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A self-proclaimed expert on the theory that Elvis Presley is still alive may not amend her copyright infringement action against two television production companies, the 11th U.S. Circuit Court of Appeals ruled July 3 ( Gail Brewer-Giorgio, et al. v. Producers Video Inc., No. 99-13515, 11th Cir.). The court affirmed a ruling by the U.S. District Court for the Northern District of Georgia finding the new claims asserted by author Gail Brewer-Giorgio barred by the statute of limitations. COPYRIGHTED BOOKS Brewer-Giorgio has published two books on her theory – “The Most Incredible Elvis Presley Story Ever Told” (later renamed “Is Elvis Alive?”), published in 1988, and “The Elvis Files,” published in 1990. Both books were copyrighted; the copyrights were assigned to Arctic Corp., Brewer-Giorgio’s privately held corporation. Brewer-Giorgio also filed a copyright application for an unpublished third book entitled “Operation Fountain Pen” in 1991. In March 1990, Arctic contracted with Producer’s Video Inc. (PVI) to produce a home video based on “The Elvis Files.” In November 1990, Arctic entered into a second agreement granting PVI the “sole, exclusive and perpetual right” to use “any information in Arctic’s or Brewer-Giorgio’s possession” relating to Elvis in connection with a television special “dealing with Elvis from his death to the present time, and the exploitation and publication” of the special. The agreement also provided that PVI could “produce any additional production relating to the same subject matter” only after obtaining permission from Arctic. PVI produced and broadcast a special entitled “The Elvis Files” in 1991. Brewer-Giorgio wrote the script and appeared as a guest on the show. She also transferred all of her rights in the script and her appearances on the program to PVI. SEQUEL PRODUCED Based on the success of the special, PVI, in conjunction with All American Television Inc., decided to produce a sequel, “The Elvis Conspiracy.” Brewer-Giorgio assisted in developing the script but, because of a financial dispute, eventually refused to sign a written agreement regarding her participation and informed PVI and All American that she would not authorize the broadcast. PVI and American went ahead with the broadcast, in which Brewer-Giorgio’s name was mentioned and footage of her appeared. The show was aired nationwide on Jan. 22, 1992. Brewer-Giorgio and Arctic sued on Jan. 20, 1995, two days before the running of the three-year statute of limitations, alleging copyright infringement by a number of defendants, of whom four remain – All American; Syd Vinnedge, an All American officer; WGNX, the Atlanta television station which broadcast the sequel locally; and PVI stockholder Micki Guzman. MOTION TO DISMISS Guzman and Vinnedge moved to dismiss for lack of jurisdiction; their motion was denied. The court entered a scheduling order indicating that the time for amending the complaint would expire on June 9, 1995. All four defendants moved for summary judgment in December 1995; in February 1996, Brewer-Giorgio moved to amend the complaint to add allegations of infringement of a draft script and the final script of the show. The court denied the motion to amend, finding the claims barred by the statute of limitations, and entered summary judgment for all four defendants. Brewer-Giorgio appealed only the denial of her motion to amend. NO RELATION BACK Affirming, the 11th Circuit rejected Brewer-Giorgio’s argument that the new claims relate back to the original claims and are therefore not time-barred. “At the time the original suit was filed, Brewer-Giorgio had not registered copyrights in the scripts at issue,” the panel said. “The statute of limitations expired two days later, and the record is clear that, as of the expiration of the statute of limitations, Brewer-Giorgio still had not registered her copyrights in the scripts, as is required for a court to have jurisdiction. It is well-settled in this court that ‘[t]he registration requirement is a jurisdictional prerequisite to an infringement suit.’ “Although a copyright need not have been registered in all cases before it may be infringed, the owner of that copyright must register the copyright before a federal court can entertain an infringement suit. Thus, even if the new claims relate back to the original claims, they may not be added because the district court did not have jurisdiction to hear the new claims at the time the original claims were filed.” �; Copyright 2000 Mealey Publications, Inc.

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