Hubbard v. Corporation of Gonzaga University, No. 2:2013cv00072 - Document 39 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANT GONZAGA'S MOTION FOR SUMMARY JUDGMENT - granting 12 Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (CC, Case Administrator)
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Hubbard v. Corporation of Gonzaga University Doc. 39 1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 ALLEN HUBBARD, 7 Plaintiff, 8 9 10 ) ) NO. CV-13-0072-LRS ) ) ORDER GRANTING DEFENDANT ) GONZAGA’S MOTION FOR SUMMARY ) JUDGMENT MOTION ) ) ) ) ) ) -vsCORPORATION OF GONZAGA UNIVERSITY, Defendant. 11 12 13 14 15 BEFORE THE COURT is Defendant Corporation of Gonzaga University’s (“Gonzaga”) Motion For Summary Judgment (ECF No. 12). argument was held on March 20, 2014. A telephonic oral The Court granted Gonzaga’s motion 16 at the conclusion of the hearing. This order is entered to memorialize 17 and supplement the Court’s ruling in favor of Defendant. 18 19 I. SUMMARY OF BACKGROUND FACTS AND ARGUMENTS Plaintiff Alan Hubbard (“Hubbard”) is a professional photographer 20 21 based in Spokane. Hubbard has taken many photographs of athletes 22 including various athletes associated with Gonzaga University. 23 has applied for and received copyright registrations on his various 24 photographs including photographs of athletes and others affiliated with 25 Gonzaga University. 26 /// Hubbard ORDER - 1 Dockets.Justia.com 1 On February 27, 2006, Hubbard filed civil Cause No. CV-06-64-EFS, 2 in the U.S. District Court for the Eastern District of Washington, 3 against the Corporation of Gonzaga University. 4 2006, Hubbard 5 6 filed a First Amended ECF No. 14. Complaint in Civil On May 25, Cause No. CV-06-64-EFS, adding eleven (11) additional defendants to whom it was alleged that Gonzaga provided photographs. Id. 7 On November 29, 2006, and before discovery in that litigation was 8 taken, the two primary parties (Hubbard and Gonzaga) attended a 9 10 11 Settlement Conference in Yakima, Washington, before a Magistrate Judge. Gonzaga was the only defendant that attended the Settlement Conference 12 and did so in order to reach a global settlement with Hubbard which would 13 include 14 defendants. Hubbard and Gonzaga reached a global settlement at the 15 Settlement Conference, which required the parties to, among other things, 16 prepare a written license agreement to all the Hubbard photographs taken 17 for Gonzaga. 18 19 20 21 the dismissal of the first Hubbard lawsuit against all ECF No. 12. On January 22, 2007, Hubbard and Gonzaga entered into a license agreement. Hubbard claims he granted Gonzaga the right to make certain "limited" use of various photographs "for purposes of promoting Gonzaga University, its programs and activities." Hubbard further asserts that 22 Gonzaga has infringed his copyrights in his photographs and has violated 23 the terms of the License Agreement, by, in part, reproducing Hubbard's 24 copyrighted 25 26 ORDER - 2 photographs and displaying or otherwise using them 1 prominently in and on various DVD videos1 that are sold commercially and 2 at a profit. 3 promoting 4 profit-making 5 6 Hubbard concludes that the phrase "for purposes of Gonzaga use University" of the is ambiguous photographs and relative that to Gonzaga's whether contractual term is ambiguous is a question of fact. or not a Hubbard seeks to introduce extrinsic evidence, primarily from two prior discussions or 7 interactions he had with a Gonzaga representative occurring in January 8 of 2003 and in 2005, to clarify what he intended, i.e., use of his 9 photographs for only non-commercial, internal publications. ECF No. 21. 10 Gonzaga argues that it paid $55,000 to Hubbard in consideration for 11 12 the copyright rights licensed pursuant to the License Agreement. 13 Further, Gonzaga argues, paragraph 1 of the License Agreement entered 14 into by Hubbard (who was represented by an attorney) and Gonzaga on 15 January 22, 2007, is plain and reads: 16 1. Allen Hubbard (“Licensor") hereby grants The Corporation of Gonzaga University ("Licensee") a non-exclusive, royalty-free, perpetual license to any and all photographs Licensor has taken prior to the date of this License, for or related to Gonzaga University, its students, sports and all other activities and physical facilities ("Hubbard/Gonzaga Photographs") including, without limitation, the right to reproduce, distribute, publish, transmit, modify and display any and all of said photographs, for use in any media, for purposes of promoting Gonzaga University, its programs and activities. 17 18 19 20 21 22 23 ECF No. 14-1. 24 25 1 26 Specifically involved in the instant lawsuit is the “Gonzaga University Celebrating the Decade of Excellence 1999-2009" DVD (“Decade of Excellence” DVD). ORDER - 3 1 Gonzaga submits, by declaration, that the "plain meaning" of the phrase 2 "for purposes of promoting Gonzaga University" is broad, and dictionary 3 definitions reflecting the plain meaning include "the act of furthering 4 the growth or development of something", "to contribute to the growth, 5 6 enlargement or prosperity of", and "the act of setting up or furthering a business enterprise.” Gonzaga concludes that the scope of paragraph 7 1 of the 2007 License Agreement does not contain restrictions, as Hubbard 8 argues, to prevent Gonzaga from selling the Decade of Excellence DVD's 9 commercially or for a profit to promote Gonzaga University or restrict 10 11 12 Gonzaga to using the photographs only in internal publications. II. DISCUSSION 13 The Court finds that the 2007 License Agreement is plainly worded 14 and the scope is not as restrictive as Hubbard would have this Court 15 hold. 16 limitation, the right to reproduce, distribute, publish, transmit, modify 17 18 The 2007 License Agreement has licensed Gonzaga to have, without and display any and all photographs taken prior to January 22, 2007, for use in any media, for purposes of promoting Gonzaga University, its 19 programs and activities. 20 The Court finds that under Berg v. Hudesman,2 and its progeny, 21 extrinsic evidence that directly contradicts that which is clear in the 22 23 24 25 contract cannot be put worth to clarify what a party to the contract claims was “intended.” In light of the Court’s determination of the scope of the 2007 License Agreement attained from the plain meaning of 26 2 Berg v. Hudesman, 801 P. 222, 115 Wn.2d 657, 662 (Wash. 1990). ORDER - 4 1 section 1, the Court further finds the Decade of Excellence DVD falls 2 within the scope of the license granted.3 3 4 5 After reviewing the files and records herein, and the Court having been fully advised, it is hereby: ORDERED, ADJUDGED AND DECREED, that Defendant Gonzaga's Motion for 6 Summary Judgment, ECF No. 12, is GRANTED and all claims against Defendant 7 Gonzaga are dismissed with prejudice. The Court specifically finds that 8 9 10 11 12 13 14 15 the 2007 License Agreement: (1) Does not prohibit Gonzaga, in using Hubbard photographs taken prior to January 22, 2007, from making a profit; (2) Does not prohibit Gonzaga, in using Hubbard photographs taken prior to January 22, 2007, from using them in a commercial way; (3) Does not restrict Gonzaga to only using Hubbard photographs taken prior to January 22, 2007 in Gonzaga's own publications; 16 (4) Does license Gonzaga to "the right to reproduce, distribute, 17 publish, transmit, modify and display any and all of said photographs, 18 19 for use in any media, for purposes of promoting Gonzaga University, its programs and activities"; and 20 (5) The use of the Hubbard photographs taken prior to January 22, 21 2007 in the Gonzaga University Celebrating the Decade of Excellence 199922 23 24 2009 DVD and the production and sale of the DVD were "for purposes of promoting Gonzaga University, its programs and activities" and therefore 25 26 3 Plaintiff Hubbard has not disputed that the photographs used in the Decade of Excellence DVD were taken prior to January 22, 2007. ORDER - 5 1 2 3 4 within the scope of the 2007 License Agreement to Gonzaga. The District Court Executive is directed to enter this Order, enter judgment consistent with this order, and CLOSE FILE. DATED this 26th day of March, 2014. 5 s/Lonny R. Suko 6 LONNY R. SUKO SENIOR UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 6
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