Factor 8 Trial Transcripts

Summary

Kelly Duda was sued by the original investigator, producer and financer of the film Factor 8, Michael Galster in Federal Court case No. 4:03CV1013 GTE US District Court Eastern District of Arkansas, Judge Thomas G. Eisele, presiding. Galster and multiple sworn witnesses attested that Duda took and claimed as his own not only the $80,000 documentary based on Galster’s original investigation which Galster created and financed but that Duda also claimed Galster’s investigatory work as his own.

Research will find articles by Suzi Parker of Salon.com or Mark Kennedy of the Ottawa Citizen in 1998 verifying Galster’s claims of being the originator of the investigation and its whistleblower are true. Galster had first hand ties to all of the primary sources in the case as a prosthetic specialist for the Arkansas Prison System. Galster’s prosthetic clinic was firebombed as a result. However, as testimony proved, Galster was edited out of his own documentary by Duda after Duda ‘misappropriated’ it, as Judge Eisele termed his actions in his finding.

Galster said in court that after he wrote a book about the case entitled Blood Trail in 1997. He then hired Duda to re-interview many of his sources on video tape for a more thorough and factual presentation of the investigation he had already presented in print. This documentary Galster was producing and paying Duda to work on was called Factor 8 and registered as such in August of 2000. Then, once it was completed in 2000, Galster and multiple witness claim Duda took it and refused to return it.

Under court order, Duda was forced to return the original master tapes for the documentary interviews in 2004. When presented to the court, the tapes were all erased. Duda has been selling his own version of the documentary without Michael Galster, the investigation’s creator and producer, included in his own film.

Assuming only further financial losses in a costly, ongoing legal battle, Galster has apparently not filed further action against Duda.

FILED JAN 16, 2004

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

MICHAEL GALSTER     PLAINTIFF

v.

KELLYDUDA           DEFENDANT

NO. 4:03CVOI013 GTE

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN

SUPPORT OF PRELIMINARY INJUNCTION

A hearing was held on January 14-16. 2004, concerning Plaintiff Michael Galster's Motion for Preliminary Injunction. At the conclusion of the hearing, during which both parties presented evidence, the Court rendered its opinion directing that the requested preliminary injunctive relief be granted for the purpose of maintaining the status quo until this matter can be heard on the merits. For the reasons stated herein and in open court during today's hearing, the Court makes the following findings and enters a preliminary injunction, the terms of which are described in paragraph 12 below.

 

     1.      The Court finds by a preponderance of the evidence that plaintiff Michael Galster is the author and owner of the documentary film "Factor Eight" and that the version of the film Mr. Duda claims as his own entitled "Factor Eight: the Arkansas Prison Blood Scandal" is substantially similar to Mr. Galster's film.

 

     2.      The Court finds that the plaintiff Michael Galster provided the idea, the theme, the direction, the financing, and much of the research and the leads for the project to develop the film.

 

     3.   The Court finds that the defendant Kelly Duda, in working on and contributing to the production of the video documentary, was in the eyes, of the law and the contemplation of the parties working for hire for the plaintiff and subject to plaintiff’s direction and control. The plaintiff provided the basic idea and theme for the production, paid the cost of the production, the labor and the research necessary to create the film. The plaintiff had the right to control the manner and means by which the film was made. The plaintiff provided the camera equipment, computer equipment and software, editing equipment and lighting equipment required for the making of the film. The Court credits the testimony of the plaintiff and his accountant. Bill Moss, concerning the financial arrangements and the amounts paid to the defendant for his work in making the film. The Court also credits the testimony of the plaintiff and Chris Case with respect to the control of the project, the work done and the relationship between the plaintiff and defendant.

 

     4.      The Court finds that the defendant Kelly Duda misappropriated the work product belonging to the plaintiff and used same without plaintiffs authority in putting together the eighty-five minute version of the film entitled "Factor 8: the Arkansas Prison Blood Scandal" which has been introduced as Plaintiffs Exhibit 25.

 

     5.      The Court finds that the defendant added segments to the film which were not authorized by the plaintiff, but that the film in its present form, which the defendant proposes to show at the Slam Dance Film Festival in Utah on January 18. 2004, nevertheless is substantially similar to plaintiffs version of the film at the time the defendant stopped working for the plaintiff and appropriated the plaintiff's property.

CONCLUSIONS Of LAW

     6.      The Court concludes that the plaintiff has satisfied the Dataphase requirements as set forth by the Eighth Circuit for the issuance of injunctive relief. See Dataphase Systems. Inc. v. C L Systems, Inc., 640 F.2d 109, 111 (8th Cir. 1981). The inquiry is an equitable one, requiring the district court to consider "whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Dataphase.640 F.2d at 113 (footnote omitted).

 

     7.      The Court finds that the plaintiff will be irreparably harmed if injunctive relief is not granted. "In copyright-infringement cases, the general rule is that a showing of a prima facie ease raises a presumption of irreparable harm.” Taylor Corp. v. Four Seasons Greetings, LLC, 315  F.3d 1039, 1041-1042 (8d, Cir. 2003)

 

     8.      The Court finds that the plaintiff is likely to prevail upon the merits. The federal statutory controlling law makes it clear that the plaintiff is entitled to a copyright on the film which he owns and is also entitled to prevent the defendant from claiming as his own a film substantially similar to the plaintiffs film. See Hartman v. Hallmark Cards Inc., 833 F.2d 117. 120 (8th Cir. 1987). Under Hartman, to establish a claim for copyright infringement, the plaintiff must prove: (1) ownership of a copyright in Factor Eight: (2) access by the Defendant to the Plaintiff's work: and (3) substantial similarity between the two films in both ideas and expression. The Court finds that the plaintiff has produced substantial evidentiary support for all three elements and is entitled to the relief requested.

 

     9.      The Court finds that the harm to the defendant in the granting of the injunction is out-weighed by the harm to the plaintiff which would result if an injunction is not granted.

     10.      "The public interest is served in protecting the holders of valid copyrights from infringing activity." Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d at 1042.

     11.      The Court reminds the parties that this hearing is not a trial on the merits. A trial on the merits could conceivably end up with a different result and different findings than those arising out of this preliminary hearing. It is obvious that all of the evidence relative to the issues raised has not been produced at this hearing. The primary purpose of the injunctive relief is to preserve the status quo pending the outcome of the trial on the merits.

 

     12.      The defendant Kelly Duda, his attorneys, agents and employees, are hereby ordered not to release the film. "Factor 8. the Arkansas Prison Blood Scandal" or to permit the film to be shown to or by anyone, other than in connection with this litigation, pending the outcome of the trial 011 the merits.

 

     13.      Pursuant to Fed. R. Civ. P. 65(c), the Court has considered whether to require the posting of security for the granting of this injunction. The Court, in the exercise of its discretion, finds that no bond is required. The Court intends to schedule this case for an expedited trial on the merits. Additionally, although defendant has testified as to the loss of an opportunity, there has been no showing that actual monetary loss is likely to occur as a result of the granting of this preliminary injunction.

     14.      At the plaintiffs request and without objection by the defendant, the defendant is directed to produce to the Court for safe-keeping. pending further orders of the Court. the source tapes for the film, the Cheetah hard drives, and the approximately 20,000 pages of research materials. Any expenses incurred by the Court in connection there with shall be paid by the plaintiff.

IT IS SO ORDERED this 16th day of January, 2004.

UNITED STATES DISTRICT JUDGE

G. THOMAS EISELE