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Boehm v. Svehla

United States District Court, W.D. Wisconsin

September 27, 2017

SCOTT BOEHM and DAVID STLUKA, Plaintiffs,
v.
SCOTT SVEHLA, et al., Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiffs 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.

         Now 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.

         UNDISPUTED FACTS

         The 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.

         Plaintiffs 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.

         In 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.

         Five 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 section.

         While 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 III.

         This 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).

         ANALYSIS

         Several 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.

         Summary 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)).

         A. Viability of plaintiffs' claims after settlement of Boehm I

         Several 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 them.

         These 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.

         The 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 circumstances.

         In this 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.

         So 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.

         1. Claim preclusion

         The 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.

         Defendants 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.

         But 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)).

         The 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.

         Plaintiffs 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.

         For 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.[1] 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.

         Defendants 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.

         The 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.

         Privity 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.

         But 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).

         Which 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.

         The 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.[2] 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.

         The 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.

         The 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).[3] 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 preclusion).

         The 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.

         2. Release of claims

         The 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.

         The 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).

         For 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.

         The 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.

         The 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.

         3. Full compensation from the Zimprich settlement

         Event 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.

         The 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, ...


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