Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/5

 or not the district court agreed with or even addressed that ground.” PFS Distribution Co. v. Raduechel, 574 F.3d 580, 591 (8th Cir. 2009) (quoting Palavra v. I.N.S., 287 F.3d 690, 693 (8th Cir. 2002)).

A. Copyright Ownership

The plaintiff in a copyright infringement claim has the burden to prove ownership of a valid copyright. Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 962 (8th Cir. 2005). In support of its motion for summary judgment, Warner Bros. submitted an affidavit from Kate Chilton, its in-house counsel, tracing the interaction of the various assignment and corporate merger documents that establish Warner Bros.’s chain of title to the asserted copyrights back to 1939. The affidavit stated that Chilton had personal knowledge of the facts recited, based on her review of corporate documents. However, while the affidavit stated that the referenced documents had been produced to AVELA in discovery, the actual documents establishing chain of title were not attached to the affidavit.

AVELA argues that the district court erred in considering the affidavit and that, absent the challenged affidavit, Warner Bros. did not submit evidence sufficient to prove ownership of the copyrights. In particular, AVELA contends that the documents establishing title were not in the record and that Chilton was not competent to testify about chain of title because her review of the documents did not give her “personal knowledge,” as required by Fed. R. Civ. P. 56. The version of Rule 56 in effect at the time of the summary judgment motion stated:

A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.

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