaring that a French-language educational movie does not exist and that defendant Emrie Brooke Foster has no copyright interest in certain intellectual property that plaintiff created prior to or during the period in which the Chinese-language movie was produced. Although defendant has not formally opposed the motion, for the reasons stated below we deny it in its entirety and sua sponte grant defendant summary judgment dismissing plaintiff's claims apart from the one regarding the Chinese-language movie.*fn1

Background and Prior Proceedings

In 2003, defendant sought to create a company to produce a Chinese-language educational video because she wanted to teach the Chinese language to her daughter, who is half-Chinese. (Compl. at ¶ 21; Aff. of Pl. Karen Jeanette Huurman in Supp. of her Mot. for Summ. J., executed Aug. 14, 2008, Ex. G --- Tr. of Def.'s June 25, 2008 Dep., 31, 66-67). Foster invited Huurman, a childhood friend, to participate in the venture in order to provide Huurman with a source of income. (Huurman Aff., Ex. G at 7, 67). Specifically, Foster asked Huurman to film and edit the movie. (Id., Ex. G at 67, 80).

Foster wrote a letter to Huurman dated August 23, 2003, expressing a desire to film the Chinese-language educational movie at Foster's home. (Id., Ex. J at 2). The letter identified possible filming locations, and also mentioned a potential distributor for the film. (Id.). It suggested background music for the film and indicated that a song would appear at the beginning of the movie and that the same song would play during the credits at the end. (Id., Ex. J at p. 5). The letter also stated that the profits from the film would be split evenly among plaintiff, defendant, and defendant's sister-in-law Yasue, in return for Yasue providing $3,000.00 to finance the film. (Id., Ex. G at 22, 24, 42, Ex. J at p. 2).*fn2 Attached to the letter was a sketch of a design for the cover of the DVD and a list of English words and their Chinese translations, with pronunciation guides accompanying some of the words. (Id., Ex. J at pp. 2-5). The list of words also included suggestions for visual representations of some of the terms, such as showing hands counting the numbers one through ten, and filming various colors being painted on a white canvas. (Id., Ex. J at pp. 4-5).

Apparently at approximately the same time that Foster sent Huurman this letter, Huurman, Foster and Foster's sister-in-law signed a document reflecting their agreement to be partners in the creation of the video, although no such document has been placed in the record on the current motion. (Id., Ex. G at 22-24). That partnership, named "Baby IQ Language", appears to have maintained an office in Huurman's Manhattan apartment and a mailing address at Foster's post-office box. (Id., Ex. G at 108).

In preparation for filming the Chinese-language movie, Foster testified, she applied for a business license, named the business "Baby IQ Language," and developed a logo which she attempted to trademark. (Id., Ex. G at 68). She also designed the cover for the DVD and compiled the list of Chinese terms that would be taught on the video, with the assistance of her aunt, who worked as a Chinese teacher. (Id., Ex. G at 67-68). Additionally, she composed a song to be included in the movie and made a costume to be worn in one of the scenes. (Id., Ex. G at 67). She also enlisted the assistance of her grandmother to make dolls to be used in the film. (Id.).

The movie, entitled "Learning Chinese and English Together," was initially filmed over the course of three days at Foster's home in Pennsylvania. (Id., Ex. G at 68). Subsequent voice recordings and re-takes were recorded at Huurman's apartment in Manhattan. (Id., Ex. G at 68-69). Foster acted in the movie along with her daughter and also recorded the English audio component of the movie. (Id., Ex. G at 68-69). Huurman's daughter Isabelle apparently also appeared in the film. (Id., Ex. G at 96, 102). Foster's sister-in-law recorded the movie's Chinese audio component. (Id., Ex. G at 68). Huurman filmed the video and recorded its audio tracks. (Id., Ex. G at 68-69). Huurman also edited the film on her computer. (Id., Ex. G at 69-70). Although Foster was sometimes present during the editing process, she was apparently not actively involved in it. (Id., Ex. G at 70). The record is silent as to which party exercised final decision-making authority on the filming of the footage or what video and audio components were included in the finished product.

In November 2003, Foster signed a so-called "model release" for herself and her daughter. Foster and her daughter each granted Huurman "the irrevocable right to use my image, likeness, voice and name in all forms of media and in all manner, including electronic media and/or composite representations, for advertising, publicity, trade, or any lawful purposes connected with educational language videos." (Id., Ex. G at 121-22). Foster and her daughter also waived "any right to impact or approve the finished product, including written copy that may be generated in connection therewith" and acknowledged that they had not received any payment. (Id.).*fn3

The Chinese-language video was apparently completed sometime in 2005. (Id., Ex. G at 107).*fn4 It was marketed through a distribution company pursuant to an agreement that both Huurman and Foster reportedly signed, although the agreement has not been placed into the record. (See id., Ex. G at 25). DVDs of the film were also sold directly to consumers, apparently through a website maintained by Huurman and Foster, as well as in local stores. (Id., Ex. G at 51, 57, 108). Foster was responsible for shipping copies of the DVDs to customers who purchased them online or through the distribution company. (Id., Ex. G at 54-56). The movie was also advertised for sale on the website Amazon.com, although evidently without Foster's knowledge. (Id., Ex. G at 46). In that advertisement, plaintiff is listed as the "star" and "director" of the movie. (Id., Ex. G at 107).*fn5 There is no indication of whether plaintiff or defendant were listed as the author of the video in other advertisements or in the DVD packaging, although it does not appear that any authorship information was included on the front cover of the DVD. (See Huurman Aff., Ex. G at 93).

On March 3, 2005 Huurman obtained a Certificate of Registration from the United States Copyright Office for the audiovisual work "Learning Chinese and English Together." The registration indicates that Huurman was the author of "all video footage, sound recording and visual design, sounds, artwork and effects" in the video. (Id., Ex. G at 94-95). Foster was unaware that Huurman had registered this copyright. (Id., Ex. G at 13-16, 64-65).

On March 11, 2005 Foster obtained a Certificate of Registration from the United States Copyright Office for the "lyrics and music" for the song "Hello Hello", which appears in the "Learning Chinese and English Together" movie. (Id., Ex. G at 118- 19).*fn6 Foster stated that Huurman completed the registration form on her behalf and gave it to her to sign. (Id., Ex. G at 63-64).

In August 2006 Foster, Huurman and their partnership known as Baby IQ Language received a demand letter from The Brainy Baby Company, LLC alleging that Baby IQ Language was infringing on the company's trademark "BABY IQ". (Id., Ex. G at 113-14). In December 2006 Foster, Huurman and Baby IQ Language signed a settlement agreement to resolve the trademark claim. (Id., Ex. G at 108-12). Under the terms of the agreement, Baby IQ Language retained the right to market and sell its existing inventory of its "Learning Chinese and English Together" DVDs for one year and one day after the effective date of the settlement agreement. (Id., Ex. G at 108). Any DVDs distributed after the effective date of the agreement had to bear a disclaimer indicating that "BABY IQ" is a registered trademark of The Brainy Baby Company, LLC and that that company is not affiliated with the movie. (Id., Ex. G at 108-09). The agreement also required that Baby IQ Language abandon the use of its URL www.babyiqlanguage.com or redirect visitors from that site to another website with a URL that did not include the term "babyiq", and that it not renew the URL when it expired in October 2010. (Id., Ex. G at 109-10). Furthermore, any web sites or promotional materials used to advertise and market the "Learning Chinese and English Together" DVDs during the one-year period following the effective date of the agreement had to contain a disclaimer reflecting The Brainy Baby Company, LLC's claim to the trademark "BABY IQ" and the fact that The Brainy Baby Company was not affiliated with the movie. (Id., Ex. G at 109).

Early in 2007, Foster began the process of changing the name of the Baby IQ Language partnership to the Clever Elephant. (Id., Ex. G at 60-61). She obtained the domain name www.clever-elephant.com and used the website to market the existing inventory of the "Learning Chinese and English Together" DVDs pursuant to the terms of the settlement agreement with The Brainy Baby Company, LLC. (Id., Ex. G at 60, 115). The record suggests that there may have been a dispute between Huurman and Foster as to whether this name change reflected a dissolution of the Baby IQ Language partnership, or merely a re-naming of the partnership to comply with the terms of the settlement agreement. (See id., Ex. G at 61, 116).

Apparently on March 1, 2007 Foster sent an e-mail to Huurman expressing her belief that Huurman had granted or intended to grant her a license to use Huurman's intellectual property to further the Clever Elephant business, although that message is not included in the current record. (See id., Ex. G at 96). In response, Herb Detrick, Esq., an attorney whose firm "advises and represents Karen J. Huurman . . . in matters relating to her business affairs", sent Foster an e-mail dated March 2, 2007 to "correct [her] misunderstanding" about her right to use Huurman's intellectual property. (Id.).*fn7 The e-mail indicated that Huurman had not granted Foster any right to use her intellectual property or the name or likeness of her daughter except for the "very limited implied-atlaw license" necessary to sell the remaining inventory of the "Learning Chinese and English Together" DVDs pursuant to the terms of the settlement agreement with The Brainy Baby Company, LLC. (Id., Ex. G at 96). The e-mail further stated that Huurman had only agreed to be involved in business activity with Foster to the extent necessary to comply with the terms of the December 2006 settlement agreement. (Id.). The e-mail concluded with a disclaimer that it was not purporting to render legal advice and a suggestion that Foster seek the advice of independent legal counsel. (Id., Ex. G at 96-97).

Huurman followed up this message with a March 8, 2007 e-mail to Foster in which she addressed the possibility of future business dealings between the women. She indicated that she intended to concentrate on regaining her photography and videography clients to avoid "another year of making no money." (Id., Ex. G at 106). She also stated that she had told Foster previously that she would "not be doing anything for Clever Elephant" until Foster got "all [her] ducks in a row" but that when Foster was "ready" the women could "talk and figure out if we can do anything new together." (Id.). She also suggested that Foster get advice about setting up a business from an attorney, accountant or non-profit organization that provides free business advice. (Id.).

In May 2007 Foster wrote Huurman a letter enclosing paperwork connected with Baby IQ Language that Huurman and her brother had requested and a check for $791.25 to reimburse Huurman for expenses that Huurman had incurred in connection with the Baby IQ Language partnership. (Id., Ex. G at 100-01. See also id., Ex. G at 120). In that letter Foster indicated that she still had ten boxes of the "Learning Chinese and English Together" DVDs that she hoped to sell and that she would use the profits to reimburse herself for her expenses and then share any remaining profits with Huurman. (Id., Ex. G at 101-02). Foster also requested that Huurman provide her "the master copy of Chinese and English Together". (Id., Ex. G at 102). She indicated that if Huurman did not want to edit the movie she could do it, and also indicated that she was willing to remove Huurman's daughter from the footage, apparently in response to a request from Huurman's brother. (Id.).

Foster's letter also referenced French and Spanish recordings that she and Huurman had made, apparently in preparation for the creation of French and Spanish-language educational movies. (Id., Ex. G at 103).*fn8 These recordings were evidently made in the beginning of 2006 in New York City, and paid for with a check from the Baby IQ Language partnership. (Id., Ex. G at 44). Huurman also apparently filmed footage for these movies when she was in Florida on vacation, where both Foster's and Huurman's parents live, and when she was visiting her friends and family in Paris. (Id., Ex. G at 72-73). Foster also filmed footage for the videos when she was in Spain for a modeling job. (Id., Ex. G at 73). Foster requested that, if Huurman did not want to make the French-language movies, she provide Foster with "the recordings of French-English-Spanish".

(Id., Ex. G at 103). However, Foster also stated that she hoped that Huurman would let her make copies of "the new French [movie]" to sell in 2008. (Id.). She also requested a single copy of the DVD for herself and her daughter because it included footage of her relatives and a recently-deceased pet. (Id.).

Huurman e-mailed Foster on June 15, 2007 to express her regret that the woman could not "come to an agreement." (Id., Ex. G at 116). She stated that they had "dissolve[d] the company" because "[d]issolving the partnership ended the company." (Id.). She also stated that she was "very clear" that she did not want to participate in the business anymore and that she was not interested in "licensing [her] IP for a percentage." (Id.).

On July 31, 2007 Jan S. Lokuta, Esq. wrote a letter to Huurman on Foster's behalf. He stated that his firm "represents Emrie Foster in an ongoing dispute with you" and indicated his understanding that Huurman had "failed or refused to return to [Foster] the master copy of Learning Chinese and English [T]ogether." (Id., Ex. G at 98).*fn9 Lokuta stated that he had reviewed pertinent documents which indicated that the master copy of the DVD belongs to "the Corporation" and that Foster is entitled to the master copy. (Id., Ex. G at 98). He requested that the master copy be sent to him and noted that "[f]ailure to do so will result in the bringing of an [a]ction to retrieve this item." (Id.).

In reply to this letter, Huurman wrote to Foster on September 24, 2007. The letter recited that she was enclosing "[a] copy of the French/Spanish/English audio recording[,]. . . [a] mini-DV tape of footage from your trip to Spain[,] . . . [and a] mini-DV tape of your brother playing the piano." (Id., Ex. G at 105).

On October 3, 2007 Foster's attorney, Mr. Lokuta, wrote to Huurman's attorney, Mr. Detrick, reiterating Foster's request for the return of the master copies of two audio visual discs entitled "Learning Chinese and English Together" and "Learning French and English Together". (Id., Ex. G at 99). Mr. Lokuta indicated that Foster "has received only three audio voice overs with no visual. This is not what she was seeking, [and] not what your client was to provide." (Id.). Mr. Lokuta stated that Huurman's failure to send Foster the master copies of the Chinese and French DVDs would "require us to litigate this matter to retrieve these items." (Id.).

On October 18, 2007 Huurman filed a pro se complaint in this court, seeking a declaratory judgment that Foster "is not, and never has been, the owner, pursuant to the Copyright Act, of the Master IP", otherwise known as the Chinese-language movie. (Compl. at "wherefore" clause on p. 9). She also sought a declaration that she has never granted Foster "any present or future right, pursuant to the Copyright Act, to reproduce or prepare derivative works of the Master IP" and therefore that Foster "has no right or entitlement to use the Master DVD for any purpose." (Id.; Compl. at "wherefore" clause on p. 14). Huurman also sought a declaratory judgment that "the alleged 'master copy' of the French DVD does not exist." (Compl. at "wherefore" clause on p. 14). Additionally, Huurman's complaint references "numerous other original creative expressions, including fashion magazine cover photographs, Internet website pictorials, and Country and Western song lyrics" that she created in 1999 and 2002. (Compl. at ¶ 8 & Ex. C).*fn10 She claims that she is the sole and exclusive owner of the copyrights to these works and seeks a declaratory judgment that Foster has no copyright interest in them. (See Compl. at ¶ 8 & "wherefore" clause on p. 9). Finally, she seeks an award of her costs and reasonable attorneys' fees incurred in the matter. (Compl. at "wherefore" clauses on pp. 9 and 14).

Huurman now seeks summary-judgment on those claims. Pro se defendant Foster has not formally opposed the motion, although she did write to the court indicating that she wanted to maintain the company on her own and expressing a willingness to pay Huurman a percentage of any profit made from Huurman's contributions. (Letter to the Court from Emrie B. Foster dated Oct.7, 2008). However, she noted that she lacked legal experience and the funds to hire a lawyer and therefore would not be submitting ...


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