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LLC v. Yamano

United States District Court, N.D. Mississippi, Oxford Division

October 30, 2017

38 FILMS, LLC, et al. PLAINTIFFS
v.
WENDY YAMANO, et al. DEFENDANTS

          ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendants' Motion for Summary Judgment [59], Plaintiffs' Response, and Defendants' Reply. The Court has considered these submissions, relevant case law and evidence, including both films in question, and is now prepared to rule.

         I. Procedural History

         Plaintiffs Dr. Charles E. Smith, Jr. and 38 Films, LLC, filed their Amended Complaint against Defendants Wendy Yamano, Mt. Philo Films, LLC, ESPN, Inc., Laspata Decaro Studio Corporation, John Does 1-3, and XYZ Corporations 1-3 on January 31, 2017. The Complaint alleged the following claims against the Defendants: Breach of Contract, Fraudulent Misrepresentation, Negligent Misrepresentation, Conversion, Copyright Infringement, and Negligent Hiring. In addition, the Plaintiffs ask for a preliminary and permanent injunction. On August 2, 2017, Defendants filed the instant Motion for Summary Judgment on the Copyright Claim.

         II. Jurisdiction

         This Court has diversity jurisdiction over the parties, as the Plaintiffs and the Defendants are entirely diverse, and the amount in controversy is over $75, 000.

         III. Factual Background

         a) Undisputed Facts

         Chucky Mullins was a college football player for the University of Mississippi (“Ole Miss”) when he was permanently injured when tackling Vanderbilt football player Brad Gaines during the Vanderbilt game against Ole Miss in Oxford, Mississippi in 1989. Individuals from Ole Miss, the State of Mississippi, and across the nation provided support to Mullins, who was paralyzed after the injury. Mullins died from complications from his injuries on May 6, 1991.

         In 2004, Plaintiffs Dr. Charles E. Smith, Jr. and 38 Films, LLC, hired Micah Ginn and Matthew Nothelfer to make a documentary about the life and legacy of Chucky Mullins. The Plaintiffs' film, Undefeated, features interviews with former Ole Miss Football players and staff, Chucky Mullins' family members, as well as other individuals familiar with Mullins' story, including Brad Gaines. The story delved into Mullins' childhood and teenage years in Russellville, Alabama, as well as his time at the University of Mississippi. The film debuted in 2004, and was released on DVD in 2005.

         In 2013, Wendy Yamano contacted Micah Ginn regarding a documentary she was making for ESPN, which would eventually be titled It's Time. During one of their conversations, Ginn informed Yamano that he had previously worked for the Plaintiffs on the Undefeated film. On July 16, 2013, Yamano requested that Ginn forward her a copy of the Undefeated film, stating that she would “love to watch [Undefeated] through given [that] I'm guessing we will look to license some clips from it.[1]” Yamano emailed Ginn again in early 2014 with the subject line “Chucky Mullins Project.” That email states that Yamano had “been watching [Undefeated] a lot recently, ” and that the film is “well done with lots of great clips.”[2] Further, Yamano asked Ginn for contact information for Coach Brewer and Leroy Mullins, who were both a part of the 1989 Ole Miss Football team staff, were both interviewed in Undefeated, and were both subsequently featured in It's Time.

         In June 2014, Yamano and Plaintiff Smith had at least one phone conversation regarding the potential use of footage from Undefeated in It's Time. There is a dispute between the parties regarding what, if anything, was actually agreed upon in that phone conversation. On September 1, 2014, Dr. Smith emailed both Micah Ginn and Defendant Yamano, stating that he had “just learned that [It's Time] is set to premiere on Vanderbilt's campus [September 2nd], and to air on the SEC Network [September 4th].” Dr. Smith asserts in that email that he did not consent to the use of any digital material or intellectual property belonging to 38 Films in the ESPN film, It's Time. Further, Smith asserts in the email that he had not been compensated for the use of that digital material and intellectual property, nor did he “agree to compensation” for the use of either digital material or intellectual property. Finally, Smith states that the individuals or entities who “own material that appeared in Undefeated do not […] have the right to license said materials from 38 Films' digital archives” for appearance in It's Time.

         It's Time debuted on the SEC Network, an ESPN affiliate television channel, on September 4, 2014. At minute 2:08 of the film, the full title of the film appears on the screen, stating “It's Time: The Story of Brad Gaines and Chucky Mullins.” The titular phrase “It's time” appears at least twice in the film-once when Chucky Mullins and the 1989 Ole Miss Football team proclaimed their team rallying cry in the locker room during the Liberty Bowl, [3] and once when Mullins' doctor is speaking with Brad Gaines immediately before Mullins' death.[4] It's Time tells the story of Chucky Mullins, but also tells the story of Brad Gaines as well. To the extent that It's Time tells Mullins' story, the film interviews many of the same individuals who appeared in Undefeated, and many of the same stories are discussed and depicted. It appears, upon the Court's viewing of the films, that identical or similar footage and photographs featured in Undefeated are also depicted in It's Time. At the end of the credits of the film, the “Thanks to” screen lists several names, with Plaintiff Smith being the last name on that list; Plaintiff 38 Films, LLC, does not appear in the credits.

         b) ...


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