Joe Hand Promotions, Inc. v. James Griffith, Jr. ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0217p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOE HAND PROMOTIONS, INC.,
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Plaintiff-Appellant, │
> No. 21-6088
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v. │
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JAMES H. GRIFFITH, JR., dba CJ’s Sports Bar; LISA │
LESLEY, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.
No. 3:20-cv-00382—Travis Randall McDonough, District Judge.
Argued: August 10, 2022
Decided and Filed: September 21, 2022
Before: CLAY, ROGERS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Jamie King, JAMIE KING, P.C., Kingwood, Texas, for Appellant. John T.D.
Bathke, PHILLIPS & BATHKE, P.C., Chicago, Illinois, for Appellees. ON BRIEF: Brian L.
Yoakum, EVANS PETREE, PC, Memphis, Tennessee, for Appellant. John T.D. Bathke,
PHILLIPS & BATHKE, P.C., Chicago, Illinois, Jonathan LA Phillips, PHILLIPS & BATHKE,
P.C., Peoria Heights, Illinois, for Appellees.
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OPINION
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CLAY, Circuit Judge. Plaintiff Joe Hand Promotions, Inc. (“JHP”) appeals the district
court’s grant of summary judgment in favor of Defendants James H. Griffith and Lisa Lesley
(collectively, “Defendants”) in this copyright infringement suit brought under the Copyright Act,
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17 U.S.C. §§ 106, 501. See Joe Hand Promotions, Inc. v. Griffith, No. 20-cv-382, 2021 WL
4899466, at *5 (E.D. Tenn. Oct. 21, 2021). For the reasons set forth below, we REVERSE the
district court’s order granting Defendants’ motion for summary judgment and REMAND with
instructions to grant Plaintiff’s motion for partial summary judgment as to copyright standing
and for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
On August 26, 2017, a world famous boxer, Floyd Mayweather, and a famous mixed
martial arts fighter, Conor McGregor, entered the ring to face one another in what has become
one of the most legendary fights of all time (“the Fight”). See John Eligon & Victor Mather,
Mayweather v. McGregor: Highlights From Every Round, N.Y. Times, Aug. 26, 2017.
Showtime, Inc. produced the Fight, and it allowed individual viewers to livestream the Fight
from Showtime’s website. Joe Hand Promotions, Inc., 2021 WL 4899466, at *1. Showtime
charged individuals $99.99 for these personal use licenses (i.e., to watch the Fight on a personal
device in a non-commercial setting). Showtime also partnered with event promoters to issue
commercial streaming licenses to public establishments (i.e., bars, movie theaters, and
restaurants). On June 20, 2017, Showtime contracted with Mayweather Promotions, LLC
(“Mayweather”) to “arrange for, present and promote” the Fight on August 26, 2017.
(Distribution Agreement, R. 40-4, Page ID #348.) In this contract (the “Distribution
Agreement”), Showtime “grant[ed] to [Mayweather] exclusively, the right to exhibit and
distribute, and authorize the exhibition and distribution of, the [Fight] in the Territory live via the
Internet.” (Id. at Page ID #357.) Defendants erroneously denied the existence of this contract
between Showtime and Mayweather. (See Defs. Br. at 14 (“[T]here are no agreements in the
record between Showtime and [Mayweather].”).)1
Mayweather, in turn, enlisted smaller distributors to go out and issue commercial licenses
and collect fees. JHP was one of these distributors. On August 1, 2017, JHP entered into a
1Defendants filed a motion following oral argument seeking to rescind their contention that this agreement
did not exist.
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Commercial Licensing Agreement with Mayweather. In that contract, Mayweather gave JHP
“the sole and exclusive third party license . . . to distribute . . . and authorize the public exhibition
of the [Fight]” in a designated geographic area. (Id.) Accordingly, in the weeks leading up to
the Fight, JHP promoted the event, sold commercial licenses to broadcast the event at bars and
restaurants, and collected fees from those establishments. JHP charged hefty commercial
licensing fees to air the Fight, ranging from $3,700 to $15,700 based on the establishment’s
occupancy limits.
The Fight was not registered as a copyrighted work when it first aired on August 26,
2017. Around two months later, Showtime applied to register its copyright in the Fight, which
the United States Copyright Office issued on October 26, 2017 (the “Copyright Registration”).
The Copyright Registration listed Showtime as the sole author and claimant of the copyright. On
November 21, 2017, three months after the Fight but less than a month after the Copyright
Registration, Showtime signed a contract with JHP (the “Copyright Agreement”). Although not
a party to the Copyright Agreement, Mayweather also signed the agreement. The Copyright
Agreement gave JHP “the exclusive right to distribute and publicly perform the [Fight] live on
August 26, 2017.” (Copyright Agreement, R. 40-2, Page ID #262.) It further gave JHP “the
exclusive right . . . to take enforcement actions with respect to any unauthorized exploitation of
the Commercial Rights in the [Fight].” (Id.) Specifically, Showtime gave JHP “the right and
standing, as exclusive assignee, to assert independent claims, solely in the name of JH[P], for
copyright infringement under the copyright laws of the United States . . . solely relating to the
unauthorized exploitation of the Commercial Rights in the [Fight].” (Id. at Page ID #263.) That
is, Showtime gave JHP the exclusive right to sue anyone who livestreamed the Fight on August
26, 2017, without paying the required licensing fee. Accordingly, JHP began suing several
restaurants and bars that aired the Fight without paying. See, e.g., Joe Hand Promotions, 2021
WL 4899466, at *1.
At this stage, Defendants do not dispute that they livestreamed the Fight on August
26, 2017, on a TV screen at their bar, CJ’s Bar & Grill (“CJ’s”), without purchasing a
commercial license. As a commercial establishment, CJ’s was required to pay a fee based on its
occupancy limits in order to legally air the Fight on the bar’s TVs. Rather than pay for a
No. 21-6088 Joe Hand Promotions, Inc. v. Griffith Page 4
commercial license, Defendants paid around $99 for a personal license using Showtime’s
website. Defendants then used an HDMI cable to connect a personal device to the TV at CJ’s
and broadcast the Fight throughout the bar. Defendants advertised the event on CJ’s Facebook
page, and they charged patrons $6 for entry to the bar to watch the Fight.
B. Procedural Background
After discovering that Defendants livestreamed the Fight without paying for a
commercial license, JHP sued them for copyright infringement under the Copyright Act,
17 U.S.C. §§ 106, 501.2 After discovery, the parties filed cross motions for summary judgment.
The district court granted Defendants’ motion after finding that JHP did not own the copyright to
the Fight on the day it aired. See Joe Hand Promotions, 2021 WL 4899466, at *2. The district
court found that the Copyright Agreement between Showtime purported to give JHP an
exclusive right in the copyrighted work retroactively. See id. at *5. However, the district court
concluded that such retroactive transfers were essentially worthless. See id. It therefore
concluded that the Copyright Agreement merely gave JHP the right to sue for past copyright
infringement. See id. at *4–*5. According to the district court, to have a cause of action under
Copyright Act, plaintiffs must own some exclusive right beyond the right to sue. Id. at *4 (citing
John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394 (2d Cir. 2018)). Believing that Showtime
merely gave JHP a right to sue, the district court concluded that JHP did not have a cause of
action for copyright infringement because it “did not own the copyright to the [Fight] when it
was displayed at [CJ’s].” Id. at *2. The court therefore granted Defendants’ motion for
summary judgment. Id. at *5. JHP timely appealed and this Court heard oral arguments on
August 10, 2022.
II. DISCUSSION
A. Standard of Review
“The Court reviews a district court’s grant of summary judgment de novo.” Clabo
v. Johnson & Johnson Health Care Sys., Inc., 982 F.3d 989, 992 (6th Cir. 2020) (citing
2JHP also brought a claim for internet piracy under the Communications Act of 1934, 47 U.S.C.
§§ 553, 605. This claim was dismissed by the district court before summary judgment, and it is not at issue in this
appeal. See Joe Hand Promotions, 2021 WL 4899466, at *2.
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Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016)). Summary judgment
is proper “if 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). “A dispute of a
material fact is genuine so long as ‘the evidence is such that a reasonable jury could return a
verdict for the non-moving party.’” Kirilenko-Ison v. Bd. of Edu. of Danville Indep. Schs., 974
F.3d 652, 660 (6th Cir. 2020) (quoting Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d
769, 775 (6th Cir. 2016)).
B. Analysis
The issue in this appeal is whether JHP has a cause of action against Defendants for
livestreaming the Fight without a commercial license. The Copyright Act creates a federal cause
of action for copyright infringement. See 17 U.S.C. § 501. It provides that “[t]he legal or
beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for
any infringement of that particular right.” Id. § 501(b). Therefore, to sue Defendants for
copyright infringement, JHP must own some interest in the copyright. See Bridgeport Music.
v. WM Music Corp., 508 F.3d 394, 398 (6th Cir. 2007) (“Copyright infringement has two
elements: ‘(1) ownership of a valid copyright; and (2) copying of constituent elements of the
work that are original.’” (quoting Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir.
2004))).
The author of a protected work is considered the original owner of a copyright.
17 U.S.C. § 201(a). The owner holds certain “exclusive rights” in the work. Id. § 106. Those
“exclusive rights” are listed in § 106 of the Copyright Act, and they include the right to
reproduce, distribute, perform, and display the work. Id. There is some dispute over whether the
list of exclusive rights extends beyond those enumerated in § 106. Relevant to this appeal, the
Second and Ninth Circuits have held that possessing a bare right to sue, without any additional
exclusive right, does not amount to ownership of a copyrighted work. See John Wiley, 882 F.3d
at 410 (“[T]he [Copyright] Act does not permit a plaintiff assignee to bring a claim for
infringement without also having or having had a legal or beneficial ownership in some
exclusive right under part of the allegedly infringed copyright.”); Silvers v. Sony Pictures Ent.,
Inc., 402 F.3d 881, 883 (9th Cir. 2005) (same). This Court has not weighed in on this issue.
No. 21-6088 Joe Hand Promotions, Inc. v. Griffith Page 6
The exclusive rights in a copyrighted work are freely alienable. “[T]he ownership of a
copyright may be transferred in whole or in part by any means of conveyance or by operation of
law.” 17 U.S.C. § 201(d)(1). Each exclusive right can be transferred individually, and each right
can be further subdivided and owned separately by different parties. Id. § 201(d)(1)–(2); see
also id. § 101 (defining “[c]opyright owner” as “the owner of that particular right” (emphasis
added)). Owners may transfer their exclusive rights “by any means of conveyance” including by
assigning the right to a third party or by giving that party an exclusive license. Id. § 201(d)(1);
see also id. § 101 (defining “transfer of copyright ownership”). “The owner of any particular
exclusive right is entitled, to the extent of that right, to all of the protection and remedies
accorded to the copyright owner by this title,” including the right to sue for infringement of the
owner’s rights. Id. §§ 201(d)(2), 501(b).
Thus, copyright ownership operates like the common analogy of a bundle of sticks. The
author, as the original owner, holds all of the exclusive rights in the protected work. Id. § 106,
201. The author may transfer any one of these sticks, in whole or in part, to a third party.
Id. § 201(d)(1). Anyone holding a stick, or a part of a stick, can sue anyone who infringes on
that right. For example, anyone holding a right to distribute a copyrighted work in California can
sue infringers in California, but not in New York. The right to enforce is only as broad as the
exclusive right held.
In addition to the ownership requirement, the Copyright Act includes a few other
limitations on who can sue for copyright infringement. It limits the right to sue to those who
owned the exclusive right at the time of the infringement. 17 U.S.C. § 501(b). It also provides
that “no civil action for infringement of the copyright . . . shall be instituted until preregistration
or registration of the copyright claim has been made” with the United States Copyright Office.
Id. § 411(a). Therefore, the default rule is that only those who owned an exclusive right in a
registered copyright at the time of the infringement may bring suit.
However, the Copyright Act extends special treatment to live broadcasts. See id.
§ 411(c). When the copyrighted work “consist[s] of sounds, images, or both, the first fixation of
which is made simultaneously with its transmission”—that is, when the copyrighted work is a
broadcast of a live event—then the Copyright Act allows an owner to sue for infringement of an
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unregistered copyright so long as the owner registers the copyright within three months of the
live broadcast. See id.; see Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct.
881, 888 (2019). Stated differently, although copyright registration is ordinarily a requirement to
bring suit, “[s]uch registration is not a condition of copyright protection.” 17 U.S.C. § 408(a)
(emphasis added). Rather, as the Supreme Court has described it, the registration requirement
“is akin to an administrative exhaustion requirement that the owner must satisfy before suing to
enforce ownership rights.” Fourth Estate, 139 S. Ct. at 888.
With this legal framework in mind, we turn to the question now before us: did the
November 21, 2017, Copyright Agreement between Showtime and JHP give JHP the right to sue
for copyright infringements occurring on August 26, 2017. We conclude that it did.
Defendants argue that JHP did not own any exclusive rights in the Fight on the day it
aired. They recognize that the Copyright Agreement purportedly transferred “the exclusive right
to distribute and publicly perform” the Fight live on August 26, 2017. (Copyright Agreement,
R.40-2, Page ID #262.) But they argue that this exclusive right was, in effect, illusory because
the Fight had already aired by the time Showtime and JHP entered into the Copyright
Agreement. Because these exclusive rights were illusory, Defendants argue that the Copyright
Agreement merely gave JHP a bare right to sue. Pointing to case law from the Second and Ninth
Circuits, Defendants conclude that JHP does not have a cause of action under the Copyright Act
because the bare right to sue is insufficient give JHP ownership of an exclusive right.
In response, JHP argues that the plain language of the Copyright Agreement retroactively
gave JHP exclusive rights in the live broadcast on August 26, 2017. To the extent that the
language of the Copyright Agreement is unclear, it argues that Showtime intended to
retroactively give JHP the exclusive right to distribute the Fight on the day it aired as well as the
right to sue violators for copyright infringement. As evidence of this intent, JHP points to the
Commercial Licensing Agreement between Mayweather and JHP on August 1, 2017. JHP does
not have much to say about whether the Copyright Act allows such a retroactive transfer of
exclusive rights.
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These arguments touch on complicated questions of copyright law including when
copyright protection in a live broadcast first arises, whether or how an author may transfer
exclusive rights in a live event before registering a copyright, and whether an author can
retroactively transfer exclusive rights. However, we do not need to get into these issues to
resolve this case. We conclude that the Copyright Agreement gave JHP an enforceable right to
sue Defendants because it formalized a series of earlier agreements under which JHP went about
exclusively licensing and distributing the Fight to commercial establishments in a specific region
before the Fight aired.
The earlier agreements between Showtime, Mayweather, and JHP gave JHP an exclusive
license to distribute the streaming rights to commercial establishments to air the Fight live on
August 26, 2017. On June 20, 2017, Showtime and Mayweather signed the Distribution
Agreement. In that agreement, Showtime “grant[ed] to [Mayweather] exclusively, the right to
exhibit and distribute, and authorize the exhibition and distribution of, the [Fight] in the Territory
live via the Internet.” (Distribution Agreement, R. 40-4, Page ID #357.) The Distribution
Agreement thus gave Mayweather one of Showtime’s sticks from its bundle, making
Mayweather an “owner” under the Copyright Act. See 17 U.S.C. §§ 106(3)–(4), 201(d), 204.
Admittedly, at this point, the Fight had not happened, and Showtime did not hold a registered
copyright. But copyright protection can arise before registration, see Fourth Estate, 139 S. Ct. at887–88, and nothing prevented Showtime from transferring some of the sticks in its bundle in
anticipation of the Fight, even before applying for a copyright registration. In this case,
Showtime did just that by giving exclusive rights to Mayweather in the Distribution Agreement.
Mayweather turned around and transferred those sticks (or parts of those sticks) to JHP. On
August 1, 2017, JHP and Mayweather signed the Commercial Licensing Agreement.3 In that
3Defendants argue that JHP forfeited any argument using the Commercial Licensing Agreement as
evidence of Showtime and JHP’s intent when signing the Copyright Agreement. Specifically, they claim that “JHP
did not make any argument concerning the [Commercial Licensing] Agreement in either its own motion for
summary judgment or in its response to [Defendants’] motion for summary judgment, which is the subject of this
appeal.” (Defs. Br. at 8–9.) But JHP’s motion for summary judgment did point to the Commercial Licensing
Agreement as evidence that it held an exclusive right on the day of the Fight. JHP specifically noted that: “Through
an agreement with the promoters of the Event,”—i.e., the August 1, 2017, Commercial Licensing Agreement with
Mayweather—“[JHP] was licensed to exhibit the Event at commercial locations, such as bars, restaurants, clubs,
lounges, and other commercial establishments throughout the State of Tennessee.” (Pl. Mot. Summ. J., R. 40, Page
No. 21-6088 Joe Hand Promotions, Inc. v. Griffith Page 9
contract, Mayweather gave JHP “the sole and exclusive third party license . . . to distribute . . .
and authorize the public exhibition of the [Fight]” in a designated geographic area. (Commercial
Licensing Agreement, R. 40-2, Page ID #247.) This contract explicitly stated that it was
transferring JHP an exclusive right as defined in the Copyright Act, stating that “JHP holds the
right to authorize the exhibition of the [Fight] publicly within the meaning of 17 U.S.C. § 106(4),
(5).” (Id. at Page ID #251 (emphasis added).) That statutory provision defines “exclusive
rights” as including the rights to display and perform the work publicly. 17 U.S.C. § 106(4)–(5).
In the lead up to the Fight, even without the benefit of a registered copyright, these three
entities—Showtime, Mayweather, and JHP—went about carving out their respective rights.
These rights, including the exclusive right to distribute the Fight to commercial establishments,
were outlined in the Distribution Agreement and the Commercial Licensing Agreement, both of
which took effect before the Fight aired on August 26, 2017. However, the question remains
whether the November 21, 2017, Copyright Agreement was intended to bestow some new and
additional right to JHP, or whether it merely reiterated and reaffirmed the parties’ understandings
of their preexisting rights with the added benefit of a newly registered copyright. The Copyright
Agreement does not expressly answer this question. Nowhere does it state that it intended to
formalize existing arrangements, nor does it mention the Distribution Agreement or the
Commercial Licensing Agreement. However, the earlier agreements provide necessary context
for the Copyright Agreement. See Individual Healthcare Specialists, Inc. v. BlueCross
BlueShield of Tenn., Inc., 566 S.W.3d 671, 694 (Tenn. 2019).4 And, because none of these
agreements conflict with one another, we may turn to them to discern Showtime and JHP’s intent
when entering into the later Copyright Agreement. See id. at 696. Viewing these agreements
together, the Copyright Agreement merely intended to reiterate that JHP’s existing exclusive
license in the live Fight remained intact even in the wake of Showtime’s formal Copyright
Registration.
ID #204.) Accordingly, Defendants’ forfeiture arguments are without merit. See Bard v. Brown Cnty., 970 F.3d
738, 749 (6th Cir. 2020) (quoting United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009)).
4The parties agree that Tennessee’s principles of contract law govern the interpretation of the Copyright
Agreement.
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Unlike the extensive terms and conditions found in the earlier Distribution Agreement
and Commercial Licensing Agreement, which numbered 36 and 15 pages respectively, the
Copyright Agreement was barely three pages long. Outside of the definitions and some
boilerplate provisions, it had two substantive provisions which provided that: (1) “JH[P] has
been granted the sole and exclusive Commercial Rights . . . in the Territory in the [Fight], under
the copyright laws of the United States” with Commercial Rights defined as the “exclusive right
to distribute and publicly perform the [Fight] live on August 26, 2017 to Commercial Premises in
the Territory;” and (2) “JH[P] has the exclusive right in the Territory to take enforcement
measures” in connection with its exclusive rights in the distribution of commercial licenses.
(Copyright Agreement, R. 40-2, Page ID #262.) The first provision mirrors the exclusive license
that Showtime gave to Mayweather, and that Mayweather then gave JHP, before the Fight.
Although Showtime and JHP were the only parties to the Copyright Agreement, they nonetheless
had Mayweather sign and say that it accepted and agreed to the terms therein.
We conclude that, by using a barebone contract signed by all of the parties involved in
the days leading up to the Fight, it is clear that Showtime and JHP intended the Copyright
Agreement to formalize existing rights in the wake of Showtime’s newly obtained Copyright
Registration. In effect, everyone involved came together after the Copyright Registration and
concluded, in the Copyright Agreement, that the new registration did not change anything. The
status of the copyright may have changed on October 26, 2017, but the nature of the exclusive
rights and interests of these three parties remained untouched. If the Copyright Agreement was
an entirely new transfer of rights from Showtime to JHP, there would be no need for
Mayweather to agree. The Copyright Agreement only makes sense as an extension of the earlier
agreements.
Defendants’ position is seemingly that the Copyright Agreement was a standalone
transfer of rights wholly apart from the earlier agreements. They argue that the Copyright
Agreement was, in essence, a sham because it purported to transfer an exclusive right in a
live event that had already happened. The district court agreed. See Joe Hand Promotions, 2021
WL 4899466, at *5 (“The exclusive right to perform the [Fight] live is utterly meaningless once
the [Fight] has already occurred, and, thus, can never be performed ‘live’ again.”). But the
No. 21-6088 Joe Hand Promotions, Inc. v. Griffith Page 11
Copyright Registration listed Showtime as the sole author and claimant of the copyrighted work,
and copyright ownership “vests initially in the author . . . of the work.” 17 U.S.C. § 201(a). If
the Copyright Registration could be interpreted as returning all of the exclusive rights back to the
author of the Fight (Showtime), then the Copyright Agreement clarified that the new registration
did not alter JHP’s preexisting exclusive license to distribute the Fight to commercial
establishments within its geographic zone.
Because we conclude that the Copyright Agreement merely reiterated the existing
distribution of rights, we need not reach the bulk of the parties’ arguments. The parties focus on
whether the Copyright Agreement could legally transfer an exclusive right retroactively. Even if
such a retroactive transfer could theoretically be legally valid, Defendants argue that the
Copyright Agreement, as a factual matter, was not intended to be retroactive. Because the
Copyright Agreement merely codified earlier transfers in the wake of the post hoc Copyright
Registration, there is no retroactivity issue. By extension, we need not address Defendants’
arguments that the Copyright Agreement gave JHP a bare right to sue, which they claim is at
odds with the Second and Ninth Circuits’ interpretation of the Copyright Act. The Copyright
Agreement simply reaffirmed that JHP held an exclusive right to distribute the Fight to
commercial establishments in advance of the live Fight. Even though the Copyright Agreement
was signed at a later date, JHP acted as though it held the exclusive right well in advance of the
Fight. Indeed, it advertised the Fight, distributed the livestream, and collected fees from
commercial establishments that wanted to air the Fight live. By viewing the Copyright
Agreement in a vacuum and ignoring the parties’ earlier agreements and conduct, Defendants
ignore Showtime and JHP’s intent when entering the contract.
In sum, JHP owned the exclusive right to distribute and publicly display the Fight on the
day it aired, August 26, 2017. The copyright was registered within three months of the alleged
infringement, as required to sue for copyright infringements in live telecasts. 17 U.S.C. § 411(c).
Accordingly, JHP has a cause of action against anyone who violated its exclusive rights on the
day of the Fight, including Defendants. See id. § 501(b).
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III. CONCLUSION
For these reasons, we REVERSE the district court’s order granting Defendants’ motion
for summary judgment and REMAND with instructions to grant Plaintiff’s motion for partial
summary judgment on the issue of copyright standing and for further proceedings consistent with
this opinion.