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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X STUDENT LIFELINE, INC., Plaintiff, -againstTHE SENATE OF THE STATE OF NEW YORK, JOSEPH L. BRUNO, JIM ALESI, MICHAEL A.L. BALBONI, JOHN A. DEFRANCISCO, CHARLES J. FUSCHILLO, KENNETH P. LAVALLE, JOSEPH E. ROBACH, MARY LOU RATH, STEPHEN M. SALAND, MARTIN J. GOLDEN, JOHN J. FLANAGAN, KEMP HANNON, and NEW YORK STATE SENATORS, JOHN DOE and JANE DOE, being the fictitious names of other Senate members, presently unknown to claimant, all individually and in their respective capacities as New York State Senators, Defendants. ------------------------------------X Appearances: For Plaintiff: John A. Dalley, Esq. 225 Broadway, Suite 3800 New York, New York 10007 Dorothy O. Nese, Esq. Attorney General of the State of New York 200 Old Country Road, Suite 460 Mineola, New York 11501 MEMORANDUM & ORDER 04-CV-5484(JS)(JO)

For Defendants:

SEYBERT, District Judge: INTRODUCTION Pending summary judgment before on the Court is Plaintiffs infringement motion claim for and For

its

copyright

Defendants motion for consolidation and a change of venue.

the reasons below, the Court grants in part Defendants motion and DENIES in its entirety Plaintiffs motion.

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BACKGROUND The relevant facts are taken from the parties Rule 56.1 statements. Plaintiff is the author, owner, and copyright claimant of a work titled Private Childrens ID Record (ID Record). (Plaintiffs Rule 56.1 Statement (Pl.s Stmt.) 1.) The ID

Record is also known as the National Child ID Kit and has copyright registration number TX 6-029-829. (Id. at 1.)

Although the copyright registration was effective on October 13, 2004, the ID Record was created in 2001 and first published in the United States in July, 2002. (Id. at 2-3.)

At least as early as August 2003, Defendants possessed copies of the ID Record. (Id. at 4.) Plaintiff claims that

Defendants copied the ID Record to distribute for their own purposes. Record, (Id. at 5.) they also Defendants claim they did not copy the ID argue that Plaintiff does not have a

but

protectible copyright in the ID Record because it is not original and subsists in the public domain. (Defendants Rule 56.1 CounterStatement (Defs. Stmt.) F.) PROCEDURAL BACKGROUND On December 16, 2004, Plaintiff commenced this action, claiming copyright and trademark infringement. On March 8, 2006,

Plaintiff filed an action in the Southern District of New York against former New York State Senator Guy Vellella. On August 2,

2006, Plaintiff filed another action in the Eastern District, 2

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naming

an

additional

seven

Defendants.

On

August

3,

2006,

Plaintiff filed a second complaint in the Southern District of New York against an additional six Senators. And on August 10, 2006,

Plaintiff commenced an action against an additional ten Senators in the Northern District of New York. Plaintiff also filed an action

against the New York State Senate in New York States Court of Claims. (Defs. Mem. 1-4.) Lastly, Defendants and the New York

State Senate as an institution commenced an opposition proceeding in the U.S. Patent & Trademark Office to oppose Plaintiffs registration of the ID Record and its accompanying logo, the Hand. (Pl.s Opp. 7-8.) DISCUSSION I. MOTION TO CONSOLIDATE AND CHANGE VENUE The Court notes at the outset that Plaintiff does not oppose consolidation of the two Eastern District actions.

Plaintiff, however, opposes that these actions be transferred to the Northern District of New York. oppose consolidation, the Court Because Plaintiff does not the two Eastern

consolidates

District actions into one.

The two matters with docket numbers

04-5484 and 06-3781 are consolidated, and the lead case shall be 04-5484. The Court also notes that both parties would like this Court to consolidate the actions brought in the Southern and Northern districts with those actions in this district. However,

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any motions to consolidate and change venues for the non-Eastern District actions must be brought in their respective districts. The Court cannot consolidate or change the venues of actions not before this Court. Eastern District Thus, this Order deals solely with the two before the Court and whether venue

actions

properly lies in this District.

Accordingly, the Court now turns

to Defendants motion to transfer these two cases to the Northern District of New York. A. Applicable Law For A Change In Venue 28 U.S.C. 1404 governs when a court can transfer actions to a different venue. (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. 28 U.S.C. 1404. The goal of the above-cited statute is to prevent waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense. Laumann Mfg. Corp. v. Castings USA, Inc., 913 F. Supp. 712, 720 (E.D.N.Y. 1996) (citing Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964)). The Court must first decide if the actions If

could have been brought in the Northern District of New York.

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it could be validly brought in the Northern District, then the court must next decide whether the convenience of the parties and witnesses and the interest of justice weigh in favor of

transferring to the proposed district.

Id. at 720.

The moving party has the burden to clearly establish that a transfer is appropriate and that the motion should be granted. Id. The moving party must support the motion with an

affidavit containing detailed factual statements explaining why the transferee forum is more convenient, including the potential

principal witnesses expected to be called and a general statement of the substance of their testimony. Id. (quoting Modern Computer Corp. v. Hsi Ma, 862 F. Supp. 938, 947-48 (E.D.N.Y. 1994)). A court must also review a number of factors before transferring a case to another district. dispositive, however. None individually are

A court should not change a plaintiffs

choice of forum unless the following factors weigh heavily in defendants favor: (1) convenience of the parties, (2) convenience of the witnesses, (3) relative means of the parties, (4) locus of operative facts and relative ease of access to sources of proof, (5) attendance of witnesses, (6) weight accorded a plaintiffs choice of forum, (7) calendar congestion, (8) desirability of having case tried by a forum familiar with the substantive law to be applied, (9) practical difficulties, and (10) how best to serve the interest of justice, based on an assessment of the totality of circumstances. Id. (quoting Modern Computer Corp., 862 F. Supp. at 948). B. Application 5

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The Court begins its change-of-venue analysis with the premise that the Plaintiffs choice of forum should not be

disturbed unless the factor analysis weighs in Defendants favor. Plaintiff is a small, closely held corporation organized in New York State. (Declaration of Richard Signarino (Signarino Decl.)

3.) Plaintiffs president and sole shareholder is Mr. Richard J. Signarino. (Signarino Decl. 1.) Mr. Signarino also authored the creative work at issue in this action and is a resident of the Eastern District. (Pl.s Opp. 5.) Accordingly, the Court finds

that the forum is convenient to Plaintiff. As for whether Plaintiffs could have brought these two actions in the Northern District, Defendants point out that all Defendants in both actions sit as New York State Senators with offices in Albany in the Northern District. Plaintiff does not

contest the validity of the alternative forum and has brought suit in both the Northern and Southern Districts. Accordingly, the

Court finds that Plaintiff could have brought these two Eastern District actions in the Northern District as well. The Court thus moves to the factor analysis. In this

action, Plaintiff sues the Senate as well as twelve individual Senators. In the related Eastern District action, an additional

seven Senators were sued for a total of nineteen individual Senators being sued in the Eastern District. With this in mind,

the Court now turns to the list of factors annunciated in Laumann.

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1. The

Convenience Of The Parties Court has already established that the Eastern

District is convenient to Plaintiff.

Plaintiffs sole shareholder

and president and author of the creative work is a resident of the Eastern District. that all While defense counsel points out in her have

affidavit

nineteen

Eastern

District

Defendants

offices in the Northern District, only six of the Defendants can claim that the Eastern District is an inappropriate venue. Aff. 3.) (Nese

The Eastern District thus is the most convenient venue Accordingly, the

for Plaintiff and for most of the Defendants.

Court finds that this factor weighs in favor of Plaintiff. 2. Convenience Of Witnesses

Defendants next claim that the Northern District is most convenient for the non-party witnesses because the overwhelming majority of the non-party witnesses live, work and/or are employed in the Northern District. (Nese Aff. 3.) (Id. 8.) Some witnesses, And those nonFurthermore,

however, also reside in this District.

party witnesses have already been deposed. (Id.)

Defendants have not stated which of these witnesses would be potential principal witnesses or what would be the substance of their testimony. information. Laumann requires Defendants to provide this

See Laumann Mfg. Corp., 913 F. Supp. at 720.

Defense counsel merely anticipates that many, if not most of the as-yet unidentified, non-party witnesses who are or

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were staff members of the seven Senator-Defendants in the related case before this Court, may have relevant and material information about these claims and/or defenses. (Nese Aff. 10.) Plaintiff

does not indicate which of the seventeen witnesses already deposed would be their potential principal witnesses. Corp., 913 F. Supp. at 720. Laumann Mfg.

Defendants also state only what these (Nese Aff. 8.)

witnesses may testify about.

Without more information, the Court cannot say that the Eastern District is less or more convenient for the non-party witnesses. The Court cannot discern how many of the seventeen

witnesses would be required at a trial or for how long - nor should the Court have to - the burden is on Defendants to establish that the Northern District is the appropriate venue. Accordingly, the

Court finds that this factor does not weigh in favor of Defendants or Plaintiffs. 3. Relative Means Of The Parties

Defendants claim that New York State taxpayers are paying to defend this action. (Defs. Mem. 14.) Defendants argue that

keeping these two actions in this District would strain the public fisc much more than transferring them to the Northern District. Litigation in just one district would result in less of a financial strain on the state fisc. (Nese Aff. 11.) However, this problem

can also be avoided if the two actions in the Northern and Southern districts were transferred to the Eastern District.

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The Court also must consider Plaintiffs financial means. Plaintiff is a small, closely held corporation with gross annual revenue of approximately 1.5 million dollars for the last five years. This amount of revenue is not exactly small; Plaintiff,

however, has demonstrated that its sole shareholder has incurred personal debt through his life insurance policy, home equity loans, and other personal resources. Plaintiff has also (Signarino Aff. 4; Ex. A.) shown willingness to forego the

actions in the Northern District if it means keeping the venue in the Eastern District. If the Court transferred these actions to

the Northern District, the cost to Plaintiff would be so high that Plaintiff would likely not be able to afford the litigation costs in the Northern District. To avoid such a result, Plaintiff is

willing to discontinue the Northern District action to avoid transfer of these actions to that District. (Pl.s Opp. 8.)

Accordingly, the Court finds that the relative means of the parties weighs in favor of Plaintiff litigating these two actions in the Eastern District. 4. Locus Of Operative Facts And Relative Ease Of Access To Sources Of Proof

As for the locus of operative facts and access to sources of proof, Defendants claim that most of the infringing activities took place in Albany in the Northern District. Senate employees designed in and revised the (Nese Aff. 12.) Senates child and

identification

brochures

Albany. 9

Printing,

shipping,

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processing of orders occurred in Albany. And many of the documents at issue are stored in the Senates print shop in Albany. Notwithstanding, this factor does not appear to weigh heavily in Defendants favor. While some of the infringing conduct occurred in Albany, Plaintiff contends that Defendants distributed the infringing kits throughout all three districts. Moreover, most of the Defendants that had prior agreements with Plaintiff are in this District. (Pl.s Opp. 6-7.) Lastly, the subject matter is

creative work - intellectual property - and so the suit itself has less natural connection to any particular forum, leaving the convenience of the parties to be the primary consideration. Gross v. BBC, 386 F.3d 224, 233 (2d Cir. 2004). 5. Attendance Of Witnesses

Defendants again point out that the overwhelming majority of Defendants and witnesses maintain residences and work in the Northern District. Defendants also point out that most of the

depositions in this case have taken place in Albany. Thus, a trial in the Northern District would be least burdensome on the

Defendants and witnesses. But the Court fails to see how this will prohibit the attendance of the witnesses. While it may be inconvenient,

burdensome, or expensive, Defendants do not indicate that they or any witnesses will be physically unable to attend a trial in the Eastern District. And as we are dealing only with the Defendants

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in the Eastern District actions, most of those Defendants are located within the district. This seems to weigh more heavily in

favor of the Eastern District as the most appropriate venue. 6. Weight Accorded A Plaintiffs Choice Of Forum

As already established, the Court gives great weight to Plaintiffs choice of forum. Plaintiffs choice of forum should

not be disturbed unless this factor analysis weighs heavily in Defendants favor. Further, the Court already pointed out that

Plaintiff is a corporation whose sole shareholder and owner resides in the Eastern District. Plaintiff. This district is most convenient for

The Court has already addressed Defendants arguments

in this regard and rejects them again. 7. Calendar Congestion

Calendar congestion is not an issue in this Court and the Eastern District. In fact, discovery is scheduled to be completed All discovery has been conducted under the

by January 31, 2007.

guidance of Magistrate Judge James Orenstein, sitting in the Eastern District. On the other hand, a trial would not occur in

the Northern District for at least another year. (Defs. Mem. 15.) Accordingly, the Court finds that this factor does not weigh heavily in favor of Defendants. 8. Desirability Of Having Case Tried By A Forum Familiar With The Substantive Law To Be Applied

The Court finds that this factor weighs more heavily in favor of the Eastern District. Defendants simply conclude that 11

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this factor weighs equally among all the different districts. However, this Court and Magistrate Judge Orenstein have handled this case from the beginning. As pointed out earlier, the

Magistrate has overseen most of the discovery, which is to be completed at the end of January 2007. Not only is the Eastern

District familiar with the substantive law to be applied, it is quite familiar with the parties and the facts of this case. 9. Practical Difficulties

Defendants reiterate the same issues for this factor as for the others. Litigating five separate actions in three

different districts is formidable: the cost to transport numerous Defendants, witnesses, and documents to the Eastern District will be prohibitive. The Court, however, has already suggested that the

parties move to transfer the other actions to this District in which discovery is about to close. Thus, only this district will

be involved. Further, Plaintiff is willing to forego the action in the Northern District. As for the cost of transporting people and

documents, Defendants have not indicated which of the witnesses are their primary witnesses that will have to be transported.

Accordingly, the Court finds this factor does not weigh in favor of Defendants. 10. How Best To Serve The Interest Of Justice, Based On An Assessment Of The Totality Of Circumstances

Defendants state the same arguments already rejected by 12

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this Court.

Accordingly, the Court finds this factor does not For the reasons stated above, the

weigh in favor of Defendants.

Court consolidates the two Eastern District actions and REJECTS Defendants motion to transfer venue of these actions to the Northern District of New York. II. PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT A. Standard Of Review A district court may properly grant summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CIV. P. 56 (c). FED. R.

The burden of proof is on the moving party to show

no genuine issue of material fact exists. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)(citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). [A]ll ambiguities must be resolved and all inferences

drawn in favor of the party against whom summary judgment is sought. Id. (citing Eastway Constr. Corp. v. City of New York,

762 F.2d 243, 249 (2d Cir. 1985)). Although the court must construe all evidence in the nonmoving partys favor, a party opposing summary judgment may not rely on conclusory allegations or unsubstantiated speculation. See Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir.

13

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2001).

To defeat a motion for summary judgment, the non-moving

party must show a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)(quoting First Natl Bank v. Cities Serv. Co., 391 U.S. 253, 288, S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). Within this framework,

the Court addresses the present summary judgment motion. B. Plaintiffs Motion For Summary Judgment On Its Copyright Infringement Claim Plaintiff argues that it is entitled to summary judgment as a matter of law on its copyright infringement claim under the Copyright Act of 1976 (Copyright Act). The Copyright Act gives

copyright owners a bundle of exclusive rights, such as the right to reproduce the copyrighted work in copies and to prepare

derivative works based upon the copyright work.

17 U.S.C. 106.

To establish a prima facie case of copyright infringement, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Feist Publns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). The second element of a copyright infringement claim requires that a plaintiff show (a) that his work was actually copied and (b) that the copying is an improper and unlawful appropriation. Castle Rock Entmt, Inc. v. Carol Publg Group, Actual copying is

Inc., 150 F.3d 132, 137 (2d Cir. 1998).

established by either direct evidence of copying or . . . indirect 14

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evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony. Id. (citations and internal quotation marks omitted).

A plaintiff then must demonstrate the copying was improper or unlawful by showing that the second works bears substantial Id.

similarity to protected expression in the earlier work. 1. Valid Copyright claims that its copyright

Plaintiff

registration

certificate issued by the Copyright Office is prima facie evidence of a valid copyright. Defendants, however, argue that they have

rebutted any presumption of a valid copyright because they claim that Plaintiff never obtained a valid copyright for the

identification forms. Plaintiffs product.

They also question the originality of

A certificate of registration from the United States Register of Copyrights [is] prima facie evidence of the valid ownership of a copyright. Jorgenson v. Epic/Sony Records, 351 The

F.3d 46, 51 (2d Cir. 2003) (citing 17 U.S.C. 410(c)).

certificate creates a rebuttable presumption that the work in question is copyrightable. 104 (2d Cir. 1997) Fonar Corp. v. Domenick, 105 F.3d 99, and internal quotation marks

(citations

omitted).

When a plaintiff proffers a certificate of copyright the burden is on the defendants to prove the

registration,

invalidity of the copyright.

See id.

15

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Defendants first argument is that Plaintiff never sought and received copyright protection for the i.d. form, only for the front and back covers of the Kit. In response, Plaintiff

has presented a certificate from the U.S. Copyright Office with a color photocopy of what is deposited there. The work is entitled

Private Childrens ID Record, and the Copyright Office has stamped the second and third pages of the ID Record - not just the front and back covers of the ID Record. (Signarino Reply Decl. Ex. B.) The Court finds that this evidence suffices to reject

Defendants argument that only the front and back covers of the Kit are protected under a valid copyright. This evidence also suffices for this Court to reject Defendants argument that Plaintiff cannot claim the ID Record is a derivative work of its Coloring Book, which is copyright

protected.

The ID Record has its own copyright registration (Id.) The Coloring Book has its own (Defs. Opp. 10.)

number: TX 6-029-829.

copyright registration number: TX 3-632-327.

Each of these documents has its own valid copyright registration certificate. argument. Defendants second argument is that questions of fact exist about the actual creation and ownership of Plaintiffs copyright registration. (Defs. Opp. 11-13.) Defendants argue Accordingly, the Court rejects Defendants first

that Plaintiff rapidly submitted documents to the U.S. Copyright

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Office and knowingly and purposefully omitted the name of the author of Plaintiffs student identification form. However, on

October 13, 2004, Plaintiff registered the ID Record and indicated that Student Lifeline, Inc. was the author and the work was work made for hire. Subsequent documents indicated that the work was

not work for hire and that Signarino was the author of the work. Defendants also raise issue with the fact that Signarino testified in a deposition that Mr. Louis Refano (Refano) assisted him in the creation of the child identification form. Defendants

contend that this creates an issue of fact as to who actually authored the work. Lastly, Defendants claim that Signarino gave

inconsistent testimony as to the exact dates of creation and first publication for the ID Record. Defendants can rebut the presumption of the validity of Plaintiffs copyright registration when other evidence in the record casts doubt on the question, in instances of fraud on the Copyright Office, when work has been copied from the public domain, or when the work is a non-copyrightable utilitarian article. Fonar Corp., 105 F.3d at 104-05. In instances of fraud, a defendant must present proof of deliberate misrepresentation. Id. The Court cannot say that the misstatements Defendants point out are acts of fraud that rebut the presumption of validity for Plaintiffs copyright registration. First, Plaintiff remedied

17

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the omission of the author of the ID Record when it registered the ID Record in October 2004, listing Student Lifeline, Inc., as author. Second, Defendants do not present any proof that Plaintiff intentionally misrepresented that the work was for hire or not for hire. Third, the fact that subsequent documents list Richard

Signarino as the author is immaterial in light of the fact that Signarino is Plaintiffs owner and sole shareholder. Fourth,

Refano submitted an affidavit, indicating that he is one of Plaintiffs employees and his discretion in designing the ID Record was minimal. (Refano Decl. 1, 7.) Furthermore, Refano does

not claim to be an author of the work; the Court fails to see why Defendants should raise the issue. Lastly, Defendants doubt the validity of Plaintiffs copyright registration because Signarino inconsistently testified as to when exactly he created and first published the ID Record. Defendants cite to Exhibit B, entitled Signarino Deposition. However, a review of Defendants Exhibit does not present any inconsistent testimony as to when Signarino first created the ID Record or when it was first published. If anything, Signarino

indicates that he came up with the idea for the ID Record while he was working for the FBI and designed it in the latter part of 2001. (Defs. Opp. Ex. B, Signarino Dep. 622-25, 638.) The Court fails to see any inconsistencies, or more importantly, any relevant or material inconsistencies.

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Thus, the Court finds that Defendants second argument does not rebut the presumption of validly attached to Plaintiffs copyright registration certificate. Plaintiff has established the

first element of its prima facie case of copyright infringement. Plaintiff has a valid copyright. 2. The Originality third argument Defendants raise in regard to

Plaintiffs copyright surrounds the originality of Plaintiffs product. (Defs. Opp. 13-15.) Defendants contend that Signarino

saw several identification kits before creating his own; Defendants claim that Plaintiff copied from the public domain. Signarino,

however, could not identify all of the kits he was inspired by when he created his own ID kit. Signarino apparently examined other

kits in the marketplace to see how he may improve his own kit. Lastly, Defendants argue that Brochure 190 and Brochure 267 are so familiar that it renders nonsensical Plaintiffs contention that only Brochure 267 infringes upon Plaintiffs copyright. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. . . . 19

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Originality is a constitutional requirement. . . . The mere fact that a work is copyrighted does not mean that every element of the work may be protected. . . . [A]ccordingly, copyright protection may extend only to those components of a work that are original to the author. Feist Publns, 499 U.S. at 345-46, 348 (citations and internal quotations marks omitted). When the originality of a copyrighted work is at issue, it becomes a question of fact for the jury to resolve. Vargas v. On a

Pfizer, Inc., 418 F. Supp. 2d 369, 372 (S.D.N.Y. 2005).

summary judgment motion, this Court cannot conclude from competing evidence whether a work is original or not. A reasonable

factfinder, presented with these materials, could find either the presence or absence of the degree of originality required to confer copyrightability. Id. (quoting Ulloa v. Universal Music & Video

Distrib. Corp., 303 F. Supp. 2d 409, 413-13 (S.D.N.Y. 2004). Plaintiff contends that it has many original aspects of the ID Record that are protected: the way Plaintiff has selected and arranged the data categories in the ID Record, its textual and graphical elements, and certain language located on the rear cover of the ID Record. submits various (Pl.s Mem. 16-17.) childrens In support, Plaintiff kits created by

identification

Plaintiffs competitors.

(Signarino Decl. Exs. D-I.)

Defendants argue that questions of fact exist as to the originality of Plaintiffs ID Record. Signarino testified that he Defendants also

saw other kits and wanted to improve upon them. 20

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argue that one of the supposed original components of Plaintiffs work is the section on childrens favorites. that is not original at all. But Defendants claim

Defendants also claim that none of

the elements of the ID Record are original; most were copied from the public domain and/or other kits available in the marketplace. In Vargas, the defendants made a similar argument. The

Vargas defendants argued that many works existed that were very similar to the plaintiffs work, and so plaintiffs work could not be original. The Vargas plaintiffs countered that their work was The

not similar to other works and was independently created.

Vargas court noted that a work may be original even though it closely resembles other works so long as the similarity is

fortuitous, not the result of copying. Vargas, 418 F. Supp. 2d at 373 (quoting Ulloa, 303 F. Supp. 2d 409). Notwithstanding, the

Vargas court passed on the question of originality because it found that a question of fact existed. See id.

After reviewing the competing kits, the ID Record, and the Defendants brochures, this Court cannot decide as a matter of law whether Plaintiffs ID Record was original. This is a question of fact for a jury to decide. Competing evidence exists - albeit

barely - as to whether the ID Record is original to Plaintiff or whether Plaintiffs work is copied from other kits in the

marketplace.

Accordingly, the Court must DENY Plaintiffs motion

for summary judgment as it cannot decide as a matter of law whether

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Plaintiffs ID Record had originality.

The Court need not address

the other elements of the copyright infringement claim. CONCLUSION Based on the above, the Court GRANTS in part and DENIES in part Defendants motion for consolidation and change of venue. The Court consolidates the two Eastern District cases and finds the Eastern District to be the appropriate venue for those two cases. The Court DENIES Plaintiffs motion for summary judgment on its copyright infringement claim. Upon the Magistrates approval of

the joint pre-trial order, the parties are to request a pre-trial conference before this Court.

SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York February 7, 2007

22