Beom Su Lee v. Rosen Music Studio

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2019
• Docket: 18-55248
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BEOM SU LEE, No. 18-55248

Plaintiff-Appellant, D.C. No. 2:17-cv-05179-SVW-E

v. MEMORANDUM* ROSEN MUSIC STUDIO; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Beom Su Lee appeals pro se from the district court’s summary judgment in

his copyright infringement action against various Korean karaoke bars, clubs, and

restaurants alleging their unauthorized use and public performance of his father’s

copyrighted songs. We have jurisdiction under 28 U.S.C. § 1291. We review de

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). novo. Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir. 2009)

(cross-motions for summary judgment); Worth v. Selchow & Righter Co., 827 F.2d

569, 571 (9th Cir. 1987) (copyright infringement). We affirm.

The district court properly granted summary judgment for defendants

because Lee failed to raise a genuine dispute of material fact as to whether his

father’s copyrighted works were publicly performed at defendants’ establishments.

See Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir.

2006) (elements of a copyright infringement claim); see also 17 U.S.C. § 106(4)

(the copyright owner has the “exclusive right[] to perform the copyrighted work

publicly” for “literary, musical, dramatic, and choreographic works, pantomimes,

and motion pictures and other audiovisual works”); § 101 (public performance of a

copyrighted work means “to perform or display it at a place open to the public or at

any place where a substantial number of persons outside of a normal circle of a

family and its social acquaintances is gathered . . . .”). In light of the above, the

district court did not err in denying Lee’s cross-motion for summary judgment on

his copyright infringement claim.

To the extent that Lee’s cross-motion for summary judgment is construed as

a request for additional discovery or a continuance under Federal Rule of Civil

Procedure 56(d), denial of Lee’s Rule 56(d) request was proper because Lee failed

to satisfy the requirements of Rule 56(d). See Tatum v. City & County of San

2 18-55248 Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (setting forth the standard of

review and explaining that Rule 56 requires a party to “identify by affidavit the

specific facts that further discovery would reveal, and explain why those facts

would preclude summary judgment”).

Because Lee concedes that he did not raise the discovery-related claims

argued in the opening brief before the district court, we do not consider those

issues for the time on appeal. See Dodd v. Hood River County, 59 F.3d 852, 863

(9th Cir. 1995) (“As a general rule, a federal appellate court does not consider an

issue not passed upon below.” (citation and internal quotations marks omitted));

see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other

grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (“Pro se

litigants must follow the same rules of procedure that govern other litigants.”).

Lee’s motion to supplement the opening brief (Docket Entry No. 33) is

denied. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988)

(“Papers not filed with the district court or admitted into evidence by that court are

not part of the clerk’s record and cannot be part of the record on appeal.”).

AFFIRMED.

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