BRIAN M. BARNARD USB #0215
IN THE UNITED STATES DISTRICT COURT
BRIAN M. BARNARD and JAMES L. HARRIS, Jr. on behalf of defendants Utah Lighthouse Ministry, Inc., Jerald Tanner and Sandra Tanner, pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1) move this Court as follows:
1. Plaintiff’s complaint fails to state a cause of action upon which relief may be granted. Plaintiff’s complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
2. Plaintiff’s complaint fails to state sufficient facts to establish jurisdiction of this Court over the subject matter of this action. Plaintiff’s complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
3. This action alleges a copyright violation based upon defendants’ placing certain materials (~17 pages) on their website. Complaint ¶ 25: ¶ 26. Those pages represent a portion of a larger work entitled Church Handbook of Instruction, Book I. That full work is approximately one hundred and sixty (~160) pages in length.
4. The complaint sets forth that plaintiff is the owner of the copyright in a work entitled Church Handbook of Instructions. Complaint ¶ 16.
5. Plaintiff also alleges that it has registered a copyright in the work entitled Church Handbook of Instructions. Complaint ¶ 17. In its application to register the copyright in the work entitled Church Handbook of Instructions, plaintiff designated the work as a derivative work or compilation and claimed copyright in the "selection, arrangement, condensation, and revision of preexisting text." Exhibit "A" to complaint, p. 2, § 6. The preexisting text was "prior handbooks, supplements and instructions." Id.
6. A copyright on a compilation or derivative work does not grant copyright protection in the contents of the compiled materials. A copyright in a compilation or derivative work grants copyright protection only as to the selection and arrangement of the compiled materials.
7. Plaintiff does not allege that defendants infringed either the selection or arrangement of compiled materials in which it claims copyright. Instead, it alleges that defendants infringed approximately seventeen (~17) pages of text.
8. Plaintiff has not alleged ownership interest (by authorship or assignment) in the contents of the material at issue, i.e., seventeen (~17) pages formerly on defendants’ website. Plaintiff has not alleged a copyright registration of the contents of the material at issue, i.e., seventeen (~17) pages. Plaintiff has not alleged ownership of the copyright of the contents of the material at issue, i.e., seventeen (~17) pages.
9. That defendants may have published one chapter and a few pages from two (2) other chapters of a derivative or compilation work, does not constitute a violation of the copyright protection granted to the derived or compiled work. The complaint fails to allege infringement of the elements (selection, arrangement, etc.) of the derivative or compilation work in which plaintiff claims a copyright.
10. With regard to the contents of the seventeen (~17) pages that defendants have allegedly infringed, i.e., the "preexisting text," plaintiff has failed to allege registration of copyright. Moreover, the copyright registration for the compilation indicates that no registration had been made in the Copyright Office for an earlier version of the work. Exhibit "A" to complaint, p. 2, §5. Registration of copyright in the work that is allegedly infringed is a jurisdictional requirement. 17 U.S.C. § 411. This Court is without jurisdiction.
11. Further, with regard to the contents of the seventeen (~17) pages at issue, plaintiff has failed to allege facts necessary to show ownership of a valid copyright:
17 U.S.C. § 409.
This motion is supported by a memorandum of even date.
WHEREFORE, these defendants request that the complaint be dismissed for failure to state a cause of action under Fed. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
Dated this 12th day of NOVEMBER 1999.
UTAH LEGAL CLINIC
BRIAN M. BARNARD
CERTIFICATE OF MAILING
I hereby certify that I caused to be mailed a true and correct copy of the foregoing MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(1)&(6) and SUPPORTING MEMORANDUM to:
TODD E. ZENGER
on the 12TH day of NOVEMBER 1999, postage prepaid in the United States Postal Service.
UTAH LEGAL CLINIC