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Boehm v. Heyrman Printing, LLC

United States District Court, W.D. Wisconsin

March 9, 2017

SCOTT BOEHM, Plaintiff,
v.
HEYRMAN PRINTING, LLC, Defendant and Third-Party Plaintiff,
v.
EVENT USA CORP., Third-Party Defendant, and ACUITY, A MUTUAL INSURANCE COMPANY, Intervenor Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff Scott Boehm is a sports photographer. He alleges that third-party defendant Event USA Corp. obtained unauthorized digital copies of Boehm's copyrighted photos and directed defendant Heyrman Printing, LLC, to print copies of the photos. Boehm filed suit against Heyrman Printing, accusing it of copyright infringement. Dkt. 1. Heyrman Printing has an insurance policy that covers “advertising injury, ” so it tendered this case to its insurer, ACUITY, a Mutual Insurance Company. ACUITY now moves for summary judgment that Heyrman Printing's policy does not afford coverage for the allegations in the complaint. Dkt. 41. The court concludes that ACUITY has no duty to defend or indemnify Heyrman Printing, so it will grant summary judgment in ACUITY's favor.

         UNDISPUTED FACTS

         The following facts are undisputed.

         ACUITY issued Heyrman Printing an insurance policy, covering June 1, 2010, to the present. The policy confers coverage for “personal and advertising injury” and the scope of that coverage is circumscribed by definitions in the policy. The initial grant of coverage applies to “personal and advertising injury caused by an offense arising out of your business, but only if the offense was committed in the coverage territory during the policy period.” Dkt. 45-11, at 28. The policy defines “personal and advertising injury, ” in pertinent part, as “injury, including consequential bodily injury, arising out of one or more of the following offenses: . . . . Infringing upon another's copyright, trade dress or slogan in your advertisement.” Id. at 41. The policy defines “advertisement” as:

[A] notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters. For the purposes of this definition:
a. Notices that are published include material placed on the Internet or on similar electronic means of communication; and
b. Regarding websites, only that part of a website that is about your goods, products or services for the purposes of attracting customers or supporters is considered an advertisement.

Id. at 39.

         The policy also has exclusions applicable to advertising injury. The policy does not cover:

Personal and advertising injury:
(1) Caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict personal and advertising injury;
(12) Arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.
However, this exclusion does not apply to infringement, in your advertisement, of copyright, ...

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