Lorraine F. Menard v. Kimberlee A. Tyndall

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0688, Lorraine F. Menard v. Kimberlee A.
Tyndall, the court on October 26, 2018, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, Lorraine F. Menard, appeals an order of the Circuit Court
(LeFrancois, J.), following an evidentiary hearing, entering judgment for the
defendant, Kimberlee A. Tyndall, on the plaintiff’s small claim seeking damages
for the defendant’s publication of certain material in an online news service.
The plaintiff sought damages on the theory that the material was subject to
copyright protection in her favor, and that the defendant’s publication of it had
infringed upon her copyright. In ruling in favor of the defendant, the trial court
found that the plaintiff had failed to establish that the publication was
unauthorized, or that the material “was a literary composition of the plaintiff
which required the defendant to get permission from the plaintiff prior to
publishing.” On appeal, the plaintiff asserts that she established, as a matter
of law, that she was entitled to relief pursuant to RSA 352:1 (2009), and argues
that the trial court’s ruling in favor of the defendant improperly disregarded
this statute and a number of legal authorities construing federal copyright law.
She further contends that the trial court erred by disregarding certain evidence
as hearsay, by not determining whether certain evidence submitted by the
defendant was authentic, by not providing her with sufficient time to rebut the
defendant’s evidence, and by interpreting the evidence to find that the plaintiff
was aware that the defendant was publishing the plaintiff’s material.

At the outset, we note that when the trial court asked the plaintiff to
specify the legal basis for her claim, she identified RSA 352:1 only as the
statutory basis for her claim, expressly disclaiming the existence of any
contract governing the publication in question. Nevertheless, she submitted a
number of authorities construing the federal Copyright Act to the trial court,
and on appeal, she argues that the trial court erred by disregarding those
authorities. To the extent the plaintiff is arguing that the defendant violated
the federal Copyright Act, federal courts have exclusive jurisdiction over federal
copyright infringement suits. See 28 U.S.C. § 1338(a) (2012); Gener-Villar v.
Adcom Group, Inc., 417 F.3d 201, 203 (1st Cir. 2005). Accordingly, the circuit
court lacked jurisdiction to decide any federal copyright infringement claim.
 RSA 352:1 provides:

Whenever any person, firm, association or corporation is the
owner of any literary . . . composition and the rights of the author
pertaining thereto, and such composition has not been
copyrighted, printed or published, . . . it shall be unlawful for any
other person to publish, produce, print, or sell or offer to sell the
same without first obtaining the consent of the owner thereof.

RSA 352:1. A violation of this provision is specifically defined as a crime. RSA
352:2 (2009) (“Whoever violates RSA 352:1 shall be guilty of a misdemeanor.”).
Nothing in the statute provides a civil remedy for its violation, however, and the
plaintiff has not established that a private right of action should be implied by
its terms. See Snierson v. Scruton, 145 N.H. 73, 79 (2000); Marquay v. Eno, 139 N.H. 708, 715-16 (1995); cf. also RSA 352:10 (2009) (expressly providing a
civil remedy for violations of RSA 352:7 (2009) and RSA 352:8 (2009) relative to
the obligations of an art dealer). Indeed, we note that under 17 U.S.C. § 301(a)
(2012), state law copyright claims, whether grounded in state statute or the
common law, are expressly preempted by the federal Copyright Act so long as

(1) the particular work to which the claim is being applied falls
within the type of works protected by the Copyright Act under 17
U.S.C. §§ 102 and 103, and (2) the claim seeks to vindicate legal or
equitable rights that are equivalent to one of the bundle of
exclusive rights already protected by copyright law under 17 U.S.C.
§ 106.

Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004).
Because RSA 352:1 does not provide for a private right of action, the plaintiff
was not entitled to the relief she sought under that statute.

Because the plaintiff has not established that the defendant’s publication
of the material in question entitled her to the relief she sought in the circuit
court, any of the remaining alleged errors that she raises on appeal could not
have affected the outcome of the case. See Kessler v. Gleich, 156 N.H. 488,
494 (2007) (declining to disturb judgment for an alleged error that did not
affect the outcome of the case or otherwise harm the appealing party).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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