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S.O.S., INC. v. PAYDAY, INC.
Cite as 886 F.2d 1081 (9th Cir. 1989)

1085

in favor of S.O.S. on its account stated claim and on Payday’s counterclaims.

SCOPE OF THE APPEAL

Payday asserts that S.O.S. did not appeal the denial of its motion for reconsideration, and thus evidence presented for the first time at the hearing on that motion should not be considered here. The motion for reconsideration was denied on January 4, 1988; the final judgment was entered March 9, 1988. The notice of appeal was filed March 11, 1988, purporting to appeal from the entire final judgment but only specifying denials of earlier motions. An amended notice of appeal was filed April 6, 1988, specifically appealing the motion for reconsideration as incorporated in the final judgment. The amended notice was filed within the 30 days provided by Fed.R.App.P. 4(a)(1).

This court has the inherent power to permit a party to amend a notice of appeal even without a formal motion. Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir.1988). The amendment generally will be allowed where the intent to appeal a specific judgment can fairly be inferred and the appellee is not prejudiced by the mistake. Id. Both requirements are met here. The principal effect of including the motion for reconsideration within the notice of appeal is to expand the factual record on appeal. No new legal claims are presented. Payday was not prejudiced: it was able to deal with the “new” facts in both its briefs. See Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir.1986), aff’d, — U.S. —, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989). We conclude that the appeal properly includes the denial of S.O.S.’s motion for reconsideration.

DISCUSSION

I. Copyright Law Issues

To prevail on its claim of copyright infringement, S.O.S. must prove (1) ownership of copyright in the payroll programs, and (2) “copying” of protectible expression by Payday beyond the scope of Payday’s license.^[1] Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987); Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977). Payday challenges S.O.S. on both elements, arguing that S.O.S.’s copyright is invalid and that copying and modification of the software by Payday were permitted by the contract. The district court granted summary judgment for Payday on the latter theory, and therefore found it unnecessary to reach the issue of copyright validity.

A. The Validity of S.O.S.’s Copyright

As a general rule, copyright vests initially in the author or authors of a work. 17 U.S.C. § 201(a). Copyright protection subsists from the moment the work is “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). Registration is not a prerequisite to a valid copyright, although it is a prerequisite to suit. 17 U.S.C. § 408(a), § 411.^[2] A certificate of registration made within five years of first publication is prima facie evidence of the validity of the copyright. 17 U.S.C. § 410(c); Durham Industries, Inc. v. Tomy Corp., 630 F.2d

↑ The word “copying” is shorthand for the infringing of any of the copyright owner’s five exclusive rights, described at 17 U.S.C. § 106. S.O.S. in its complaint alleged infringement of three of these rights: the right to reproduce the copyrighted work, to prepare derivative works based upon the copyrighted work, and to distribute copies of the work. 17 U.S.C. § 106(1)–(3). On appeal, S.O.S. addresses only Payday’s alleged infringement of its reproduction and derivative work rights.
↑ Payday disputes S.O.S.’s right to sue for violations of copyright in the underlying Brown Tank programs, which have not been registered, and in any modifications to the program made by Chu and Koyama after leaving the employ of S.O.S. We need not resolve this question at this stage in the proceedings. S.O.S. clearly has a copyright in a considerable number of the payroll programs, sufficient to support an infringement claim at least as to those programs. During the time Chu and Koyama were employees of S.O.S., any software they created for S.O.S. was “work made for hire” under 17 U.S.C. § 101, vesting copyright in that software in S.O.S. under 17 U.S.C. § 201(b).

[1] The word “copying” is shorthand for the infringing of any of the copyright owner’s five exclusive rights, described at 17 U.S.C. § 106. S.O.S. in its complaint alleged infringement of three of these rights: the right to reproduce the copyrighted work, to prepare derivative works based upon the copyrighted work, and to distribute copies of the work. 17 U.S.C. § 106(1)–(3). On appeal, S.O.S. addresses only Payday’s alleged infringement of its reproduction and derivative work rights.

[2] Payday disputes S.O.S.’s right to sue for violations of copyright in the underlying Brown Tank programs, which have not been registered, and in any modifications to the program made by Chu and Koyama after leaving the employ of S.O.S. We need not resolve this question at this stage in the proceedings. S.O.S. clearly has a copyright in a considerable number of the payroll programs, sufficient to support an infringement claim at least as to those programs. During the time Chu and Koyama were employees of S.O.S., any software they created for S.O.S. was “work made for hire” under 17 U.S.C. § 101, vesting copyright in that software in S.O.S. under 17 U.S.C. § 201(b).

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