Moofly Productions, LLC v. Sandra Favila

FILED
NOT FOR PUBLICATION
MAR 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOOFLY PRODUCTIONS, LLC, a No. 15-56136
California Limited Liability Company,
D.C. No.
Plaintiff-counter- 2:13-cv-05866 SJO PJW
defendant-Appellee,

HELENA PASQUARELLA; RALEIGH MEMORANDUM*
WILLIAM SOUTHER, individually;
THOMAS JOEL, individually; JOEL
MEDIA GROUP, INC., an Arizona
corporation,

Counter-defendants-
Appellees.

v.

SANDRA CORRALAS FAVILA;
ESTATE OF RICHARD CHARLES
CORRALES,

Defendants-counter-
claimants-Appellants,

MOTION GRAPHIX, INC., a California
Corporation in Dissolution,

Counter-claimant-Appellant.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
MOOFLY PRODUCTIONS, LLC, a No. 15-56702
California Limited Liability Company,

Plaintiff, DC No.
2:13-cv-05866 SJO PJW
v.

SANDRA FAVILA,

Defendant,

and

ESTATE OF RICHARD C. CORRALES;
MOTION GRAPHIX, INC.,

Defendants-counter-
claimants-Appellants,

v.

THOMAS JOEL; JOEL MEDIA GROUP,
INC., an Arizona corporation,

Counter-defendants-
Appellees.

Appeals from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Argued and Submitted March 7, 2017
Pasadena, California
Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

The Corrales Estate (“Estate”) and its executrix, Sandra Favila (“Favila”)

appeal the dismissal of their copyright infringement counterclaim. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.

1. The rulings of the California Court of Appeal and Los Angeles

County Superior Court in Favila v. Souther awarded 51% of the subject copyrights

to the Estate. The remaining 49% interest in the copyrights either remained with

Raleigh Souther (“Souther”) or with Souther’s transferee, Get Flipped, Inc.

(“GFI”). “A co-owner of a copyright cannot be liable to another co-owner for

infringement of the copyright.” Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.

1984). As co-owner of the copyrights, Souther or GFI was further entitled to grant

non-exclusive licenses to the other Appellees. See Sybersound Records, Inc. v.

UAV Corp., 517 F.3d 1137, 1146 (9th Cir. 2008); Oddo, 743 F.2d at 633.1

The defenses of co-ownership and license were not forfeited by their

omission from Appellees’ pleadings. This Court has “liberalized the requirement

that affirmative defenses be raised in a defendant’s initial pleading.” Rivera v.

1
The question of how any profits from such licenses should be
accounted for or distributed, see, e.g., Corbello v. DeVito, 777 F.3d 1058, 1062
(9th Cir. 2015), is not before us, all non-copyright claims having been remanded
back to state court.
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Anaya, 726 F.2d 564, 566 (9th Cir. 1984). A defendant may raise an affirmative

defense for the first time in a summary judgment motion so long as there was no

prejudice to the plaintiff. Healy Tibbitts Constr. Co. v. Ins. Co. of N. Am, 679 F.2d

803, 804 (9th Cir. 1982). The district court permitted Appellants ample

opportunity to brief the co-ownership and license defenses before their

counterclaim was dismissed. There was thus no prejudice.

2. Attorney’s fees were properly awarded to Appellees Joel and Joel

Media Group, Inc., as the prevailing parties on the copyright counterclaim. 17

U.S.C. § 505.

• ! •

For the foregoing reasons, the district court’s dismissal of Appellants’

copyright infringement counterclaim and its award of attorney’s fees are

AFFIRMED.

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