Tom Wilkes, Planet Gear, Inc., a California Corporation,plaintiffs-appellants, v. Rhino Records Inc., a California Corporation, Defendant-appellee, 133 F.3d 931 (9th Cir. 1997)

MEMORANDUM^* 

Appellants Tom Wilkes and his company, Planet Gear, Inc., appeal the district court's summary judgment dismissal of their action for copyright infringement, unfair competition, and interference with prospective economic advantage. We affirm.

* The district court properly applied the 1909 Copyright Act to determine whether the Monterey International Pop Festival logo and other Festival artwork created by Wilkes in 1966-67 ("the Festival artwork") were "works for hire" whose copyright presumptively vested in the Monterey International Pop Festival Foundation ("the Foundation"). See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1427 (9th Cir. 1996); Cleary v. News Corp., 30 F.3d 1255, 1259 n. 3 (9th Cir. 1994). Contrary to appellants' argument, it is the date of publication, not the date of alleged infringement, that determines which act governs the the work-for-hire determination. See Lone Ranger Television v. Program Radio Corp., 740 F.2d 718, 719-20 (9th Cir. 1984).

Under the 1909 Act, the person or entity for which an employee or independent contractor produces a work of an artistic nature owns the copyright in the work. See May v. Morganelli-Heumann & Assocs., 618 F.2d 1363, 1368 (9th Cir. 1980); Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298, 300 (9th Cir. 1965). Appellants do not dispute the fact that Wilkes created the Festival artwork as art director for the Festival or for the purpose of auditioning for that position. The Foundation (or, in the earliest days of the Festival, Ben Shapiro) thus formed the motivating factor for production of the Festival artwork, and the Foundation presumptively owns any copyright in the Festival artwork.¹ 

The work-for-hire presumption can be overcome by evidence of an agreement, either oral or written, by which an employee or independent contractor reserves the copyright in his work. See May, 618 F.2d at 1368-69. Appellants, however, bear the burden of proving such an agreement by a preponderance of the evidence. The evidence that appellants presented in opposition to Rhino's motion for summary judgment, even construed in the light most favorable to them, cannot satisfy this burden.²  Because appellants cannot establish copyright ownership in the Festival artwork, the district court did not err in granting Rhino's motion for summary judgment on appellants' copyright infringement claim. See Celotex Corp. v. Catrett, 47? U.S. 317, 322-23 (1986).³ 

II

Appellants' unfair competition claim is couched in a misappropriation theory. Because appellants have not identified any "extra element" that distinguishes the unfair competition claim from their copyright infringement claim, the unfair competition claim is preempted by § 301 of the 1976 Copyright Act. 17 U.S.C. § 301(a); see Summit Machine Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434, 1440-42 (9th Cir. 1993); Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 977 (9th Cir. 1987). The district court properly granted Rhino's motion for summary judgment on this claim.

III

Finally, appellants cannot satisfy the requirements for proving either intentional or negligent interference with prospective economic advantage, Appellants offered no evidence beyond the allegations in their complaint to establish that it was Rhino's intent to affect appellants' alleged business relationships, and there is no genuine issue concerning the existence of a special relationship between appellants and Rhino. See Blank v. Kirwan, 39 Cal. 3d 311, 330 (1985); J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 804 (1979) Summary judgment was thus proper with respect to appellants' claim for interference with prospective economic advantage.

IV

Because appellants' claims are not patently frivolous, and appellants do not appear to have been motivated by bad faith, we exercise our discretion to deny Rhino's request for attorney's fees incurred in this appeal. See 17 U.S.C. § 505; Fantasy, Inc. v. Fogerty, 94 F.3d 553, 561 (9th Cir. 1996) (award of attorney's fees to prevailing defendants within court's discretion).

AFFIRMED.