I. Background
In the instant action, Plaintiff alleges that Defendants have infringed copyrights on a number of his books by using the ghost stories in a variety of applications. The following facts are undisputed unless otherwise indicated:
Plaintiff, Mark Nesbitt, is the author of several books including Ghosts of Gettysburg: Spirits, Apparitions and Haunted Places of the Battlefield, published in 1991, More Ghosts of Gettysburg, published in 1992, and Ghosts of Gettysburg III, published in 1995.FN1 Ghosts of Gettysburg I thru III received copyright registration on May 14, 1997. The Ghosts of Gettysburg books each contain a number of short stories about ghosts. Plaintiff utilized factual accounts of events and stories of individuals' purported encounters with ghosts in writing his versions of the ghost stories. In 1994 Plaintiff started a business commonly referred to as the Ghosts of Gettysburg Candlelight Walking Tours (hereinafter “Plaintiff's Walking Tours”). During Plaintiff's Walking Tours, guides take listeners on tours around Gettysburg and entertain them with ghost stories.
FN1. These books will hereinafter be referred to collectively as “Ghosts of Gettysburg,” and individually as “Ghosts of Gettysburg I thru III.”
Defendants Loring Shultz and his wife own the Defendant Corporation. The Corporation owns the Farnsworth House itself, which contains a restaurant, bed and breakfast, bookstore, and an art gallery. The daughter of Loring Shultz is Defendant Patti O'Day, who is also an employee of the Corporation. She has various jobs with the Corporation, and also manages the Farnsworth House Civil War Mourning Theater (“Mourning Theater”) which is located in the basement of the Farnsworth House. The Mourning Theater offers, for payment of a fee, presentations of dramatic ghost stories, including performances given by candlelight. Defendant O'Day began operating the Mourning Theater in 1989.
O'Day is on the payroll of the Corporation and also receives extra money based on the tickets sold to tourists who attend the Mourning Theater. The parties dispute to what extent Defendant Shultz, Defendant O'Day, and Defendant Corporation maintain control over the storytellers at the Mourning Theater. Plaintiff asserts that Shultz insists that the stories strictly relate to Gettysburg and that the Mourning Theater was not to provide presentations on other matters. (O'Day Dep. A at 41.) Plaintiff further asserts that O'Day revised scripts and approved the stories to be told in the Mourning Theater, controls the day-to-day operations of the Theater, and creates the schedules for the storytellers. (O'Day Dep. B, Vol. II at 7-8; O'Day Dep. A at 40.) Plaintiff further asserts that the storytellers are employees of the Corporation which maintains control over the storytellers including their hours of work and their rate of pay. (O'Day Dep. B, Vol. I at 111, 114.) Defendants contend that the storytellers are not employees of the Corporation, but are independent contractors evidenced by the fact that the Corporation does not withhold their taxes and they are paid based on the tickets that are sold. (Loring Shultz Dep. at 11-18.) Defendant O'Day last worked as a storyteller in the Mourning Theater in 1997. (O'Day Dep. at 96.)
*2 The daughter-in-law of Loring Shultz is Defendant Cindy Shultz. She started the Historic Farnsworth House Candlelight Ghost Walks (“Farnsworth House Ghost Walks”) in early 1997. The Farnsworth House Ghost Walks offers, for payment of a fee, walking tours of the streets of Gettysburg, wherein patrons are escorted by a period-dressed story teller who relates tales of local haunts and legends. Plaintiff asserts that the purpose of the business was to create additional income for the Corporation and it was established upon the direction of Loring Shultz. (Loring Shultz Dep. at 10-11; Loring Shultz Dep. A. at 6; O'Day Dep. A at 13.) Plaintiff further asserts that the Farnsworth House Ghost Walks utilizes the same address and phone number as the Corporation and advertises on the same joint website as the Corporation and the Mourning Theater. (Pl.'s Exs. 11-13.) Defendants contend that the Farnsworth House Ghost Walks is a separate business from the Corporation, it files its own tax return, has its own accountant, takes care of its own bookkeeping, and his its own amusement tax permit. Defendants further contend that Loring Shultz has no input as to the stories told and Cindy Shultz hires the guides who conduct the tours. (Loring Shultz Dep. at 10-15.) Defendants do not dispute that tickets for the tours are sold in the bookstore of the Corporation, which receives a dollar per ticket sold in the bookstore for its overhead in selling these tickets. However, Defendants contend that the business the Farnsworth House Ghost Walks is not operated on the premises of the Corporation and Loring Shultz has no right to manage or supervise the business. ( Id. at 7-11.) Defendant asserts that the guides who run the tours are independent contractors. ( Id. at 11, 60.)
At some point in 1997 Plaintiff was told that the Farnsworth House Ghost Walks, a competing business in Gettysburg, was utilizing some of his stories in its guides' presentations. On June 1, 1997, Rod Corey went on one of the Farnsworth House Ghost Walks. Although he could not give a verbatim account of the stories told, he testified that he heard stories originating in Plaintiff's copyrighted materials, specifically, page 58 of Ghosts of Gettysburg I, pages 47-50 of Ghosts of Gettysburg II, and pages 20-22 of Ghosts of Gettysburg III. Molly Back also went on one of the Farnsworth House Ghost Walks in 1997; and although she could not remember the stories verbatim, she heard two stories that were in Plaintiff's Ghosts of Gettysburg books. In August 1997 Danette Taylor also went on one of the Walks, taped the presentation, and transcribed the tape. (Pl.'s Ex. 23.)
Plaintiff also alleges that the Mourning Theater has been infringing his copyrighted materials. Plaintiff received a note from Defendant O'Day in which she mentioned that a student enjoyed the presentation and stated that “your story about the Blue Boy was his favorite.” (Pl.'s Ex. 15.) The story referenced is Plaintiff's “The Sartorial Spirit of Stevens Hall and the Blue Boy” from Ghosts of Gettysburg I. One of Plaintiff's employees, Gretta Kerrigan, testified that she was solicited by Defendant O'Day to work at the Mourning Theater and was told that she could tell stories from Plaintiff's books as part of the presentations. (Kerrigan Dep. at 18-19.) Kerrigan never accepted the job offer, but she did attend the Mourning Theater on two occasions. She testified that she heard infringing renditions of Plaintiff's stories. ( Id. at 18-22.)
*3 Plaintiff became aware of an audiotape of ghost stories entitled, “Ghostly Experiences of Gettysburg,” which had been prepared based on a script from Defendant O'Day. (Pl.'s Ex. 19.) Plaintiff alleges that his stories “Castaway Souls” and “The Sartorial Spirit of Stevens Hall and the Blue Boy” were infringed because they were the basis for the audio tape. Loring Shultz was not involved in the preparation of the script. The Corporation did not receive any money from the company which produced the tape, but it does sell the tape in its bookstore. O'Day was not paid by the Corporation to prepare the script.
Plaintiff also became aware of two magazine articles written by Defendant O'Day which were published in 1997. One article, entitled “Ghosts of Gettysburg,” in the April 1997 edition of Crossroads to History. (Pl.'s Ex. 22) allegedly infringes Plaintiff's “Death's Feast” story. Plaintiff's story, “The Premature Burial,” was allegedly infringed by an article written by Defendant O'Day in the April 1997 edition of May We Suggest (Pl.'s Ex 20.) The Corporation did not pay O'Day to prepare the articles, and it did not receive any money for the articles. Plaintiff asserts, however, that the articles are utilized as an advertisement for the Mourning Theater, and the Corporation advertises on the same page on which the magazine article appeared.
Of the fifteen stories in Ghosts of Gettysburg I, Plaintiff alleges that six stories have been infringed by one or more of the Defendants: “The Devil's Den,” “Iverson's Pits,” “Sojourners All,” “The Tireless Surgeons of Old Dorm,” “Black Sunset,” and “The Sartorial Spirit of Stevens Hall and the Blue Boy.” Of the thirteen stories in Ghosts of Gettysburg II, Plaintiff alleges that two have been infringed: “Castaway Souls” and “Death's Feast.” Of the thirteen stories in Ghosts of Gettysburg III, Plaintiff alleges that two have been infringed: “The Premature Burial” and “A Short Walk to the Other World.”
Plaintiff filed his original complaint in the instant action on February 11, 2000. Defendants filed motions to dismiss which the court denied. Plaintiff filed his four count amended complaint on July 6, 2000. Counts I thru III allege copyright infringement (referenced as “Reproduction,” “Derivative Works,” and “Performance”), and Count IV alleges interference with business relations based upon the alleged copyright infringement. The Corporation filed its motion for summary judgment on January 29, 2001, and the remaining Defendants filed their joint motion for summary judgment on February 1, 2001.
I. Background
In the instant action, Plaintiff alleges that Defendants have infringed copyrights on a number of his books by using the ghost stories in a variety of applications. The following facts are undisputed unless otherwise indicated:
Plaintiff, Mark Nesbitt, is the author of several books including Ghosts of Gettysburg: Spirits, Apparitions and Haunted Places of the Battlefield, published in 1991, More Ghosts of Gettysburg, published in 1992, and Ghosts of Gettysburg III, published in 1995.FN1 Ghosts of Gettysburg I thru III received copyright registration on May 14, 1997. The Ghosts of Gettysburg books each contain a number of short stories about ghosts. Plaintiff utilized factual accounts of events and stories of individuals' purported encounters with ghosts in writing his versions of the ghost stories. In 1994 Plaintiff started a business commonly referred to as the Ghosts of Gettysburg Candlelight Walking Tours (hereinafter “Plaintiff's Walking Tours”). During Plaintiff's Walking Tours, guides take listeners on tours around Gettysburg and entertain them with ghost stories.
FN1. These books will hereinafter be referred to collectively as “Ghosts of Gettysburg,” and individually as “Ghosts of Gettysburg I thru III.”
Defendants Loring Shultz and his wife own the Defendant Corporation. The Corporation owns the Farnsworth House itself, which contains a restaurant, bed and breakfast, bookstore, and an art gallery. The daughter of Loring Shultz is Defendant Patti O'Day, who is also an employee of the Corporation. She has various jobs with the Corporation, and also manages the Farnsworth House Civil War Mourning Theater (“Mourning Theater”) which is located in the basement of the Farnsworth House. The Mourning Theater offers, for payment of a fee, presentations of dramatic ghost stories, including performances given by candlelight. Defendant O'Day began operating the Mourning Theater in 1989.
O'Day is on the payroll of the Corporation and also receives extra money based on the tickets sold to tourists who attend the Mourning Theater. The parties dispute to what extent Defendant Shultz, Defendant O'Day, and Defendant Corporation maintain control over the storytellers at the Mourning Theater. Plaintiff asserts that Shultz insists that the stories strictly relate to Gettysburg and that the Mourning Theater was not to provide presentations on other matters. (O'Day Dep. A at 41.) Plaintiff further asserts that O'Day revised scripts and approved the stories to be told in the Mourning Theater, controls the day-to-day operations of the Theater, and creates the schedules for the storytellers. (O'Day Dep. B, Vol. II at 7-8; O'Day Dep. A at 40.) Plaintiff further asserts that the storytellers are employees of the Corporation which maintains control over the storytellers including their hours of work and their rate of pay. (O'Day Dep. B, Vol. I at 111, 114.) Defendants contend that the storytellers are not employees of the Corporation, but are independent contractors evidenced by the fact that the Corporation does not withhold their taxes and they are paid based on the tickets that are sold. (Loring Shultz Dep. at 11-18.) Defendant O'Day last worked as a storyteller in the Mourning Theater in 1997. (O'Day Dep. at 96.)
*2 The daughter-in-law of Loring Shultz is Defendant Cindy Shultz. She started the Historic Farnsworth House Candlelight Ghost Walks (“Farnsworth House Ghost Walks”) in early 1997. The Farnsworth House Ghost Walks offers, for payment of a fee, walking tours of the streets of Gettysburg, wherein patrons are escorted by a period-dressed story teller who relates tales of local haunts and legends. Plaintiff asserts that the purpose of the business was to create additional income for the Corporation and it was established upon the direction of Loring Shultz. (Loring Shultz Dep. at 10-11; Loring Shultz Dep. A. at 6; O'Day Dep. A at 13.) Plaintiff further asserts that the Farnsworth House Ghost Walks utilizes the same address and phone number as the Corporation and advertises on the same joint website as the Corporation and the Mourning Theater. (Pl.'s Exs. 11-13.) Defendants contend that the Farnsworth House Ghost Walks is a separate business from the Corporation, it files its own tax return, has its own accountant, takes care of its own bookkeeping, and his its own amusement tax permit. Defendants further contend that Loring Shultz has no input as to the stories told and Cindy Shultz hires the guides who conduct the tours. (Loring Shultz Dep. at 10-15.) Defendants do not dispute that tickets for the tours are sold in the bookstore of the Corporation, which receives a dollar per ticket sold in the bookstore for its overhead in selling these tickets. However, Defendants contend that the business the Farnsworth House Ghost Walks is not operated on the premises of the Corporation and Loring Shultz has no right to manage or supervise the business. ( Id. at 7-11.) Defendant asserts that the guides who run the tours are independent contractors. ( Id. at 11, 60.)
At some point in 1997 Plaintiff was told that the Farnsworth House Ghost Walks, a competing business in Gettysburg, was utilizing some of his stories in its guides' presentations. On June 1, 1997, Rod Corey went on one of the Farnsworth House Ghost Walks. Although he could not give a verbatim account of the stories told, he testified that he heard stories originating in Plaintiff's copyrighted materials, specifically, page 58 of Ghosts of Gettysburg I, pages 47-50 of Ghosts of Gettysburg II, and pages 20-22 of Ghosts of Gettysburg III. Molly Back also went on one of the Farnsworth House Ghost Walks in 1997; and although she could not remember the stories verbatim, she heard two stories that were in Plaintiff's Ghosts of Gettysburg books. In August 1997 Danette Taylor also went on one of the Walks, taped the presentation, and transcribed the tape. (Pl.'s Ex. 23.)
Plaintiff also alleges that the Mourning Theater has been infringing his copyrighted materials. Plaintiff received a note from Defendant O'Day in which she mentioned that a student enjoyed the presentation and stated that “your story about the Blue Boy was his favorite.” (Pl.'s Ex. 15.) The story referenced is Plaintiff's “The Sartorial Spirit of Stevens Hall and the Blue Boy” from Ghosts of Gettysburg I. One of Plaintiff's employees, Gretta Kerrigan, testified that she was solicited by Defendant O'Day to work at the Mourning Theater and was told that she could tell stories from Plaintiff's books as part of the presentations. (Kerrigan Dep. at 18-19.) Kerrigan never accepted the job offer, but she did attend the Mourning Theater on two occasions. She testified that she heard infringing renditions of Plaintiff's stories. ( Id. at 18-22.)
*3 Plaintiff became aware of an audiotape of ghost stories entitled, “Ghostly Experiences of Gettysburg,” which had been prepared based on a script from Defendant O'Day. (Pl.'s Ex. 19.) Plaintiff alleges that his stories “Castaway Souls” and “The Sartorial Spirit of Stevens Hall and the Blue Boy” were infringed because they were the basis for the audio tape. Loring Shultz was not involved in the preparation of the script. The Corporation did not receive any money from the company which produced the tape, but it does sell the tape in its bookstore. O'Day was not paid by the Corporation to prepare the script.
Plaintiff also became aware of two magazine articles written by Defendant O'Day which were published in 1997. One article, entitled “Ghosts of Gettysburg,” in the April 1997 edition of Crossroads to History. (Pl.'s Ex. 22) allegedly infringes Plaintiff's “Death's Feast” story. Plaintiff's story, “The Premature Burial,” was allegedly infringed by an article written by Defendant O'Day in the April 1997 edition of May We Suggest (Pl.'s Ex 20.) The Corporation did not pay O'Day to prepare the articles, and it did not receive any money for the articles. Plaintiff asserts, however, that the articles are utilized as an advertisement for the Mourning Theater, and the Corporation advertises on the same page on which the magazine article appeared.
Of the fifteen stories in Ghosts of Gettysburg I, Plaintiff alleges that six stories have been infringed by one or more of the Defendants: “The Devil's Den,” “Iverson's Pits,” “Sojourners All,” “The Tireless Surgeons of Old Dorm,” “Black Sunset,” and “The Sartorial Spirit of Stevens Hall and the Blue Boy.” Of the thirteen stories in Ghosts of Gettysburg II, Plaintiff alleges that two have been infringed: “Castaway Souls” and “Death's Feast.” Of the thirteen stories in Ghosts of Gettysburg III, Plaintiff alleges that two have been infringed: “The Premature Burial” and “A Short Walk to the Other World.”
Plaintiff filed his original complaint in the instant action on February 11, 2000. Defendants filed motions to dismiss which the court denied. Plaintiff filed his four count amended complaint on July 6, 2000. Counts I thru III allege copyright infringement (referenced as “Reproduction,” “Derivative Works,” and “Performance”), and Count IV alleges interference with business relations based upon the alleged copyright infringement. The Corporation filed its motion for summary judgment on January 29, 2001, and the remaining Defendants filed their joint motion for summary judgment on February 1, 2001.
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