Myers v. Harold (279 F. Supp. 3d 778, 2017)

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United States District Judge

Plaintiff Amanda Myers is a dance instructor and choreographer. In this lawsuit, Myers alleges that Defendants Christina Harold and the company she owns, The Dance Shop, Inc. (“TDS”), infringed Myers’s copyright in dances that Myers created while Myers worked as a dance instructor at TDS from 2011 to 2015. Myers choreographed dances for students on TDS’s dance team. Myers left her position at TDS before the 2014-2015 dance season was over, however, and, at TDS’s end-of-season recital and at three summer festivals, TDS students performed dances that Myers claims to have choreographed in 2014 and 2015. Myers alleges that Harold and TDS are liable for copyright infringement and unjust enrichment for profiting from, organizing, and contributing to these performances. Defendants seek summary judgment, arguing that some of the works are not eligible for copyright; that the dances were works made for hire; or that TDS had a license to perform them-. Myers disputes these defenses, and seeks summary judgment in her favor on certain claims. For the reasons stated below, Defendants’ motion is denied and Myers’s motion is granted in part and denied in part.

BACKGROUND

I. Myers and The Dance Shop

Amanda Myers is a choreographer. (Pl.’s LR 56.1 Statement of Material Facts in Supp. of Mot. for Summ. J. (“PSOF”) [38] ¶¶ 1-3.) Tina Harold is the president and sole owner of The Dance Shop, which is located in Chicago Ridge, Illinois and provides dance classes to adults and children. (Defs,’ Joint Resp. to PL’s L.R. 56.1(a) Statement of Material Facts in Supp. of Mot. for Summ. J. (“Defs.’ Resp. to PSOF”) [56] ¶¶ 4, 6-7.) In September 2011, Harold 'posted an advertisement for a dance instructor on Craigslist.com. (Defs.’ L.R. 56.1(a) Statement of Facts (“DSOF”) [53] ¶ 10;) The ad reads:

Dance Instructor needed for new dance studio opening in Sept. ‘

Teaching Tap, Jazz, and Ballet to children 3-17 years of age. Must be strong in Tap. Serious Applicants only.

Part time on Saturdays and two nights during the week.

(Ex. 3 to PL’s L.R. 56.1(b)(3)(B) Resp. to Defs/ Fact Statement [55-4].) Myers responded to the ad, and Harold interviewed her. Harold testified that she explained to Myers that the dance instructor was expected to create dances for the students to perform. (Dep. of Tina Harold; Ex. 2 to PL’s Mem. in Supp. of Mot. for- Summ. J. (“Harold Dep.”) [37-2] 100:4-16; see Decl. of Tina Harold, Ex. B to DSOF [53-1 at p. 5] (“Harold Decl.”) ¶ 9.) Myers denies that there was any discussion of choreographing dances‘during the interview. (PL’s L.R. 56.1(b)(3)(B) Resp. to Defs.’ Fact Statement (“PL’s Resp. to DSOF”) [55] ¶12.) Myers was hired for the position and began teaching dance classes at TDS that same month. (PSOF ¶ 12; DSOF ¶ 6.) -

TDS’s “work for hire” defense turns, in part, on the nature of Myers’ employment relationship with TDS. The parties dispute many of the facts surrounding this relationship; the most prominent dispute concerns precisely what work TDS paid Myers to perform. Myers was; paid an hourly rate that changed over time (see Defs.’ Resp. to PSOF ¶20; PL’s Resp. to DSOF ¶ 14)), and the parties agree that she was paid for the hours that she taught dance, and for various office administrative tasks. (See Defs.’ Resp. to PSOF ¶ 20; PL’s Resp. to DSOF ¶¶ 13,15.) Myers also testified that Harold gave her bonuses (she could not recall the amounts) for each full dance season that she taught at TDS. (Id. at 54:7-55:22.)

The parties disagree, however, about whether Myers was compensated for time she spent choreographing dances to teach in her. classes. This issue is whether the choreography occurred during class time, which Myers was paid for, or outside of class time,, during. uncompensated hours. Defendants contend that the choreography occurred during class time, and that Myers’s hourly wage therefore compensated her for the time spent choreographing dances. (Defs.’ Resp. to PSOF ¶ 20; Harold Dep. 66:24-67:12.) In support, Defendants cite Myers’s testimony that she spent time “developing]” dance moves “into a routine” during class time:

Q: What were you hired to do at The Dance Shop?

A: Teach dance.

To teach dance routines or dance techniques? <©

It was just teach dance. i>

Does that mean teaching dance moves?