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Sullivan v. Flora, Inc.

United States District Court, W.D. Wisconsin

October 7, 2016

FLORA, INC., Defendant.


          WILLIAM M. CONLEY District Judge

         Plaintiff Amy Lee Sullivan, a freelance illustrator, alleges defendant Flora, Inc., violated her copyrights by using illustrations in other advertisements and promotional materials that she created exclusively for its video projects. In its pending motion for summary judgment, defendant principally argues that the illustrations were joint works, and therefore Sullivan cannot assert claims as a sole author. (Dkt. #51.)[1] Perhaps recognizing potential weaknesses in her claim to sole ownership of a valid copyright, plaintiff's response leads with her evidence of infringement -- namely, recently-produced evidence that Flora had in its possession Sullivan's multi-layered, original source art, rather than simply JPEG images of the illustrations in dispute. While this evidence is material to the question of copying, perhaps compellingly so, it does not respond to the core issue raised in defendant's motion -- whether Sullivan owns a valid copyright -- the court takes up that issue in this opinion and order, finding that there are factual issues as to joint authorship that require a trial.


         A. Background

         Plaintiff Amy Lee Sullivan is an independent illustrator now living in Baraboo, Wisconsin, who sometimes does business as “Design Kit.” Her illustrations are either done by hand or on a Mac computer using software programs designed for creative professionals. Sullivan began creating illustrations professionally in approximately 2010. She is listed as the sole author and creator of a collection of illustrations in two certifications of registration filed with the United States Copyright Office, registration numbers VA1-888-930 and VA1-893-717, although the parties dispute whether this is accurate.

         Flora, Inc., is incorporated and maintains its principal place of business in the State of Washington, where it manufactures and distributes health-related products. Flora hired Designomotion, Inc., to produce two animated videos promoting Flora's products. Designomotion's founder, sole owner and only full-time employee is Joseph Silver.

         On February 3, 2013, plaintiff Sullivan was contacted by Designomotion's Silver to explore her interest in providing illustrations for an animated video for Flora. (Sullivan Decl., Ex. 3 (dkt. #56-3).) In addition to Sullivan and Silver, other individuals also worked on the video. The next day, Sullivan responded, indicating she was indeed interested.

         On February 14, Silver sent Sullivan a script of the video he drafted, which included a column for “type” (i.e., words for each screen) and “visual” (i.e., visual content for each screen) of the planned video. (Sullivan Decl., Ex. 4 (dkt. #56-4).) In that same email, Silver also sent Sullivan a link to the “Girl Effect” video, based on Flora's expressed desire for the “black and white feel” of that video.[3] (Def.'s PFOFs (dkt. #53) ¶ 45 (quoting Sullivan Depo. (dkt. #50) 67).) In addition to asking Sullivan to review the video before creating her illustrations, Silver sent Sullivan an email the next day, which contained approximately 14 “rough sketches” of the proposed illustration work. (Sullivan Decl., Ex. 5 (dkt. #56-5); Fallon Decl., Ex. 1 (dkt. #54-1).) Those sketches appear to contain computer generated type with hand-drawn sketches.[4]

         B. The Estimate

         That same day, February 15th, Sullivan responded with an email in which she “estimated the project at 5, ” meaning $5, 000, and attached a document named “Estimate-7sources.” (Sullivan Decl., Ex. 7 (dkt. #56-17).) Although the sole defendant in this case is Flora, not Designomotion, Sullivan relies on the terms of this Estimate in support of her argument that she is the sole author of the copyrighted illustrations.

         The Estimate provides in part:

If the Client [designated as “Designomotion, Joseph Silver”] confirms that the Illustrator should proceed with the assignment based on this Estimate, it is understood that the assignment shall be subject to the terms shown on this Estimate and the Client shall sign a Confirmation of Assignment form incorporating the same specifications and terms. If the assignment proceeds without a Confirmation of Assignment being signed by both parties, the assignment shall be governed by the terms and conditions contained in this Estimate.

(Id. at 2.)

         The “Grant of Rights” section of the Estimate appears as follows:

         (IMAGE OMITTED)


         Finally, the Estimate states that:

• “All rights not expressly granted shall be reserved to the illustrator, including but not limited to all rights in sketches, comps, or other preliminary materials.” (Id.)
• “[i]f the Client wishes to make any additional uses of the Work, Client shall seek permission from the Illustrator and pay an additional fee to be agreed upon.” (Id.)

         C. The 7-Sources Work

         After agreeing by a February 21, 2013, email exchange to a budget range below that contained in Sullivan's original estimate, Silver sent Sullivan the final script and directed her to:

mock up 1920x1080 (72dpi) layouts of the frames described in the script -- and which I scribbled for you. Font-wise, we would be using Wicked Grit, which I can supply. I'd be coming to you for illustration and your eye in combining the illustration with the typography. I would aim to provide pretty detailed direction to save your time.

(Sullivan Decl., Ex. 8 (dkt. #56-8); Fallon Decl., Ex. 2 (dkt. #54-2) 5-6 (final script).) As the actual client, Flora specified the size and layout of the frames described in the script, as well as use of the “Wicked Grit” font.[5]

         In addition to the materials from Silver, Sullivan received a folder of “assets” from Flora, which included prior advertising materials. In particular, Flora provided an advertisement of a screw with the words “WE'VE BEEN SCREWED” and a photograph of the 7-Sources product bottle, including its label. (Fallon Decl., Ex. 3 (dkt. #54-3).) Sullivan reviewed this advertisement before creating the illustration for the “SCREWED” frame. Before illustrating a 7-Sources bottle, Sullivan also reviewed the photograph in the advertisement of an actual 7-Sources bottle, as well as a physical bottle.

         In her declaration, Sullivan describes in great detail her process for creating the illustrations at issue in the Flora 7-Sources project, including conducting background research on various objects, creating rough sketches on a chalkboard, creating an art board within Adobe Illustrator, which included use of a tablet with a pen, creating a new layer for each new art element, creating a color palette, and laying out typography, among other steps. (Sullivan Decl. (dkt. #56) ¶¶ 25-27.) There is no dispute that Sullivan included a representation of the Flora logo in her illustration of the 7-Sources bottle based on the bottle images that she had looked at, intending for the representation to be recognizable as the Flora logo.

         On March 13, Sullivan sent Designomotion an invoice for $2, 500 for the “Illustration for Flora 7 Sources.” (Sullivan Decl., Ex. 9 (dkt. #56-9).) These illustrations created by Sullivan are the same as those registered in the ‘930 copyright.

         D. Flor-Essence Work

         In April or early May 2013, Sullivan was commissioned by Silver to create illustrations for a second Flora video, the Flor-Essence video. For this project, Silver again sent Sullivan approximately two dozen preliminary sketches, though these images contain more computer-generated content than the rough hand-drawn sketches provided as part of the 7-Sources project. (Fallon Decl., Ex. 5 (dkt. #54-5).)[6] Also similar to the 7-Sources project, Silver provided Sullivan with a script for the Flor-Essence video project, which similarly indicated places for “type” and “visual” by frame. (Fallon Decl., Ex. 6 (dkt. #54-6).) Sullivan used the visual column of the script to guide the illustration of the frames of the Flor-Essence video, and the type column contained the actual words she formatted into those frames. Here, too, Sullivan used the Wicket Grit font, as directed by Flora.

         Specific to this project, Sullivan received reference materials from Flora containing images of “Great 8” plants. (Fallon Decl., Ex. 7 (dkt. #54-7).) While Sullivan acknowledged that she needed images of the plants to create the illustrations, she nonetheless testified at her deposition that she did not use the images provided by Flora. Instead, she claimed to have “probably used several sources, ” and more specifically that she “Googled the plant names and looked at images of that particular plant.” (Sullivan Depo. (dkt. #50) 95.)

         Sullivan completed this project in May 2013 and submitted an invoice dated June 3, 2013, for $3, 000 to Designomotion for payment. The images Sullivan created are the same as those registered in the ‘717 copyright. The invoice included the following terms and conditions:

Any usage rights not exclusively transferred are reserved to the illustrator. Usage beyond that granted to the Client her[e]in shall require payment of a mutually agreed-upon additional fee subject to terms.
Rights Transferred: For use in 1:30 animated spot for web and TV.
Duration of Usage: In perpetuity
Limitations of media in which used: Video for web and television
Limitations on geographical use: none
Grant of reproduction rights is conditioned on receipt of payment.

(Sullivan, Dec., Ex. 10 (dkt. #56-10).)

         For both projects, in addition to providing the illustrations in JPEG file format, Sullivan also provided her original, multi-layered source art. In particular, Sullivan delivered to Silver files that included 36 multi-layered source art files for the ...

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