Catherine Conrad v. James Bendewald

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 23, 2013*
Decided January 28, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-2871
CATHERINE CONRAD, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 11-cv-305-bbc
JAMES BENDEWALD, et al., Barbara B. Crabb,
Defendants-Appellees. Judge.
ORDER
Catherine Conrad, who performs singing telegrams, appeals the grant of summary
judgment against her in this copyright-infringement case arising out of the recording of one
of her performances. We affirm.
Conrad was hired by Maria Vedral, the president of SilverEdge Systems Software, to
perform a singing telegram at an award event. Vedral arranged for James Bendewald to record
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. The appeal is thus submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2)(C).
No. 12-2871 Page 2
the performance so the company could post the video on its website. Conrad then sued Vedral,
SilverEdge, and Bendewald for copyright infringement, alleging that they did not have her
permission to record the performance of her copyrighted song because they did not pay her
a licensing fee to post the video online. She also alleged that they violated her right of publicity
under state law, see WIS. STAT. § 995.50(2)(b), and that Bendewald tortiously interfered with her
licensing agreement when he suggested that SilverEdge could avoid paying a fee by replacing
the audio of Conrad’s copyrighted song with a royalty-free one.
At screening, 28 U.S.C. § 1915, the district court allowed Conrad to proceed on the
theories that the defendants recorded the copyrighted song without her permission, or,
alternatively, that their permission to retain a copy of the video was contingent on paying a
licensing fee for posting the video on their website. The court, however, dismissed both of
Conrad’s state-law claims: the right-of-publicity claim because Conrad did not allege any use
of her identity for commercial purposes and the claim for tortious interference because she
failed to suggest how Bendewald improperly interfered with her prospective contract.
Discovery ensued, and the evidence revealed that Conrad had given permission to the
defendants to record the performance. Conrad testified at her deposition that she spoke with
Bendewald the day before the event to tell him the event’s location, agreed to wear a
microphone during her performance, and told him not to record her image because SilverEdge
had not yet obtained a license to post her song on its website. In emails after the performance,
Conrad told SilverEdge that a 6-month license would cost $40,000. Bendewald suggested that
instead of paying the fee, SilverEdge could still use some of the video online if it replaced
Conrad’s copyrighted song with a different one. The next day, SilverEdge informed Conrad
that they had decided not to use the video on their website. The company’s web developer
stated in his affidavit that no portions of the video had ever appeared on the website and that
they chose to use the video of a different performer’s singing telegram instead.
The district court granted the defendants’ motion for summary judgment. The court
found, first, that the defendants had permission to film the performance as a matter of law
because Conrad knew in advance that the performance would be filmed, agreed to wear the
microphone when she sang to assist in the recording, instructed Bendewald on what to film,
and required an additional fee only if the defendants used the video for a commercial purpose.
Next, the court noted that no evidence showed that Conrad imposed a condition on the
defendants to return the video if they decided not to pay a licensing fee to use it for
commercial purposes. Finally, the court rejected her additional claims that the defendants
infringed on her copyright by editing the video and by posting it online for four months
because these claims had not been included in her amended complaint. The court added that
even if it were to consider the claims, Conrad provided no evidence that any editing occurred,
No. 12-2871 Page 3
and her deposition testimony that she saw the video online contradicted what she had written
in her amended complaint.
On appeal, Conrad argues that the district court erred in granting summary judgment
by ignoring a factual dispute concerning whether the video was posted on the SilverEdge
website for four months. But Conrad did not raise this issue in her amended complaint and
has therefore waived the argument on appeal. See Trade Fin. Partners, LLC v. AAR Corp., 573
F.3d 401, 412 (7th Cir. 2009); Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002). Furthermore,
as the court also correctly noted, Conrad is bound by what she said in her pleadings,
see Robinson v. McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th Cir. 2010); United States v.
Firishchak, 468 F.3d 1015, 1024 (7th Cir. 2006); Soo Line R.R. Co. v. St. Louis Sw. Ry. Co., 125 F.3d
481, 483 (7th Cir. 1997), and in her amended complaint she admitted that she did not know if
SilverEdge had ever used the video online.
Conrad also argues that the district court erroneously dismissed her supplemental
state-law claims at screening. She asserts that SilverEdge used her video on its website and that
Bendewald intentionally interfered with her prospective licensing agreement. As the district
court correctly noted, Conrad did not allege that her likeness was used for commercial
purposes and therefore failed to claim a violation of the right of publicity. See WIS. STAT.
§ 995.50(2)(b); Ladd v. Uecker, 780 N.W.2d 216, 222 (Wis. Ct. App. 2010). Next, the district court
properly dismissed her claim of tortious interference for failing to identify any “improper”
interference because Bendewald was correct in suggesting that Vedral could avoid a licensing
fee by using non-copyrighted material instead of Conrad’s song. Briesemeister v. Lehner, 720
N.W.2d 531, 543 (Wis. Ct. App. 2006).
Finally, Conrad contends that the district court abused its discretion by refusing to
allow her leave to amend to add as defendants the event’s organizer, the organizer’s company,
and the company that hosted the event. The district court, however, reasonably concluded that
amendment would be futile because Conrad did not identify how any of these proposed
defendants infringed her copyright. See Smart v. Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d
798, 811 (7th Cir. 2009).
AFFIRMED.