MOOFLY PRODUCTIONS, LLC, a California Limited Liability Company v. Sandra Corralas Favila; Estate of Richard Charles Corrales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOOFLY PRODUCTIONS, LLC, a
California Limited Liability Company,
Plaintiff-counter-
defendant-Appellee,
HELENA PASQUARELLA; RALEIGH
WILLIAM SOUTHER, individually;
THOMAS JOEL, individually; JOEL
MEDIA GROUP, INC., an Arizona
corporation,
Counter-defendants-
Appellees.
v.
SANDRA CORRALAS FAVILA;
ESTATE OF RICHARD CHARLES
CORRALES,
Defendants-counter-
claimants-Appellants,
MOTION GRAPHIX, INC., a California
Corporation in Dissolution,
Counter-claimant-Appellant.
No. 15-56136
D.C. No.
2:13-cv-05866 SJO PJW
MEMORANDUM*
FILED
MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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MOOFLY PRODUCTIONS, LLC, a
California Limited Liability Company,
Plaintiff,
v.
SANDRA FAVILA,
Defendant,
and
ESTATE OF RICHARD C. CORRALES;
MOTION GRAPHIX, INC.,
Defendants-counter-
claimants-Appellants,
v.
THOMAS JOEL; JOEL MEDIA GROUP,
INC., an Arizona corporation,
Counter-defendants-
Appellees.
No. 15-56702
DC No.
2:13-cv-05866 SJO PJW
Appeals from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted March 7, 2017
Pasadena, California

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Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.
The Corrales Estate (“Estate”) and its executrix, Sandra Favila (“Favila”)
appeal the dismissal of their copyright infringement counterclaim. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
1. The rulings of the California Court of Appeal and Los Angeles
County Superior Court in Favila v. Souther awarded 51% of the subject copyrights
to the Estate. The remaining 49% interest in the copyrights either remained with
Raleigh Souther (“Souther”) or with Souther’s transferee, Get Flipped, Inc.
(“GFI”). “A co-owner of a copyright cannot be liable to another co-owner for
infringement of the copyright.” Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.
1984). As co-owner of the copyrights, Souther or GFI was further entitled to grant
non-exclusive licenses to the other Appellees. See Sybersound Records, Inc. v.
UAV Corp., 517 F.3d 1137, 1146 (9th Cir. 2008); Oddo, 743 F.2d at 633.1
The defenses of co-ownership and license were not forfeited by their
omission from Appellees’ pleadings. This Court has “liberalized the requirement
that affirmative defenses be raised in a defendant’s initial pleading.” Rivera v.
1 The question of how any profits from such licenses should be
accounted for or distributed, see, e.g., Corbello v. DeVito, 777 F.3d 1058, 1062
(9th Cir. 2015), is not before us, all non-copyright claims having been remanded
back to state court.
3

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Anaya, 726 F.2d 564, 566 (9th Cir. 1984). A defendant may raise an affirmative
defense for the first time in a summary judgment motion so long as there was no
prejudice to the plaintiff. Healy Tibbitts Constr. Co. v. Ins. Co. of N. Am, 679 F.2d
803, 804 (9th Cir. 1982). The district court permitted Appellants ample
opportunity to brief the co-ownership and license defenses before their
counterclaim was dismissed. There was thus no prejudice.
2. Attorney’s fees were properly awarded to Appellees Joel and Joel
Media Group, Inc., as the prevailing parties on the copyright counterclaim. 17
U.S.C. § 505.
• ! •
For the foregoing reasons, the district court’s dismissal of Appellants’
copyright infringement counterclaim and its award of attorney’s fees are
AFFIRMED.
4

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