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Civil practice - Affirmative defenses - License and payment waiver.

Byline: R.I. Lawyers Weekly Staff

Where a media production company alleged that defendants unlawfully broadcasted a fight between Floyd Mayweather, Jr. and Manny Pacquiao in their establishment, the defendants' affirmative defenses for "license and payment" and waiver may not be stricken because they present questions of fact for the court to resolve.

"Before the Court is Plaintiff's Motion to Strike Affirmative Defenses, to which Defendants Responded and Plaintiff Replied. For the reasons stated herein, Plaintiff's Motion is denied.

"This case arises out of Defendants' allegedly unlawful broadcast of 'The Fight of the Century Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program,' ('the fight') which was broadcast live on Saturday May 2, 2015. According to the Complaint, Plaintiff, a media production company, had the exclusive nationwide commercial distribution rights to the fight and entered into sublicensing agreements with various commercial entities allowing them to broadcast the fight. Plaintiff alleges that Defendants, who are owners of the commercial establishment called Broadway Cigars, unlawfully broadcast the fight in their establishment. On May 1, 2018, Plaintiff filed a Complaint alleging two counts of commercial piracy and one count of conversion. Defendants answered, denying liability and asserting three affirmative defenses: (1) that 'Plaintiff fails to state a cause of action upon which relief can be granted'; (2) that 'Defendants affirmatively assert the defenses of license and payment'; and (3) that 'Defendants affirmatively assert the defense of waiver.' Plaintiff now moves to strike the second and third affirmative defenses.

"The crux of Plaintiff's argument is that Defendants' affirmative defenses are not, in fact, affirmative defenses; they are merely denials of liability.

"First, by asserting the affirmative defense of 'license and payment' Defendants presumably meant to claim that they had properly obtained a license and paid for the use of Plaintiff's media content before they broadcast the fight on May 2, 2015. This defense presents questions of fact and law for the Court to resolve, namely: whether Defendants possessed a license to broadcast the media, what was the scope of that license, and whether Defendants' actions were within that scope. Additionally, because this is a 'commercial piracy case arising out of the alleged unlawful interception, publication, and/or receipt of [the fight]', the affirmative defense of 'license and payment' appears to go to the heart of the ultimate issue of whether Defendants' broadcast was lawful.

"Second, Plaintiff's argument that Defendants have not pleaded sufficient facts to 'indicate that the defense [of waiver] can succeed factually or legally' misses the point. Defendants are not obliged at this stage to prove the plausibility of their affirmative defenses.

"Accordingly, Plaintiff has not met its burden of demonstrating that there is no issue of law or fact which might allow these defenses to succeed, nor has it shown how it would be prejudiced by the inclusion of these defenses."

J&J Sports Productions Inc. v. Vernancio, et al. (Lawyers Weekly No. 52-101-18) (5 pages) (Smith, C.J.) (Civil Action No. 18-239-WES) (Nov. 5, 2018).

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Title Annotation:J&J Sports Productions Inc. v. Vernancio, U.S. District Court for the District of Rhode Island
Publication:Rhode Island Lawyers Weekly
Date:Nov 14, 2018
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