Lewis v. Activision
Content
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page1 of 12
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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AMANDA LEWIS, Plaintiff,
5 6 7 8 9
United States District Court For the Northern District of California
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No. C 12-1096 CW
v. ACTIVISION BLIZZARD, INC., and BLIZZARD ENTERTAINMENT, INC.,
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 39)
Defendants. ________________________________/ Plaintiff Amanda Lewis brought this copyright infringement
11
action against her former employer, Defendants Activision
12
Blizzard, Inc., and Blizzard Entertainment, Inc. (collectively,
13
Blizzard).
14
opposes the motion.
15
and oral argument, the Court grants the motion.
Blizzard moves for summary judgment.
16 17
Plaintiff
After considering the parties’ submissions
BACKGROUND The following facts are undisputed.
Blizzard is a videogame
18
company that develops, markets, and distributes computer games.
19
Secrest Decl. ¶ 26.
20
Warcraft, a “multiplayer role-playing game, in which thousands of
21
people play simultaneously in a ‘virtual world’ created by
22
Blizzard.”
23
One of its most popular games is World of
Id.
Plaintiff was employed at Blizzard as a “game master” for
24
World of Warcraft from May 2005 through August 2006.
25
¶¶ 2-4.
26
customers’ questions about the game, assisting them when they
27
encountered difficulties with other players or game mechanics, and
28
solving any problems with game functionality.
Lewis Decl.
In that role, she was responsible for answering
Id. ¶¶ 3-5.
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According to the “Game Master Job Description” in Blizzard’s
2
training manual,
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Game Masters are customer service specialists with expert knowledge of the game who are [] present as characters within World of Warcraft’s epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. In this capacity, GM’s serve as the direct link between Blizzard and its customers. Additionally, GM’s are responsible for in-game customer support, helping manage our online community, and assisting with the creation of content during the ever ongoing development of the game.
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United States District Court For the Northern District of California
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Secrest Decl. ¶ 29, Ex. P, April 2005 Training Manual, at 4. Plaintiff received a copy of this manual during an employee training session that she attended during her first week on the job.
Lewis Decl. ¶ 6; Mayer Decl., Ex. U, Lewis Depo. 50:4-:6,
51:11-:20. In July 2005, a Blizzard game writer sent an e-mail to all game masters inviting them to participate in “open auditions” for voiceover work related to World of Warcraft. A, 7/7/2005 E-Mail, at 1.
Farr Decl. ¶ 3, Ex.
Roughly one hundred and twenty game
masters signed up to participate in the auditions, including Plaintiff.
Id.
After Plaintiff auditioned in late July, she was
invited to record a voice for a newly created game character called the “baby murloc.”
Farr Decl. ¶¶ 5-6.
The character was
conceived by Blizzard’s design team as a “cuter, smaller version of the original murloc,” a mythical creature featured in earlier versions of the game.
Id.
Before the recording session,
Blizzard’s sound engineer told Plaintiff that the character would be unveiled at BlizzCon 2005, an annual fan convention, and used in videos to promote the game. 125:18-:24.
Mayer Decl., Ex. U, Lewis Depo.
He did not say whether Blizzard would ultimately use 2
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page3 of 12
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the recording for any other purpose -- such as to voice any
2
characters within the game itself -- and Plaintiff never asked
3
whether the recordings might be used outside of BlizzCon.
4
Lewis Depo. 104:16-105:4.
5
On September 7, 2005, Plaintiff participated in a recording
6
session at Blizzard’s offices.
7
lasted about ten minutes and yielded roughly five minutes of raw
8
audio recording.
9
subsequently edited the raw recording to produce a condensed set
10 United States District Court For the Northern District of California
Id.
11
of sound files.
Lewis Decl. ¶ 12.
Farr Decl. ¶¶ 9, 23.
The session
Blizzard’s sound engineer
Id. ¶¶ 20-21.
Two weeks later, Plaintiff was invited to participate in
12
another recording session to develop a short “dance” song for the
13
baby murloc character using her voice.
14
On September 22, Plaintiff attended a second recording session at
15
Blizzard’s offices.
16
session yielded roughly four minutes of raw audio recording, which
17
Blizzard’s sound engineer once again edited and condensed into
18
smaller sound files.
19
compensated for her participation in both recording sessions at
20
her usual hourly rate and never sought additional compensation for
21
her work on either recording.
22
137:16-138:7.
Id. ¶ 4; Lewis Decl. ¶ 18.
Farr Decl. ¶ 15; Lewis Decl. ¶¶ 19-20.
Farr Decl. ¶¶ 18-21.
The
Plaintiff was
Mayer Decl., Ex. U, Lewis Depo.
23
Sometime in 2006, shortly before she was terminated by
24
Blizzard, Plaintiff discovered that her voice from the recordings
25
had been used to create a baby murloc character that appeared in
26
the game itself.
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“surprised to find out that [her] voice had been used beyond the
28
scope of what [she] had been told it would be used for,” she did
Lewis Decl. ¶ 23.
3
Although Plaintiff was
United States District Court For the Northern District of California
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not convey her surprise to any of her friends, co-workers, or
2
supervisors.
3
:25; Lewis Decl. ¶ 22.
Mayer Decl., Ex. U, Lewis Depo. 148:5-:24, 151:11-
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In November 2010, Plaintiff filed this lawsuit against
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Blizzard alleging that the company had infringed her copyright in
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the baby murloc recordings by using parts of the recordings in the
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game without her consent.
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claims against Blizzard in her complaint but those claims were
9
dismissed in October 2012.
Plaintiff also asserted various state
Docket No. 26, Order on Motion to
10
Dismiss Second and Third Claims for Relief, at 13.
11
2013, Blizzard filed the instant motion for summary judgment on
12
Plaintiff’s sole remaining claim for copyright infringement.
In August
13
LEGAL STANDARD
14
Summary judgment is properly granted when no genuine and
15
disputed issues of material fact remain, and when, viewing the
16
evidence most favorably to the non-moving party, the movant is
17
clearly entitled to prevail as a matter of law.
18
P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
20
1987).
21
Fed. R. Civ.
The moving party bears the burden of showing that there is no
22
material factual dispute.
23
true the opposing party’s evidence, if supported by affidavits or
24
other evidentiary material.
25
815 F.2d at 1289.
26
in favor of the party against whom summary judgment is sought.
27
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Therefore, the court must regard as
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences
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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
2
F.2d 1551, 1558 (9th Cir. 1991).
3 4
are those which, under applicable substantive law, may affect the
5
outcome of the case.
The substantive law will identify which
6
facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S.
7
242, 248 (1986).
8
of proof on an issue at trial, the moving party may discharge its
9
burden of production by either of two methods:
10 United States District Court For the Northern District of California
Material facts which would preclude entry of summary judgment
Where the moving party does not bear the burden
13
The moving party may produce evidence negating an essential element of the nonmoving party’s case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.
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Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d
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1099, 1106 (9th Cir. 2000).
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If the moving party discharges its burden by showing an
17
absence of evidence to support an essential element of a claim or
18
defense, it is not required to produce evidence showing the
19
absence of a material fact on such issues, or to support its
20
motion with evidence negating the non-moving party’s claim.
21
see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
22
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
23
the moving party shows an absence of evidence to support the non-
24
moving party’s case, the burden then shifts to the non-moving
25
party to produce “specific evidence, through affidavits or
26
admissible discovery material, to show that the dispute exists.”
27
Bhan, 929 F.2d at 1409.
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Id.;
If
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If the moving party discharges its burden by negating an
2
essential element of the non-moving party’s claim or defense, it
3
must produce affirmative evidence of such negation.
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F.3d at 1105.
5
burden then shifts to the non-moving party to produce specific
6
evidence to show that a dispute of material fact exists.
United States District Court For the Northern District of California
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Nissan, 210
If the moving party produces such evidence, the
Id.
If the moving party does not meet its initial burden of
8
production by either method, the non-moving party is under no
9
obligation to offer any evidence in support of its opposition.
10
Id.
11
ultimate burden of persuasion at trial.
This is true even though the non-moving party bears the
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Id. at 1107.
DISCUSSION
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Blizzard argues that it is entitled to summary judgment on
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Plaintiff’s copyright infringement claim for two reasons.
15
it contends that Plaintiff does not own a copyright in the baby
16
murloc recordings because the recordings constitute a “work made
17
for hire” under the Copyright Act, 17 U.S.C. § 201(b).
18
and in the alternative, Blizzard argues that it is a joint author
19
of the recordings and thus cannot be held liable for copyright
20
infringement.
21
I.
22
First,
Second,
Work Made for Hire The Copyright Act provides, “In the case of a work made for
23
hire, the employer or other person for whom the work was prepared
24
is considered the author . . . and, unless the parties have
25
expressly agreed otherwise in a written instrument signed by them,
26
owns all of the rights comprised in the copyright.”
27
§ 201(b).
17 U.S.C.
The Act defines a “work made for hire” as “a work
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prepared by an employee within the scope of his or her
2
employment.”
Id. § 101.
3
“Although the Copyright Act does not define either ‘employee’
4
or ‘scope of employment,’ these terms must be ‘understood in light
5
of the general common law of agency.’”
6
Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015 (9th Cir. 2012)
7
(citing Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730,
8
739-41 (1989)).
9
rely on the three-prong “scope of employment” test set forth in
10
section 228 of the Restatement (Second) of Agency to determine
11
whether a given work was “made for hire” under the Copyright Act.
12
Id.
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scope of employment if, but only if: (a) it is of the kind he is
14
employed to perform; (b) it occurs substantially within the
15
authorized time and space limits; [and] (c) it is actuated, at
16
least in part, by a purpose to serve the [employer].”
17
(Second) of Agency § 228.
U.S. Auto Parts Network,
Various circuits, including the Ninth Circuit,
Under that test, an employee’s conduct falls “within the
18
Restatement
Here, the undisputed facts demonstrate that Plaintiff was an
19
employee of Blizzard and that her contributions to the baby murloc
20
recordings fell squarely within the scope of her employment.
21
A.
22
Blizzard’s training manual states that game masters are
“Employed To Perform”
23
responsible for “assist[ing] with the creation of content during
24
the ever ongoing development of the game.”
25
Ex. P at 4.
26
in the training manual when she first began working at Blizzard in
27
2005.
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not required to produce original content for the game on a regular
Secrest Decl. ¶ 29,
Plaintiff admits that she read this job description
Lewis Decl. ¶ 6.
She argues, however, that because she was
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basis, her contributions to the baby murloc recordings do not
2
qualify as the kind of work she was “employed to perform.”
United States District Court For the Northern District of California
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This argument fails for several reasons.
First, as noted
4
above, the training manual Plaintiff received specifically
5
identified content-creation as one of her official
6
responsibilities.
7
on occasion, it was still expressly listed in her job description
8
and therefore fell within the scope of her stated duties.
9
more, producing content is very similar to the other duties that
Even if she only performed this responsibility
What’s
10
game masters were routinely expected to perform.
11
Plaintiff seeks to cast game masters as customer service
12
representatives who lacked any influence over game content, she
13
acknowledged in her declaration that game masters frequently
14
exercised direct control over elements of the game world.
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¶ 7 (“I would go into the game world about 3-5 times every shift
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to assist players who were experiencing issues such as becoming
17
stuck, not receiving ‘loot,’ or to remove a monster in an improper
18
location.”).
19
masters did not simply interact with Blizzard’s customers but also
20
engaged directly with game content.
21
Although
See id.
Thus, Plaintiff’s own evidence suggests that game
Blizzard’s evidence confirms that game masters sometimes
22
produced original content for the game.
23
resources manager asserted in her declaration that other game
24
masters besides Plaintiff were asked to contribute -- and did, in
25
fact, contribute -- original content to the game, including visual
26
artwork and designs, while Plaintiff was employed there.
27
Decl. ¶ 30.
28
addition to their day-to-day responsibilities, game masters were
The company’s human
Secrest
The human resources manager also asserted that, in
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“expected to assist with any other [game]-related tasks that they
2
may be asked to do.”
3
of these assertions.
United States District Court For the Northern District of California
4
Id. ¶ 27.
Plaintiff does not dispute either
Indeed, Plaintiff’s own description of her experience
5
recording the baby murloc voice suggests that this work fell
6
within the scope of her ordinary job duties.
7
at her deposition that she was paid her normal hourly wage for
8
participating in each recording session and never sought any
9
additional compensation for her voice work.
Plaintiff testified
Mayer Decl., Ex. U,
10
Lewis Depo. 134:16-:25, 136:2-:7.
11
her supervisor praised her work on the recordings during a
12
November 2005 review of her job performance.
13
147:4-148:2; see also Secrest Decl. Ex. Q, Employee Review Form,
14
at 1 (“Amanda was thrilled to be chosen as the voice of the baby
15
murloc.”).
16
Plaintiff and her co-workers understood that her contributions to
17
the baby murloc recordings constituted the kind of work she was
18
“employed to perform.”
In addition, she admitted that
Id., Lewis Depo.
Taken together, this evidence indicates that both
19
Plaintiff attempts to analogize this case to TAP Worldwide,
20
LLC v. Becker, where a court found that an export manager for an
21
auto-parts manufacturer was acting outside the scope of his
22
employment when he designed a software program to expedite the
23
processing of export shipments.
24
Cal.).
25
the export manager’s job description did not include software
26
development.
27
distinguish TAP Worldwide from another case where “it was found
28
that the employee’s job description could be interpreted to
2010 WL 2757354, at *4 (C.D.
TAP Worldwide is inapposite, however, because in that case
In fact, the court specifically used this fact to
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United States District Court For the Northern District of California
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include the development of the computer program that was at
2
issue.”
3
Trust of Miami-Dade County, 219 F. Supp. 2d 1275 (S.D. Fla.
4
2002)).
5
manager had not received any “praise” or “guidance” from his
6
supervisor regarding the software he developed, which further
7
suggested that that he was not “employed to perform” that kind of
8
work.
9
that her job description includes “the creation of [game] content”
10
but also that her supervisor praised her contributions to the baby
11
murloc recordings.
12
the present case.
Id. (emphasis added; citing Genzmer v. Public Health
The TAP Worldwide court also noted that the export
Id.
Here, in contrast, Plaintiff has acknowledged not only
Thus, TAP Worldwide is distinguishable from
13
B.
14
Both of Plaintiff’s recording sessions were conducted at
15
Blizzard’s offices, using Blizzard’s equipment, and under the
16
supervision of Blizzard’s sound engineer.
17
Furthermore, both sessions occurred on weekdays during normal
18
working hours while Plaintiff was employed at Blizzard.
19
the sessions took place on her days off, Plaintiff received her
20
normal hourly wage for all of the time she spent in the recording
21
studio.
22
copies of the recordings from either session.
23
short, Plaintiff’s participation in the recording sessions
24
occurred substantially within the authorized time and space limits
25
of her position at Blizzard.
26
“Substantially Within Authorized Time and Space Limits”
Farr Decl. ¶¶ 8-16.
Although
Finally, Plaintiff never requested or received her own Id. ¶¶ 20-22.
In
Plaintiff’s assertion that she developed the baby murloc
27
voice “on [her] own time” and through her “own creative effort,”
28
Lewis Decl. ¶¶ 12, 14, 20, does not change this outcome. 10
The
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Copyright Act makes clear that, while “sound recordings” may be
2
copyrighted, the Act’s protections do not “extend to any idea,
3
procedure, process, system, method of operation, concept,
4
principle, or discovery, regardless of the form in which it is
5
described, explained, illustrated, or embodied in such work.”
6
U.S.C. § 102.
7
created is merely an idea -- and, thus, is not copyrightable -- it
8
does not matter when or where she conceived of it.
9
presented any evidence to suggest that the recordings themselves
United States District Court For the Northern District of California
10
C.
12
16 17 18 19 20
23 24 25 26 27
“Actuated, At Least In Part, By a Purpose To Serve the Employer”
by a desire to serve Blizzard’s interests when she participated in the baby murloc recording sessions.
She also admitted in her
declaration that, when she first agreed to work on the recordings, she understood that the recordings would be used principally to promote the game.
Lewis Decl. ¶ 21.
Thus, it is undisputed that
her work on the recordings was “actuated, at least in part, by a purpose to serve” her employer. In sum, Plaintiff’s contributions to the baby murloc
21 22
She has not
At oral argument, Plaintiff conceded that she was motivated
13
15
Because the “voice” that Plaintiff allegedly
were made outside of the time and space limits of her job.
11
14
17
recordings satisfy all three prongs of section 228’s “scope of employment” test.
The recordings therefore constitute a “work
made for hire” under the Copyright Act. II.
Joint Authorship Because the baby murloc recordings are a “work made for
hire,” as explained above, Blizzard is the sole copyright holder
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in the recordings.
2
whether the recordings are a “joint work” under the Copyright Act.
3
CONCLUSION
4
Accordingly, there is no need to address
For the reasons set forth above, Defendants’ motion for
5
summary judgment (Docket No. 39) is GRANTED.
6
evidentiary objections (Docket No. 49) are DENIED as moot.
7 8 9
Defendants’
The clerk shall enter judgment and close the file.
Each
party shall bear her or its own costs. IT IS SO ORDERED.
United States District Court For the Northern District of California
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Dated:
CLAUDIA WILKEN United States District Judge
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1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3 4
AMANDA LEWIS, Plaintiff,
5 6 7 8 9
United States District Court For the Northern District of California
10
No. C 12-1096 CW
v. ACTIVISION BLIZZARD, INC., and BLIZZARD ENTERTAINMENT, INC.,
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 39)
Defendants. ________________________________/ Plaintiff Amanda Lewis brought this copyright infringement
11
action against her former employer, Defendants Activision
12
Blizzard, Inc., and Blizzard Entertainment, Inc. (collectively,
13
Blizzard).
14
opposes the motion.
15
and oral argument, the Court grants the motion.
Blizzard moves for summary judgment.
16 17
Plaintiff
After considering the parties’ submissions
BACKGROUND The following facts are undisputed.
Blizzard is a videogame
18
company that develops, markets, and distributes computer games.
19
Secrest Decl. ¶ 26.
20
Warcraft, a “multiplayer role-playing game, in which thousands of
21
people play simultaneously in a ‘virtual world’ created by
22
Blizzard.”
23
One of its most popular games is World of
Id.
Plaintiff was employed at Blizzard as a “game master” for
24
World of Warcraft from May 2005 through August 2006.
25
¶¶ 2-4.
26
customers’ questions about the game, assisting them when they
27
encountered difficulties with other players or game mechanics, and
28
solving any problems with game functionality.
Lewis Decl.
In that role, she was responsible for answering
Id. ¶¶ 3-5.
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page2 of 12
1
According to the “Game Master Job Description” in Blizzard’s
2
training manual,
3
Game Masters are customer service specialists with expert knowledge of the game who are [] present as characters within World of Warcraft’s epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. In this capacity, GM’s serve as the direct link between Blizzard and its customers. Additionally, GM’s are responsible for in-game customer support, helping manage our online community, and assisting with the creation of content during the ever ongoing development of the game.
4 5 6 7 8 9
United States District Court For the Northern District of California
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Secrest Decl. ¶ 29, Ex. P, April 2005 Training Manual, at 4. Plaintiff received a copy of this manual during an employee training session that she attended during her first week on the job.
Lewis Decl. ¶ 6; Mayer Decl., Ex. U, Lewis Depo. 50:4-:6,
51:11-:20. In July 2005, a Blizzard game writer sent an e-mail to all game masters inviting them to participate in “open auditions” for voiceover work related to World of Warcraft. A, 7/7/2005 E-Mail, at 1.
Farr Decl. ¶ 3, Ex.
Roughly one hundred and twenty game
masters signed up to participate in the auditions, including Plaintiff.
Id.
After Plaintiff auditioned in late July, she was
invited to record a voice for a newly created game character called the “baby murloc.”
Farr Decl. ¶¶ 5-6.
The character was
conceived by Blizzard’s design team as a “cuter, smaller version of the original murloc,” a mythical creature featured in earlier versions of the game.
Id.
Before the recording session,
Blizzard’s sound engineer told Plaintiff that the character would be unveiled at BlizzCon 2005, an annual fan convention, and used in videos to promote the game. 125:18-:24.
Mayer Decl., Ex. U, Lewis Depo.
He did not say whether Blizzard would ultimately use 2
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1
the recording for any other purpose -- such as to voice any
2
characters within the game itself -- and Plaintiff never asked
3
whether the recordings might be used outside of BlizzCon.
4
Lewis Depo. 104:16-105:4.
5
On September 7, 2005, Plaintiff participated in a recording
6
session at Blizzard’s offices.
7
lasted about ten minutes and yielded roughly five minutes of raw
8
audio recording.
9
subsequently edited the raw recording to produce a condensed set
10 United States District Court For the Northern District of California
Id.
11
of sound files.
Lewis Decl. ¶ 12.
Farr Decl. ¶¶ 9, 23.
The session
Blizzard’s sound engineer
Id. ¶¶ 20-21.
Two weeks later, Plaintiff was invited to participate in
12
another recording session to develop a short “dance” song for the
13
baby murloc character using her voice.
14
On September 22, Plaintiff attended a second recording session at
15
Blizzard’s offices.
16
session yielded roughly four minutes of raw audio recording, which
17
Blizzard’s sound engineer once again edited and condensed into
18
smaller sound files.
19
compensated for her participation in both recording sessions at
20
her usual hourly rate and never sought additional compensation for
21
her work on either recording.
22
137:16-138:7.
Id. ¶ 4; Lewis Decl. ¶ 18.
Farr Decl. ¶ 15; Lewis Decl. ¶¶ 19-20.
Farr Decl. ¶¶ 18-21.
The
Plaintiff was
Mayer Decl., Ex. U, Lewis Depo.
23
Sometime in 2006, shortly before she was terminated by
24
Blizzard, Plaintiff discovered that her voice from the recordings
25
had been used to create a baby murloc character that appeared in
26
the game itself.
27
“surprised to find out that [her] voice had been used beyond the
28
scope of what [she] had been told it would be used for,” she did
Lewis Decl. ¶ 23.
3
Although Plaintiff was
United States District Court For the Northern District of California
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1
not convey her surprise to any of her friends, co-workers, or
2
supervisors.
3
:25; Lewis Decl. ¶ 22.
Mayer Decl., Ex. U, Lewis Depo. 148:5-:24, 151:11-
4
In November 2010, Plaintiff filed this lawsuit against
5
Blizzard alleging that the company had infringed her copyright in
6
the baby murloc recordings by using parts of the recordings in the
7
game without her consent.
8
claims against Blizzard in her complaint but those claims were
9
dismissed in October 2012.
Plaintiff also asserted various state
Docket No. 26, Order on Motion to
10
Dismiss Second and Third Claims for Relief, at 13.
11
2013, Blizzard filed the instant motion for summary judgment on
12
Plaintiff’s sole remaining claim for copyright infringement.
In August
13
LEGAL STANDARD
14
Summary judgment is properly granted when no genuine and
15
disputed issues of material fact remain, and when, viewing the
16
evidence most favorably to the non-moving party, the movant is
17
clearly entitled to prevail as a matter of law.
18
P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
19
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
20
1987).
21
Fed. R. Civ.
The moving party bears the burden of showing that there is no
22
material factual dispute.
23
true the opposing party’s evidence, if supported by affidavits or
24
other evidentiary material.
25
815 F.2d at 1289.
26
in favor of the party against whom summary judgment is sought.
27
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Therefore, the court must regard as
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences
28 4
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1
587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
2
F.2d 1551, 1558 (9th Cir. 1991).
3 4
are those which, under applicable substantive law, may affect the
5
outcome of the case.
The substantive law will identify which
6
facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S.
7
242, 248 (1986).
8
of proof on an issue at trial, the moving party may discharge its
9
burden of production by either of two methods:
10 United States District Court For the Northern District of California
Material facts which would preclude entry of summary judgment
Where the moving party does not bear the burden
13
The moving party may produce evidence negating an essential element of the nonmoving party’s case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.
14
Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d
15
1099, 1106 (9th Cir. 2000).
11 12
16
If the moving party discharges its burden by showing an
17
absence of evidence to support an essential element of a claim or
18
defense, it is not required to produce evidence showing the
19
absence of a material fact on such issues, or to support its
20
motion with evidence negating the non-moving party’s claim.
21
see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
22
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
23
the moving party shows an absence of evidence to support the non-
24
moving party’s case, the burden then shifts to the non-moving
25
party to produce “specific evidence, through affidavits or
26
admissible discovery material, to show that the dispute exists.”
27
Bhan, 929 F.2d at 1409.
28 5
Id.;
If
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page6 of 12
1
If the moving party discharges its burden by negating an
2
essential element of the non-moving party’s claim or defense, it
3
must produce affirmative evidence of such negation.
4
F.3d at 1105.
5
burden then shifts to the non-moving party to produce specific
6
evidence to show that a dispute of material fact exists.
United States District Court For the Northern District of California
7
Nissan, 210
If the moving party produces such evidence, the
Id.
If the moving party does not meet its initial burden of
8
production by either method, the non-moving party is under no
9
obligation to offer any evidence in support of its opposition.
10
Id.
11
ultimate burden of persuasion at trial.
This is true even though the non-moving party bears the
12
Id. at 1107.
DISCUSSION
13
Blizzard argues that it is entitled to summary judgment on
14
Plaintiff’s copyright infringement claim for two reasons.
15
it contends that Plaintiff does not own a copyright in the baby
16
murloc recordings because the recordings constitute a “work made
17
for hire” under the Copyright Act, 17 U.S.C. § 201(b).
18
and in the alternative, Blizzard argues that it is a joint author
19
of the recordings and thus cannot be held liable for copyright
20
infringement.
21
I.
22
First,
Second,
Work Made for Hire The Copyright Act provides, “In the case of a work made for
23
hire, the employer or other person for whom the work was prepared
24
is considered the author . . . and, unless the parties have
25
expressly agreed otherwise in a written instrument signed by them,
26
owns all of the rights comprised in the copyright.”
27
§ 201(b).
17 U.S.C.
The Act defines a “work made for hire” as “a work
28 6
United States District Court For the Northern District of California
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page7 of 12
1
prepared by an employee within the scope of his or her
2
employment.”
Id. § 101.
3
“Although the Copyright Act does not define either ‘employee’
4
or ‘scope of employment,’ these terms must be ‘understood in light
5
of the general common law of agency.’”
6
Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015 (9th Cir. 2012)
7
(citing Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730,
8
739-41 (1989)).
9
rely on the three-prong “scope of employment” test set forth in
10
section 228 of the Restatement (Second) of Agency to determine
11
whether a given work was “made for hire” under the Copyright Act.
12
Id.
13
scope of employment if, but only if: (a) it is of the kind he is
14
employed to perform; (b) it occurs substantially within the
15
authorized time and space limits; [and] (c) it is actuated, at
16
least in part, by a purpose to serve the [employer].”
17
(Second) of Agency § 228.
U.S. Auto Parts Network,
Various circuits, including the Ninth Circuit,
Under that test, an employee’s conduct falls “within the
18
Restatement
Here, the undisputed facts demonstrate that Plaintiff was an
19
employee of Blizzard and that her contributions to the baby murloc
20
recordings fell squarely within the scope of her employment.
21
A.
22
Blizzard’s training manual states that game masters are
“Employed To Perform”
23
responsible for “assist[ing] with the creation of content during
24
the ever ongoing development of the game.”
25
Ex. P at 4.
26
in the training manual when she first began working at Blizzard in
27
2005.
28
not required to produce original content for the game on a regular
Secrest Decl. ¶ 29,
Plaintiff admits that she read this job description
Lewis Decl. ¶ 6.
She argues, however, that because she was
7
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page8 of 12
1
basis, her contributions to the baby murloc recordings do not
2
qualify as the kind of work she was “employed to perform.”
United States District Court For the Northern District of California
3
This argument fails for several reasons.
First, as noted
4
above, the training manual Plaintiff received specifically
5
identified content-creation as one of her official
6
responsibilities.
7
on occasion, it was still expressly listed in her job description
8
and therefore fell within the scope of her stated duties.
9
more, producing content is very similar to the other duties that
Even if she only performed this responsibility
What’s
10
game masters were routinely expected to perform.
11
Plaintiff seeks to cast game masters as customer service
12
representatives who lacked any influence over game content, she
13
acknowledged in her declaration that game masters frequently
14
exercised direct control over elements of the game world.
15
¶ 7 (“I would go into the game world about 3-5 times every shift
16
to assist players who were experiencing issues such as becoming
17
stuck, not receiving ‘loot,’ or to remove a monster in an improper
18
location.”).
19
masters did not simply interact with Blizzard’s customers but also
20
engaged directly with game content.
21
Although
See id.
Thus, Plaintiff’s own evidence suggests that game
Blizzard’s evidence confirms that game masters sometimes
22
produced original content for the game.
23
resources manager asserted in her declaration that other game
24
masters besides Plaintiff were asked to contribute -- and did, in
25
fact, contribute -- original content to the game, including visual
26
artwork and designs, while Plaintiff was employed there.
27
Decl. ¶ 30.
28
addition to their day-to-day responsibilities, game masters were
The company’s human
Secrest
The human resources manager also asserted that, in
8
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page9 of 12
1
“expected to assist with any other [game]-related tasks that they
2
may be asked to do.”
3
of these assertions.
United States District Court For the Northern District of California
4
Id. ¶ 27.
Plaintiff does not dispute either
Indeed, Plaintiff’s own description of her experience
5
recording the baby murloc voice suggests that this work fell
6
within the scope of her ordinary job duties.
7
at her deposition that she was paid her normal hourly wage for
8
participating in each recording session and never sought any
9
additional compensation for her voice work.
Plaintiff testified
Mayer Decl., Ex. U,
10
Lewis Depo. 134:16-:25, 136:2-:7.
11
her supervisor praised her work on the recordings during a
12
November 2005 review of her job performance.
13
147:4-148:2; see also Secrest Decl. Ex. Q, Employee Review Form,
14
at 1 (“Amanda was thrilled to be chosen as the voice of the baby
15
murloc.”).
16
Plaintiff and her co-workers understood that her contributions to
17
the baby murloc recordings constituted the kind of work she was
18
“employed to perform.”
In addition, she admitted that
Id., Lewis Depo.
Taken together, this evidence indicates that both
19
Plaintiff attempts to analogize this case to TAP Worldwide,
20
LLC v. Becker, where a court found that an export manager for an
21
auto-parts manufacturer was acting outside the scope of his
22
employment when he designed a software program to expedite the
23
processing of export shipments.
24
Cal.).
25
the export manager’s job description did not include software
26
development.
27
distinguish TAP Worldwide from another case where “it was found
28
that the employee’s job description could be interpreted to
2010 WL 2757354, at *4 (C.D.
TAP Worldwide is inapposite, however, because in that case
In fact, the court specifically used this fact to
9
United States District Court For the Northern District of California
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page10 of 12
1
include the development of the computer program that was at
2
issue.”
3
Trust of Miami-Dade County, 219 F. Supp. 2d 1275 (S.D. Fla.
4
2002)).
5
manager had not received any “praise” or “guidance” from his
6
supervisor regarding the software he developed, which further
7
suggested that that he was not “employed to perform” that kind of
8
work.
9
that her job description includes “the creation of [game] content”
10
but also that her supervisor praised her contributions to the baby
11
murloc recordings.
12
the present case.
Id. (emphasis added; citing Genzmer v. Public Health
The TAP Worldwide court also noted that the export
Id.
Here, in contrast, Plaintiff has acknowledged not only
Thus, TAP Worldwide is distinguishable from
13
B.
14
Both of Plaintiff’s recording sessions were conducted at
15
Blizzard’s offices, using Blizzard’s equipment, and under the
16
supervision of Blizzard’s sound engineer.
17
Furthermore, both sessions occurred on weekdays during normal
18
working hours while Plaintiff was employed at Blizzard.
19
the sessions took place on her days off, Plaintiff received her
20
normal hourly wage for all of the time she spent in the recording
21
studio.
22
copies of the recordings from either session.
23
short, Plaintiff’s participation in the recording sessions
24
occurred substantially within the authorized time and space limits
25
of her position at Blizzard.
26
“Substantially Within Authorized Time and Space Limits”
Farr Decl. ¶¶ 8-16.
Although
Finally, Plaintiff never requested or received her own Id. ¶¶ 20-22.
In
Plaintiff’s assertion that she developed the baby murloc
27
voice “on [her] own time” and through her “own creative effort,”
28
Lewis Decl. ¶¶ 12, 14, 20, does not change this outcome. 10
The
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page11 of 12
1
Copyright Act makes clear that, while “sound recordings” may be
2
copyrighted, the Act’s protections do not “extend to any idea,
3
procedure, process, system, method of operation, concept,
4
principle, or discovery, regardless of the form in which it is
5
described, explained, illustrated, or embodied in such work.”
6
U.S.C. § 102.
7
created is merely an idea -- and, thus, is not copyrightable -- it
8
does not matter when or where she conceived of it.
9
presented any evidence to suggest that the recordings themselves
United States District Court For the Northern District of California
10
C.
12
16 17 18 19 20
23 24 25 26 27
“Actuated, At Least In Part, By a Purpose To Serve the Employer”
by a desire to serve Blizzard’s interests when she participated in the baby murloc recording sessions.
She also admitted in her
declaration that, when she first agreed to work on the recordings, she understood that the recordings would be used principally to promote the game.
Lewis Decl. ¶ 21.
Thus, it is undisputed that
her work on the recordings was “actuated, at least in part, by a purpose to serve” her employer. In sum, Plaintiff’s contributions to the baby murloc
21 22
She has not
At oral argument, Plaintiff conceded that she was motivated
13
15
Because the “voice” that Plaintiff allegedly
were made outside of the time and space limits of her job.
11
14
17
recordings satisfy all three prongs of section 228’s “scope of employment” test.
The recordings therefore constitute a “work
made for hire” under the Copyright Act. II.
Joint Authorship Because the baby murloc recordings are a “work made for
hire,” as explained above, Blizzard is the sole copyright holder
28 11
Case4:12-cv-01096-CW Document52 Filed10/17/13 Page12 of 12
1
in the recordings.
2
whether the recordings are a “joint work” under the Copyright Act.
3
CONCLUSION
4
Accordingly, there is no need to address
For the reasons set forth above, Defendants’ motion for
5
summary judgment (Docket No. 39) is GRANTED.
6
evidentiary objections (Docket No. 49) are DENIED as moot.
7 8 9
Defendants’
The clerk shall enter judgment and close the file.
Each
party shall bear her or its own costs. IT IS SO ORDERED.
United States District Court For the Northern District of California
10 11 12
Dated:
CLAUDIA WILKEN United States District Judge
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
