Sportsmans Warehouse, Inc. v. Fair

Decision Date05 August 2008
Docket NumberCivil Action No. 07-cv-01271-WDM-KMT.
Citation576 F.Supp.2d 1175
PartiesSPORTSMANS WAREHOUSE, INC., Plaintiff, v. Steven G. FAIR, and Stephen C. LeBlanc, Defendants. and Stephen C. LeBlanc, Cross Claimant, v. Steven G. Fair, Cross Defendant.
CourtU.S. District Court — District of Colorado

Bruce Howard Little, Christopher Ryan Sullivan, Lindquist & Vennum, PLLP, Minneapolis, MN, John Andrew Chanin, Lindquist & Vennum, PLLP, Denver, CO, for Plaintiff.

Steven G. Fair, Sandy, OR, pro se.

Gregory D. Leibold, Peter Attila Gergely, Merchant & Gould, PC, Denver, CO, for Defendants/Cross Claimant.


MILLER, Judge.

This case is before me on the recommendation (doc no 338) of Magistrate Judge Kathleen M. Tafoya regarding numerous outstanding motions (docs no 73, 151, 158, 166, 167, 189, 201, 224, 227, 231, 271, 289). Magistrate Judge Tafoya recommends that summary judgment be entered declaring that certain sculptures by Defendant and Cross Claimant Stephen C. LeBlanc ("Le-Blanc") do not infringe on the copyrighted sculpture of Defendant and Cross Defendant Steven G. Fair ("Fair"). This would dispose of most of the outstanding motions on the merits or render them moot. Magistrate Judge Tafoya also recommends denying Fair's motion to dismiss LeBlanc's cross claim against Fair for defamation. Fair filed timely objections1 to the recommendation and therefore is entitled to de novo review. 28 U.S.C. § 636(b). For the reasons that follow, I will accept Magistrate Judge Tafoya's recommendation as modified.


Fair claims that LeBlanc's bronze monumental elk sculptures, entitled "I'm the Boss" and "The Challenger," infringe on Fair's copyrighted bronze sculpture entitled "Royal Entrance." Although the background of the dispute is set forth in detail in the recommendation, I will recite it again here to address the points particularly relevant to Fair's objections and the infringement analysis.

LeBlanc and Fair are both artists and sculptors. Fair created a sculpture of an elk, initially in clay and then later cast in bronze, entitled "Royal Entrance." According to Fair, he began "Royal Entrance" in late 1994 and displayed it in clay form at art shows starting January 1995. The mold of "Royal Entrance" was made in April 2005 and bronze versions of the sculpture were sold thereafter. "Royal Entrance" is a realistic "maquette," that is, a small sculpture prepared for the possible purpose of creating a monumental or larger-than-life size work, and is finished in a colored patina. "Royal Entrance" depicts a male elk with large antlers walking downhill, with the hoof of a front leg raised. The head is turned and slightly low and the nose is somewhat raised. Fair contends that the sculpture shows a bull elk during mating season in "flehmen," a behavior of many ungulates, including elk, involving the curling of the upper lip to assist in the scenting of females. Plaintiff registered "Royal Entrance" with the United States Copyright Office, Registration No. VA-1-382-611, on or around October 2, 2006. On the registration, he initially identified the first "publication" of the sculpture as 2005 but thereafter filed a correction, asserting that "Royal Entrance" was first published in 1995.

LeBlanc is also a sculptor of realistic wildlife art. He created a life-size or monumental elk sculpture entitled "Looking for Trouble" in 1986. LeBlanc provides a photograph of the large version of "Looking for Trouble" in Exhibit A-9 of his Motion for Summary Judgment (doc no 73-11). The elk depicted in that sculpture also appears to be walking, but its head is raised and the mouth appears to be closed, although the photograph is dark and somewhat difficult to discern.2 Thereafter, Le-Blanc began working on another elk sculpture. LeBlanc created a maquette in 1993 and first displayed it in 1994. LeBlanc presents as evidence an affidavit from a client, Donald Roden, who affirms that he saw the maquette in February 1994 and purchased it shortly thereafter; photographs of the elk sculpture owned by Roden are also provided. Exh. A-12 to Le-Blanc Motion for S.J. (doc no 73-14). This maquette, which Magistrate Judge Tafoya refers to as the "Roden sculpture" is the source of many of Fair's objections and so I will address the factual issues he raises.

According to LeBlanc, the maquette purchased by Roden was called "I'm the Boss" and was the model for the monumental sculpture that Fair contends infringes on "Royal Entrance." LeBlanc also provides another photograph of what he claims is the "I'm the Boss" maquette, which indeed appears to be identical to the Roden sculpture. Exh. A-6 to LeBlanc Motion for S.J. (doc no 73-8). Fair disputes that the Roden maquette is the basis of the monumental "I'm the Boss." As grounds, he provides photographs from the website of Angler Art, a gallery that apparently carries LeBlanc's sculptures. The Angler Art website has a photograph of an elk sculpture maquette identical to the Roden sculpture and the purported "I'm the Boss" maquette, but on the website it is entitled "Looking for Trouble." Accordingly, Fair argues that the Roden maquette is actually the model for the monumental "Looking for Trouble" sculpture, not "I'm the Boss," and that Le-Blanc's first rendering of "I'm the Boss" does not precede Fair's creation of Royal Entrance. In a footnote, LeBlanc asserts that the Angler Art website, which he apparently does not control, contains errors. LeBlanc Reply (doc no 124) at 4, n. 3. Magistrate Judge Tafoya concluded, inter alia, that even if the Roden sculpture was not the model for the monumental "I'm the Boss," it was undisputedly made before Fair created his first clay version of "Royal Entrance;" therefore, LeBlanc could not have copied its elements from Fair.

I agree with Magistrate Judge Tafoya that the dispute about the title of the Roden sculpture is immaterial. Regardless of whether the Roden maquette is the maquette of "I'm the Boss" or of "Looking for Trouble," it was unquestionably created before Fair sculpted "Royal Entrance." Moreover, it contains the features of the monumental version of "I'm the Boss" that Fair claims were copied from "Royal Entrance," including the depiction of a male elk with large antlers, walking downhill, with one front hoof raised to show walking, with a slightly turned lowered head and raised nose, and with the mouth open, lips back and teeth showing; LeBlanc's large and small sculptures are essentially the same. Since LeBlanc undisputedly created a sculpture, regardless of its title, of a male elk in the same pose, attitude, etc., as the monumental sculpture "I'm the Boss" before Fair, he cannot have copied these elements from Fair.3

Monumental versions of "I'm the Boss" were sold and installed in a variety of locations beginning no later than 1998, including one installed at a Sportsman's Warehouse sporting goods store in Portland, Oregon. Sportsman's Warehouse has purchased numerous bronze sculptures from LeBlanc for its stores since 2001. The sculpture at the Portland store has been on display since approximately July 25, 2005. Fair approached Sportsman's Warehouse in late 2004 or 2005, offering to make sculptures for purchase by the store and sending photographs of his work. Sportsman's Warehouse declined to buy Fair's artwork. Fair thereafter apparently saw the sculpture of "I'm the Boss" at the Portland Sportsman's Warehouse and began corresponding with LeBlanc and Sportsman's Warehouse, alleging that LeBlanc had made an unauthorized copy of "Royal Entrance" and violated Fair's copyright. LeBlanc has never filed copyright registrations of "Looking for Trouble," "I'm the Boss," or "The Challenger."

Plaintiff Sportsman's Warehouse filed a complaint in this Court under the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a declaration that "I'm the Boss" does not infringe on Fair's copyright-protected original work and that Sportsman's Warehouse cannot be liable as a vicarious or contributory infringer. Sportsman's Warehouse named both LeBlanc and Fair as defendants. LeBlanc also asserted cross claims against Fair for defamation and for a declaration of non-infringement.

1. Copyright Infringement Principles

To succeed on a claim of copyright infringement, a plaintiff must show (1) ownership of a valid copyright; and (2) that the defendant copied constituent elements of the work that are original to the plaintiff (i.e., elements protectable by copyright). Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1262 (10th Cir.2008). A Copyright Office Certificate of Registration obtained within five years of first publication constitutes "prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C. 410(c). It is undisputed that Fair's copyright registration was obtained more than five years after the first publication of "Royal Entrance" and therefore there is no presumption of validity of the copyright. Even where a copyright is presumed valid, however, a defendant may overcome the presumption "by presenting evidence and legal argument sufficient to establish that the works in question were not entitled to copyright protection." Meshwerks, 528 F.3d at 1262. Copyright protection extends only to "original works of authorship." 17 U.S.C. § 102(a).

The operative distinction in determining originality is between "ideas or facts in the world" on the one hand, which cannot be copyrighted, and "a particular expression of that idea or fact, that can be." Meshwerks, 528 F.3d at 1264 (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). An accurate portrayal of something that exists in the world (i.e., facts and ideas, such as a particular bottle) cannot be copyrighted but original expressions of those facts and ideas receive "thin"...

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