United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS, DENYING DEFENDANTS' MOTION FOR ATTORNEY FEES AND COSTS, AND ORDERING A STATUS REPORT ON REMAINING CLAIMS
DAVID M. EBEL, District Judge.
This matter is before the Court on Defendants' motion for an order "(a) dismissing Plaintiff's claim for copyright infringement with prejudice, and (b) awarding Defendants reasonable attorney fees and costs." (Doc. 178). Defendants international art dealer Paul Zueger, ten retail art galleries Zueger owns and operates, and unknown publishing companies John Does 1-20 claim that Plaintiff Goss lacks standing to bring this copyright infringement action. After considering the facts and applicable law, the Court agrees that Goss lacks standing. The Court therefore GRANTS the motion in part, dismissing Plaintiff's claim for copyright infringement with prejudice, and DENIES the motion in part to award Defendants reasonable attorney fees and costs.
Earl Vernon Biss, Jr. was a "world renowned Crow Indian artist." (Doc. 1 ¶¶ 9.) He died in October 1998. (Id. ¶ 16.) Plaintiff Lou Lou Goss is Biss's surviving spouse and sole heir. (Id. ¶ 17.) As Biss's heir, Goss claims that she owns the copyrights to Biss's art work. (Id. ¶¶ 10-15, 18-20.) Goss alleges that Defendants have infringed Goss's copyright by, among other things, selling unauthorized reproductions of Biss's art. (Id. at 6-8, 22-30.)
Defendants deny that they are infringing Goss's copyright. They claim, instead, that they purchased a number of pieces of Biss's work before his death and are, thus, entitled to reproduce those pieces. (Doc. 59 at 1-6.) Defendants also allege a total of six counterclaims against Goss, but only Goss's copyright infringement claim and whether she has standing to assert it are at issue here.
On October 24, 2013, Goss filed for bankruptcy in Colorado. (Doc. 178-2, the probate court's "Order" at 1.) The bankruptcy court issued an Order authorizing the bankruptcy claimants against Goss to file a motion to the State Probate Court of Denver County for a judicial determination respecting the "right, title, and interest held by the Biss's probate estate as of October 24, 2013 in the assets and properties owned by Biss as of the date of his death"-specifically: (i) the copyrights in Biss's artwork, and (ii) all litigation claims arising from those copyrights. (Doc. 178-2 at 1-2.)
On January 17, 2014, the probate court issued its Order. (Id. at 1.) Based on Goss's own filings to that court, the Order "found, determined, and declared" that the personal representative of the Probate Estate (Goss, acting in that capacity), had "repeatedly represented" to the probate court that the "Copyright and Litigation Claims are and remain property of the Probate Estate and are subject to probate administration, including the claims of creditors and the costs and expenses of probate administration." (Id. at 2.)
The probate court therefore found and determined that as of October 24, 2013 when Goss filed for Chapter 13 bankruptcy, the copyright and litigation claims "were and remained property of the Probate Estate subject to probate administration, including the claims of creditors and the costs and expenses of probate administration." (Doc. 178-2 at 2.) The probate court also stated that
[i]n Colorado, title to personal property passes to the administrator of an estate during the period of administration. Stone v. Chapels for Mediation, Inc. , 33 Colo.App. 346, 519 P.2d 1233 (Colo.App. 1974). However, during the course of administration the personal representative holds title to decedent's property not as an individual but as a fiduciary of the estate, and the personal representative has duties to settle and distribute the estate of the decedent in accordance with the terms of any probated will and the statutes, as expeditiously and efficiently as is consistent with the best interests of the estate. C.R.S. § 15-12-703(1).
(Doc. 178-2 at 3.) The probate court held that the claims of the probate court movants against Goss as personal representative and against the estate remained valid and outstanding. (Id. at 2-3.) The probate court then authorized a sheriff's levy on the copyrights and litigation claims for one or more execution sales to satisfy these creditors' claims. (Id. at 4). The Denver District Court entered an appropriate order, and the Sheriff's sale was scheduled to take place February 25, 2014. (Amended Notice of Sheriff's Levy and Impending Execution Sale, Doc. 180 at 2.) Defendants filed their motion to dismiss on January 29, 2014. They assert that the probate court's determination that the copyrights and related litigation claims were and remained property of the estate means that Goss lacks standing to bring her copyright infringement claim. (Doc. 178 at 3.) Goss did not file a response to the Defendants' motion to dismiss or otherwise move for additional time within the 21-day period required by this Court's local rules. D.C.Colo.LCivR 7.1(d). Thus, the Court will rule on the motion without a responsive pleading.
A. Standing for copyright infringement
This Court has already persuasively analyzed and construed the Copyright Act and the ownership required for standing to bring a copyright infringement action. In Righthaven LLC v. Wolf , 813 F.Supp.2d 1265 (D. Colo. 2011), this Court concluded that standing to sue for copyright infringement was limited to "only parties with a legally recognized interest in copyright as delineated in [17 U.S.C.] § 106 (legal owners'), and parties who stand to benefit from the legal dissemination of copyrighted material (beneficial owners') have the right to sue for infringement under § 501(b) of the Copyright Act." Id. at 1271-72 (footnote omitted).
In Righthaven, a company had bought only the rights to sue for copyright infringement on certain works. Id. at 1273. In determining whether such a right was a sufficient basis to assert standing, this Court first noted that a "claim for infringement is based on 17 U.S.C. § 501, which provides that the legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.'" Id. at 1269 (quoting 17 U.S.C. § 501(b)). The Court stated that "[a]lthough this language is straightforward, it does not expressly limit the right to sue for infringement to a legal or beneficial owner of an exclusive right, " id., and therefore embarked on its own analysis of what other circumstances could give rise to standing to sue for infringement. Righthaven , 813 F.Supp.2d at 1269-1272 (analyzing the text, legislative history, and policy behind the historical iterations of the Copyright ...