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McDonald v. Brown

United States District Court, S.D. New York

January 13, 2014

STEVEN J. BROWN, et al., Defendants.

Lisa Ornest, Law Office of Lisa Ornest, Counsel for Plaintiff. New York, Ny.

Peter R. Ginsberg, Peter R. Ginsberg Law, LLC, Counsel for Defendants Thomas V. Conigliaro and Verify, LLC, New York, Ny.


WILLIAM H. PAULEY III, District Judge.

Christian McDonald brings claims against Defendants Thomas V. Conigliaro and Verify LLC (the "Conigliaro Defendants") for copyright infringement, unjust enrichment, and quantum meruit. The Conigliaro Defendants move for summary judgment dismissing the claims against them. For the following reasons, the Conigliaro Defendants' motion for summary judgment is granted.


McDonald authored a screenplay titled "Remnants" that he hoped to turn into an independent film. To produce that film, McDonald and Allison Hull created a partnership called Res Ipsa Loquitur Productions ("Res Ipsa"). (McDonald Dep. 54:17-56:24, May 20, 2013, ECF No. 56-14.) In late 2005, Res Ipsa retained Barry Jay Reiss, to arrange financing for the film. (McDonald Dep. 75:14-79:8.)

Eventually, Defendant Steven Brown and his production company, Cine Globe Productions LLC ("Cine Globe"), expressed interest in producing "Remnants." (McDonald Dep. 85:3-24.) To that end, Hull and Brown executed an operating agreement for Remnants Productions LLC ("Remnants Productions") in August 2006. (Decl. Lisa Ornest Ex. D, July 3, 2013, ECF No. 59-4.) Under the operating agreement, Res Ipsa owned 49.5% and Cine Globe owned 50.5% of Remnants Productions. (Ornest Decl. Ex. D ¶ 7.) Res Ipsa would oversee creative development and Cine Globe would obtain financing. (McDonald Dep. 85:21-24.) Res Ipsa agreed to contribute the screenplay copyright, McDonald's services as writer and director, and Hull's services as executive producer to the new enterprise. (Ornest Decl. Ex. D ¶ 13.) And Cine Globe promised to arrange financing and production and to contribute Brown's services as a producer. (Ornest Decl. Ex. D ¶ 13.)

McDonald executed two copyright assignments, transferring the screenplay copyright from McDonald to Res Ipsa and then from Res Ipsa to Remnants Productions. (Ornest Decl. Ex. E, at 1-2.) The assignments are dated August 1, 2006, (Ornest Decl. Ex. E at 1-2, ) and McDonald does not dispute the date of execution. (Pl.'s Counter Statement Mat'l Facts Opp'n Conigliaro Defendants ¶¶ 10, 11; see McDonald Dep. 275:5-18.) McDonald claims he signed the transfers because Reiss promised that McDonald would direct the film and retain the screenplay copyright until McDonald completed his services as writer and director. (See, e.g., McDonald Dep. 85:14-18, 94:4-14.) According to McDonald, Reiss repeatedly told McDonald as early as October 2006 that the assignments were not yet effective and that his services as director were guaranteed. (McDonald Dep. 272:10-273:11, 276:9-13.) McDonald claims Reiss continued to assure him that McDonald retained the "Remnants" copyright until December 2009 or January 2010. (McDonald Dep. 259:24-262:12.)

After overtures to potential investors, Conigliaro and several others agreed to finance the film. (See Dep. Thomas V. Conigliaro 16:2-11, Mar. 26, 2013, ECF No. 56-13.) Pre-production began in New Orleans in late November 2009 with McDonald serving as director. (McDonald Dep. 218:2-14.) One month later, McDonald's services as director ended abruptly. (McDonald Dep. 158:18-159:21.) Production was completed in January 2010 under the supervision of another director. The film has not yet been distributed. (Thomas V. Conigliaro Dep. 59:3-8, 68:7-11, Mar. 26, 2013.) According to McDonald's attorney, McDonald learned the "Remnants" copyright was no longer registered in his name in December 2009 or January 2010. (Pl.'s Mem. Opp'n Summ. J. 13.)

In 2011, Conigliaro brought various statutory and common law claims for misrepresentation and breach of fiduciary duty against Brown, Remnants Productions, and other entities involved in the film, but not McDonald. (Ornest Decl. Ex. J.) During settlement discussions, the parties proposed transferring the "Remnants" screenplay copyright to Conigliaro. Reiss argued that any settlement transferring the copyright without awarding McDonald compensation could jeopardize the original copyright transfer from Res Ipsa to Remnants Productions. (See, e.g., Ornest Decl. Ex. G at BR 0000070.) Undeterred, the Conigliaro Defendants settled with Brown, Remnants Productions, and three others, transferring the "Remnants" screenplay copyright without compensating McDonald. (Decl. Christopher R. Deubert Ex. J at 1, June 4, 2013.)

The settlement conveyed Remnants Productions' assets, including the "Remnants" screenplay copyright, from Remnants Productions to Conigliaro without transferring Remnants Productions' obligations. (Deubert Decl. Ex. J at 2, 15.) Conigliaro then transferred the copyright to Verify LLC, an entity solely owned by Conigliaro. (Deubert Decl. Ex. L at 3; Conigliaro Dep. 171:12-17.)

McDonald never met or spoke with Conigliaro prior to filing this suit, although he tried to relay messages to Conigliaro via other parties. (Conigliaro Dep. 30:3-15.) Among his other claims, McDonald sought compensation from Reiss for allegedly fraudulently inducing McDonald to assign the copyright and then assuring him the assignments were not immediately effective. (Second Amended Complaint ¶¶ 86-91.) In November 2013, McDonald settled his claims with Reiss. (See Stipulation of Discontinuance as Against Barry J. Reiss, Nov. 19, 2013, ECF No. 97.)


I. Legal ...

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