Campbell v. Smythe, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40037
Summary Calendar
WILLIAM E. CAMPBELL,
Plaintiff-Appellant,
VERSUS
TONY SMYTHE; BERNT WOMACK,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
(G-97-CV-340)
September 11, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
William Campbell appeals the judgment rendered after a bench
trial in his suit for copyright infringement under the Copyright
Act, 17 U.S.C. § 101. et seq. Campbell argues that the magistrate
judge erred in finding that he granted a nonexclusive license in

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written work submitted as part of The Texas Louisiana Coastal
Cruising Guide (“the Guide”). He further argues that even if he
granted a nonexclusive license, such license was nontransferable
from the original licensees to the defendants. We review the
magistrate’s findings of fact for clear error and questions of law
de novo. See Gebreyesus v. F.C. Schaffer & Assocs., Inc., 204 F.3d
639, 642 (5th Cir. 2000).
An individual may grant an oral or implied nonexclusive
license in a copyrighted work. See Lulirama Ltd., Inc. v. Axcess
Broadcast Serv., Inc., 128 F.3d 872, 879 (5th Cir. 1997). “[A]n
implied nonexclusive license arises when ‘(1) a person (the
licensee) requests the creation of a work, (2) the creator (the
licensor) makes the particular work and delivers it to the licensee
who requested it, and (3) the licensor intends that the licensee-
requestor copy and distribute his work.’” Id. (quoting I.A.E., Inc.
v. Shaver, 74 F.3d 768, 776 (7th Cir. 1996). In this case, the
owners of the corporation that published the Guide requested
Campbell to submit his manuscript for publication. Campbell
created the manuscript and sent it to the corporation without
expressly limiting the use of his work in future publications. The
corporation paid Campbell $2,000 for the manuscript. Based on
these facts, we find that the magistrate judge had sufficient
evidence to support the conclusion that Campbell granted a
nonexclusive license.

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We further conclude that the magistrate did not clearly err by
determining that Campbell granted the nonexclusive license to the
corporation rather than the individual owners of the corporation.
Campbell has not challenged the court’s determination that a
nonexclusive license remains a corporate asset upon the sale of the
corporation. We therefore decline to review the issue. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
AFFIRMED

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