Livingston v. Earle

Plaintiff did not have standing in infringement suit because she failed to list the cause of action as an asset in her Chapter 7 bankruptcy; use of copyrighted works in a judicial proceeding was fair use.

Opinion (Teilborg): In 2008, Lynnell Levingston ("Levingston") authored and published a book called The Road Memoir of Corruption and Abuse of Power ("the book"). In 2009 Levingston commenced the action against defendants for copyright infringement of the book because the defendants reproduced portions of it for use in a court proceeding. (The court found, sua sponte, that Levingston failed to state a claim because use of copyrighted material in judicial proceedings is fair use). While that action was pending, Levingston filed for Chapter 7 bankruptcy and listed the book as an asset but did not list the copyright infringement claims related to the book, a blog, or the copyright infringement claim related to the blog. In Levingston's amended complaint she alleged (1) copyright infringement of the book, (2) copyright infringement of the blog, (3) contributory infringement, (4) violation of § 1201(a)(1)(A) of the Digital Millennium Copyright Act (DMCA) and (4) civil conspiracy to commit misappropriation. The court held in response to the claims that Levingston did not have standing to assert copyright infringement claims because she did not list the causes of action during the bankruptcy as assets which is required under 11 U.S.C. § 541(a)(1),(7). In regards to the claim under the DMCA the court again held that Levingston did not have standing to assert this claim because "the DMCA constrains provisions 'directed at the circumvention of a copyright owner's technological measures.'" The Court noted that the DMCA gives only copyright owners a right to enforce their rights but since Levingston did not list the blog or causes of action in the bankruptcy proceedings he no longer owns the rights to the blog since the ownership rights rest in the bankruptcy estate. Finally, in regards to the civil conspiracy claim the court again held that Levingston lacked standing to assert this claim because civil conspiracy rests on the underlying tort of copyright infringement and because Levingston failed to list the assets in the bankruptcy proceedings she had lost all ownership rights to them. Therefore, the court determined that there could not be infringement of those rights because Levingston had no rights as an owner. The court GRANTED defendant's motion to dismiss on those claims.