IP Law Daily, COPYRIGHT—11th Cir.: No second act for a frequent litigant in Florida, (Jan 9, 2023)
By Matthew Hersh, J.D.
The court of appeals resuscitated the case once before, but declined to do so again.
A federal court in Palm Beach, Florida, correctly found that a writer and frequent copyright litigant could not show he had registered two articles on the subject of trains, the U.S. Court of Appeals for the Eleventh Circuit has held. But the court, affirming in an unpublished the district court’s grant of summary judgment to a central Florida newspaper, declined to impose sanctions on the writer for the ostensibly frivolous appeal (Vient v. Highlands News-Sun, January 5, 2023, per curiam).
The case arose out of a 2015 agreement between writer Benjamin Vient and the publication now known as the Highlands New-Sun, located in the city of Sebring, Florida. Under the agreement, the newspaper published two train-themed articles prepared by the writer, respectfully entitled “Welcome on Board, Enjoy the Ride” and “Using a Tower to Sell a Station.” But the relationship went awry when, in 2018, the writer noticed the same articles reproduced electronically in publications known as the Highlands Journal and Newsbank.
The writer, believing that the Sebring publication had improperly authorized the further electronic reproduction of his articles without consent, sued the newspaper for copyright infringement. The district court dismissed the complaint, finding that the “Highlands Journal” was just the name that the Sebring publication operated under in 2015, while NewsBank was simply its archive for older articles. Moreover, the district court found, the writer’s theory of the case was so specious that it merited a finding of sanctions under the Rule 11.
But the writer’s case was given new life when the court of appeals, in an unpublished opinion that IP Law Daily covered here, reversed the district court’s order. Even if all the publications at issue were essentially the same—the one because of the name change and the other because it was simply an electronic repository of the first—the writer had still pleaded a plausible theory that the newspaper had no right, under the decision in New York Times Co. v. Tasini, 533 U.S. 483 (2001), to extend its initial license to such electronic distribution. Moreover, the court of appeals found, the dismissal improperly came on a motion to dismiss, not on a motion for summary judgment. “Although [the writer’s] pro se pleadings were inartful,” the court of appeals observed, “his factual allegations did not lack evidentiary support.”
But after this turn of events in the court of appeals, the lawsuit foundered in the trial court on a different reason: the writer’s ostensible failure to prove that he had registered a copyright in the pieces. The trial court granted summary judgment for the newspaper, leading to this appeal.
Registration. The court of appeals this time dismissed the appeal, thus leaving in place the underlying judgment. The issue here was largely a matter of jurisdiction. The writer filed no fewer than six different motions for reconsideration in the trial court before taking the appeal. But the appeal was only timely as to the sixth motion for reconsideration, and not to the underlying judgment or any of the first five motions. And as to that motion, the court of appeals held, it was utterly meritless—thus meriting summary affirmance. The claim, a motion for “transparency,” alleged that the trial court failed to make a certification stating it followed judicial canons. (In earlier proceedings, the writer had complained that the trial judge had once worked for the defendant’s law firm—a fact apparently underlying his request for certification.) But no such certification was ever required of a trial court, the court of appeals held.
Finally, although the court of appeals summarily rejected the writer’s appeal, the court declined to impose sanctions on the writer. To date, the court noted, no court had warned the writer that his underlying claim was frivolous. Indeed, the court noted, “we have already vacated imposition of one sanction—the initial dismissal of his suit under Rule 11.” The writer would not face another sanction now.
The Case is No. 22-12140.
Attorneys: Benjamin Vient, pro se. Scott Daniel Ponce (Holland & Knight, LLP) for Highlands News-Sun.
Companies: Highlands News-Sun
Cases: Copyright AlabamaNews FloridaNews GeorgiaNews