Riding Films, Inc. claims to own a copyright in the movie “Dawn Ride.” Riding Films sued unnamed “John Doe” defendants in at least fifteen separate lawsuits throughout the country, alleging that the John Doe defendants copied and distributed the film without authorization. Specifically, Riding Films alleges that the defendants downloaded the film using the BitTorrent protocol, thereby copying and distributing without authorization. In a case before the Southern District of Ohio, some of the individually name defendants alleged that Riding Films’ copyright is invalid and filed a declaratory judgment counterclaim.
Riding Films filed a motion to dismiss the defendants’ declaratory judgment counterclaim for failure to state a claim upon which relief can be granted. The defendants alleged that Dawn Ride appears to be a remake of an earlier film, that Riding Films did not obtain rights to the earlier version, that Melange Pictures, LLC owns the copyrights in the earlier version and that Melange Pictures is not affiliated with Riding Films. The district court agreed with the defendants and denied Riding Films’ motion to dismiss the declaratory judgment counterclaim.
In their affirmative defense, Defendants allege that the Plaintiff’s movie appears to be a remake of a 1935 film and that the Plaintiff has not paid for any of the rights to the earlier version. Defendants also argue that although Plaintiff claims the earlier version was in the public domain, according to a September 1, 2006 filing found at the Copyright Office, Republic Pictures was the holder of the rights to the 1935 film and assigned their rights to Melange Pictures, LLC, which is not an affiliate of the Plaintiff. Defendants have provided factual allegations to support a plausible claim that Plaintiff’s copyright is invalid.
(Opinion pdf page 6).
If the defendants are correct and Riding Films did copy the earlier film without the permission of the copyright owner, Riding Films itself engaged in infringing activity. Making a derivative work, i.e., creating a work based on a pre-existing work, is one of the exclusive rights owned by the copyright owner. Making a derivative work without the permission of the copyright owner is copyright infringement, unless a limitation, such as fair use, applies. At a minimum, infringing works do not meet the original work of authorship requirement of 17 U.S.C. §102, the statute describing what copyright covers and when copyright protection starts.
This case is Riding Films, Inc. v. White, No. 2:13-CV-00046, U.S. District Court for the Southern District of Ohio.