12-1783-cv
Marshall v. Marshall

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of December, two thousand twelve.

PRESENT:    ROBERT D. SACK,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                 Circuit Judges.

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ASHANTA MARSHALL,
               Plaintiff-Appellee,
                  -v.-                                12-1783-cv
AFRICA MARSHALL,
               Defendant-Appellant.
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FOR PLAINTIFF-APPELLEE:             Ashanta Marshall, pro se, New York,
                                    New York.


FOR DEFENDANT-APPELLANT:            Andrew B. Kratenstein, Ashley N.
                                    King, McDermott Will & Emery LLP,
                                    New York, New York.



            Appeal from the United States District Court for the

Eastern District of New York (Bloom, Mag. J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

            Defendant-appellant Africa Marshall ("Africa") appeals

from the district court's judgment entered April 2, 2012,

awarding plaintiff-appellee Ashanta Marshall ("Ashanta") $25,000

in damages and granting injunctive relief.1   Judgment was entered

based on the district court's opinion and order filed March 30,

2012, following a bench trial.2

           Africa challenges the district court's conclusions

that:    (1) he was not a joint author of the copyrighted videos,

(2) he infringed copyrighted works in violation of the Copyright

Act, 17 U.S.C. § 101 et seq., (3) he violated Ashanta's right to

publicity under Section 51 of the New York Civil Rights Law, and

(4) he was required to pay Ashanta $25,000 in statutory damages.

We assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

            We review the district court's conclusions of law de

novo, Reynolds v. Giuliani, 506 F.3d 183, 189 (2d Cir. 2007), and
its factual findings for clear error, including its findings on

intent and findings supporting the appropriate level of statutory

damages.    See Bryant v. Media Right Prods., Inc., 603 F.3d 135,



     1
          Ashanta, proceeding pro se, has not filed a notice of
appearance or a brief in this appeal. Pursuant to Rule 31(c) of
the Federal Rules of Appellate Procedure, we nevertheless
consider the merits of the appeal. See Fed. R. App. P. 31(c).
     2
          The parties consented to trial before a magistrate
judge pursuant to 28 U.S.C. § 636(c).

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143 (2d Cir. 2010).    We review the amount of damages awarded by

the district court for abuse of discretion.      See id. (citations

omitted).    Review for clear error provides for a limited

examination of the factual findings to determine whether "the

district court's account of the evidence is plausible in light of

the record viewed in its entirety."       Doe v. Menefee, 391 F.3d

147, 163-64 (2d Cir. 2004) (citation omitted).

            We affirm, substantially for the reasons set forth by

the district court in its thorough and carefully considered 53-

page opinion and order.
1.   Joint Authorship

            The authors of a joint work have undivided interests in

the entire work, which entitle them to use or license the work as

they wish, subject to an accounting of profits.      See Thomson v.
Larson, 147 F.3d 195, 199 (2d Cir. 1998).      In the absence of a

written agreement establishing joint authorship, the party

claiming joint authorship bears the burden of showing that each

of the putative joint authors "(1) made independently

copyrightable contributions to the work; and (2) fully intended

to be co-authors."    Id. at 200.    The district court found that

Africa satisfied the first element but failed to prove the intent

element.

            Even assuming that Africa made independently

copyrightable contributions to the videos, we conclude the

district court did not clearly err in finding that Africa failed

to demonstrate the brothers' intent to be joint authors:      Ashanta


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maintained decision-making authority over Africa's work and over

the business by, for example, checking Africa's editing of the

videos, replacing Africa with another camera operator and re-

recording one of the videos because he was unhappy with the

quality of Africa's work, causing the models to sign releases to

himself as an individual as well as to Hair To Go (but not to

Africa), deciding to proceed with the production of the videos

even without the feasibility report created by Africa, and

determining how much to pay Africa and what tasks he should

perform.   The district court reasonably rejected Africa's

contention that the brothers intended to operate as partners, and

credited the testimony of Ashanta and another witness to the

effect that Africa was merely an assistant or employee.
2.   Copyright Infringement

           To establish copyright infringement, Ashanta was

required to prove "(1) ownership of a valid copyright, and (2)

copying of constituent elements of the work that are original."

Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010)
(citations omitted).   Africa does not dispute that Ashanta proved

the second element, and we conclude, for the reasons set forth

above, that the district court correctly held that Africa failed

to overcome Ashanta's showing of ownership of the copyrights.
3.   New York Civil Rights Law

           To establish a violation of Section 51 of the New York

Civil Rights Law, Ashanta was required to prove (1) the use of

his name, portrait, or picture, (2) for purposes of advertising

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or trade, (3) without consent, (4) within the state of New York.

Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85, 87 (2d

Cir. 1989).    The district court found that all four elements were

satisfied, and Africa does not dispute those findings on appeal.

Instead, Africa argues that the statute contains an exception

that permits him to use, as a joint author, Ashanta's name or

image in connection with the videos.    Because the district court

did not err on the issue of joint authorship, it likewise did not

err in rejecting this argument.
4.   Damages

           On the issue of damages, Africa challenges the district

court's conclusion that the damage amount of $25,000 was

justified because Africa's infringement was willful.   Willfulness

can be found where the defendant "had knowledge that [his]

conduct represented infringement or . . . recklessly disregarded

the possibility."   Bryant, 603 F.3d at 143 (citation omitted).
The district court found that the infringement was willful

because Africa was aware of Ashanta's registered copyrights

before promoting the videos and continued to promote them even

after Ashanta sent him multiple take-down notices.   The district

court found that even assuming Africa subjectively believed he

had a right to use the copyrighted works, he recklessly

disregarded the possibility that his belief was incorrect.    We

discern no error in the district court's finding of willfulness

and no abuse of discretion in the district court's award of

damages.

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          We have considered all of Africa's remaining arguments

and conclude they are without merit.    Accordingly, we AFFIRM the

judgment of the district court.

                              FOR THE COURT:
                              Catherine O'Hagan Wolfe, Clerk




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