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Zenova Corp. v. Mobile Methodology, LLC

United States District Court, E.D. New York

February 4, 2014

ZENOVA CORP., doing business as Lookit Design, Plaintiff, -
v.
- MOBILE METHODOLOGY, LLC and TAL ETSHTEIN, a/k/a Tal Etstein, Defendants

For Zenova Corp., doing business as Lookit Design, Plaintiff: Allan Samuels, Jacqueline Carmen Gerrald, Oliver R. Chernin, LEAD ATTORNEYS, McLaughlin & Stern, LLP, New York, NY; Michael Bruce Cohen, LEAD ATTORNEY, Fort Lauderdale, FL.

For Mobile Methodology, LLC, Tal Etshtien, also known as Tal Etstein, Defendants: Andrew P. Saulitis, Andrew P. Saulitis, P.C., New York, NY.

For Jeremiah Manning, Interested Party: Jeremy F. Manning, Manning, Esq., Delmar, NY.

For Mobile Methodology, LLC, Tal Etshtien, Counter Claimants: Andrew P. Saulitis, Andrew P. Saulitis, P.C., New York, NY.

For Zenova Corp., Counter Defendant: Allan Samuels, Jacqueline Carmen Gerrald, Oliver R. Chernin, LEAD ATTORNEYS, McLaughlin & Stern, LLP, New York, NY.

For Graham Murray, Counter Defendant: Allan Samuels, Jacqueline Carmen Gerrald, Oliver R. Chernin, LEAD ATTORNEYS, McLaughlin & Stern, LLP, New York, NY; Michael Bruce Cohen, LEAD ATTORNEY, Fort Lauderdale, FL.

OPINION

Page 208

MEMORANDUM DECISION AND ORDER

Brian M. Cogan, U.S. District Judge.

Plaintiff in this copyright infringement action moves for summary judgment dismissing one of defendants' counterclaims against the corporate plaintiff, all of defendants' counterclaims against the corporate plaintiff's principal (a counterclaim defendant), and to strike one of defendants' affirmative defenses. I hold that: (a) defendants may not defend against the copyright infringement claim on the ground that they own the subject work as a " work made for hire," as the parties did not " expressly agree in a written instrument signed by them that the work shall be considered a work for hire . . . ", as required by 17 U.S.C. § 101; (b) defendants may not maintain a claim for copyright infringement because neither they nor anyone through whom they claim have

Page 209

registered the copyright on which they purport to sue; and (c) defendants have failed to produce any evidence that plaintiff's principal committed any tortious act, and he therefore has no individual liability. Accordingly, plaintiff's motion is granted.

BACKGROUND

The facts relevant to this motion are neither disputed nor complicated. The parties' relationship began in 2007 when plaintiff Zenova Corp. (" Zenova" ), which designs and advises on websites, provided web design services to defendant Mobile Methodology, LLC (" MML" ). MML is owned by defendant Tal Etshtien, who also owns or controls other companies to which Zenova had provided services. The principal of Zenova is counterclaim defendant Graham Murray.

In 2010, Zenova and MML, through Etshtien, had negotiations concerning a web development project that Zenova would undertake for MML. The purpose of the contemplated agreement was for Zenova to deliver a website framework to defendants that they could use to present and sell their advertising ...


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