Thornton v. J Jargon Co., 2009 WL 980804 (M.D. Fla.  2009)

“Menopause, the Musical” is a poplar stage show.  According to Wikipedia, which is never wrong, a “significant” portion of the show’s audience consists of members of the Red Hat Society.  (As best I can tell, the Red Had Society is a cross between the tea baggers and the Hells Angels.)  The plaintiff in this action alleged that the theater programs for “Menopause, the Musical” contained a one-page “Take the Age Test” that was an unauthorized reproduction of his work, the “Official Baby Boomer Qualifying Exam.”

After a six day trial, a jury returned a verdict finding no direct or contributory copyright infringement.  The Plaintiff moved for a new trial arguing, among other things, that the Court improperly refused to issue a supplementary jury instruction in response to jury question.  The Court explained:

During their deliberations, the jury asked the Court the following question: “Is copyright retroactive from date of application? Should it matter?” Plaintiff requested that the following answer be given: “[C]opyright protection comes into existence the day that it’s authored and that registration is merely a formality.” The Court declined to issue a supplemental instruction and instead referred the jury to the Court’s Jury Instructions.

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In the instant motion, Plaintiff argues that because Defendants distributed the Age Test in theater programs before Plaintiff registered his copyright, the jury erroneously thought that Plaintiff’s copyright was not protected at the time of the alleged infringement. However, the Court’s Jury Instructions implicitly answered the jury’s question because the instructions provided: “The Court has determined, as a matter of law, that the plaintiff owns a copyright in [the BBQE], as registered with the U.S. Copyright Office.” (Dkt. 183 at 7). In addition, in stating the two elements of direct infringement, the Court instructed the jury: “[First element] Plaintiff owns a valid copyright in the work (which the Court has already determined).” This left for the jury’s consideration only the second element of whether Defendants copied constituent elements of the BBQE that were original. As discussed, there was sufficient evidence supporting the jury’s finding that Plaitniff did not meet his burden on this element.

The “extent and character of additional instructions is within the sound discretion of the trial court” and “the judge may sometimes simply refer the jury back to his earlier instructions.” United States v. Mejia, 82 F.3d 1032, 1037 (11th Cir.1996). For the above stated reasons, the Court denies Plaintiff’s motion for a new trial based on the failure to issue a supplemental instruction on the retroactivity of Plaintiff’s copyright.

To the extent Plaintiff argues that this Court should have given Plaintiff’s Proposed Jury Instruction[s], pursuant to Rule 51 of the Federal Rule of Civil Procedure, a party objecting to an instruction must do so on the record and may assign as error only those errors to which the party properly objected. Fed.R.Civ.P. 51(c)-(d). “This rule exists ‘to prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time.” Ford ex rel Estate of Ford v. Garcia, 289 F.3d 1283, 1288 (11th Cir.2002) (quoting Pate v. Seaboard R.R., 819 F.2d 1074, 1082 (11th Cir.1987)). The only exception to this rule is when there is plain error affecting substantial rights. Fed.R.Civ.P. 51(d). For the reasons set forth, the omission of Plaintiff’s Proposed Jury Instruction No. 1 did not affect Plaintiff’s substantial rights, as the jury was instructed that Plaintiff had held a valid copyright, as a matter of law.