EVANS, Circuit Judge.
This over-litigated case, involving a song by a doo-wop group, comes to us with 18 district court orders and memorandum opinions spread over a combined 239 pages. The district court's 46-page docket contains a staggering 371 entries. And the briefs of the parties on appeal are a bit unfocused to say the least. But although it's a tough job, someone has to do it, so with shoulder to the wheel, we forge on.
Lake County, Indiana, is the home of Gary, a gritty industrial town southeast of Chicago. But there's much more to Lake County than Gary—including miles of pristine beachfront along the Indiana Dunes National Lakeshore—and the Lake County Convention and Visitors Bureau (the Bureau) wants you to know that. To get the word out, the Bureau commissioned a tune singing the county's praises, the distribution of which led to this lawsuit for copyright infringement. Cheryl Janky says she composed the song and never gave the Bureau permission to use it. The Bureau maintains that Janky was only a co-author and that it had the authority to use the song by licensing it from the other songwriter, Henry Farag. The district court entered partial summary judgment in favor of Janky—deciding that she was the sole author—and a jury awarded her $100,000 in damages. The Bureau now appeals, contending that summary judgment was improper given the evidence of co-authorship. In the alternative, the Bureau submits that the district court erred when it denied a motion for remittitur or new trial in light of Janky's failure to mitigate damages. Janky cross-appeals
Before we get to the underlying facts, we need to assess our jurisdiction. See Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093 (7th Cir. 2008) ("A court of appeals has an obligation to examine its jurisdiction sua sponte, even if the parties fail to raise a jurisdictional issue.") (quoting Wingerter v. Chester Quarry Co., 185 F.3d 657, 660 (7th Cir.1998)). The Bureau has made this task more complicated than usual because its brief is defective. At oral argument the Bureau clarified that it seeks, first and foremost, review of the summary judgment decision. However, that is not at all apparent from the Bureau's brief, which neither references the lower court's summary judgment opinion within the jurisdictional statement nor includes that opinion within its short appendix, all in violation of the applicable rules. See Fed. R.App. P. 28(a)(4), 30(a); 7th Cir. R. 28(a)(2), 30(a). Janky's brief isn't any better. Although we take these rules seriously, we are nonetheless willing to forgive the violation in this case because we do in fact have jurisdiction. To be sure, the Bureau was not permitted to appeal as of right following the grant of partial summary judgment. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) ("[P]artial summary judgment[s] limited to the issue of [a] petitioner's liability ... are by their terms interlocutory, see Fed. Rule Civ. Proc. 56(c), and where assessment of damages ... remains to be resolved have never been considered to be `final' within the meaning of 28 U.S.C. § 1291."). So we do not fault the Bureau for waiting to appeal until the denial of its motion for new trial or remittitur. And though the Bureau did a poor job of explaining exactly what it seeks, we are satisfied that the denial of the motion for new trial or remittitur implicates all prior orders, including the decision on summary judgment. With that sorted out, then, we can turn to the facts.
Janky and Farag were members of "Stormy Weather," an Indiana-based doo-wop group.
According to Janky, Farag was not a co-author and she did not intend to give him credit as such. Rather, she testified that she placed Farag's name on the registration form "as an indication of [her] gratitude... and to demonstrate that [she] appreciated every little bit of support." She said she now realizes that the proper way to acknowledge a "de minimis" contribution is by making a notation on the album cover.
Farag sees it differently. He says the lyrical changes were "significant," and revisions were also made to the melody.
This difference of opinion did not manifest itself immediately, however. For the time being, there was music to be made. Janky, Farag, and the rest of Stormy Weather recorded a demo of the song at Thunderclap Studios in Hammond, Indiana. They followed that up with a music video and presented their work to the Bureau for review. The Bureau was satisfied—it would be a great marketing tool. And Stormy Weather was a generous partner. Rather than seeking to extract a profit from the venture, Stormy Weather agreed to allow the Bureau to use the video and song in return for the costs of production. Beyond that, the group decided the publicity generated from the Bureau's use of the material would be payment enough. Farag issued a nonexclusive license to the Bureau to that effect.
The Bureau's first use of the song came on December 1, 1999. The Bureau opened a new visitor's center that day, and it commemorated the occasion not only by playing the music video, but also with a live performance. When Stormy Weather completed production of the album on which the song ultimately appeared— "Doo-It Doo-Wop," published by Street Gold Records—in June of 2000, the Bureau purchased 1,500 copies to resell at the visitor's center.
On July 15, 2003, Janky filed yet another copyright registration form, ostensibly to correct the "mistake" she had made in the previous form. Janky omitted Farag's name, listing herself as the sole author of the music, lyrics, and "arrangement performance." And at some point in time she notified the Bureau that she was the exclusive owner. However, the Bureau did not stop using the tune until she filed this lawsuit against it in October 2003.
Janky alleged in her complaint (just like in her latest registration form) that she was the sole author of the song and had a valid copyright in the tune to the exclusion
The main issue—both in the district court and here on appeal—is whether Janky holds the copyright to the song by herself or whether she shares it with Farag as a co-author. In general, individuals are co-authors of a work only where they (1) intend to create a joint work; and (2) contribute independently copyrightable material. Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071 (7th Cir.1994). Applying this standard, the magistrate judge found in favor of Janky on both scores. First, he found that a jury would have no choice but to conclude that Farag and Janky didn't intend to be co-authors at the time of creation. Second, he found that Farag's contributions were nothing more than "minimal revisions" of a song Janky already composed.
We disagree with that analysis, which we review de novo. Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir.2008). But before we get too much further, a bit more on the background law.
A plaintiff alleging copyright infringement must establish two elements: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Janky's satisfaction of the second element is in little dispute. An individual "copies" another's work for purposes of copyright law if he plays it publicly or distributes copies without the copyright owner's authorization. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 157, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975); see also ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir.1996) ("Copyright law forbids duplication, public performance, and so on, unless the person wishing to copy or perform the work gets permission[.]"). The Bureau concedes that it played and distributed the song that Janky claims as her sole creation. And no one questions that the song enjoys copyright protection. The question is, was Janky the only author? If not—if Farag was a co-author—then Janky does not own the copyright exclusively, and the Bureau had a right to use the song with Farag's permission.
On, then, to the legal framework of joint authorship. Under 17 U.S.C. § 201(a), "[t]he authors of a joint work are co-owners of copyright in the work." In other words, "the joint authors hold undivided interests in [the] work, despite any differences in each author's contribution." Erickson, 13 F.3d at 1068. The benefits of co-authorship are therefore significant: each author may use or license the joint work. Id.
But when does a song qualify as a "joint work"? Section 101 of the Copyright Act defines a joint work as "a work prepared by two or more authors with the intention that their contributions be merged into
As in Erickson, the first question for us is whether Farag and Janky intended to create a joint work. Janky certainly denies that now, but that is irrelevant. The issue is whether Janky and Farag "intended to be joint authors at the time the work was created." Id. at 1070. We think they did, so much so that Farag was entitled to summary judgment on this point. Unlike Erickson, where an individual made minor suggestions but the final decision belonged "entirely" to the principal playwright, id. at 1072, the song here was the product of Janky and Farag. Farag wielded considerable control over what the song finally looked like; one could even say he demanded the changes. More important, however, is the evidence of intent supplied by Janky herself. We observed in Erickson that crediting another person as a co-author is strong evidence of intent to create a joint work. See id. at 1072; see also Childress v. Taylor, 945 F.2d 500, 508 (2d Cir.1991) ("Though `billing' or `credit' is not decisive in all cases and joint authorship can exist without any explicit discussion of this topic by the parties, consideration of the topic helpfully serves to focus the factfinder's attention on how the parties implicitly regarded their undertaking.") (footnote omitted). In this case, we have such an acknowledgment— Janky named Farag a co-author and deemed the song a "joint work." Janky's post hoc rationalization—that she only intended to express her gratitude—is simply at odds with the significant contributions made by Farag and Janky's identification of Farag as a co-author in the copyright registration form. Just as litigants "cannot create sham issues of fact with affidavits that contradict their prior depositions," Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588, 592 (7th Cir.2007) (internal quotation marks omitted), Janky's affidavit cutting the other way is entitled to little weight. A reasonable jury could only conclude that Janky and Farag intended to create a joint work.
Despite this conclusion, however, we admit that this is a close case. Farag contributed ideas and gave expression to those ideas, but had he done much less, his work would not garner the protection of copyright. We have observed in the past that published creations are almost always collaborative efforts to some degree— peers make suggestions, editors tweak words, and so forth. See id. at 658. Were we to deem every person who had a hand in the process a co-author, "copyright would explode." Id. On the other hand, the very purpose of copyright law is to promote the progress of the arts and sciences, U.S. CONST. art. I, § 8, cl. 8; Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 507 (7th Cir.1994), a purpose that is defeated if important contributions are denied copyright protection. Placing a contribution in one hopper or the other is not always an easy task, and the judge here made a commendable effort. In the end, though, this doo-wop ditty is a joint work.
That leaves only one loose end—Janky's cross-appeal.
For these reasons, the judgment is REVERSED and the case REMANDED so that summary judgment can be entered in favor of the Bureau, and for such further proceedings that may be necessary.
RIPPLE, Circuit Judge, dissenting.
I agree with the majority that the district court improperly granted Ms. Janky summary judgment on the issue of copyright ownership. However, I cannot agree with the majority's conclusion that the Bureau is entitled to summary judgment under our precedent in Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir.1994). I therefore must respectfully dissent.
In reviewing the district court's grant of summary judgment, "we consider only those matters that were before the district court when it entered the judgment." Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1024 (7th Cir.2003) (citation and quotation marks omitted). To establish that Ms. Janky and Farag intended to create a joint work under Erickson, the Bureau needed to show (1) that Farag and Ms. Janky "intended to be joint authors at the time the work was created" and (2) that Farag's contributions to the song were independently copyrightable. See Erickson, 13 F.3d at 1071. When the district court considered Ms. Janky's motion for summary judgment on copyright ownership, there was little evidence regarding Farag's intent to become a joint author. In its motion opposing summary judgment, the Bureau presented a certificate of registration for a joint copyright as evidence of Farag's intent. See R.71, Ex. 2. However, Farag stated in his counterclaim that his name was forged on the copyright application, which cast doubt on the Bureau's claim that Farag intended to create a joint authorship. See R.64, Ex. B-1.
Farag stated in his declaration that he was an "owner and/or co-owner" of the song, R.29, Ex. 6 at ¶ 6, and Ms. Janky's declaration acknowledged that Farag revised her original work "by 10%," R.29, Ex. 1 at ¶ 5. Nevertheless, there was no evidence before the district court establishing that Farag intended to create a joint work, as required under Erickson, 13 F.3d at 1071. Moreover, Farag's notice of affirmative defenses stated that Ms. Janky did not own the copyrights at issue, R.64, Ex. B-2 at ¶ 8, a view that undermines the Bureau's claim that Farag intended to create a joint authorship with Ms. Janky.
In finding that Farag intended to be a joint author, the majority emphasizes the fact that "Farag wielded considerable control over what the song finally looked like" and that Ms. Janky credited him in the copyright application. Ante, at 362. The factors of decisionmaking and billing were discussed briefly in Erickson and at greater length in a subsequent Second Circuit opinion. See Thomson v. Larson, 147 F.3d 195, 202-03 (2d Cir.1998) (citing Erickson,
I also believe that the Bureau has failed to establish that Farag's "contributions to the [work] were independently copyrightable." See Erickson, 13 F.3d at 1071. As the majority observes, we know that Farag's contributions to the lyrics were his suggestion to Ms. Janky that the song focus on Lake County specifically, and the specific suggestion that the song include a reference to "Chicago's neighboring south shore"
I do not think that the record before us allows us to affirm summary judgment for Ms. Janky or to grant summary judgment to the Bureau on the issue of copyright ownership. I would remand this case to the district court for further proceedings on the merits.