Latimer v. Roaring Toyz, Inc., 8:06-CV-1921-T-30EAJ.
| Decision Date | 13 March 2008 |
| Docket Number | No. 8:06-CV-1921-T-30EAJ.,8:06-CV-1921-T-30EAJ. |
| Citation | 550 F.Supp.2d 1345 |
| Parties | Todd LATIMER, Plaintiff, v. ROARING TOYZ, INC., Robert Fisher, Kawasaki Motors Corp., USA, and Hachette Filipacchi Media U.S., Inc., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Frank R. Jakes, Zachary David Messa, Johnson, Pope, Bokor, Ruppel & Burns, LLP, Tampa, FL, for Plaintiff.
Michael Chapman Cesarano, Samuel Abraham Lewis, Feldman Gale, PA, Miami, FL, for Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Before the Court are the parties' cross motions for summary judgment (Dkts. 58 & 59) and their respective responses thereto (Dkts. 62, 63, & 69), Plaintiffs Motion for Leave to File a Sur-Reply (Dkt.73), Defendants' opposition thereto (Dkt.74), and Defendants' Motion to Bifurcate Trial (Dkt.75). In his motion to file a sur-reply, Plaintiff seeks leave to address the admissibility as evidence of Defendant's expert witness deposition regarding damages and consideration of the decision in Sckrock v. Learning Curve International, Inc., 2008 WL 224280 (N.D.Ill. Jan.29, 2008) (discussing derivative works). Having considered the parties motions and supporting exhibits, the supporting and opposing memoranda, and the record evidence cited therein, the Court concludes that all Defendants are entitled to summary judgment on Latimer's unfair competition claim, and Defendants Kawasaki and Hachette are entitled to summary judgment on Latimer's copyright infringement claims.
Motions for summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion. "The requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). The substantive law applicable to the claimed causes of action identifies which facts are material. Id. Throughout this analysis, the judge must examine the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in his favor. Id. at 255, 106 S.Ct. 2505. Further, "[e]vidence inadmissible at trial cannot be used to avoid summary judgment." Broadway v. City of Montgomery, Ala., 530 F.2d 657, 661 (5th Cir.1976). "Even on summary judgment, a court is not obligated to take as true testimony that is not based upon personal knowledge." Citizens Concerned About Our Children v. School Bd. of Broward County, Fla., 193 F.3d 1285, 1295 n. 11 (11th Cir.1999) (per curiam).
At the request of his friend Bruce Casner, Todd Latimer ("Latimer"), a freelance fashion photographer, prepared a series of photographs of custom motorcycle parts for an advertising brochure for Defendant Roaring Toyz ("Roaring Toyz").2 In-June, 2005, Casner asked Latimer to accompany him to a motorcycle show held at West Palm Beach, Florida, where Casner introduced Latimer to Robert Fisher ("Fisher"), president of Roaring Toyz (Dkt. 60, Ex. 3 at 62-64; Ex. 6-1 at 24; 53-54).
Roaring Toyz displayed a number of customized motorcycles at the West Palm Beach Motorcycle Show. During the show, Latimer took numerous photographs of motorcycles customized by Roaring Toyz (Dkt. 60, Ex. 3 at 68; Ex. 6-1 at 71). Between June, 2005, and March, 2006, Latimer photographed a number of motorcycles Roaring Toyz was customizing at its Sarasota, Florida facility. Latimer provided Roaring Toyz copies of some of the photographs taken during this time period for its use on its website (Dkt. 60, Ex. 3 at 80-83; 96-97; 99; Ex. 6-1 at 68; 71; 76-77; 78-79).
In mid-2005, Fisher met John Del Cioppo, a.k.a. Jack Del Cioppo, owner and operator of Graphics 2, a New Jersey corporation that had recently relocated to Florida.3 During the latter half of 2005 through 2006, Roaring Toyz retained Del Cioppo to manage its websites and advise it on marketing and public relations issues4 (Dkt. 60, Ex. 7 at 15-16).
Defendant Kawasaki Motor Corporation USA, Inc., ("Kawasaki") manufactures, inter alia, motorcycles, utility vehicles, all terrain vehicles, and watercraft. Kawasaki began promoting its ZX-14 motorcycle in September 2005 (Dkt.69, Ex. 5). While preparing for the introduction of the ZX-14 motorcycles, Kawasaki personnel noted a trend developing in the marketplace for customized motorcycles. Since Kawasaki did not manufacture or sell customized motorcycles, it arranged for two ZX-14s to be delivered to Roaring Toyz in January, 2006, for customization. Decisions regarding how the customization should be done, as well as what the final product should look like, were left to Roaring Toyz (Dkt. 60, Ex. 3 at 28; 53-54).
Roaring Toyz commissioned Ryan Hathaway, an independent contractor who operated a one-man shop engaged in custom paint work and graphics design, to customize the paint on the ZX-14s. While Hathaway and Fisher discussed graphics styles and color schemes, Hathaway made the final decisions as to the design and color of the artwork on the ZX-14s (Dkt. 60, Ex. 5 at 13-16; 19-20; 21-22). During January and February, 2006, Hathaway worked in his shop in Lake Placid, Florida, designing the artwork, selecting the paint colors, and painting the ZX-14s. Id. at 5-6; 13-16; Ex. 3 at 147-48.
Meanwhile, in January, 2006, Latimer was retained by 2Wheel Tuner "to follow the build" of the ZX-14s and provide 2Wheel Tuner with photographs of the motorcycles at various stages of the customization process for inclusion with a magazine article.
On February 23, 2006, Fisher learned from Del Cioppo that Kawasaki wanted photographs of the customized ZX-14s. Roaring Toyz had one day in which to provide the requested photographs. Fisher contacted Latimer regarding Kawasaki's request for photographs, explaining the tight deadline when they spoke. Latimer agreed to travel to Sarasota to conduct a photo shoot that evening. Id.
When Latimer arrived at Roaring Toyz with his photography equipment, shop personnel had not yet completed assembling the ZX-14s. Because they did not have a kick stand for both motorcycles, the Z14s could not be transported off-site, so Roaring Toys personnel assisted Latimer in setting up the ZX-14s for the photo shoot in front of the shop. Because they were in a hurry to get the photographs done, Roaring Toyz personnel also assisted Latimer by running "extension cords and power cables for lights and cables for cameras and things, and you know, background, [and] flooring," but Latimer made the decisions regarding lighting, the appropriate camera equipment and lens, and camera settings, as well as use of the white background consistent with the industry practice Latimer noted in studying other advertising photographs.
Latimer worked throughout the night of February 23-24 taking photographs of the ZX-14s as requested by Kawasaki. Once the photo session concluded, Latimer asked Fisher for $800.00 as payment for photographs of three R-1 and three Hayabasa motorcycles taken on February 14 and 16, 2006. Fisher wrote Latimer an $800.00 check.
When Latimer left Roaring Toyz the morning of February 24, 2006, he took the pictures of the ZX-14s with him so he could make any necessary modifications. Latimer e-mailed "clean shots" of the Z14s to Del Cioppo during the morning of February 24, 2006, believing at the time that Del Cioppo was going to design a placard to use during the introduction of the ZX-14 at Bike Week held in Daytona, Florida, March 3-8, 2006, using his photographs after getting Kawasaki's approval thereof (Dkt. 60, Ex. 3 at 103-04; 108-09; 116-17; 119-120; 123-33; Ex. 6-II at 112). Each of the photographs Latimer delivered to Del Cioppo had a metadata5 file attached that provided the viewer with technical information and copyright notice for the photograph.
Once Del Cioppo received the images from Latimer, he sent them on to Kawasaki by e-mail (Dkt. 60, Ex. 7 at 86-87; 90).6 Subsequently, Del Cioppo informed Latimer that Kawasaki was so impressed with his photographs that it wanted to include five of the photographs in the material it planned to distribute during the ZX-14 press introduction to be held in Las Vegas, Nevada, February 26-28, 2006. At that time, Del Cioppo was the only person who had any communication with Kawasaki regarding use of the photographs. According to Latimer, he was under the impression that the photographs would be used in a "screen" presentation in connection with the public launch of the ZX-14s. Latimer informed Del Cioppo that Kawasaki could use of the photographs conditioned on Kawasaki giving him credit as the photographer (Dkt. 60, Ex. 6-II at 102-03; 110-12). Latimer's photographs, with their respective metadata file attached, were included on a compact disk distributed to approximately 30 members of the media who attended the introduction of the ZX-14 motorcycle, including a representative of Cycle World Magazine7 ("CWM"), a publication owned by Defendant Hachette Filipacchi Media U.S. (Dkt. 60, Ex. 2 at 32).
On June 2, 2006, more than three months after Kawasaki published Latimer's ZX-14 photographs by including them in its media kit,8 the Register of Copy-rights granted Latimer's request for registration of a compilation of his photographs of the ZX-14 motorcycles, five of which are the...
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