Jalbert v. Timothy Grautski
| Decision Date | 31 March 2008 |
| Docket Number | Civil Action No. 06-40040-FDS. |
| Parties | Mario JALBERT, Plaintiff, v. TIMOTHY GRAUTSKI, individually and d/b/a Add-A-Sign, Rogers Printing, Larry Swihart, individually and d/b/a F & M Towing Service, Norman Camire, and Lisa LeBlanc, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Mary C. Casey, The Harbor Law Group, Shrewsbury, MA, Robert N. Meltzer, Attorney at Law, Framingham, MA, for Plaintiff.
Edson E. Kaarela, Kaarela & Kaarela, Fitchburg, MA, Robert S. White Bourgeois, Dresser & White Worcester, MA, for Defendants.
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This is an action for copyright infringement arising out of the unauthorized use of a graphic design for a sports print. Plaintiff Mario Jalbert, a graphic designer and artist, alleges that defendants Timothy Grautski, individually and d/b/a Add-Sign; Rogers Printing; Larry Swihart, individually and d/b/a F & M Towing Service; Norman Camire; and Lisa LeBlanc unlawfully misappropriated a design created by Jalbert. The design, which Jalbert calls "Boston Sports Print," consists of a drawing of the word "Boston" spelled out by individuals wearing local professional sports uniforms, such as the Red Sox and Patriots. The unauthorized use arose when Jalbert took the design to Rogers Printing and Add-A-Sign for printing and mounting, which resulted in the creation of copies that were allegedly misappropriated.
The amended complaint alleges copyright infringement under 17 U.S.C. § 101 against all defendants (Count One), unfair competition under 15 U.S.C. § 1125(a) against all defendants (Count Two), common law conversion against all defendants (Count Three), unfair and deceptive trade practices under Mass. Gen. L. ch. 93A against Swihart, Grautski, and Rogers Printing (Count Four), and negligent supervision against Swihart and Grautski (Count Five).1
Plaintiff has moved for partial summary judgment as to Count One with respect to certain acts of allegedly unauthorized distribution, and for summary judgment as to all claims against Swihart. Defendants Grautski, Rogers Printing, LeBlanc, and Swihart have cross-moved for summary judgment as to all claims.
For the following reasons, summary judgment will be granted in part and denied in part.
The following facts are undisputed unless otherwise noted.
Plaintiff Mario Jalbert is a graphic designer and artist. Jalbert created the "Boston Sports Print," an original piece of artwork that depicts figures in local sports uniforms representing each letter in the word "Boston."
Defendant Rogers Printing, a Massachusetts corporation, is a printing business located in Leominster, Massachusetts. Rogers employs seven people. David Lynch is the president of Rogers. Defendant Lisa LeBlanc is the customer service representative for the company.
Defendant Add-A-Sign is a sole proprietorship located in Leominster, Massachusetts. Add-A-Sign primarily makes banners and flags and applies lettering to trucks. Defendant Timothy Grautski owns and operates the company.
Defendant F & M Towing Service is a sole proprietorship located in Westminster, Massachusetts, that tows motor vehicles. Defendant Larry Swihart owns and operates the company.
Defendant Norman Camire was employed by Add-A-Sign in the spring and summer of 2005 as a sign installer. At the same time, Camire was also employed by F & M Towing as a tow truck operator.2
In May or June 2004, Mario Jalbert and his mother engaged Add-A-Sign to make a small number of prints of his Boston Sports Print.3 Jalbert gave Add-A-Sign an electronic copy of the Boston Sports. Print to make prints from and gave it permission to retain the electronic copy for potential future print jobs. Jalbert had previously registered the copyright for the print and the print displayed a copyright mark.
Later in the summer of 2004, Jalbert asked Add-A-Sign to produce 1,000 copies of the print. Add-A-Sign was unable to produce that many prints efficiently, so Grautski recommended that Jalbert use the services of Rogers Printing instead. Jalbert then placed an order for 1,000 prints with Rogers and paid for that order in full.
Lisa LeBlanc, a Rogers Printing employee, saw a copy of the print and liked it, and thought that her young son would also like it. During the production of the 1,000 copies of Jalbert's print, LeBlanc asked David Lynch, the owner of Rogers Printing, if she could have a copy of the print. Lynch gave LeBlanc an overrun print from the production run.4 She took it home and hung it on the wall in her son's room.
LeBlanc told Jalbert's mother, who did some work on behalf of Jalbert, that she had kept a copy of the print for use in her home. Mrs. Jalbert did not tell her that the print was copyrighted and did not request that she return the copy. Instead, Mrs. Jalbert told her that she hoped her son liked the print and told his friends about it.5
Several months later, LeBlanc received a letter from Jalbert's counsel alleging that she likely had infringed Jalbert's copyright and instructing her to return the print. LeBlanc called Jalbert's counsel in response to the letter and acknowledged that she had a copy of the print. The attorney recommended that LeBlanc get her own legal counsel, but she responded that she could not afford counsel and had nothing to hide. LeBlanc then spoke with Timothy Grautski of Add-A-Sign and David Lynch about the letter. After these conversations, LeBlanc threw away the only copy of the print she had in her possession.
When Jalbert ordered 1,000 copies of the print from Rogers Printing in the summer of 2004, he asked Rogers to have Add-A-Sign mount 200 of the prints on foam core. Jalbert also asked that 100 of the 200 mounted prints be laminated. He instructed Rogers to transfer the prints to Add-A-Sign for that purpose.
In August 2004, Timothy Grautski picked up 295 or 300 prints from Rogers in order to complete the mounting and laminating job.6 Grautski took the extra 95 or 100 prints because some were likely to be wasted during the lamination process. Jalbert contends that Grautski was only authorized to take 200 prints, not the 295 or 300 that he took from Rogers. Grautski, however, contends that Jalbert told him that he should take some extra prints and keep them in case Jalbert needed additional prints in the future.
Add-A-Sign completed the mounting and lamination as requested. Grautski stored the remaining extra prints on a shelf in the Add-A-Sign office. Grautski testified that approximately ten prints were wasted during the mounting and laminating process, which left between 85 and 90 extra prints at Add-A-Sign.
In May 2005, Timothy Grautski was ordered to vacate the premises that Add-Sign had been leasing because of concern over the structural stability of the building. Grautski was given two days' notice of the forced relocation. The contents of Add-A-Sign's shop were placed in boxes, without conducting an inventory, and transported in personal vehicles and rented trucks to a new location. Norman Camire's truck was one of the vehicles used for the move.
As noted, prior to the relocation, the extra prints were being stored on a shelf in Add-A-Sign's office. Grautski did not see who, if anyone, removed the prints from the shelf at the time of the move. It is not disputed, however, that Camire took at least some of the prints.7
About a month after the move to the new location, in June 2005, Grautski received a letter from Jalbert's counsel regarding the extra copies of the print. In response to the letter, he conducted a search of both the old and new Add-Sign locations, but was unable to find any copies of the print. Grautski then asked the Add-A-Sign employees, including Camire, to return any copies of the print they may have taken. Camire returned 18 copies of the print to Grautski, who gave them to Jalbert.
During discovery in this case, Robert White—counsel for Grautski, Rogers Printing, and LeBlanc—produced to plaintiff additional copies of the Boston Sports Print that had been in his clients' possession.8 Apparently, at Mario Jalbert's deposition, Mr. White produced 24 additional copies of the print, which were marked as exhibits at the deposition: Exs. 15 and 17-21 were copies of the print mounted on foam core; Exs. 22-35 were copies that had crop marks; Ex. 36 was a copy without crop marks; and Exs. 37-39 were copies that had both color bars and crop marks.9 Based on the production of these additional copies of the print, plaintiff contends that at least 15 copies were "pirated" by Rogers Printing and Add-A-Sign, in addition to the 95 copies alleged to have been distributed by Rogers Printing to Add-A-Sign without authorization.10
In July 2005, Swihart observed approximately 12 to 15 copies of the Boston Sports Print draped over the safe in his office at F & M Towing. Later that day, Swihart saw that the prints had been moved to a shelf outside his office. Swihart further contends that later that same day he noticed that the prints appeared to have been taken away from the premises. Andrew Mosco, an employee of F & M Towing, contends that the prints were on the F & M premises for more than a day.11
At some point, Samantha LeBlanc, a friend of Jalbert's, went to F & M Towing to visit Mosco and saw the copies of the print. She took one copy with her when she left. She later informed Jalbert that she had seen copies of the print at F & M Towing.
Swihart later learned that Camire had taken the copies of the print from Add-Sign, where Camire was also employed, and brought them to F & M Towing....
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