D. Remaining Defenses
Defendant O'Day argues that she utilized the same sources of information that Nesbitt did in developing her versions of the stories. With regard to “The Sartorial Spirit of Stevens Hall and the Blue Boy,” O'Day testified that she learned of the story from Becky Lyons. (O'Day Dep., Vol. I at 31-34.) However, the audiotape of stories made by Lyons for O'Day does not include any information about the Blue Boy story. (Pl.'s Ex. 26.) O'Day further testified that she had never read Plaintiff's story before the instant litigation, (O'Day Dep., Vol. I at 63) and she supplied her written notes of her version of the story, purportedly written in 1989 or 1990. (Def. O'Day Ex. L-4.) However, O'Day's written notes do not include the student's second trip to the window or her finding the “help me” written on the frost of the window although these events are in her audiotape version and in Plaintiff's story. Furthermore, there is no explanation for the letter written by O'Day to Plaintiff which seems to admit that she told his Blue Boy story. (Pl.'s Ex. 17.) Based upon these discrepancies and the substantial similarity between O'Day's story and Plaintiff's story, the court finds that O'Day has failed to demonstrate that she created her version of the story without copying Plaintiff's story.
The Defendant Corporation argues, without citation, that it should not be liable for any copyright infringement by Defendant O'Day's audiotape even though it may have profited from selling the audiotape. The Corporation also argues that it should not be liable for any infringement by Defendant O'Day and the Mourning Theater because any infringement is barred by the statute of limitations or by laches. The court is not persuaded by any of the Corporation's arguments. It is undisputed that Defendant O'Day was an employee of the Corporation when she made the allegedly infringing audiotape. It is further undisputed that the Corporation sells the audiotape in its bookstore. The Corporation has failed to demonstrate that it should not be held liable for any infringement by the audiotape. With regard to the statute of limitations, the parties agree that a three year statute applies to the copyright infringement action. See 17 U.S.C. § 507(b). However, O'Day's allegedly infringing activities have not been demonstrated to have been prior to February 11, 1997, which would have to have been the case for Plaintiff's February 11, 2000 complaint to be untimely. The laches defense also fails because Plaintiff's a complaint was brought within the statute of limitations, and Defendants have failed to meet their burden of proving “inexcusable delay” such that laches should nonetheless apply. See Allen-Myland v. International Business Machines Corp., 746 F.Supp. 520, 550 (E.D. Pa. 1990). Accordingly, summary judgment will not be granted in favor of Defendant Corporation on “The Sartorial Spirit of Stevens Hall and the Blue Boy” story.
IV. Conclusion
*14 In accordance with the foregoing discussion, the court finds that Defendants' motions for summary judgment should be granted in part and denied in part. Summary judgment should be granted in favor of Defendant Cindy Shultz and the Farnsworth House Candlelight Ghost Walks on all counts. Summary judgment should be denied to Defendant O'Day and the Defendant Corporation regarding the story “The Sartorial Spirit of Stevens Hall and the Blue Boy,” on all counts, but should be granted on all counts regarding all other stories. An appropriate order will issue.
ORDER
In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED THAT:
(1) Defendant Farnsworth House, Inc.'s motion for summary judgment is GRANTED in PART and DENIED in PART as follows:
(A) Summary judgment is denied of Farnsworth House, Inc., regarding “The Sartorial Spirit of Stevens Hall and the Blue Boy,” on all counts.
(B) Summary judgment is granted to Farnsworth House, Inc., on all counts regarding all other stories.
(2) Defendants Cindy Shultz, individually and t/d/b/a Farnsworth House Candlelight Ghost Walks, and Patti O'Day's motion for summary judgment is GRANTED in PART and DENIED in PART as follows:
(A) Summary judgment is granted in favor of Defendant Cindy Shultz, individually and t/d/b/a/ the Farnsworth House Candlelight Ghost Walks, on all counts.
(B) Summary judgment is denied to Defendant Patti O'Day regarding “The Sartorial Spirit of Stevens Hall and the Blue Boy,” on all counts.
(C) Summary judgment is granted to Defendant Patti O'Day on all counts regarding all other stories.