Armento v. Laser Image, Inc., Civil No. 1:95CV102.
| Decision Date | 16 October 1996 |
| Docket Number | Civil No. 1:95CV102. |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Gregory G. ARMENTO, d/b/a Tradewind Marketing and Design, and formerly d/b/a Cumulus Creative Communications, Plaintiff, v. The LASER IMAGE, INC., and Douglas W. Sherry, Defendants. |
Gregory G. Armento, Asheville, NC, pro se.
John C. Cloninger, Blue, Fellerath, Cloninger and Barbour, P.A., Asheville, NC, David M. Carter, Carter & Schnedler, Asheville, NC, Joseph A. Ferikes, Asheville, NC, for defendants.
THIS MATTER came before the Court on September 16, 1996, for non-jury trial based on a complaint filed May 1, 1995. The Defendants' answer was filed on February 26, 1996. Pursuant to Fed.R.Civ.P. 52, the Court renders its findings of fact and conclusions of law. For the reasons stated below, the Court finds in favor of the Defendants.
This case is properly before the Court pursuant to 28 U.S.C. § 1338 which provides in pertinent part:
(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.
(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trade-mark laws.
28 U.S.C. § 1338(a), (b).
The Plaintiff's state contract claims are properly within this Court's supplemental jurisdiction to hear state law claims that stem from the same controversy giving rise to the Plaintiff's federal claims. 28 U.S.C. § 1367(a).
The Plaintiff, Gregory G. Armento, filed suit against the Defendants, The Laser Image, Inc., and Douglas W. Sherry, on May 1, 1995, alleging federal copyright and trademark infringement claims, state statutory unfair trade practice claims and common law contract claims. The Plaintiff has appeared before this Court pro se.
The Defendants filed their answer on February 26, 1996, with no counterclaims. The case was stayed from July 6, 1995, through January 23, 1996, pending resolution of an appeal in a companion case. Armento v. City of Asheville, Civil No. 1:94cv58.
On June 18, 1996, this Court denied the Plaintiff's motion to amend the complaint and request for jury trial. See Order, filed June 18, 1996. During trial, the Defendants were granted permission to file a supplemental trial brief on September 16, 1996. The Plaintiff filed a Post-Trial Brief on September 20, 1996.
In June 1987, Defendant Sherry founded The Laser Image, a graphic design and typeset business, in Asheville, North Carolina. Sherry, formerly a school teacher, had recently moved from Vermont. That summer, Sherry met the Plaintiff, Gregory G. Armento, an illustrator in Asheville. Sherry contacted the Plaintiff soon thereafter to seek his services for the illustration of a map of Asheville.
Defendant Sherry had brought from Vermont an illustrated map of Stowe, Vermont, titled the "Best of Stowe," which he planned to use as a model for the planned illustrated Asheville map. Defendant's Exhibit B1. The Defendant showed the map to the Plaintiff and told him that he had a similar "folksy" map in mind for Asheville. Advertising marquees were to be placed around the map border and the advertisers' locations "called out" on the map.
On August 18, 1987, the Defendant, acting for his business The Laser Image, and the Plaintiff, doing business as Cumulus Creative Communications, signed a contract "for the purpose of the production of two illustrated maps and the design of advertisements for the map brochure." Defendants' Exhibit 10. The contract was signed by both parties and neither contests its validity. No legal counsel helped the parties frame the contract.
The contract calls for Armento to design and produce camera-ready art consisting of: an illustrated map of downtown Asheville (the main illustrated map), an illustrated map of the greater Asheville area (to appear on the back of the brochure), and an illustrated cover for the brochure. The contract also calls for the Plaintiff to design advertisements, which the Defendants would typeset; however, the advertisements were to be designed only if The Laser Image was able to complete marketing of the map.
Armento was to be paid under the contract in the following manner. For his design and illustration work associated with the maps and cover, the Plaintiff would receive $1,190, plus reimbursement for supplies. For advertisement design, Armento would receive $10 for each design and $4 for each mechanical drawing. Two other payment provisions were included as well. First, if for any reason The Laser Image was unable to complete the marketing of the map, it agreed to pay the Plaintiff for all work completed, up to a maximum of $200, excluding deposit. Second, if the map brochure were reprinted in the future, The Laser Image agreed to pay Armento a total of $360 for revisions of the map and cover illustrations. The agreement was stated to be in effect for four subsequent reprints.
The August 18, 1987, contract declared that the "illustrated maps and advertising artwork produced by Cumulus for The Laser Image remain the sole property of The Laser Image, and cannot be reproduced or used for any other purpose by Cumulus without the written consent of The Laser Image." Id. Both parties signed the contract, and in this lawsuit all parties agreed that the signatories had performed their duties under the August 18, 1987, agreement.
By August 18, 1987, the parties had been working together for at least one month, indicated by the contract language stating that a $200 deposit for illustration work had been paid to Armento on July 15, 1987. Also by August 18, 1987, the Plaintiff was, by his own admission, an experienced professional artist familiar with the fundamentals of copyright law.
Later in 1987, the first Illustrated Map of Asheville was produced, printed and distributed. Sherry helped edit the map illustration's content, layout and accuracy. He contacted advertisers and arranged to have their marquees and locations included in the Map and was responsible for printing and distributing the Map.
Because Sherry had a laser writer and Armento did not, the Defendant did the typesetting. In so doing, Sherry caused two notices to be printed on the main illustrated map of downtown. The bottom right-hand corner contained three lines of small text: © "Copyright 1987 Published by The Laser Image, Asheville, NC 704-298-3719." The opposite bottom left hand corner contained one line of small text: "Illustration by Gregory Armento."
The 1988 and 1989 editions of the Illustrated Map of Asheville were produced under the 1987 contract. Armento completed new cover illustrations for the brochure (hand drawn renderings of prominent Asheville facades), and was paid $360 for each update. Sometime in late 1989 or early 1990 the parties discussed producing the map illustrations on computer.
On July 10, 1990, the parties signed a new contract. Defendants' Exhibit 11. Both parties agree that the contract is valid and that it served to replace the 1987 contract. The evidence showed that both parties performed their express contractual duties up until the contract was disavowed, in late 1993 or early 1994. Both parties signed the agreement, which was not prepared with aid of counsel.
The July 10, 1990, contract differed in some respects from its 1987 predecessor (although on the whole the documents are substantially similar). The Laser Image, by July 1990, was incorporated in North Carolina and Armento was now doing business as Tradewind Marketing and Design. In the contract, the Plaintiff agreed to design and produce computer-generated art consisting of: an illustrated map of downtown Asheville and an illustrated map of the greater Asheville area, as well as an illustrated cover for the map brochure. In addition, Armento agreed to furnish The Laser Image with "the" computer files of the two maps in formats to be later specified by the Defendants. Id.
In return for his illustration/design services Armento was to be paid $3,000. The Plaintiff did not contest that he was so paid. The contract also called for The Laser Image to pay Armento a total of $450 for each additional Illustrated Map of Asheville edition in which the computer designed maps were used. The evidence showed that The Laser Image has paid $450 to Armento for the years 1990, 1991, 1992 and 1993. The $450 payments were installments for the work done by Armento on the original design in 1990. Armento risked not being paid the total value of that work if future Illustrated Map printings did not occur, but stood to gain a profit if the annual payments ended up exceeding the value of his original work (minus the $3,000 he had already been paid).
The contract recites that it was entered into for "the purpose of the production of two illustrated maps and cover design for the Illustrated Map of Asheville." Id. The ownership provisions of the contract remained the same with one minor exception. The parties again agreed that the "illustrated maps and artwork produced by Tradewind for The Laser Image, Inc., remain the sole property of The Laser Image, and cannot be reproduced or used for any other purpose by Tradewind without the written consent of The Laser Image, Inc." Id. An exception was added so Armento could try to sell the artwork to the company that manufactured the software he used in designing the map. In that case, The Laser Image had to be notified that Armento had agreed for the software company to use the designs.
Armento created a new map drawing, took it to a...
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