United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Scott Boehm and David Stluka are professional sports
photographers. In this copyright infringement suit, they
allege that defendants copied, printed, displayed, and sold
plaintiffs' photos without authorization. Most of the
defendants admit that their use of plaintiffs'
photographs would infringe plaintiffs' copyrights. The
main questions here concern the extent of infringement and
thus damages, and in some cases, whether plaintiffs'
claims have been released or are otherwise barred.
before the court are several motions for partial summary
judgment. Plaintiffs move for summary judgment that
defendants willfully infringed plaintiffs' copyright in
specific photos, but they also contend that they might bring
additional claims of infringement to trial. Defendants move
for summary judgment that a finding of infringement is
precluded by a number of affirmative defenses and that their
infringement, if any, was not willful. Some defendants also
move for summary judgment that they did not infringe
plaintiffs' copyright, directly or indirectly. The court
will grant in part and deny in part each motion. The court
will also identify a range of issues that are not resolved by
the parties' summary judgment motion but that the court
intends to resolve as a matter of law before trial.
following facts are material and, except where noted,
undisputed. Plaintiffs object to many of defendants'
proposed facts as relying on “the self-serving
declaration of an interested party.” Plaintiffs'
objection is frivolous: a party's own affidavit can
support or oppose a dispositive motion “as long as it
otherwise contains information that would be admissible if he
were testifying directly.” Rooni v. Biser, 742
F.3d 737, 740 (7th Cir. 2014). When plaintiffs make no other
objection, the court will accept the proposed fact as
undisputed without further note. Most of the details of the
infringement at issue in this suit will be set out in the
analysis section. The court begins with the general
background on plaintiffs' other copyright infringement
suits and their relationship to defendants.
brought suit against Dan and Ciara Zimprich and Legends of
the Field, among others, in Boehm v. Zimprich
(Boehm I), No. 14-cv-16 (W.D. Wis. filed Jan. 9,
2014), transferred from No. 13-cv-1031 (S.D.N.Y.
filed Feb. 14, 2013). The Zimpriches own “On 2 the
Field, ” a sports memorabilia vendor with a store in
Madison. The Zimpriches made and sold prints and photo
canvases of dozens of plaintiffs' photographs without
authorization. They provided reproductions of plaintiffs'
photographs and digital copies of plaintiffs' photographs
to defendants in this suit. Legends sells sports memorabilia
through its retail stores. Like the Zimpriches, Legends
provided reproductions of plaintiffs' photographs and
digital copies of plaintiffs' photographs to defendants
in this suit.
Boehm I, plaintiffs alleged that Legends created or
sold reproductions of plaintiffs' photographs without
authorization. Boehm I, No. 14-cv-16, Dkt. 33.
Plaintiffs alleged that the Zimpriches used plaintiffs'
photographs without authorization to create sports
memorabilia products and to promote their business through
advertising. Plaintiffs alleged that the Zimpriches provided
infringing products to Legends and to other defendants in
Boehm I. The court granted plaintiffs' motion
for partial summary judgment, concluding plaintiffs were
entitled to judgment of infringement against Legends and the
Zimpriches. Before the court could resolve the remaining
damages issues in that case, plaintiffs entered into
settlement agreements with Legends and the Zimpriches and
released their claims against Legends and the Zimpriches.
See Dkt. 373-2 and Dkt. 373-3. The parties
stipulated to dismiss plaintiffs' claims against Legends
and the Zimpriches with prejudice on January 16, 2015.
Boehm I, No. 14-cv-16, Dkt. 174 and Dkt. 176.
months later, plaintiffs filed this suit, which the court
will refer to as Boehm II. Plaintiffs assert
copyright infringement claims against a number of defendants,
alleging that defendants directly infringed plaintiffs'
copyrights and contributed to the direct infringement by the
Zimpriches and Legends at issue in Boehm I. Dkt. 63.
The defendants fall into two groups: retail defendants who
sell sports prints, posters, canvases, and other memorabilia
online and in retail stores; and supply defendants who
distribute sports memorabilia wholesale to retail merchants
and often create the prints, canvases, and other memorabilia
in question. The retail defendants are: Event USA; Nicholas
Martin (who does business as defendant Sports-4-Less);
Scott's Brewery Collectibles, LLC, (SBC) and its owner,
Scott Svehla; and Scooter G Sports and its owner, Scott
Gonnering. The supply defendants are: Jerry Miller (who does
business as Signature Sports); AW Artworks LLC and its owner,
Andrew Wredberg; David Thomason (who does business as
Fan4Ever); and Beyond Studio Publishing LLC and its owner,
Luke Wein. The facts related to each defendant's
individual acts of infringement are set out in the analysis
this case was pending, plaintiffs filed a new suit against
the Zimpriches and Legends: Boehm v. Legends of the
Field, LLC, No. 15-cv-683 (W.D. Wis. filed Oct. 23,
2015), which the court will refer to as Boehm III.
In Boehm III, plaintiffs allege that the Zimpriches
and Legends breached the Boehm I settlement
agreements and engaged in new infringing acts, including
contributing to the Boehm II defendants' direct
infringement of plaintiffs' photos. Boehm III,
No. 15-cv-683, Dkt. 30. Litigation continues in Boehm
case arises under federal law, the Copyright Act of 1976, 17
U.S.C. § 101, et seq., so the court has subject
matter jurisdiction on the basis of a federal question under
28 U.S.C. §§ 1331 and 1338(a).
defendants advance affirmative defenses based on the effect
of the Boehm I settlement agreement, so the court
will address these defenses first. The court will then turn
to the cross-motions for summary judgment as to each
defendant's individual acts of infringement.
judgment is appropriate if a moving party “shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When, as here, the parties have filed cross-motions
for summary judgment, the court “look[s] to the burden
of proof that each party would bear on an issue of trial;
[and] then require[s] that party to go beyond the pleadings
and affirmatively to establish a genuine issue of material
fact.” Santaella v. Metro. Life Ins. Co., 123
F.3d 456, 461 (7th Cir. 1997). If either party “fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden at trial, ” summary judgment
against that party is appropriate. Mid Am. Title Co. v.
Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (quoting
Tatalovich v. City of Superior, 904 F.2d 1135, 1139
(7th Cir. 1990)). “As with any summary judgment motion,
this [c]ourt reviews these cross-motions ‘construing
all facts, and drawing all reasonable inferences from those
facts, in favor of . . . the non-moving party.'”
Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th
Cir. 2008) (quoting Auto. Mechs. Local 701 Welfare &
Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d
740, 748 (7th Cir. 2007)).
Viability of plaintiffs' claims after settlement of
defendants contend that plaintiffs' claims are no longer
viable after the settlement of Boehm I, which led to
the dismissal of that case with prejudice. These defendants
say that they got the infringing images from the Zimpriches
or Legends, and they contend that they are entitled to the
benefit of the release granted in the settlement agreements
or that claim preclusion bars plaintiffs' claims against
affirmative defenses were not asserted in their original
responsive pleadings, so Event USA, Thomason, Svehla, Martin,
Miller, Wredberg, and AW move to amend their pleadings to
include them. Dkt. 368; Dkt. 379; Dkt. 386; Dkt. 401; Dkt.
402; Dkt. 486. Leave to amend should be freely granted when
justice so requires. Fed.R.Civ.P. 15(a)(2). Plaintiffs oppose
the motions as untimely and futile. Dkt. 381; Dkt. 383; Dkt.
409. The court sees no undue delay, because the defenses were
asserted within a reasonable time after defendants got copies
of the settlement agreements in Boehm I. The court
will grant the motions to amend, allowing defendants to
assert these defenses, and decide them on the merits, thus
addressing the question of futility.
court starts with some general principles. Parties who act in
concert to produce a single harm are joint tortfeasors.
See Paroline v. United States, 134 S.Ct. 1710, 1741
(2014) (Sotomayor, J., dissenting); Restatement (Second)
of Torts § 875 (Am. Law Inst. 1965). Joint
tortfeasors are jointly and severally liable to the plaintiff
for compensatory damages. Minix v. Canarecci, 597
F.3d 824, 829-30 (7th Cir. 2010). A joint tortfeasor is not
an indispensable party, which means that a plaintiff does not
have to bring suit against all tortfeasors in one action.
See, e.g., Salton Inc. v. Philips Domestic
Appliances & Personal Care B.V., 391 F.3d 871, 877
(7th Cir. 2004). Under common law, a settlement with one
joint tortfeasor would preclude subsequent suits against the
others, but this “one satisfaction” rule has long
been abrogated. See United States v. Reliable Transfer
Co., 421 U.S. 397, 408-09 (1975). But the abrogation of
the one-satisfaction rule does not mean that a plaintiff may
seek multiple full recoveries from each joint tortfeasor.
“It is generally agreed that when a plaintiff settles
with one of several joint tortfeasors, the nonsettling
defendants are entitled to a credit for that
settlement.” McDermott, Inc. v. AmClyde, 511
U.S. 202, 208 (1994). These principles, taken together, give
a plaintiff considerable flexibility in deciding whom to sue,
in what order, and whether to do so in separate lawsuits. But
other principles can limit that flexibility under certain
case, the defendants who got their unauthorized copies of
plaintiffs' photos from the Zimpriches are joint
tortfeasors with the Zimpriches. Likewise for those
defendants who got unauthorized copies from Legends.
Plaintiffs expressly allege in their complaint that the
Zimpriches and Legends worked with other defendants to commit
acts of infringement. See, e.g., Dkt. 63,
¶¶ 175, 193, 197. And those defendants who assert
affirmative defenses arising from the Boehm I
settlement embrace their status as joint tortfeasors.
plaintiffs did not have to bring suit against all the joint
tortfeasors when it sued the Zimpriches and Legends in
Boehm I. And after the abrogation of the
one-satisfaction rule, the settlement with the Zimpriches and
Legends does not automatically bar plaintiffs from
suing the other joint tortfeasors in a subsequent suit. But
that does not mean that the settlement of Boehm I
has no effect on plaintiffs' ability to bring subsequent
suits against the joint tortfeasors. Defendants contend that
plaintiffs released claims against the joint tortfeasors in
the settlement agreements and that claims against the joint
tortfeasors are barred by the doctrine of claim preclusion.
doctrine of claim preclusion, or res judicata, bars
successive litigation of “any claims that were
litigated or could have been litigated in a previous
action.” Bell v. Taylor, 827 F.3d 699, 706
(7th Cir. 2016). Claim preclusion applies not only to the
specific issues actually decided, but to all grounds or
defenses that could have been raised in the previous case.
Brown v. Felsen, 442 U.S. 127, 131 (1979). The
purpose of the doctrine is to ensure the finality of judicial
determinations, to promote judicial efficiency, and to
prevent vexatious litigation. Id.
Martin, Miller, Wredberg, Thomason, and Event USA contend
that plaintiffs' dismissal of Boehm I has a
preclusive effect on the claims against them. Plaintiffs'
main argument against the application of claim preclusion
here is that the one-satisfaction rule has been repudiated,
and therefore plaintiffs are free to pursue defendants in a
second suit. Dkt. 542, at 10-11. But plaintiffs' argument
is extremely superficial. The doctrine of claim preclusion
has obviously survived the repudiation of the
one-satisfaction rule, see, e.g., Whole
Woman's Health v. Hellerstedt, 136 S.Ct. 2292,
2305 (2016), and that doctrine imposes a substantial limit on
a plaintiffs' ability to seek relief from a joint
tortfeasor in a subsequent suit. None of the defendants
contends that the one-satisfaction rule bars plaintiffs'
claims against any of the defendants in this suit.
claim preclusion could bar those claims, if the elements are
met. Claim preclusion applies when (1) the two lawsuits
“arise out of ‘a common core of operative
facts'”; (2) the parties are identical or in
privity; and (3) the first lawsuit resulted in a final
judgment on the merits. Bell, 827 F.3d at 706
(quoting Roboserve, Inc. v. Kato Kagaku Co., 121
F.3d 1027, 1034 (7th Cir. 1997)).
first and third elements are less controversial here. As for
the first element, to determine whether the same transaction
is at issue in both cases, courts “consider the
totality of the claims, including the nature of the claims,
the legal basis for recovery, the law involved, and the
respective factual backgrounds.” Bernstein v.
Bankert, 733 F.3d 190, 227 (7th Cir. 2013) (quoting
Ross ex rel. Ross v. Bd. of Educ. of Tp. High Sch. Dist.
211, 486 F.3d 279, 284 (7th Cir. 2007)). Here,
plaintiffs' claims in Boehm I and Boehm
II involve the same law and legal basis for recovery.
The same images are at issue in both suits. Plaintiffs
alleged in Boehm I that the Zimpriches and Legends
distributed infringing images to third parties, who in turn
sold them to the public, and in some cases made further
copies that were sold to the public. Now, in this case,
plaintiffs bring claims against some of those third parties
alleging infringement of the same images.
argue that the defendants in this case have committed new
acts of infringement beyond those committed by the Zimpriches
and Legends. The defendants here, even if they initially got
unauthorized images from the Zimpriches and Legends, also
publicly displayed those images and distributed them to the
public, and in some cases made new copies of the photos.
These are separate violations of the authors' exclusive
rights, and thus separate acts of infringement. Plaintiffs
contend that under Petrella v. Metro-Goldwyn-Mayer,
Inc., 134 S.Ct. 1962 (2014), a new act of infringement
gives rise to a new cause of action, and thus it cannot be
considered to arise from the same core of operative facts.
But Petrella is simply not on point; it addresses
the interaction of the copyright statute of limitations and
the doctrine of laches. A new act of infringement triggers a
new limitations period, but Petrella says nothing
about whether a claim against a downstream infringer is
subject to claim preclusion.
purposes of claim preclusion, the acts of the joint
tortfeasors are not analyzed in the formalistic way that
plaintiffs propose. “[T]here is no formalistic test for
determining whether suits arise out of the same transaction
or occurrence.” Bernstein, 733 F.3d at 227
(quoting Ross, 486 F.3d at 284). Claims against
downstream infringers have been held to arise out of the same
common core of operative facts as claims against the
original, upstream infringer. For our purposes, this is the
most important conclusion in Bouchat v. Bon-Ton
Department Stores, Inc., 506 F.3d 315 (4th Cir. 2007), a
case cited by both sides here. Bouchat, an amateur artist, had
successfully proven that the Baltimore Ravens and the
NFL's licensing agent had infringed his copyright in the
Ravens' “Flying B” logo but failed to prove
any damages. The artist filed multiple subsequent suits
against the NFL's licensees, who had committed many new
acts of infringement by making and selling products with the
infringing logo. The Fourth Circuit held that despite
undisputed additional acts of infringement, the claims
against the licensees arose out of the same core of operative
facts as the original suit against the Ravens and the
NFL's licensing agent, id. at 327-28, and
because the other elements were met, those claims were barred
by claim preclusion. This conclusion is reinforced by other
cases that have held that downstream infringers are jointly
and severally liable with the original upstream infringer.
See, e.g., Agency France Presse v. Morel,
934 F.Supp.2d 547, 579, modified in part, 934
F.Supp.2d 584 (S.D.N.Y. 2013); Leonard v. Stemtech Health
Scis., Inc., No. 08-cv-67, 2011 WL 6046701, at *16 (D.
Del. Dec. 5, 2011); McClatchey v. Assoc. Press, No.
05-cv-145, 2007 WL 1630261, at *3 (W.D. Pa. June 4, 2007).
The court concludes that the claims against the defendants in
this case who got their images from the Zimpriches or Legends
arise from the same core of operative facts as Boehm
I, and thus the first element is met.
also satisfy the third element of claim preclusion, a final
judgment. A stipulation of dismissal with prejudice is a
final judgment for claim preclusion purposes. See Golden
v. Barenborg, 53 F.3d 866, 868-69 (7th Cir. 1995).
Plaintiffs contend that claim preclusion does not apply when
the original claims were settled, relying on Minix,
597 F.3d 824. But that case is not on point. It holds that a
plaintiff “is entitled to only one full compensation
for any single, indivisible injury caused by the defendants,
who are each jointly and severally liable for that
injury.” Id. at 830-31. And where one joint
tortfeasor does not provide that full compensation, the
full-compensation doctrine would not preclude plaintiff from
suing the other joint tortfeasors. Minix deals with
mootness on appeal; it says nothing about claim preclusion.
For claim preclusion purposes, all that matters is that the
first suit concludes with a final judgment, regardless of
whether that final judgment was the result of a trial on the
merits or a settlement. Remember that claim preclusion
applies to all the issues that could have been
brought in the case; it does not matter whether the
issues were actually decided.
critical issue here is the second element, the identity of
parties. If this element is not present, then claim
preclusion presents no bar to a plaintiff's pursuing the
other joint tortfeasors in subsequent cases. The parties in
Boehm I and Boehm II are not the same, but
defendants contend that they are in privity with the
Zimpriches or Legends.
requires that “(1) [t]he interests of the nonparty and
her representative are aligned; and (2) either the party
understood herself to be acting in a representative capacity
or the original court took care to protect the interests of
the nonparty.” Taylor, 553 U.S. at 900
(citations omitted). Here, defendants' interests are
generally aligned with the Zimpriches because they are joint
tortfeasors, although that level of alignment alone would not
be enough. Sometimes the interests of joint tortfeasors are
adverse, as when one tortfeasor attempts to deny liability
and place full responsibility on another. If mere status as
joint tortfeasors were sufficient to align their interests,
it would tend to run counter to the rule that a joint
tortfeasor is not an indispensable party who has to
participate in the original suit. See, e.g.,
Salton, 391 F.3d at 877.
defendants have more than the typical alignment of joint
tortfeasors. The Zimpriches and Legends would be obligated to
indemnify defendants for claims arising from the infringing
images that they provided. Under Wisconsin's version of
Uniform Commercial Code § 2-312(3), goods sold by a
merchant who regularly deals in goods of the kind are
warranted to be “delivered free of the rightful claim
of any 3rd person by way of infringement or the like.”
Wis.Stat. § 402.312(3). The prints and canvases that the
Zimpriches and Legends sold to the joint tortfeasor
defendants are goods to which this warranty attaches because
they “are movable at the time of identification to the
contract for sale.” § 402.105(1)(c). Whether the
digital images, as opposed to the physical prints and
canvases, are “goods” under the U.C.C. is a
closer question. The court found no case addressing this
particular issue, but the Seventh Circuit has held that
custom software is a good, noting that there is “no
reason why the UCC is not suitable to govern disputes arising
from the sale of custom software.” Micro Data Base
Sys., Inc. v. Dharma Sys., Inc., 148 F.3d 649, 654 (7th
Cir. 1998); accord Comshare, Inc. v. United States,
27 F.3d 1142, 1145, n.2 (6th Cir. 1994). And this court has
held that electricity is a good because it “has
physical properties [and] is bought and sold in the
marketplace.” GFI Wis., Inc. v. Reedsburg Util.
Comm'n, 440 B.R. 791, 800 (W.D. Wis. 2010). The
court sees no reason why digital images would not be goods if
custom software and electricity are. Thus, under Wis.Stat.
§ 402.312(3), the Zimpriches and Legends would be
obligated to indemnify the joint tortfeasor defendants for
plaintiffs' copyright infringement, which shows
particularly close alignment of the interests of the
Zimpriches and Legends with the interests of defendants here.
See also Foley v. Luster, 249 F.3d 1281, 1288 (11th
Cir. 2001) (allowing a cross-claim for indemnification under
state common law brought by one group of defendants against
another defendant accused of copyright infringement).
brings us to the second aspect of privity, whether the
Zimpriches or Legends were acting in a representative
capacity in settling the Boehm I lawsuit. The
separate settlement agreements require separate analysis.
language of the Zimprich settlement agreement shows that the
Zimpriches were acting in a representative capacity.
See Dkt. 373-2, ¶ 3. The settlement agreement
released the Zimpriches themselves from any and all claims
“pled or not pled, known or unknown, arising out of the
substance of the claims” in the case. Id. The
released parties included the customary associates, such as
the Zimpriches' “employees, agents, successors,
heirs and assigns.” Id. Most important for our
purposes here, the released parties also included “all
persons in concert or participation with them.”
Id. It's hard to conceive how “persons in
concert or participation with them” would not include
the joint tortfeasors. And in the covenant not to sue,
plaintiffs agreed not only that they would not sue the
Zimpriches directly, they also agreed that they would not do
so indirectly. Again, it is hard to see how one
would sue the Zimpriches indirectly, except by suing a party
who would have a claim for indemnification against the
Zimpriches. The inescapable conclusion is that in
negotiating the settlement agreement, the Zimpriches were
attempting to foreclose plaintiffs' claims against
potential joint tortfeasors so that the Zimpriches themselves
could enjoy a full and final resolution of any potential
claim against them.
court reaches the opposite conclusion from the Legends
settlement agreement. There is no indication in the
settlement agreement that Legends undertook to act in any
representative capacity in Boehm I. Unlike the
Zimpriches' settlement agreement, the Legends settlement
agreement does not contain a covenant not to sue, nor does it
contain the broad release of “all persons in concert or
participation with them.” Compare Dkt. 373-2
with Dkt. 373-3. The court concludes that the joint
tortfeasor defendants are in privity with the Zimpriches, but
they are not in privity with Legends. Thus, the final
judgment against the Zimpriches has preclusive effect, but
the judgment against Legends does not. This means that the
joint tortfeasor defendants who got unauthorized images from
Legends are still viable targets.
next question is what claims are precluded. Claim preclusion
bars successive litigation of any claims that were litigated
or could have been litigated in Boehm I. But it
“will not bar a subsequent suit based upon the same
course of conduct as a prior suit if the second suit alleges
wrongful behavior occurring after the judgment in the first
suit.” Williams v. Gillette Co., 887 F.Supp.
181, 183-84 (N.D. Ill. 1995) (citing Lawlor v. Nat'l
Screen Serv. Corp., 349 U.S. 322, 328 (1955))
(concluding that claim preclusion did not apply to a patent
infringement action asserting claims accruing after the first
infringement action was settled). After all, the defendants in
Boehm I did not get a license to use plaintiffs'
works indefinitely. But any new suit must be premised on
genuinely new wrongs, not simply new manifestations of the
same basic injury. Cf. Supporters to Oppose Pollution,
Inc. v. Heritage Group, 973 F.2d 1320, 1326 (7th Cir.
1992) (holding that claims regarding the ongoing release of
toxic pollution from a landfill were barred by claim
court concludes that claim preclusion bars any claim of
infringement against the Zimprich joint tortfeasors based on
infringing copies made before January 16, 2015, the date of
the final judgment in Boehm I. New copies of
plaintiffs' copyrighted works made after that date
inflict injuries sufficiently distinct to regard them as not
arising from the core of operative facts in Boehm I.
But the continued public display or distribution of
previously made copies is merely an ongoing manifestation of
the injury addressed in Boehm I. The court notes
that the covenant not to sue in the Zimprich settlement
agreement would bar essentially these same claims.
See Dkt. 373-2, ¶ 3; supra note 2. The
court will specify which individual claims are precluded in
the infringement analysis section below.
Release of claims
joint-tortfeasor defendants, Event USA, Thomason, SBC,
Wredberg, Martin, Miller, and AW, also contend that
plaintiffs released claims against them in the settlement
agreements with the Zimpriches and Legends and that
plaintiffs are bound by their contractual obligations. The
court is not persuaded.
applicable legal principles are straightforward. The court
must construe the settlement agreements under local contract
law. Pohl v. United Airlines, Inc., 213 F.3d 336,
338 (7th Cir. 2000). The parties agree that Wisconsin law
should apply. Under Wisconsin law, settlement agreements must
be read to “give effect to the parties' intent, as
expressed in the contractual language.” Setizinger
v. Cmty. Health Network, 2004 WI 28, ¶ 22, 270
Wis.2d 1, 676 N.W.2d 426. “[A] party releases only
those other parties whom he intends to release.”
Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 347 (1971); accord Dietrich v. Trek Bicycle
Corp., 297 F.Supp.2d 1122, 1126 (W.D. Wis. 2003).
reasons already discussed, the court concludes that the
releases granted in the Zimprich settlement agreement would
extend to the joint tortfeasors, at least up to the date of
the judgment in Boehm I. But the releases in the
Zimprich settlement agreement are contingent on plaintiffs
receiving full payment from the Zimpriches, and full payment
was not made. Because this condition was not satisfied, the
releases are likely void. But the matter is of little
consequence here, because the preclusive effect of the
judgment in Boehm I does not depend on the
Zimpriches' compliance with the terms of the settlement
agreement. Claim preclusion bars the claims against the
Zimprich joint tortfeasors, even if the releases in the
settlement agreement do not.
releases in the Legends settlement agreement do not extend to
joint tortfeasors. The Legends settlement agreement states
that the contracting parties intended to “resolve and
settle all claims of any kind that any Party may have against
another Party relating to the Parties' claims and
defenses in” Boehm I. Dkt. 373-3, at 1. This
language makes clear that plaintiffs intended to release
their claims against Legends only. The agreements also
release the parties' typical associates, including
“officers, directors, shareholders, managers, members,
employees, agents, successors, heirs and assigns, ”
excluding Getty Images, from liability. Dkt. 373-3, ¶ 2.
Defendants are none of those things.
contractual language shows that plaintiffs did not intend to
release the Legends joint tortfeasors from liability.
Accordingly, the court concludes that defendants'
defenses based on releases in the Legends settlement
agreement fail as a matter of law.
Full compensation from the Zimprich settlement
USA contends that plaintiffs cannot recover any damages from
defendants here because the Zimprich settlement already fully
compensated them for all acts of infringement. Event USA is
correct that once a plaintiff receives full compensation from
one tortfeasor, he is not entitled to further recover from
the others. See Minix, 597 F.3d at 829-30.
Zimprich settlement states that the Zimpriches' payment
to plaintiffs is “full compensation for all past
unauthorized uses of” plaintiffs' photos. Dkt.
373-2, ¶ 1. And for reasons explained above, the release
and covenant not to sue would bar plaintiffs' claims
against the joint tortfeasors. So, under the terms of the
settlement agreement, plaintiffs got all they could from the
Zimpriches. But if the Zimprich settlement agreement is void,
as plaintiffs now contend, then the full-compensation
doctrine presents no bar from plaintiffs seeking their
compensation from the Zimprich joint tortfeasors. But again,