John Magnuson, D/B/A John Magnuson Associates, Plaintiff-Appellee-Cross-Appellant v. Video Yesteryear, Defendant-Appellant-Cross-Appellee

dissenting:

Video Yesteryear’s behavior is far from appealing, and a finding that the late writing was sufficient does help Magnuson. It does not help authors in general. I believe that the decision of this case is controlled by Konigsberg Int'l, Inc. v. Rice, 16 F.3d 355 (9th Cir.1994). I recognize that there are factual differences between this case and that one, but there are always factual differences between cases. In this instance, I do not think that those differences distinguish the principles involved.

Konigsberg is not just about direct conflicts between apparent copyright holders and those who claim to have rights in the copyright. Indeed, it hardly could be. It is also about marketability and protecting third parties who want to deal with the true owner. Under Magnuson’s theory, third parties cannot know who really owns a copyright. They can be dragged through litigation by a person who does not have any apparent ownership rights, but who might eventually be able to obtain some kind of memorandum which may confirm an earlier transfer. For that matter, they might deal with an apparent owner, who later writes something that might be called a memorandum of an earlier…

Opinion by Judge D.W. NELSON; Dissent by Judge FERNANDEZ.

OVERVIEW

Video Yesteryear (“VY’) appeals the district court’s holding in favor of John Magnuson d/b/a John Magnuson Associates for copyright infringement under the Copyright Act of 1909. Act of March 4, 1909, ch. 320, 35 Stat. 1075 (codified as amended at 17 U.S.C. § 1 et seq.). VY contends that Magnuson lacks standing to sue for copyright infringement because he does not own the rights to the work at issue, a film entitled “Lenny Bruce.” VY also argues that the district court erred in refusing to award attorney’s fees as part of post-offer costs under Fed.R.Civ.P. 68. Under Rule 68, a party that rejects a settlement offer made at least ten days prior to trial must pay post-offer costs of the offeror if damages awarded do not exceed the amount of the offer. Magnuson cross-appeals the district court’s refusal to award him attorney’s fees under 17 U.S.C. § 505 , which permits the district court to award costs and attorney’s fees “in its discretion.” He also asserts that VY is not entitled to costs under Rule 68 because the offer was defectively served.

We affirm the decision of the district court with respect to Magnuson’s…

85 F.3d 1424 65 USLW 2027 , 1996 Copr.L.Dec. P 27,538 , 34 Fed.R.Serv.3d 1455 , 39 U.S.P.Q.2d 1018 , 96 Cal. Daily Op. Serv. 4132 , 96 Daily Journal D.A.R. 6699 John MAGNUSON, d/b/a John Magnuson Associates, Plaintiff-Appellee-Cross-Appellant, v. VIDEO YESTERYEAR, Defendant-Appellant-Cross-Appellee. Nos. 94-16787, 94-17019 and 95-15369. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 9, 1996. Decided June 11, 1996. Allen Hyman, Law Offices of Allen Hyman, Studio City, California, for defendant-appellant-cross-appellee. Thomas A. Cohen, Law Offices of Thomas A. Cohen, San Francisco, California, for plaintiff-appellee-cross-appellant. Appeals from the United States District Court for the Northern District of California, D. Lowell Jensen, District Judge, Presiding. D.C. No. CV-92-04049-DLJ. Before: FERGUSON, D.W. NELSON, and FERNANDEZ, Circuit Judges. Opinion by Judge D.W. NELSON; Dissent by Judge FERNANDEZ. D.W. NELSON, Circuit Judge: OVERVIEW 1 Video Yesteryear ("VY") appeals the district court's holding in favor of John Magnuson d/b/a John Magnuson Associates for copyright infringement under the Copyright Act of 1909. Act of March 4, 1909, ch. 320, 35…