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Moffat v. Academy of Geriatric Physical Therapy

United States District Court, W.D. Wisconsin

December 22, 2016


          OPINION & ORDER


         The main issue in this case is the ownership of materials used in a program that certifies physical therapists as experts in geriatric exercise. This dispute was a foreseeable one that could have been avoided easily if the parties had fully worked out their agreements in writing when they undertook to develop the course. But they did not, and now disagreements over control of the course have given rise to a messy copyright case.

         Defendant Academy of Geriatric Physical Therapy is a non-profit professional association of physical therapists who specialize in treating older adults. More than a decade ago, the Academy established a task force to promote physical therapists as experts in exercise for the aging. This effort led to the Academy's creation of the Certified Exercise Expert for Aging Adults (CEEAA) program, which requires participants to complete three two-day courses to achieve certification. Plaintiffs are highly credentialed physical therapists and members of the Academy. They each taught parts of the CEEAA course and played a role in its development. What matters most here is that they claim to have written the course materials, consisting of several PowerPoint slide decks and lab manuals. After a dispute over control of the course arose, plaintiffs applied for and received copyright registrations in the course materials in their own names.

         The Academy now offers the CEEAA course without plaintiffs' participation, but it uses a version of the course materials that plaintiffs claim as theirs. So plaintiffs brought this suit alleging that the Academy infringes their copyrights. The Academy asserts counterclaims for breach of contract against all plaintiffs and for breach of fiduciary duty against plaintiff Danielle Parker, who had been a member of the Academy board of directors when plaintiffs registered copyright to the course materials.

         Both sides move for summary judgment on plaintiffs' copyright infringement claims. Dkt. 29 and Dkt. 30. The material facts are not genuinely disputed, despite the unsupportable allegations in plaintiff Moffat's affidavits, which the court discredits as a matter of law. The court concludes that although plaintiffs were not formal employees of the Academy, the course materials were nevertheless prepared as works made for hire under the principles set out in Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The Academy at all times retained ownership of the course itself, had the right to control course content, paid two plaintiffs for course administration, and other Academy members contributed to the course materials. And the versions of the course materials plaintiffs now claim are derivative works based on earlier versions that the Academy owns.

         Even if the course materials were not works made for hire, plaintiffs' infringement claims would fail for an additional reason: plaintiffs have, at a minimum, granted the Academy an implied, non-exclusive license to use plaintiffs' contributions in connection with the CEEAA course and certification program. Although this implied license would not allow the Academy to sue for infringement, it would defeat plaintiffs' copyright infringement claims.

         Plaintiffs also move for summary judgment on the Academy's counterclaims. Dkt. 30. That part of plaintiffs' motion is also denied. Plaintiffs raise no argument as to the Academy's contract claims. Factual disputes preclude summary judgment on the breach of fiduciary duty claim against plaintiff Parker.


         Before laying out the facts, the court must deal with plaintiffs' failure to comply with the court's summary judgment procedures, which are provided in the preliminary pretrial conference order. Dkt. 9. The essential requirement is that the parties must set out proposed findings of fact that include “all facts necessary to sustain the motion for summary judgment.” Id. at 9. These proposed facts, and any fact-based objections to the opposing side's proposed facts, must cite admissible evidence. These evidentiary requirements are important because only a genuine dispute of a material fact will preclude summary judgment, and a genuine dispute is one supported by admissible evidence. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897-98 (7th Cir. 2003).

         The Academy's summary judgment submissions are meticulously prepared to comply with the court's requirements. But plaintiffs failed to comply in many ways, as the Academy points out. Dkt. 46, at 3-10 and Dkt. 54, at 4-9. Plaintiffs' submissions are replete with factual assertions and objections that are not grounded in evidence. See Dkt. 46, at 5-6 (listing 25 examples of statements in plaintiffs' summary judgment brief that are not supported by citations to proposed facts or evidence). Plaintiffs acknowledge that they were aware of the court's summary judgment procedures. But they contend that although they did not provide as much “citation support” as the Academy did, “virtually all of the individual PFOFs were supported by citation to the evidence.” Dkt. 56, at 4-5. But this is simply not true. Many of plaintiffs' responses to the Academy's proposed facts are not at all grounded in evidence. The problem is so pervasive that the court will deem the Academy's proposed facts undisputed.[1]

         Plaintiffs' submissions pose a second problem. The primary source of plaintiffs' putative evidence is two affidavits from plaintiff Moffat, the first dated July 21, 2016, Dkt. 45, and the second filed August 18, 2016, Dkt. 52.[2] Moffat was deposed on May 23, 2016. Dkt. 25. Some of Moffat's affidavit statements contradict her deposition testimony, as well as the deposition testimony of the other plaintiffs.[3] It appears that Moffat's affidavit statements, particularly those in her second affidavit, were made simply to controvert facts established by the Academy's motion for summary judgment. Moffat offers no explanation for why her affidavit testimony varies from her deposition testimony. The court will not disregard Moffat's affidavits entirely, but it will disregard any affidavit statement by Moffat that contradicts her deposition testimony under the sham affidavit rule. See McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 750-51 (7th Cir. 2010). The court will also disregard any affidavit statement that is merely conclusory (such as that the Academy had “no ‘control' whatsoever, ” or that it “repeatedly acknowledged” that plaintiffs owned the copyright to the course materials, Dkt. 52, ¶¶ 22, 36) or not based on her personal knowledge (such as “it was always the understanding of everyone concerned that we owned the Copyrighted Materials, ” Dkt. 45, ¶ 29).

         What follows then is a summary of the core background facts as established by the parties' submissions. They are undisputed unless otherwise noted. Additional detail will be added in the analysis section where pertinent.

         The Academy of Geriatric Physical Therapy is a non-profit professional association for physical therapists who specialize in geriatrics. The Academy is a section of the American Physical Therapy Association, and it was formerly known as the Section on Geriatrics of that association. The Academy is a 501(c)(3) charitable organization incorporated under the laws of the state of Virginia. Its headquarters are in Madison, Wisconsin, which accounts for the venue of this litigation. In addition to the typical functions of a professional association, the Academy provides training for therapists that can lead to certification as a Certified Exercise Expert for Aging Adults. The designation CEEAA is a federally registered trademark owned by the Academy.

         Plaintiffs Marilyn Moffat, Karen Kemmis, Danielle Parker, and Mark Richards are physical therapists with advanced degrees and extensive experience. Plaintiffs have taught the Academy's courses that lead to CEEAA certification. They participated in the development of the courses, and Moffat especially played a key role. Moffat and Kemmis also served as course administrators. Parker was a member of the Academy's board of directors.

         A. Development of the course materials and the dispute over ownership

         In 2004, the Academy formed a task force to promote physical therapists as experts in geriatric exercise. The task force had about 10 physical therapist members, including plaintiffs Moffat, Kemmis, and Richards, and several Academy staff members. Moffat and Dale Avers (a non-party to this case) were co-chairs. The task force created educational and promotional materials, which included physical education curriculum content guidelines, instructions for physical therapists, and a PowerPoint presentation for continuing education for physical therapists, among other items. The task force did its work under the auspices of the Academy, and the task force reported and sought approval for its work and its proposals from the Academy. The Academy reimbursed expenses of the task force members, but no one was paid for their work.

         As the task force was winding up its work, Avers proposed to the Academy that it establish a formal certification program. By the time the task force submitted its last report to the Academy in 2007, the task force had created a PowerPoint presentation of 500-600 slides for use as a continuing education program for physical therapists. The Academy established an “interim committee” to test and plan for the implementation of what would become the CEEAA program. Moffat and Kemmis chaired the interim committee.

         To test the demand for such a program, the Academy offered several two-day “pre-courses” in 2007 and 2008. The pre-courses used the PowerPoint presentation created by the task force, which the court will refer to as the “Pre-course PowerPoint, ” and a set of tests and exercises, which the court will refer to as the “Pre-course Lab Manual.” The court will refer to them together as the “Pre-course Materials.” Plaintiffs contend that they did most of the work on the Pre-course Materials, but they now concede that the Academy owns the Pre-course PowerPoint and Pre-course Lab Manual. (Plaintiffs would later register the Pre-course Materials in their own names, and they asserted infringement of the Pre-course Materials in the complaint, although they have since dropped that claim.)

         The interim committee proposed to implement the full CEEAA certification program; the Academy board of directors approved the program in 2008. The first CEEAA certification course was offered in Montgomery, Alabama, in March 2009. According to plaintiffs, the “Alabama Materials” used at this program were an interim version of the course materials: they were expanded versions of the Pre-course Materials, but not yet the fully expanded versions that plaintiffs would later register.

         From 2009 to 2013, the CEEAA course was presented more than 18 times, and more than 850 physical therapists received CEEAA certification. Plaintiffs were among those who taught the course and received the $1, 000 per day honorarium (plus expenses) for doing so. Moffat and Kemmis were paid $4, 000 per year to serve as course administrators; that amount was split between them. Dkt. 33-26, at 6.

         The course materials were expanded and revised over this period, ultimately resulting in the six individually registered works that plaintiffs now allege are infringed. The court will refer to these six works as the 2013 Materials. They include: Part I Slides; Part I Lab Manual; Part II Slides; Part II Lab Manual; Part III Slides; and Part III Lab Manual. The 2013 Materials include approximately 2, 000 slides and 283 lab manual pages. The 2013 slide collections present a paraphrase of published research on geriatric exercise, organized in a way that generally follows the outline of the Pre-course PowerPoint. The 2013 lab manuals collect assessments and exercises from third-party sources, again generally following the organizational scheme of the Pre-course Lab Manual.

         The parties dispute exactly who did what on the 2013 Materials, but the material facts are not in genuine dispute. Plaintiffs and other Academy members met periodically, typically in connection with an Academy meeting, to review the CEEAA course materials. Moffat generally took primary responsibility, and plaintiffs did most of the work in expanding the Pre-course Materials into the 2013 Materials, but other CEEAA instructors contributed as well. The contributions of others were not as extensive as Moffat's, but the others made the same types of contribution that plaintiffs did. See, e.g., Dkt. 58, ¶ 24.

         Meanwhile, trouble was brewing. In July 2012, the Academy established another task force, this time to consider alternative models and structure for the CEEAA course. Moffat and Kemmis, the co-chairs of the CEEAA committee, were not appointed to the four-member task force, although plaintiff Parker was. In January 2013, the Academy board decided that it would have the executive director ask for an electronic copy of the CEEAA course materials. Academy president William Staples made the request in June 2013. Moffat refused, asserting that she and Kemmis owned the copyright to the course materials. The Academy board contended that the course materials were mostly unprotectable, given that they consisted of factual matter largely drawn from third-party sources.

         Later in 2013, the Academy attempted to negotiate new CEEAA administrator contracts with Moffat and Kemmis. The new contracts would expressly provide that the Academy owned the course materials; Moffat and Kemmis would not agree. In January 2014, the Academy informed Moffat and Kemmis that it would not renew their administrator contracts. In March 2014, plaintiffs applied for registration of the copyrights to the Pre-course Materials and the 2013 Materials.

         When plaintiffs registered the course materials, plaintiff Parker was a member of the Academy's board of directors. Parker did not inform other board members about the filing. On November 7, 2014, Parker and the other plaintiffs filed a copyright infringement suit against the Academy in the United States District Court for the Southern District of New York. Dkt. 57, ¶ 1. Parker had been discussing her New York case with her attorney for “a few months” before filing the complaint. Id. ¶ 3. Parker resigned from the board two weeks later. Plaintiffs voluntarily discontinued their New York suit in September 2015 and then filed this action in this court in the same month.[4]

         The Academy appointed a new interim CEEAA course administrator and continues to offer CEEAA courses using a modified version of the 2013 Materials.

         B. Contracts between the parties

         Ownership of the course materials was not expressly locked in writing, but three sets of contracts are informative of the parties' intent on the issue.

         The first set of contracts is the original instructor contracts, which each of the four plaintiffs entered when they taught CEEAA courses in 2009 and 2010. The contract is a form contract that the Academy used for Academy-sponsored programs generally; it was not drafted specifically for use with the CEEAA program. Using one of Moffat's contracts as an example, the pertinent parts of the contract provide:


Handouts must be received by the Section no later than October 21, 2009. Speakers agree to grant the Section on Geriatrics permission to sell course handouts outside of the course. This permission expires one year after the course is given. The Section on Geriatrics will not have sole copyright of the handouts or of the speaker's presentation. Should the speaker fail to provide handouts to the Section by the deadline, the Section has the right to reduce speaker honorarium after the course.
* * *
Speaker attests to the following: my presentation is my own original work, I have the authority to enter into this Agreement, and I am the sole copyright holder or that I have obtained all necessary permissions or licenses from any persons or organizations whose material is included or used in my presentation.

Dkt. 59-8, at 3, 6, 7. This was the form of the contract in effect for the Alabama Materials.

         The handouts distributed to participants at the Alabama conference bore this legend:

Handouts are property of the Section on Geriatrics. This material may not be reproduced, displayed, modified or distributed without the express prior written permission from the Section on Geriatrics. For permission, contact

Dkt. 49-3, at 4 and Dkt. 57, ¶ 7.

         The second set of contracts is the revised instructor contracts, which were in place from 2011 through 2014. The revised instructor contracts were also form contracts, in that the name of the instructor and the specific date and place of the course were to be filled in. But this form was specifically prepared for use with CEEAA courses. Each of the plaintiffs, like all CEEAA instructors during ...

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