Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 1 of 21 PageID #: 2901
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`Plaintiff,
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`-against-
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`CISERO K. MURPHY, JR.,
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`TYRIEK A. MURPHY,
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`Defendant.
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`JAMES R. CHO, United States Magistrate Judge:
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`MEMORANDUM & ORDER
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`No. 20-CV-2388-JRC
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`On May 27, 2020, plaintiff Cisero K. Murphy, Jr. (“plaintiff”) brought this action,
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`which is now pending before this Court with the consent of the parties, against his son,
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`defendant Tyriek A. Murphy (“defendant”), asserting claims for copyright infringement,
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`unjust enrichment, fraud, negligent misrepresentation, and conversion. See Compl., Dkt.
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`1. Currently pending before this Court are the parties’ cross-motions for partial summary
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`judgment. Dkts. 58, 62. Plaintiff moves for partial summary judgment for a declaration
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`that he is the sole owner of the copyrights at issue and that defendant willfully infringed
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`plaintiff’s copyright. See Mem. of Law in Support of Pl.’s Mot. for Partial Summ. J.
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`(“Pl.’s Mem.”) at 1, Dkt. 61. Defendant moves for partial summary judgment that
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`plaintiff is not entitled to an award of actual damages for copyright infringement, and that
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`plaintiff is not entitled to statutory damages or attorney’s fees under the Copyright Act,
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`17 U.S.C. § 504(c)(1). See Def.’s Mem. of Law in Support of Mot. for Partial Summ. J.
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`(“Def.’s Mem.”) at 1-2, Dkt. 63.
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`For the reasons set forth below, the Court denies plaintiff’s motion for partial
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`summary judgment, and grants defendant’s motion for partial summary judgment.
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 2 of 21 PageID #: 2902
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`FACTUAL BACKGROUND
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`The Court describes the relevant factual background below primarily from the
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`allegations in plaintiff’s complaint (Compl., Dkt. 1), and the statements submitted by the
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`parties pursuant to Local Civil Rule 56.1. See [Plaintiff’s] Local Rule 56.1 Statement of
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`Undisputed Facts (“Pl.’s 56.1”), Dkt. 59; [Defendant’s] Resp. to Cisero K. Murphy, Jr.’s
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`Local Rule 56.1 Statement of Undisputed Facts (“Def.’s Resp. 56.1”), Dkt. 72;
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`[Defendant’s] Statement of Material Facts for Which There is No Genuine Issue to be
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`Tried (“Def.’s 56.1”), Dkt. 66; Pl.’s Resp. to Def.’s Statement of Undisputed Material
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`Facts, Dkt. 69. The facts described below are undisputed unless otherwise noted.
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`In his Complaint, plaintiff alleges that he researched and wrote a biography of his
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`father, Cisero Murphy, Sr., a professional billiards player and the first African American
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`to win world and U.S. national billiards championships. See Compl. at ¶ 1. Plaintiff
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`alleges that before he “was able to publish or sell his father’s biography, [defendant] stole
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`. . . the manuscript out of [plaintiff’s] car. . . and then publish[ed] and [sold] the work as
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`his own creation.” Id.
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`Cisero Murphy, Sr. died intestate, leaving a spouse, and four children, including
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`plaintiff. See Pl.’s 56.1 ¶ 1. Defendant is plaintiff’s son and Cisero Murphy, Sr.’s
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`grandson. See id. ¶ 3. In 2013, plaintiff and Clifton Bell (“Bell”) began conducting
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`research and interviews about Cisero Murphy, Sr. Id. ¶ 58. Originally, Bell had intended
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`to use the interviews for a movie. Id. ¶ 61. In early 2015, plaintiff told Bell that he had
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`started to write a book about Cisero Murphy, Sr. Id. ¶ 62.
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`On January 19, 2017, defendant obtained Copyright Registration No.
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`TXu002130697 for the written work entitled: “Big City Nights: The Autobiography of
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`The Legendary Cisero Murphy” (hereafter “defendant’s Big City Nights”). Id. ¶ 8.
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`Approximately five months later, on June 15, 2017, plaintiff obtained Copyright
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`Registration No. TXu002053010 for the unpublished printed work entitled: “Big City
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`Knights: The Biography of: Cisero ‘Sonny’ Murphy A World-Class Champion.” Id. ¶
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`5; Def.’s 56.1 ¶ 16. On July 3, 2017, plaintiff obtained Copyright Registration No.
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`TXu002060114 for an unpublished electronic file, entitled: “Big City Nights.”1 Def.’s
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`56.1 ¶ 17.
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`Plaintiff is in possession of a 140-page handwritten manuscript of plaintiff’s Big
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`City Knights, which was written by his own hand. Pl.’s 56.1 ¶¶ 9-10. Throughout that
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`manuscript, are defendant’s handwritten edits or the word, “Done,” which appear on 124
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`pages of the manuscript. Id. ¶ 11. The parties dispute the meaning of defendant’s
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`notations. See Def.’s Resp. 56.1 ¶ 12. Similarly, plaintiff has submitted several text
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`messages between the parties, in which defendant appears to ask plaintiff about the
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`progress of the book and when it will be finished. See Dkt. 60-35 at ECF pages 12, 15,
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`20, 22. Defendant disputes the meaning of those text messages. See Def.’s Resp. 56.1
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`¶ 18.
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`Plaintiff has also submitted the affidavits of a number of non-party family
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`members and family friends, averring that they witnessed plaintiff handwrite portions of
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`a biography of Cisero Murphy, Sr., and that no one was dictating to plaintiff at the time.
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`See Pl.’s 56.1 ¶¶ 19-20, 29-30, 33-34, 36, 39-41, 43-44, 47, 49, 50-51, 55. Some of those
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`1 While plaintiff’s June 15, 2017 and July 3, 2017 copyright registrations listed the work
`under different titles (compare “Big City Knights . . .” with “Big City Nights”), according to plaintiff the
`only difference between the two differently-titled works was “Big City Knights” did not include certain
`photographs contained in “Big City Nights.” Def.’s 56.1 ¶ 18. For ease of reference, the Court will refer to
`both works registered on June 15 and July 3, 2017, collectively as “plaintiff’s Big City Knights.”
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 4 of 21 PageID #: 2904
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`non-party witnesses also state that defendant specifically told them “that his role with the
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`biography was proofreading [and] editing [plaintiff’s] handwritten manuscript of the
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`biography.” See, e.g., id. ¶¶ 21, 32, 37, 42, 45, 48, 54. Defendant denies making these
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`statements. See Def.’s Resp. 56.1 ¶¶ 21, 32, 37, 42, 45, 48, 54.
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`Defendant testified that he wrote defendant’s Big City Nights on his computer and
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`that he dictated a portion of the book to plaintiff, while defendant’s computer was broken.
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`Id. ¶ 66. Defendant further testified that plaintiff handwrote the pages that were dictated
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`to plaintiff by defendant. Id. ¶ 68. According to defendant, plaintiff obtained defendant’s
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`typed manuscript and re-copied it by hand. Id. ¶ 70. Defendant further testified that he
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`did not have any of the recorded interviews or notes of the interviews conducted for the
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`Cisero Murphy, Sr. biography. Id. ¶¶ 71-72.
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`The parties dispute the authenticity of a “Forfeiture Contract” dated January 25,
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`2017. Id. ¶ 74. Defendant claims that plaintiff signed the Forfeiture Contract, assigning
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`plaintiff’s rights in plaintiff’s Big City Knights and/or defendant’s Big City Nights to
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`Murphy Enterprise Solutions, LLC (“MES”).2 Def.’s Separate Statement of Material
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`Facts3 ¶ 3(c), Dkt. 72 at ECF pages 22-23. Plaintiff contends that the agreement is
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`fraudulent. See Pl.’s 56.1 ¶ 74.
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`After defendant filed a copyright registration for defendant’s Big City Nights with
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`the U.S. Copyright Office, he engaged Dorrance Publishing Co., Inc. (“Dorrance”) to
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`assist with the process of publishing defendant’s Big City Nights. Def.’s 56.1 ¶ 2. On or
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`2 According to plaintiff, MES is a limited liability company for which plaintiff and defendant had agreed to
`be equal co-owners. See Compl. ¶ 21.
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` Defendant’s responsive 56.1 Statement includes a Separate Statement of Material Facts.
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`about March 7, 2017, defendant entered into an agreement with Dorrance, that Dorrance
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`would perform services for defendant, including “publish[ing] [defendant’s Big City
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`Nights] for print and e-book distribution.” Id. ¶ 3. Pursuant to that agreement, defendant
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`paid Dorrance $5,900 for such services. Id. ¶¶ 4-5. The agreement also provided that
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`defendant would “deliver to Dorrance, on or before [March 7, 2017], a copy of the
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`completed Work [defendant’s Big City Nights].” Id. ¶ 6. Indeed, it was Dorrance’s
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`practice to require receipt of a completed manuscript before entering into a publishing
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`agreement with an author. Id. ¶ 7. Accordingly, on or before March 7, 2017, defendant
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`provided to Dorrance a completed manuscript copy of defendant’s Big City Nights. Id.
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`¶ 8. Between March 7, 2017 and August 31, 2017, copies of defendant’s Big City Nights
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`were distributed to multiple employees of Dorrance, and Dorrance sent to defendant
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`copies of the edited manuscript, page design proofs, and cover design proofs. Id. ¶¶ 10-
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`12. On May 16, 2017, Dorrance provided defendant with an edited copy of defendant’s
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`Big City Nights. Id. ¶ 12. On May 17, 2017, defendant approved Dorrance’s edits. Id.
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`On August 31, 2017, Dorrance published defendant’s Big City Nights. Id. ¶ 13.
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`Plaintiff’s Big City Knights was first published on September 17, 2021. Id. ¶ 21.
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`PROCEDURAL BACKGROUND
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`On May 27, 2020, plaintiff, then-proceeding pro se, commenced this action. See
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`Compl., Dkt. 1. On May 7, 2021, defendant, also then-proceeding pro se, filed a “pre-
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`answer motion to dismiss,” denying plaintiff’s allegations, and asserting counterclaims
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`for copyright infringement, breach of contract and “harassment and defamation.” Pre-
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`Answer Mot. to Dismiss, Dkt. 9. On June 8, 2021, plaintiff filed a “reply to the
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`Defendant’s answer.” Dkt. 10.
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`Thereafter, plaintiff retained counsel. Dkt. 17. On November 30, 2021, the
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`Honorable Ann M. Donnelly, the then-assigned District Judge, referred the case to the
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`Court-annexed mediation program, and denied the motion to dismiss without prejudice to
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`renewal if mediation failed. See Orders dated November 30, 2021.
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`On March 11, 2022, the parties reported that mediation was unsuccessful, and,
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`later that same day, defendant filed a motion for summary judgment. See Report of
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`Mediation Unsettled; Mot. for Summ. J., Dkt. 18. On April 19, 2022, Judge Donnelly
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`denied defendant’s motion for summary judgment, stating that “[t]he parties have not
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`engaged in discovery, and the defendant’s motion for summary judgment does not
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`include the required Rule 56.1 statement.” See Order dated Apr. 19, 2022. The Court
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`further noted that the “motion’s section titled ‘Undisputed Facts for Summary Judgment’
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`primarily contain[ed] legal conclusions.” Id.
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`On April 25, 2022, defendant filed an “amended motion for summary judgment.”
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`Dkt. 19. On May 3, 2022, Judge Donnelly denied defendant’s second motion for
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`summary judgment as premature because the parties had not yet engaged in discovery.
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`See Mem. Decision and Order, Dkt. 21.
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`On May 11, 2022, defendant filed an Answer, including counterclaims, entitled
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`“Defense Answer Motion to Dismiss.” Dkt. 22. After seeking clarification from
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`defendant, this Court informed the parties that it would construe Dkt. 22 as a “motion to
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`dismiss.” See Min. Entry dated Oct. 12, 2022. On February 28, 2023, this Court issued a
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`report and recommendation that defendant’s motion to dismiss on statute of limitations
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`grounds be denied, which was subsequently adopted by the Honorable Hector Gonzalez,
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`the District Judge who had been reassigned to the action. See Dkts. 32, 35.
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 7 of 21 PageID #: 2907
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`On March 2, 2023, defendant filed a third motion for summary judgment. See
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`Dkt. 33. This Court denied defendant’s motion, without prejudice, for failure to follow
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`Judge Gonzalez’s Individual Practices. See Min. Entry dated Mar. 7, 2023.
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`On June 9, 2023, the parties consented to the undersigned magistrate judge for all
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`purposes. See Dkt. 37.
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`At a conference held on June 16, 2023, the Court advised the parties that it would
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`likely deny their contemplated cross-motions for summary judgment “on the grounds that
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`an issue of material fact exists in connection with the disputed authorship of the at-issue
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`book.” Min. Entry dated June 16, 2023. The Court further advised the parties that they
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`would be granted leave to renew the motions during trial. Id.
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`On September 12, 2023, counsel appeared for the first time on behalf of
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`defendant. See Dkts. 39, 40. At a conference held on September 21, 2023, the Court
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`granted defendant’s request to reopen discovery, affording defendant leave to conduct
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`depositions, including the deposition of plaintiff. See Min. Entry dated Sept. 21, 2023.
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`The Court also adjourned sine die the bench trial previously scheduled, on consent of the
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`parties. See id. The instant motions followed.
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`I.
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`DISCUSSION
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`Standard under Rule 56 of the Federal Rules of Civil Procedure
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`Summary judgment is appropriate if the parties’ submissions — including
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`pleadings, deposition transcripts, affidavits, and other material in the record — show that
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`there is “no genuine dispute as to any material fact and the movant is entitled to judgment
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`as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
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`322-23 (1986). The movant has the burden of demonstrating that no material fact is
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`genuinely in dispute. Coyle v. United States, 954 F.3d 146, 148 (2d Cir. 2020). “A fact
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`is material if it ‘might affect the outcome of the suit under the governing law,’” and a
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`factual dispute is “genuine” only if “the evidence is such that a reasonable jury could
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`return a verdict for the nonmoving party.” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d
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`Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
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`Summary judgment is appropriate only if “on the record presented, considered in
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`the light most favorable to the non-moving party, no reasonable fact-finder could find in
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`its favor.” Roberts v. Genting N.Y. LLC, 68 F.4th 81, 88 (2d Cir. 2023) (alterations
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`adopted) (quoting Capobianco v. City of N.Y., 422 F.3d 47, 54-55 (2d Cir. 2005)). A
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`court should not ask whether “the evidence unmistakably favors one side or the other but
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`whether a fair-minded fact-finder could return a verdict for the non-moving party on the
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`evidence presented.” Id. (alterations adopted) (quoting Jeffreys v. City of New York, 426
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`F.3d 549, 553 (2d Cir. 2005)). “[A] ‘judge’s function’ at summary judgment is not ‘to
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`weigh the evidence and determine the truth of the matter but to determine whether there
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`is a genuine issue for trial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting
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`Anderson, 477 U.S. at 249). To avoid summary judgment, all that is required of the non-
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`moving party is a showing of sufficient evidence supporting the claimed factual dispute
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`as to require a judge or jury’s resolution of the parties’ differing versions of the truth. See
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`Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006).
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`“Cross-motions for summary judgment do not alter the basic standard.” Basora v.
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`City of Poughkeepsie, No. 22-CV-3300, 2025 WL 50322, at *3 (S.D.N.Y. Jan. 8, 2025).
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`Where, as here, the parties have cross-moved for summary judgment, the Court evaluates
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`each party’s motion “on its own merits,” and draws all reasonable inferences “against the
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 9 of 21 PageID #: 2909
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`party whose motion is under consideration.” Roberts, 68 F.4th at 88 (quoting Morales v.
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`Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001)).
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`Pursuant to Local Civil Rule 56.1, each moving party has submitted a statement
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`of undisputed material facts warranting partial summary judgment, and the opposing
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`party has submitted a corresponding statement responding to each item set forth in the
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`movant’s statement. In addition, defendant has submitted a statement of additional
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`material issues of fact that he contends are disputed.
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`II.
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`Plaintiff’s Motion for Partial Summary Judgment
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`Plaintiff moves for partial summary judgment for a declaration that he is the
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`owner of the copyrighted works and that defendant willfully violated plaintiff’s
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`copyrights. See Pl.’s Mem. at 1. Plaintiff contends that he “authored the content of
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`[plaintiff’s] Big City Knights, The Biography of: Cisero ‘Sonny’ Murphy, A World
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`Class Champion and [defendant’s] Big City Nights: The Biography of the Legendary
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`Cisero Murphy.” Id. at 17. He claims that defendant “made only superficial changes” to
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`plaintiff’s manuscript, such as changing the title and author’s name, in passing off
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`plaintiff’s Big City Knights as defendant’s Big City Nights. Id. at 13. In response,
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`defendant argues that “there are a number of factual disputes as to the parties’ respective
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`involvement in authoring the works, including the parties’ divergent stories regarding the
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`nature of the writing process.” Def.’s Opp. at 5, Dkt. 70.
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`“In order to make out a claim of copyright infringement[,] a plaintiff must
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`establish three things: 1) that his work is protected by a valid copyright, 2) that the
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`defendant copied his work, and 3) that the copying was wrongful.”4 Zalewski v. Cicero
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`4 To satisfy the second element, plaintiff “must also show copying by defendants. . . . Copying may be
`inferred where a plaintiff [1] establishes that the defendant had access to the copyrighted work and [2] that
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 10 of 21 PageID #: 2910
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`Builder Dev., Inc., 754 F.3d 95, 100 (2d Cir. 2014); see Hamil Am. Inc. v. GFI, 193 F.3d
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`92, 98 (2d Cir. 1999) (plaintiff must show “both ownership of a copyright and
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`unauthorized copying by the defendant”). On plaintiff’s motion, only the first element of
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`ownership is at issue.
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`The Copyright Act vests initial ownership in a work in the “author or authors of
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`the work.” 17 U.S.C. § 201(a). “As a general rule, the author is the party who actually
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`creates the work, that is, the person who translates an idea into a fixed, tangible
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`expression entitled to copyright protection.” Community For Creative Non-Violence v.
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`Reid, 490 U.S. 730, 737 (1989). In other words, “[a] person is not an author if he has an
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`original idea that is not expressed in tangible form, and a person is not an author if he
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`expresses another’s idea in tangible form without any original contribution.” Medforms,
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`Inc. v. Healthcare Mgmt. Sols., Inc., 290 F.3d 98, 107-08 (2d Cir. 2002). “Authorship is
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`generally a question of fact for the jury.” Id. at 110; see Ward v. Barnes & Noble, Inc.,
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`No. 13-CV-7851, 2015 WL 1442449, at *2 (S.D.N.Y. Mar. 30, 2015).
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`A copyright holder is entitled to a statutory presumption of the validity of the
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`facts stated in its copyright registration, including facts regarding authorship. See
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`Langman Fabrics, a div. of Blocks Fashion Fabrics, Inc. v. Graff Californiawear, Inc.,
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`160 F.3d 106, 111 (2d Cir. 1998) (“Langman Fabrics is entitled to a statutory
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`presumption . . . that Langman Fabrics was the author of the plume design”); Ward, 2015
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`WL 1442449, at *2 (“one of the ‘facts stated’ on the certificates is that Plaintiff is to be
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`considered the author of the ‘text’ or ‘entire text’ of the books published by Sterling”); 17
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`U.S.C. § 410(c). A registered copyright constitutes “prima facie evidence of the validity
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`substantial similarities exist as to protectible material in the two works.” Walker v. Time Life Films, Inc.,
`784 F.2d 44, 48 (2d Cir. 1986).
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`of the copyright and of the facts stated in the [registration] certificate.” 17 U.S.C.
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`§ 410(c). However, the statutory presumption may be rebutted. See Langman Fabrics,
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`160 F.3d at 111. “[T]he party challenging the validity of the copyright has the burden to
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`prove the contrary.” Hamil Am., 193 F.3d at 98; see Langman Fabrics, 160 F.3d at 111;
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`Wozniak v. Warner Bros. Ent. Inc., 726 F. Supp. 3d 213, 227 (S.D.N.Y. 2024).
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`“Generally speaking, the presumption of validity may be rebutted [w]here other evidence
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`in the record casts doubt on the question.” Fonar Corp. v. Domenick, 105 F.3d 99, 104
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`(2d Cir. 1997) (internal quotation marks and citation omitted). Notwithstanding the
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`burden shifting, “[a] plaintiff in a copyright infringement suit bears the burden of proving
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`ownership of the copyright.” Urbont v. Sony Music Ent., 831 F.3d 80, 88 (2d Cir. 2016).
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`Here, plaintiff has submitted Copyright Registration No. TXu002053010, in
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`which he is listed as the author for the printed work, plaintiff’s “Big City Knights: The
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`Biography of: Cisero ‘Sonny’ Murphy, A World-Class Champion,” on June 15, 2017.
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`See Dkt. 60-5. The Court finds that plaintiff’s registration gives rise to a rebuttable
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`presumption that plaintiff is the author of the copyrighted works and owns the copyright
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`thereto. The burden then shifts to defendant to rebut the presumption of copyright
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`ownership. See Langman Fabrics, 160 F.3d at 111; Wozniak, 726 F. Supp. 3d at 227-28;
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`Ward, 2015 WL 1442449, at *3.
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`It is black letter law that a non-movant cannot “escape summary judgment merely
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`by vaguely asserting the existence of some unspecified disputed material facts, or defeat
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`the motion through mere speculation or conjecture.” Western World Ins. Co. v. Stack Oil,
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`Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotation marks and citation omitted);
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`see Anderson, 477 U.S. at 252 (holding that a non-moving party must present more than a
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`mere “scintilla of evidence” to avoid summary judgment). The Court finds that
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`defendant has come forward with sufficient evidence to rebut the presumption that
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`plaintiff is the author of the copyrighted works.
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`Here, it is undisputed that before plaintiff obtained his copyright registration on
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`June 15, 2017, defendant obtained Copyright Registration No. TXu002130697, in which
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`he is listed as the author of the copyrighted work, defendant’s “Big City Nights: The
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`Biography of The Legendary Cisero Murphy.” See Dkt. 60-8. Defendant has testified
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`that he wrote defendant’s Big City Nights independently and began writing the work in
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`2012. See Def.’s Separate Statement of Material Facts ¶¶ 1(c), 1(d), Dkt. 72 at ECF page
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`21. Defendant further claims that plaintiff’s involvement was limited to typing portions
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`of the manuscript that were dictated to plaintiff by defendant, during a time when
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`defendant’s computer was broken. Id. ¶ 2(a). Thus, although plaintiff is entitled to a
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`statutory presumption that he is the author of the subject work, defendant has rebutted
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`that presumption with evidence that he is the author.
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`On the other hand, plaintiff claims that he authored plaintiff’s Big City Knights
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`and defendant merely typed and proofread material that plaintiff had already written by
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`hand. See Pl.’s 56.1 ¶ 9. Clearly, material issues of fact exist as to the authorship of the
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`copyrighted works. This case boils down to a case of “he said/he said.” Viewing the
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`evidence in the light most favorable to defendant, a fact finder could reasonably conclude
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`that defendant’s version of the facts is correct. Such a determination is a matter of
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`credibility for the trier of fact. See Langman Fabrics, 160 F.3d at 113.
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`Although plaintiff appears to acknowledge that issues of fact exist as to the
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`authorship of the copyrighted works, he argues that the Court should credit the evidence
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`submitted by plaintiff over the evidence submitted by defendant. Pl.’s Mem. at 18-20
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`(“Tyriek Murphy has concocted a story that cannot hide from its obvious deficiencies.”).
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`Here, plaintiff essentially asks the Court to weigh the credibility of the witnesses without
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`the benefit of live trial testimony.
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`“Assessments of credibility and choices between conflicting versions of the
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`events are matters for the [fact finder], not for the court on summary judgment.” Rule v.
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`Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). While plaintiff has submitted several
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`affidavits from non-parties stating that defendant advised the affiant that his role was
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`limited to proofreading and/or editing, defendant’s affidavit expressly denies having
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`made such statements. See Decl. of Tyriek A. Murphy ¶¶ 2, 6, 9, 10, 12, 15, 17, Dkt. 71.
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`Even if defendant’s statements, standing alone, are insufficient to defeat summary
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`judgment, coupled with his own earlier copyright registration, defendant has raised a
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`genuine dispute of material fact as to whether plaintiff is the owner of the copyright at
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`issue.5 See Ward, 2015 WL 1442449, at *4 (“the issue of authorship is one for the jury to
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`decide at trial, not for this Court to decide on summary judgment”); Maurizio v.
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`Goldsmith, 84 F. Supp. 2d 455, 466-67 (S.D.N.Y. 2000) (“[T]he question of whether the
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`language was independently created by [plaintiff] is disputed, and thus one for the trier of
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`fact.”), aff’d, 230 F.3d 518 (2d Cir. 2000). Resolving these factual disputes based on the
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`credibility of the affiants is not permissible on a motion for summary judgment. See
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`Jeffreys, 426 F.3d at 553-54. The cases relied on by plaintiff are inapposite since they
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`arose in the context of a fact finder evaluating credibility at trial, and did not involve
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`motions for summary judgment. See Pl.’s Mem. at 19.
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`5 The Court need not reach defendant’s alternative arguments that fact issues exist as to whether the parties
`co-authored the works or plaintiff assigned his copyrights to defendant. See Def.’s Opp. Mem. at 8-11.
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 14 of 21 PageID #: 2914
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`In any event, many of the non-party affidavits submitted by plaintiff are of limited
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`probative value. For example, Franciana D. Williams states that she “personally
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`witnessed [plaintiff] hand write the manuscript,” that “[n]o person was dictating to
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`[plaintiff] while he was writing the manuscript,” and that she “personally witnessed
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`Tyriek Murphy review and edit the handwritten manuscript that was written by
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`[plaintiff].” Aff. of Franciana D. Williams ¶¶ 4-6, Dkt. 60-13. However, Ms. Williams’
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`statements do not conclusively refute defendant’s claims that he is the author of the
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`copyrighted works. As discussed above, on a motion for summary judgment, the
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`evidence must be viewed and all reasonable inferences must be drawn in the light most
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`favorable to the non-moving party.6
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`Finally, in the introductory paragraph of plaintiff’s moving brief, he states that he
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`seeks a declaration that defendant has “willfully infringed” on his copyright. See Pl.’s
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`Mem. at 1. However, plaintiff’s motion does not address that prong of the infringement
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`inquiry whatsoever. In any event, a determination of whether any alleged infringement
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`by defendant was “willful” must await a finding whether plaintiff is the owner of the
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`copyrighted works.
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`III. Defendant’s Motion for Partial Summary Judgment
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`Defendant cross-moves for partial summary judgment on the issue of plaintiff’s
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`entitlement to actual damages for copyright infringement, and the availability of statutory
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`damages and attorney’s fees under the Copyright Act. See Def.’s Mem. at 1.
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`6 Although plaintiff argues that the Court should consider defendant’s spoliation of evidence on a motion
`for summary judgment, Pl.’s Reply at 6, Dkt. 73, plaintiff does not request any particular remedy, nor is it
`clear how defendant’s lost flash drive may have supported plaintiff’s claims. See Pl.’s Mem. at 25 (“[t]he
`metadata on the flash drive would have shown when documents were drafted, edited, uploaded, deleted,
`and the format of documents”). At trial, the Court will permit plaintiff to develop the record to support a
`request for sanctions resulting from the alleged spoliation. West v. Goodyear Tire & Rubber Co., 167 F.3d
`776, 779 (2d Cir. 1999).
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`Case 1:20-cv-02388-JRC Document 76 Filed 03/30/25 Page 15 of 21 PageID #: 2915
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`Specifically, defendant argues that summary judgment is warranted as to plaintiff’s claim
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`for actual damages because plaintiff has not submitted any evidence to demonstrate that
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`plaintiff suffered actual damages, and because plaintiff failed to disclose a damages
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`computation, as required by the Federal Rules of Civil Procedure. See id. at 7.
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`Defendant further argues that plaintiff’s claims for statutory damages and attorney’s fees
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`under the Copyright Act are barred as a matter of law because defendant’s alleged
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`infringement commenced before plaintiff registered his copyright. Id.
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`
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`A.
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`Actual Damages and Profits of Infringer
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`Section 504 of the Copyright Act provides a plaintiff with the option of electing
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`one of two types of remedies for a claim of copyright infringement: “(1) the copyright
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`owner’s actual damages and any additional profits of the infringer . . . or (2) statutory
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`damages.” 17 U.S.C. § 504(a)(1), (2).
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`Although plaintiff did not directly address the issues of actual damages and
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`defendant’s profits, plaintiff appears to concede that he does not seek actual damages.
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`See Pl.’s Opp. Mem. at 5, Dkt. 68 (“The Copyright Act provides that a copyright owner
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`can seek to recover his or her actual damages or statutory damages. Here, plaintiff seeks
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`an award of statutory damages.”) (internal citation omitted). Therefore, the Court finds
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`that plaintiff has abandoned his request for actual damages and defendant’s profits. See
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`Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (court may “infer from a party’s
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`partial opposition [to summary judgment] that relevant claims or defenses that are not
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`defended have been abandoned”).
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`B.
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`Statutory Damages
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`As noted above, section 504 allows a plaintiff to elect to seek statutory damages.
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`17 U.S.C. § 504(a)(2). Further, section 505 provides that the court may award reasonable
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`attorney’s fees to the prevailing party in a copyright action. However, “[section] 412
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`precludes an award of statutory damages as well as attorney’s fees for late-registered
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`[copyrights].” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1012 (2d Cir. 1995);
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`17 U.S.C. § 412(1).7 “Even ‘[w]here the alleged infringement begins before registration
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`and continues after registration, statutory damages and attorney[‘s] fees are still
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`unavailable.’” Crowley v. Jones, 608 F. Supp. 3d 78, 89 (S.D.N.Y. 2022) (quoting Solid
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`Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724, 2016 WL 4126543, at *2
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`(S.D.N.Y. Aug. 2, 2016)). Section 412 “imposes a bright-line rule that precludes
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`recovery of statutory damages and attorneys’ fees where the first act of infringement in a
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`series of ongoing infringements occurred prior to the work’s copyright registration.”
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`Crowley, 608 F. Supp. 3d at 89 (quoting Solid Oak Sketches, 2016 WL 4126543, at *2);
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`see Troll v. Uneeda Doll Co., 483 F.3d 150, 158 (2d Cir. 2007).
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`Congressional “intent behind enacting Section 412 was to make available the
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`‘extraordinary relief’ of statutory damages only to those who promptly registered their
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`copyrights, and to deny that remedy to those who failed to do so.” Arista Recs. LLC v.
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`Lime Grp. LLC, No. 06-CV-5936, 2011 WL 1226277, at *4 (S.D.N.Y. Mar. 29, 2011)
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`(citing H.R. Rep. No. 94-1076, at 158 (Sept. 3, 1976)). “Congress, deeming registration
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`useful and important, sought some practical means of inducing it.” Id. (quoting Love v.
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`7 Because it is undisputed t