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Super Express USA Publishing Corp. v. Spring Publishing Corp.

United States District Court, E.D. New York

March 24, 2017

SUPER EXPRESS USA PUBLISHING CORP. on its own behalf, SUPER EXPRESS USA PUBLISHING CORP. as assignee of rights of REPROPOL-POLISH ASSOCIATION OF PUBLISHERS, REPROPOL individually, SUPER EXPRESS USA PUBLISHING CORP. as assignee of rights of PRESSPUBLICA SP. Z O.O., PRESSPUBLICA SP. Z O.O. individually, Plaintiffs, V. SPRING PUBLISHING CORP., d/b/a POLSKA GAZETA, JANUSZ CZUJ, Defendants.

          OPINION AND ORDER

          DORA L. IRIZARRY, CHIEF JUDGE

         Plaintiffs Super Express USA Publishing Corporation (“Super Express USA”), REPROPOL (“Repropol”), and Presspublica SP. Z.O.O. (“Presspublica, ” and collectively, “Plaintiffs”) allege that defendants Janusz Czuj (“Czuj”) and Spring Publishing Corporation (“Spring Publishing”) copied Plaintiffs' news articles, editorial pieces and photographs and inserted them into Czuj's publication without compensating Plaintiffs or obtaining their permission. (Am. Compl., Dkt. Entry No. 36; Memorandum of Law in Support of Motion for Summary Judgment (“Motion” or “Mot.”), Dkt. Entry No. 65-4.) Plaintiffs now move for summary judgment on their claims of copyright infringement in violation of the Copyright Act of 1976, 17 U.S.C. § 501(a) (the “Copyright Act”), violation of the Digital Millennium Copyright Act of 1998 (“DMCA”), 17 U.S.C. § 512, misappropriation and fraud, unjust enrichment, unfair and deceptive practices, false designation of origin, and unfair competition. (Mot. at 1.)

         For the reasons set forth below, Plaintiffs' motion for summary judgment is granted as to their copyright infringement claim, in part, and is otherwise denied.

         BACKGROUND

         A. Parties

         Super Express USA is a New York-based company that publishes a daily print newspaper, as well as an online edition, for Polish Americans. (Pl. Rule 56.1 Statement (“Pl. R. 56.1 St.”) at ¶ 2, Dkt. Entry No. 65-1.) Presspublica is a Polish company that publishes two daily national newspapers in Poland called “Rzeczpospolita” and “Uważam Rzre, ” respectively, also in both print and online formats. (Id. at ¶ 3.) Although each of Presspublica's periodicals originate in Poland, they are distributed in the United States. (Id. at ¶ 4.)[1]

         Presspublica is a member of Repropol. (Id. at ¶ 5.) Repropol is an association of authors and publishers based in Poland established for the purpose of providing copyright protection for its members. (Id. at ¶ 7.) According to Plaintiffs, Repropol has the authority to sell or assign rights and supervise royalty licensing for many Polish publishers. (Id.) Repropol's central mission is to ensure the proper distribution of royalties “to and among [its member] publishers and authors.” (Declaration and Affidavit of Maciej Hoffman and Jan Rurański (“Hoffman and Rurański Aff.”) at ¶ 3, Dkt. Entry No. 65-9 (Exhibit D).)[2] Plaintiffs claim that, by virtue of membership in the association, publishers give Repropol the authority to prosecute copyright infringements on their behalf. (Pl. R. 56.1 St. at ¶ 9.)

         Defendant Spring Publishing is the publisher of Polska Gazeta, which is a Polish-language newspaper whose principal place of business is in New York and is distributed throughout several states within the United States. (Pl. R. 56.1 St. at ¶ 11.)[3] Polska Gazeta publishes both print and online daily editions. (Id. at ¶¶ 12-13.) Czuj is the founder of Spring Publishing and is its sole shareholder. (Id. at ¶ 14.) Czuj also is the president and editor-in-chief of Polska Gazeta. (Id. at ¶ 16.) Czuj has final decision-making authority regarding the captions attached to reprinted articles in Polska Gazeta or references to the source of an article. (Deposition Transcript of Janusz Czuj (“Czuj Tr.”), Dkt. Entry Nos. 67-4 through 67-6, at 108-109.)

         B. Publication of Newspaper Articles

         Plaintiffs contend that to find the content that ultimately comprised issues of Polska Gazeta, Czuj typically searched the internet for news articles, editorials and photographs previously published in other Polish newspapers and inserted those items into his own daily editions. (Pl. R. 56.1 St. at ¶ 23.) During his deposition, Czuj acknowledged that primary source material was a less frequent feature of his publication and that he principally republished articles from internet sources. (Czuj Tr. at 72.) However, Czuj subsequently amended this position, stating in a declaration that Polska Gazeta's editorial material is “developed from its own sources” and that it has reciprocal sharing arrangements with various Polish publishers who permit Polska Gazeta to reprint articles and photographs. (Declaration of Janusz Czuj (“Czuj Decl.”) at ¶ 2, Dkt. Entry No. 66-3.) Czuj indicated that these sharing arrangements had not been reduced to written agreements. (Czuj Tr. at 77.) Additionally, Plaintiffs contend that Czuj does not compensate the original sources of the reprinted articles nor does he credit them for their work. (Pl. R. 56.1 St. at ¶ 30.) During his deposition, Czuj expressed his belief that publication in a New York City-based periodical has value in and of itself as it “elevates” the author of the material. (Czuj Tr. at 76.)

         C. Lawsuit Chronology

         Plaintiffs assert that on March 22, 2011, Super Express USA forwarded Polska Gazeta a written cease and desist letter demanding the cessation of all unauthorized copying of its materials and the payment of royalties for previously copied materials. (Pl. R. 56.1 St. at ¶ 69.)[4] Plaintiffs contend that following his receipt of the cease and desist correspondence, Czuj continued to copy their written materials without permission or compensation. (Affirmation of Paul T. Sabaj (“Sabaj Affidavit” or “Sabaj Aff.”), Dkt. Entry No. 65-43 (Exhibit F) (“Infringements Chart”).)[5]

         Plaintiffs filed a complaint in this Court on May 10, 2013 (Compl., Dkt. Entry. No. 1), which was amended on July 15, 2014 (Am. Compl.). Plaintiffs now move for summary judgment on all of their claims, seeking statutory damages for each claim of infringement under the Copyright Act, permanent injunctive relief, costs and reasonable attorney's fees. (Mot.)

         DISCUSSION

         I. Summary Judgment Standard

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (citations and internal quotations omitted). A fact is “material” within the meaning of Rule 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. To determine whether an issue is genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam) and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)). “[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. However, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         The moving party bears the burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrates the absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). Once the moving party has met its burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted) (internal citation omitted). The nonmoving party must offer “concrete evidence from which a reasonable juror could return a verdict in [its] favor.” Anderson, 477 U.S. at 256. The nonmoving party may not “rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the nonmoving party's pleading.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532-33 (2d Cir. 1993) (internal citations and quotations omitted). “Summary judgment is appropriate only ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.'” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (quoting Matsushita, 475 U.S. at 587).

         II. Choice of Law

         This case involves journalistic works created and published by Polish nationals in Poland, and allegedly infringed in the United States. Accordingly, one of the threshold issues in this matter is a determination of which country's substantive law controls this copyright dispute. (Mot. at 8-9.)[6]

         In Itar-Tass Russian News Agency v. Russian Kurier, 153 F.3d 82 (2d Cir. 1998), the Second Circuit Court of Appeals set forth a fulsome analysis of the choice of law issues in copyright cases, an area of the law that largely had been overlooked by the federal courts. Id. at 88-89. In Itar-Tass, the court endorsed the “national treatment” principle of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) and the Universal Copyright Convention (“U.C.C.”), as interpreted by Melville Nimmer's treatise. Id. at 89; see Berne Convention for the Protection of Literary and Artistic Works, Paris Text, July 24, 1971, Art. V(1)-(2), S. TREATY DOC. NO. 27, 99th Cong., 2d Sess. 40 (1986), available at World Intellectual Property Organization (“WIPO”), http://www.wipo.int/wipolex/en/treaties/text.jsp?fileid=283698 (last visited March 24, 2017); Rundquist v. Vapiano SE, 798 F.Supp.2d 102, 131 n. 16 (D.D.C. 2011) (citing Contracting Parties, Berne Convention, WIPO, available at http://www.wipo.int/treaties/en/ShowResults.jsp? lang=en&treatyid=15 (last visited March 24, 2017) (indicating that Poland is a signatory to the Berne Convention). Pursuant to this principle, “an author who is a national of one of the member states of either Berne or the U.C.C., or one who first publishes his work in any such member state, is entitled to the same copyright protection in each other member state as such other state accords to its own nationals.'” Id. (quoting Nimmer on Copyright § 17.05 (1998). The Court recognized, however, that the choice of law analysis is “not necessarily the same for all issues, ” and, therefore, the choice of law applicable to issues of ownership deserves a separate analysis from that applicable to issues of infringement. Id. at 90.

         With respect to choice of law applicable to ownership, the situation here is similar to that in Itar-Tass, where, because “the works at issue were created by Russian nationals and first published in Russia, Russian law [was determined to be] the appropriate source of law to determine issues of ownership.” Id. Here, because the works before the court were created by Polish nationals and first published in Poland, Polish law will control the Court's determination of ownership issues raised in the Motion.

         On the other hand, the choice of law analysis applicable to infringement issues is governed by the “doctrine generally applicable to torts.” Id. at 91. Here, as in Itar-Tass, the place of the alleged tort is the United States, where Czuj published the works at issue. See Id. Therefore, the copyright laws of the United States shall control over the issues of infringement raised in the Motion.

         III. Repropol's Standing

         Czuj argues initially that plaintiff Repropol does not have standing to bring copyright claims on behalf of its members. If correct, the claims regarding all works as to which Repropol is the lone plaintiff with a purported interest must be dismissed. Czuj does not challenge the standing of any other plaintiff.

         Although, as discussed above, Polish substantive law determines copyright ownership in this case, that choice of foreign law is subject to the qualification under United States federal procedural law that “an owner (including one determined according to foreign law) may sue for infringement in a United States court only if it meets the standing test of 17 U.S.C. § 501(b), which accords standing only to the legal or beneficial holder of an ‘exclusive right.'” Itar-Tass, 153 F.3d at 91; accord Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 94 (2d Cir. 2014) (§ 501(b) “does not permit copyright holders to choose third parties to bring suits on their behalf”) (quoting ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991)). In addition, the Second Circuit has recognized that authors' associations asserting “that foreign law confers upon them certain exclusive rights to enforce the copyrights of their foreign members” have standing to ...


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