Case 1:18-cv-25474-RAR Document 256 Entered on FLSD Docket 06/04/2021 Page 6 of 14
name of another company, despite the plaintiff’s arguments that the companies had the same owner and had ultimately merged. 453 F. Supp. 2d 788, 796–98 (S.D.N.Y. 2006), aff’d, Big E. Ent., Inc. v. Zomba Enterprises, Inc., 259 F. App’x 413 (2d Cir. 2008). The court reasoned that the copyright registration for the compositions at issue was in the name of B-Boy Records; there was no assignment of copyright from B-Boy Records to plaintiff; and there was no evidence to support plaintiff’s merger allegation. Id. The court noted that plaintiff’s owner’s assertions, which were “contradictory and unsupported by documentary evidence,” were insufficient to establish standing. Id. at 798.
Although a d/b/a relationship may be sufficient for standing in some circumstances, see, e.g., Greg Young Publ’g, Inc. v. Zazzle, Inc., No. 16-04587, 2017 WL 2729584, at *4 (C.D. Cal. May 1, 2017), Plaintiffs have not presented any documentary evidence of such a relationship. The only record evidence Plaintiffs have cited to support their position that MSP was a d/b/a of MSI is speculative testimony from Garfield and Black, coupled with Nealy’s uncorroborated and contradictory testimony. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact.”); Cantrell v. Delta Airlines, Inc., 2 F. Supp. 2d 1460, 1463 (N.D. Ga. 1998) (“Plaintiff’s self-contradictory testimony does not create an issue of fact necessary to defeat Defendant’s motion for summary judgment.”) (citing Van T. Junkins and Assoc. v. U.S. Indus., Inc., 736 F.2d 656 (11th Cir. 1984)). Indeed, not only is Nealy’s deposition testimony internally inconsistent, but his testimony that MSP was a d/b/a for MSI also conflicts with the affidavit he filed in support of his motion to intervene in a separate case. There, Nealy states that “MSI is affiliated with Music Specialist Publishing.” Aff. of Sherman Nealy [ECF No. 212–1], Baker v. Warner/Chappell Music, Inc., No. 14-22403 (S.D. Fla. June 8, 2017); Tang v. Jinro America, Inc., No. 03-06477, 2005 WL 2548267, at * 4 (E.D.N.Y. 2005) (“In his
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