John D. Watkins v. Southeastern Newspapers, Inc. , 163 F. App'x 823 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 20, 2006
No. 05-13869
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00127-CV-1-AAA
JOHN D. WATKINS,
Plaintiff-Appellant,
versus
SOUTHEASTERN NEWSPAPERS, INC.,
d.b.a. The Augusta Chronicle,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 20, 2006)
Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
John D. Watkins, proceeding pro se, appeals the district court’s order
granting Southeastern Newspapers, Inc.’s renewed motion for summary judgment
in a pro se action for copyright infringement, 17 U.S.C. § 101 et seq. Watkins
alleged that Southeastern infringed his copyright in a book he had written, King’s
Last Visit to Augusta (He Was Persona Non Grata) (hereinafter “the book”), by
(1) using a copy of a photograph of Dr. Martin Luther King, Jr. (hereinafter “the
photograph”) which was contained in the book in a newspaper article it published,
and (2) selling copies of the photograph on the Internet.1 On appeal, Watkins
argues that the district court erred when it granted Southeastern’s motion for
summary judgment based on a letter from the U.S. Copyright Office, which
indicated that Watkins had not registered his copyright in the book, because (1) the
letter was inadmissible hearsay, and (2) Southeastern did not disclose the name of
the witness who wrote the letter, or the letter itself, as it was required to do
pursuant to Fed.R.Civ.P. 26(a)(1).
I. Admissibility of the letter from the Copyright Office
As an initial matter, because Watkins did not challenge the admissibility of
the letter from the Copyright Office based on Southeastern’s alleged failure to
comply with the disclosure requirements of Fed.R.Civ.P. 26(a)(1) before the
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In his complaint, Watkins also raised a claim for common law plagiarism. On appeal,
Watkins does not challenge the district court’s finding that this claim was preempted by the
Copyright Act, and therefore, he has abandoned any argument on this issue. See, e.g.,
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
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district court, Watkins has waived any argument on this issue, and we will not
consider it on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994)
(noting that, except for limited exceptions which are not applicable in this case,
issues not raised in the district court generally are not considered on appeal).
Hearsay is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted,” and generally is not admissible unless it falls under an exception
to the hearsay rule. See Fed.R.Evid. 801(c) and 802. There is an exception to the
hearsay rule for public reports and records. See Fed.R.Evid. 803(8)(C). That
exception provides, in relevant part, that “[r]ecords, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth . . . factual
findings resulting from an investigation made pursuant to authority granted by
law,” are admissible “unless the sources of information or other circumstances
indicate lack of trustworthiness.” Id. We have explained that “Rule 803(8)(C)
allows into evidence public reports that (1) set forth factual findings (2) made
pursuant to authority granted by law (3) that the judge finds trustworthy,” unless
the evidence is otherwise inadmissible because it is irrelevant or is more prejudicial
than probative. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir.
1989). The district court has broad discretion to admit or exclude evidence, and
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that decision “will not be reversed absent a clear showing of abuse of that
discretion.” Id.In this case, the district court did not err in considering the letter from the
Copyright Office, which is a report from a public office or agency, because it falls
under the public-reports-and-record-exception to the hearsay rule See Fed.R.Evid.
803(8)(C). First, the letter sets forth factual findings. Second, those factual
findings resulted from an authorized search of the copyright registration records.
See 17 U.S.C. § 705(c) (authorizing the Copyright Office to “make a search of its
public records, indexes, and deposits,” for, among other things, information
regarding the registration of copyrights). Third, there was no evidence presented
contradicting the information in the letter, and there were no other circumstances
indicating that the document otherwise lacked trustworthiness. Finally, the letter is
relevant and is not more prejudicial than probative, and therefore, is not otherwise
inadmissible. Accordingly, we conclude that the district court did not abuse its
discretion when it considered the letter from the Copyright Office.
II. Summary judgment was proper
We review de novo the district court’s ruling on a motion for summary
judgment, applying the same legal standards as the district court. See Miller v.
King, 384 F.3d 1248, 1258 (11th Cir. 2004). Summary judgment is appropriate “if
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the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c).
The Copyright Act provides, in relevant part, that “no action for
infringement of the copyright in any United States work shall be instituted until
preregistration or registration of the copyright claim has been made . . . .” 17
U.S.C. § 411(a). This Court has held that “[t]he registration requirement is a
jurisdictional prerequisite to an infringement suit.” M.G.B. Homes, Inc. v. Ameron
Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990); see also Brewer-Giorgio v.
Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir. 2000) (describing this rule
as “well settled”).
In this case, because the evidence in the record shows that Watkins failed to
register the copyright in his book before bringing his copyright infringement
claims, the district court did not have jurisdiction to consider Watkins’s claims,
and therefore, did not err in granting Southeastern’s renewed motion for summary
judgment. See M.G.B. Homes, 903 F.2d at 1488.
AFFIRMED.
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