                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 18-3711


                                PETER BROWNSTEIN,
                                     Appellant

                                          v.

                 TINA LINDSAY; ETHNIC TECHNOLOGIES, LLC


                   On Appeal from the United States District Court
                           for the District of New Jersey
                                 (No. 3-10-cv-1581)
                       District Judge: Hon. Freda L. Wolfson


                               Argued November 20, 2019

            Before: CHAGARES, MATEY, and FUENTES, Circuit Judges

                           (Opinion filed: May 18, 2020)

Jay R. McDaniel [ARGUED]
Weiner Law Group
629 Parsippany Road
Parsippany, NJ 07054
       Counsel for Appellant

Jesse C. Klaproth [ARGUED]
Klaproth Law
Suite 800
1500 Walnut Street
Philadelphia, PA 19102
       Counsel for Appellees
                                         OPINION*


MATEY, Circuit Judge.

       Innovators have long recognized that “[m]any ideas grow better when transplanted

into another mind than in the one where they sprang up.” Oliver Wendell Holmes, Sr., The

Breakfast Table Series: The Poet at the Breakfast Table 146 (1900). So the law encourages

collaboration and rewards authors of a joint work with the benefits of joint ownership. Peter

Brownstein seeks a declaration of joint ownership in a computer program he developed

with Tina Lindsay and an accounting of profits. The District Court granted summary

judgment to Lindsay and her company, Ethnic Technologies (“E-Tech”), seeing no proof

of Brownstein’s role. We will affirm.

                                     I. BACKGROUND

       In 1993, Lindsay began compiling a set of rules in order to “predict” a person’s

ethnicity. Brownstein v. Lindsay, 742 F.3d 55, 59 (3d Cir. 2014). She knew the concept

had value given her employment at List Services Direct, Inc., a direct-marketing company

that sold customer lists. Id. at 58–59. So she enlisted Brownstein, a fellow List Services

employee, to transform her rules into a computer program. Id. at 59. Lindsay’s rules were

known as the Ethnic Determinate System (“EDS”), and Brownstein’s computer code was




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
                                              2
called “ETHN.” Id. Together, EDS and ETHN became the Lindsay Cultural Identification

Determinate (“LCID”). Id.

       In 1996, List Services asserted ownership of the LCID, prompting Lindsay and

Brownstein to leave the company in June 1997. Id. at 60. List Services, Lindsay, and

Brownstein later signed a Settlement Agreement in which Lindsay and Brownstein

“agree[d] not to claim ownership or any other rights” to “a certain computer program

concerning ethnic selections” that List Services was “presently using,” and List Services

“disclaim[ed] any ownership to EDS.” (App. at 317–18.) Years later, things soured

between Lindsay and Brownstein, and they parted ways. Brownstein, 742 F.3d at 61.

       In 2010, Brownstein filed this lawsuit, seeking a declaration that he is co-owner of

the LCID and an accounting of any profits Lindsay and E-Tech earned from the program

after May 2010. Id. at 61–62. The case proceeded to trial and, at the close of Brownstein’s

evidence, the District Court granted judgment as a matter of law to the defendants. The

District Court held that Brownstein’s claims were barred by the statute of limitations and,

in any event, that Brownstein lacked evidence showing his co-authorship of the LCID. Id.

at 62–63. We reversed on appeal, holding that the accrual date of Brownstein’s claims was

a jury question. Id. at 69–75. And we relied on an oral argument concession by defendants’

counsel “that Brownstein and Lindsay were co-authors of the LCID up until its 1997

iteration” to remand for further factual development of the co-authorship issue.1 Id. at 65,

77.


       1
          We also reversed an order by the District Court that cancelled certain copyright
registrations. Brownstein, 742 F.3d at 58, 63, 77. That issue is not relevant to this appeal.
                                             3
       On remand, Brownstein filed an amended complaint, which Lindsay and E-Tech

then moved to dismiss. After converting that motion into a motion for summary judgment,

the District Court held that the Settlement Agreement extinguished Lindsay and

Brownstein’s rights to all pre-Settlement-Agreement versions of the LCID. (App. at 26.)

The District Court then described the “operative question” as whether post-Settlement-

Agreement versions of the LCID “continued to use [Brownstein]’s computer code.” (App.

at 26.) Although Brownstein submitted an affidavit describing his work on the LCID, and

copies of text purporting to be relevant computer code, the District Court rejected the

affidavit as “conclusory” and the code as “not self-evident.” (App. at 29.) For those

reasons, the court found that Brownstein failed to sustain his burden of production, and

again granted summary judgment to the defendants. This timely appeal followed.2

                                     II. DISCUSSION

       Brownstein raises three issues on appeal. First, he argues that the District Court

erroneously interpreted the Settlement Agreement as “sever[ing]” or “deconstruct[ing]” the

LCID, (Opening Br. at 28–29), in contravention of established copyright principles, and

that defendants’ continued use of Lindsay’s rules, by itself, entitles him to compensation.

       It is true that “[t]he authors of a joint work are co[-]owners of copyright in the

work,” 17 U.S.C. § 201(a), and that each joint author acquires “an undivided ownership in

the entire work, including all the contributions contained therein.” Nimmer on Copyright



       2
         The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1338, and 1367. We
have jurisdiction under 28 U.S.C. § 1291, and again exercise plenary review over the
District Court’s grant of summary judgment. Brownstein, 742 F.3d at 64.
                                             4
§ 6.03 (2019); see 17 U.S.C. § 101 (“A ‘joint work’ is a work prepared by two or more

authors with the intention that their contributions be merged into inseparable or

interdependent parts of a unitary whole.” (emphasis added)). But as we previously noted,

the EDS was an “independent work,” of which Lindsay was the “sole author.” Brownstein,

742 F.3d at 59. And merely using the EDS in the LCID did not affect Lindsay’s ownership

of her rules, nor give Brownstein any rights in them. Cf. Greene v. Ablon, 794 F.3d 133,

153 (1st Cir. 2015) (noting that a work “may be both joint and derivative, with [the original

work’s author] owning the copyright in the underlying work . . . and co-owning the

copyright in the derivative work”). So the District Court did not split the joint-work atom;

instead, it correctly interpreted the Settlement Agreement as abrogating both parties’

interest in the LCID. And it was not improperly depriving Brownstein of any rights in the

EDS, since he had none to begin with.

       Second, Brownstein argues that the Settlement Agreement did not transfer any

copyrights, but merely evidenced the parties’ decision to “waive[] any rights of

enforcement they might have had” against the other. (Opening Br. at 43.) But this argument

ignores language in the Settlement Agreement acknowledging that List Services and its

executives were the “sole owner(s)” of “a certain computer program concerning ethnic

selections” that List Services was “presently using.” (App. at 317–18) (emphasis added).

Lindsay and Brownstein weren’t agreeing to cooperatively share the pre-Settlement-

Agreement LCID with List Services; they were recognizing they no longer “owne[d]” any

of it, including its copyrights.



                                             5
      Third, and finally, Brownstein argues that the District Court ignored evidence of his

post-Settlement-Agreement authorship contribution to the LCID. We need not address this

issue, since even if Brownstein co-authored some post-Settlement-Agreement version of

the LCID, he has failed to demonstrate that Lindsay and E-Tech profited from that version,

or a derivative thereof, in May 2010 or afterward. His complaint concedes that any code

he authored was “phased out” of defendants’ programs long ago. (App. at 231.) As noted

above, he never had any rights in the EDS itself, so continued use of those rules entitles

him to nothing. And he does not otherwise explain, or offer evidence to show, how

defendants’ post-May-2010 product was derivative of any earlier one.

                                   III. CONCLUSION

      As we noted in our previous opinion, Brownstein could prevail only if he

demonstrated that defendants profited either from a work he jointly authored, or from a

derivative. Brownstein, 742 F.3d at 67–68. Because he has done neither, his claims fail.

We will therefore affirm the District Court’s grant of summary judgment.




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