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USDC: COPYRIGHT - summary judgment for plaintiff on copyright, Trademark claims, others; individual defendant not liable for corporation's actions

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Chris Gregerson,
Plaintiff,
MEMORANDUM OPINION
v. AND ORDER
Civil No. 06-1164 ADM/AJB
Vilana Financial, Inc., a Minnesota
Corporation; Vilana Realty, Inc., a
Minnesota Corporation; and Andrew
Vilenchik, a private individual,
Defendants.
______________________________________________________________________________
Chris Gregerson, pro se.
Boris Parker, Esq., Bassford Remele, Minneapolis, MN, on behalf of Defendants.
______________________________________________________________________________
I. INTRODUCTION
On August 15, 2007, oral argument before the undersigned United States District Judge
was heard on Plaintiff Chris Gregersons (Gregerson) Motion for Summary Judgment [Docket
No. 88] and Defendant Andrew Vilenchiks (Vilenchik) Motion for Summary Judgment
[Docket No. 93]. For the reasons set forth herein, Gregersons Motion is granted in part and
denied in part, and Vilenchiks Motion is granted.
II. BACKGROUND
The facts of this case are set forth in the Courts previous Orders [Docket Nos. 21, 54],
and therefore only a brief summary of the facts is necessary here. Gregerson has alleged
copyright infringement against Defendants Vilenchik, Vilana Financial, Inc. (Vilana
Financial), and Vilana Realty, Inc. (Vilana Realty) (collectively Defendants) on the basis
that Defendants took two photographs from Gregersons professional photography website
1 The procedural history of this case is complicated. Prior to Gregersons commencement
of this federal lawsuit, Vilana Financial instituted a state court action against Gregerson, alleging
claims for defamation and appropriation. State Ct. Am. Compl. [Docket No. 11]. After
Gregerson filed this federal lawsuit, Vilana Financials state court case was removed and
consolidated with the instant case. Notice of Removal [Docket No. 11]. Defendants later filed
an Answer and Counterclaims [Docket No. 22], which they amended once [Docket No. 55],
asserting new claims and reasserting the appropriation claim. After initially reasserting the
2
without permission and used them in phone book advertisements, web advertisements, print
advertisements in a local Russian-language newspaper, advertising brochures, and a local
business directory. After discovering the use of the photographs, Gregerson contacted
Defendants and apprised them of the fees due. Defendants have not paid Gregerson for their use
of the photographs, and aver that they lawfully purchased the photographs in question from
Michael Zubitskiy, a mysterious individual that neither party has been able to locate.
After discovering Defendants use of his photographs, Gregerson created a website on
which he discusses Defendants and the photograph situation in an allegedly disparaging way.
Defendants have filed counterclaims for deceptive trade practices, trademark infringement,
interference with contractual and business relationships, appropriation, and unjust enrichment,
arguing that Gregerson has used Defendants trade and service marks in his websites to divert
internet traffic from Defendants websites to Gregersons websites, and has caused Defendants to
lose business.
Both parties have filed Motions for Summary Judgment. Vilenchik asks that he be
dismissed as an individual Defendant from the suit because all actions taken by him were in his
capacity as a corporate officer. Gregerson moves for partial summary judgment on liability for
his copyright infringement claims and complete summary judgment on all of Defendants
counterclaims.1
defamation claim, Defendants have since chosen to withdraw it. See Docket Nos. 22, 55.
Defendants also aver they did not carry [the defamation] claim forward from their state court
action; instead Defendants asserted new and distinct claims as part of this federal action. Defs.
Mem. [Docket No. 97] at 9. Accordingly, there is no defamation claim in this case. There has
also been no further mention or pursuit of any removed, consolidated state court claims.
Therefore, to avoid any future confusion, the Court finds Defendants removed, consolidated
state court claims to be dismissed, and the only claims now asserted by any Defendants in this
case are the claims set forth in Defendants Amended Answer and Counterclaims [Docket No.
55].
3
III. DISCUSSION
A. Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for
summary judgment, the Court views the evidence in the light most favorable to the nonmoving
party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not
rest on mere allegations or denials, but must demonstrate on the record the existence of specific
facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957
(8th Cir. 1995).
B. Vilenchiks Personal Liability
Vilenchik argues that he should be dismissed from this lawsuit because Gregerson fails to
make any allegations in his Amended Complaint [Docket No. 76] that Vilenchik is personally
liable for the acts of Vilana Financial, a corporation. Vilenchik argues that he has not
4
disregarded the corporate form and is not the alter ego of Vilana Financial. Vilenchik further
argues that Gregerson has failed to make any veil piercing allegations. Gregerson responds that
as Vilana Financials sole board member and sole shareholder, Vilenchik is vicariously liable for
Vilana Financials infringing activity. Gregerson also argues that Vilenchik is personally liable
for his own tortious conduct.
Gregerson relies on Pinkham v. Sara Lee Corporation, 983 F.2d 824 (8th Cir. 1992) as
authority that Vilenchik may be held vicariously liable. In Pinkham, Camex sold Sara Lee
300,000 copies of Pinkhams book without informing Pinkham of the sale or paying her royalties
from it. 983 F.2d at 826. In examining Pinkhams claims, the court set forth the standard for
vicarious liability on infringement: (1) the right and ability to supervise the infringing activity;
and (2) an obvious and direct financial interest in exploitation of copyrighted materials. Id. at
834. The court found that Camexs president and sole shareholder could be personally and
vicariously liable because he personally approved the sale of Pinkhams books to Sara Lee and
the price to be charged, and it was reasonable to infer that Camex anticipated profits from the
sale of Pinkhams books. Id. Likewise, Camexs independent agent could be personally and
vicariously liable because he was personally involved in the sale of the 300,000 books and
received a commission for the sale. Id.
In this case, Vilenchik can not be vicariously liable for Vilana Financials use of
Gregersons photographs because the second element of the Pinkham test is not satisfied. As the
sole corporate officer and shareholder of Vilana Financial, it is reasonable to assume that
Vilenchik had the right and ability to supervise the creation of the advertisements that utilized
Gregersons photograph. However, Gregerson can not establish that Vilenchik had an obvious
5
and direct financial interest in the use of Gregersons photographs. Although Vilana Financial
may have profited indirectly by attracting customers through the use of an ad with an
aesthetically pleasing photograph, such indirect profit is too attenuated to serve as a basis for
holding Vilenchik vicariously liable. If Vilenchik had sold Gregersons photographs to others
like Camexs president and independent agent had with Pinkhams book, the Pinkham holding
would be apposite as a direct financial benefit. Because Pinkham is distinguishable and because
Vilenchik did not derive an obvious and direct financial interest in the use of Gregersons
photographs, Vilenchik is not vicariously liable for Vilana Financials infringing activity.
Gregerson next cites to Minn. Stat. 302A.251, subd. 4, which states in relevant part:
The articles shall not eliminate or limit the liability of a director . . . (b) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation of law. This
statute addresses limitations on personal liability in articles of incorporation and does not serve
as a basis for holding Vilenchik personally liable.
Gregerson relies on Oxmans Erwin Meat Company v. Blacketer, 273 N.W.2d 285, 289
(Wis. 1979), for the proposition that individuals are personally liable for their own tortious
conduct. Although this is a true statement of the law, it does not apply to the facts of the instant
case. Vilenchik, the sole officer and shareholder of Vilana Financial, used Gregersons
photograph without Gregersons permission to create an ad for Vilana Financial. This is an
action Vilenchik necessarily would have taken in his capacity as a corporate officer of Vilana
Financial. It is not sufficient to allege that Vilenchik committed a tort; rather, to hold Vilenchik
personally liable, Gregerson must allege that the Court should pierce the corporate veil.
However, Gregerson makes no such allegations, and the facts of the case do not suggest that
6
piercing the corporate veil would be warranted. See Victoria Elevator Co. v. Meriden Grain Co.,
283 N.W.2d 509, 512 (Minn. 1979). Accordingly, Gregerson has failed to create a genuine issue
of material fact with respect to Vilenchiks personal liability, and Vilenchiks Motion for
Summary Judgment is granted.
C. Copyright Infringement
Gregerson moves for partial summary judgment against Defendants on the issue of
liability for copyright infringement of photographs #2891 and #2258. A claim for copyright
infringement involves two elements: (1) ownership and validity of the copyright, and (2)
potential violation of the copyright owners exclusive rights by, for example, unauthorized
reproduction and distribution of the copyrighted work. Pinkham, 983 F.2d at 830. Gregerson
has produced certificates of copyright registration for all photos taken in 2002 and 2004, which
include images #2891 and #2258. Am. Compl. Exs. [Docket No. 77] C, M. Gregersons
certificates of copyright registration constitute sufficient evidence of existence and ownership of
a valid copyright for images #2891 and #2258, and there is no genuine dispute as to the
ownership of the photos in question.
Gregerson has also produced sufficient evidence to establish that his exclusive rights
were violated by Defendants unauthorized reproduction and distribution of his copyrighted
photos. A comparison of Gregersons photograph of the Minneapolis skyline (Image #2891)
with the photograph of the Minneapolis skyline used by Defendants in a phone book
advertisement, web advertisements, print advertisements in a Russian newspaper, and an
advertising brochure, reveals that the two photographs are the same. Am. Compl. Exs. A-C, FH,
N; Gregerson Aff. [Docket Nos. 91, 92] Ex. D. Similarly, a comparison of Gregersons
7
photograph of a house (Image #2258) with the photograph of a house used by Vilana Financial
in an advertising brochure demonstrates that the two pictures are identical. Am. Compl. Exs. LN.
Gregerson avers that Defendants use of his photographs was without his knowledge or
consent, and Gregerson by happenstance discovered his photograph in Defendants phone book
advertisement. Am. Compl. 16. Gregerson believes that Vilenchik took his photographs from
his website without authorization to create the advertisements. Am. Compl. 20.
Defendants concede that they used two photographs in advertisements that appear to be
substantially similar to Gregersons photographs. However, Defendants aver that they lawfully
procured the photographs in question from Michael Zubitskiy, and were unaware that the
photographs belonged to Gregerson. Defendants also argue that they could not have procured
the photographs from Gregersons website because the photos used in the advertisements were of
high-resolution quality. The photographs, if taken directly from Gregersons website, are
accessible only in low resolution. However, [o]nce a plaintiff has proven that he or she owns
the copyright on a particular work, and that the defendant has infringed upon those exclusive
rights, the defendant is liable for the infringement and this liability is absolute. Pinkham, 983
F.2d at 829. Defendants intent is irrelevant because Defendants are liable even for innocent
or accidental infringements. Id. Even where the defendant believes in good faith that he is
not infringing a copyright, he may be found liable. Id.
Gregerson has established that he owns a valid copyright for images #2891 and #2258,
and that Defendants used his photographs without permission in advertisements. Regardless of
whether Defendants believe they procured Gregersons photographs lawfully, it has been
established that they reproduced and distributed the photos in question. Accordingly, Gregerson
8
is entitled to summary judgment as to liability on his copyright claims. Gregersons copyright
claims are now limited to the issue of damages for the use of the photos. At trial, the witnesses
and the evidence will focus solely on the proper measure of damages, and no introduction of
testimony or evidence with respect to how Defendants procured the photographs in question will
be allowed.
D. Trademark Infringement
Defendants assert a claim for trade name, mark, and insignia infringement and dilution
under Minn. Stat. 333.28 and 15 U.S.C. 1114, 1125. Defendants argue that Gregerson has
used Defendants registered trade and service marks in the subject and metatags of Gregersons
websites to divert internet traffic from Defendants websites onto Gregersons websites.
Defendants argue that Gregersons use of Defendants trade and service marks in website
metatags causes search engines such as Google and Yahoo to highly rank Gregersons websites,
such that a consumer conducting a search using the terms Vilana, Vilana Financial, or Vilana
Realty, is likely to be directed to Gregersons websites. Defendants argue that Gregersons
actions have created actionable initial interest confusion. Gregerson argues that his use of
Defendants trade and service marks is not infringing because it is only for identification
purposes in essays, and there is no likelihood of confusion.
An element common to Minn. Stat. 333.28 and 15 U.S.C. 1114, 1125 is that
Gregersons use of Defendants trade and service marks must be likely to cause confusion. The
likelihood of customer confusion is the hallmark of any trademark infringement claim.
Transclean Corp. v. Bridgewood Servs., Inc., 77 F. Supp. 2d 1045, 1092 n.28 (D. Minn. 1999)
(citation omitted), affd in part and vacated in part, 290 F.3d 1364 (Fed. Cir. 2002). The
9
ultimate inquiry always is whether, considering all the circumstances, a likelihood exists that
consumers will be confused about the source of the allegedly infringing product. Hubbard
Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 602 (8th Cir. 1999). Factors to
consider include:
(1) the strength of the owners mark; (2) the similarity of the owners mark to the alleged
infringers mark; (3) the degree to which the products compete with each other; (4) the
alleged infringers intent to pass off its goods as those of the trademark owner; (5)
incidents of actual confusion; and (6) whether the degree of care exercised by the
consumer can eliminate a likelihood of confusion that otherwise would exist.
Id.
Initial interest confusion can also lead to trademark infringement. Initial interest
confusion in the internet context derives from the unauthorized use of trademarks to divert
internet traffic, thereby capitalizing on a trademark holders goodwill. Australian Gold, Inc. v.
Hatfield, 436 F.3d 1228, 1239 (10th Cir. 2006). A defendants use of a plaintiffs trademarks in
his metatags for the purpose of diverting internet traffic away from the plaintiffs website and
onto the defendants website can constitute trademark infringement, but [a] defendants use of a
trademark in metatags in a descriptive manner can constitute a non-infringing fair use. Faegre
& Benson, LLP v. Purdy, 367 F. Supp. 2d 1238, 1246-47 (D. Minn. 2005).
The likelihood of confusion factors are not readily applied to the unusual facts of the
instant case. Gregerson and Defendants are not competitors and do not sell similar
productsVilana Financial sells mortgages and financial services, Vilana Realty sells real estate
services, and Gregerson sells photographs. The fact that the parties products do not compete
with one another weighs heavily against a finding of likelihood of confusion. Defendants have
submitted affidavits from three individuals claiming Gregersons website has created confusion
10
amongst customers, brokers, and lenders. Smith Aff. [Docket No. 35]; Fischer Aff. [Docket No.
36]; Richardson Aff. [Docket No. 37]. However, the affiants aver generally that there is
confusion with respect to Gregersons website and the nature and purpose of the content
involving Vilana Financial, and do not give specific examples of customers or individuals in the
real estate business becoming confused as to whether Vilana sells photographs or whether
Gregerson is affiliated with Vilana. It is highly unlikely that someone looking for any of
Vilanas services became confused and accidentally bought photographs instead.
Defendants have established that there may be initial interest confusion in the sense
that some individuals using search engines to look for Vilana Financials website may instead
have landed on Gregersons website. However, the initial interest confusion cases generally
concern competing products. See, e.g., Brookfield Commcns, Inc. v. W. Coast Entmt Corp.,
174 F.3d 1036, 1062-65 (9th Cir. 1999). Also, like the defendant in Purdy, Gregersons website
contains critical commentary about Defendants, and Gregersons use of Defendants trade and
service marks is intended to catalogue and describe the contents of his website, not merely to
divert internet users from Defendants websites. See 367 F. Supp. 2d at 1246-47. The Court
concludes that Defendants have failed to demonstrate on the record the existence of specific facts
which create a genuine issue for trial with respect to likelihood of confusion. Gregersons
Motion for Summary Judgment is granted with respect to Defendants claims for trade and
service mark infringement.
E. Cyberpiracy
Defendants assert that Gregerson has violated the Cyberpiracy Prevention Statute, 15
U.S.C. 1125(d), by having a bad faith intent to profit by using a domain name that is identical
11
to or confusingly similar to Defendants trade and service marks. Defendants have failed to
create a genuine issue of material fact that Gregerson had a bad faith intent to profit by using
Defendants trade and service marks in a domain name. In addition, with respect to
http://www.cgstock.com/essays/vilana.html, the internet address in question,
www.cgstock.com is the domain name and /essays/vilana.html is the path to a file. The
American Heritage dictionary defines URL, or uniform resource locator, as: An internet
address (for example, http://www.hmco.com/trade/), usually consisting of the access protocol
(http), the domain name (www.hmco.com), and optionally the path to a file or resource residing
on that server (trade). The American Heritage Dictionary of the English Language 1893 (4th
ed. 2000). Therefore, Defendants are unable to establish that Gregerson uses a domain name that
is identical or confusingly similar to Defendants trade and service marks. See 15 U.S.C.
1125(d)(1)(A). Gregersons Motion for Summary Judgment is granted with respect to the
cyberpiracy portion of Defendants claims for trade and service mark infringement.
F. Deceptive Trade Practices
Defendants assert a claim for deceptive trade practices under Minn. Stat. 325D.44.
Gregerson argues that Defendants have not offered any evidence that Gregerson has disparaged
their business through false or misleading representations of fact. Defendants respond that
Gregerson has disparaged Defendants on his commercial photography website by posting, and
allowing other users to post, comments that Defendants are thieves, members of the Russian
mafia, and actively engaged in fraudulent business conduct and predatory lending practices.
Minn. Stat. 325D.44, subd. 1, states in relevant part:
A person engages in a deceptive trade practice when, in the course of business, vocation,
or occupation, the person: (8) disparages the goods, services, or business of another by
12
false or misleading representation of fact; . . . or (13) engages in any other conduct which
similarly creates a likelihood of confusion or of misunderstanding.
In order to prevail on a deceptive trade practices claim, Defendants need not prove competition
between the parties or actual confusion or misunderstanding. Minn. Stat. 325D.44, subd. 2.
The Court finds that Defendants have submitted sufficient facts to create a genuine issue of
material fact as to whether Gregerson has disparaged their business through false or misleading
representations of fact. Defendants have submitted evidence that Gregerson has posted, or
allowed others to post, comments on his commercial photography website that, if untrue or
misleading, make damaging comments about Defendants business. See Parker Aff. [Docket No.
99] Exs. E, F. Whether or not the comments are true is not the subject for summary judgment
consideration. Accordingly, Gregersons Motion for Summary Judgment is denied with respect
to Defendants counterclaim for deceptive trade practices.
G. Interference with Contractual and Business Relationships
Count three of Defendants counterclaims asserts a claim for interference with
contractual and business relationships. Gregerson argues that he is entitled to summary
judgment on this claim because all statements he made about the Defendants on his website are
true. Defendants respond that Gregersons use of Defendants names on his commercial
photography website induced other third persons not to enter into or continue relations with
Defendants. In support of their arguments, Defendants offer comments from users on
Gregersons website, such as: I intend to let all my family and friends know about Mr.
Vilenchiks theft, and to discourage them from doing any business with Vilana Financial, and
Vilenchik and Vilana are idiots, greedy and dishonest idiotsnever do any business with
Vilenchik. Parker Aff. Ex. N. Defendants also cite to the affidavit of Pauline Fischer, an
13
account executive with a company that has worked with Vilana Financial. Fischer noted a drop
in the number of closing requests for Vilana Financial, and believes Gregersons website is
confusing and detrimental to Vilana Financials success. Fischer Aff. 4-7. Also, an affidavit
from James Smith, a Vilana Financial client, notes Smiths hesitation at doing business with
Vilana Financial as a result of Gregersons website. Smith Aff. 10-11.
Minnesota has adopted the Restatement (Second) of Torts standard for the tort of
intentional interference with prospective contractual relations:
One who intentionally and improperly interferes with anothers prospective contractual
relation (except a contract to marry) is subject to liability to the other for the pecuniary
harm resulting from loss of the benefits of the relations, whether the interference consists
of (a) inducing or otherwise causing a third person not to enter into or continue the
prospective relation or (b) preventing the other from acquiring or continuing the
prospective relation.
United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-33 (Minn. 1982) (citing the Restatement
(Second) of Torts 766B). Defendants have submitted sufficient evidence to create a genuine
issue of material fact as to whether Gregerson committed the tort of intentional interference with
prospective contractual relations. After viewing Gregersons website, Defendants evidence
suggests customers and other businesses became wary of doing business with Defendants.
Although Gregerson is correct that truth is a defense to liability, all of Gregersons statements on
his website have not yet proven to be true. See Glass Serv. Co. v. State Farm Mut. Auto. Ins.
Co., 530 N.W.2d 867, 871 (Minn. Ct. App. 1995) (no liability for interference on part of one
who merely gives truthful information to another). Accordingly, Gregersons Motion for
Summary Judgment is denied with respect to Defendants counterclaim for interference with
contractual and business relationships.
H. Appropriation
14
Count four of Defendants Counterclaims asserts a claim for appropriation. Gregerson
has moved for summary judgment on Defendants appropriation counterclaim, arguing that he
has not used Vilenchiks name or likeness for his own benefit, but only to identify Vilenchik in
an essay about Vilenchik. Gregerson also argues that a corporation can not bring an action for
invasion of privacy. Defendants respond that use of Defendants names and service marks on a
disparaging internet website linked to Gregersons commercial photography webpage is tortious
appropriation. Defendants also argue that Gregerson took a picture of Vilenchik without
Vilenchiks permission and posted it on his website. Defendants assert Vilenchik has asked
Gregerson to take the photograph off the website, but Gregerson has refused to do so.
Appropriation protects an individuals identity and is committed when one appropriates
to his own use or benefit the name or likeness of another. Lake v. Wal-Mart Stores, Inc., 582
N.W.2d 231, 233 (Minn. 1998). In recognizing the tort of appropriation, the Supreme Court of
Minnesota relied on the Restatement (Second) of Torts. Id. The Restatement describes the ways
in which an individual can invade anothers privacy:
The common form of invasion of privacy under the rule here stated is the appropriation
and use of the plaintiffs name or likeness to advertise the defendants business or
product, or for some similar commercial purpose. Apart from statute, however, the rule
stated is not limited to commercial appropriation. It applies also when the defendant
makes use of the plaintiffs name or likeness for his own purposes and benefit, even
though the use is not a commercial one, and even though the benefit sought to be
obtained is not a pecuniary one.
Restatement (Second) of Torts 652C, comment b.
Defendants have alleged sufficient facts to create a genuine issue of material fact as to
whether Gregerson has committed the tort of appropriation. Gregerson has used Defendants
names in a disparaging way on an internet website that is linked to Gregersons commercial
15
photography website. Arguably, the use of Defendants names may bring Gregerson increased
consumer traffic to his commercial website. However, even without a commercial aspect,
Defendants have alleged sufficient facts that Gregerson has used their names and Vilenchiks
photograph for his own purposes and benefit, to the detriment of Defendants.
In addition, the Restatement (Second) of Torts 652I states: Except for the
appropriation of ones name or likeness, an action for invasion of privacy can be maintained only
by a living individual whose privacy is invaded. Comment c to the Restatement (Second) of
Torts 652I states:
A corporation . . . has no personal right of privacy. It has therefore no cause of action for
any of the four forms of invasion covered by 652B to 652E. It has, however, a limited
right to the exclusive use of its own name or identity in so far as they are of use or
benefit, and it receives protection from the law of unfair competition. To some limited
extent this may afford it the same rights and remedies as those to which a private
individual is entitled under the rule stated in 652C.
Accordingly, Gregersons argument that the corporate Defendants may not bring a cause of
action for appropriation is unfounded. Gregersons Motion for Summary Judgment is denied
with respect to Defendants counterclaim for appropriation.
I. Injunction
In count five of their counterclaims, Defendants ask for an injunction. Gregerson asks
for summary judgment on this count, and Defendants ask that Gregersons Motion be denied. In
the Courts November 7, 2006 Order, Defendants Motion for Injunctive Relief was denied.
There is no reason to revisit the November 7, 2006 Order at this time, but also no reason to
remove injunction as a possible remedy for Defendants, should they prevail at trial. Gregersons
Motion for Summary Judgment barring injunctive relief is denied.
J. Unjust Enrichment
16
Count six of Defendants counterclaims is a claim for unjust enrichment. Gregerson
moves for summary judgment, arguing that Defendants have produced no evidence that
Gregerson received something of value to which he was not entitled. Defendants respond that
Gregerson has benefitted financially at Defendants expense. In order to establish a claim for
unjust enrichment, the claimant must show that another party knowingly received something of
value to which he was not entitled, and that the circumstances are such that it would be unjust for
that person to retain the benefit. Schumacher v. Schumacher, 627 N.W.2d 726, 729 (Minn. Ct.
App. 2001). Gregersons Motion for Summary Judgment with respect to Defendants claim for
unjust enrichment is granted. Defendants claim that Gregerson received increased profits in his
commercial photography business or something of value as a result of his website commentary
on Defendants is purely speculative.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff Chris Gregersons Motion for Summary Judgment [Docket No. 88] is
GRANTED IN PART AND DENIED IN PART. Specifically, Gregersons Motion is
GRANTED with respect to (1) liability on his copyright infringement claims, and (2)
Defendants counterclaims for trade and service mark infringement and unjust enrichment.
Gregersons Motion is DENIED with respect to Defendants counterclaims for deceptive trade
practices, interference with contractual and business relationships, appropriation, and injunctive
relief; and
17
2. Defendant Andrew Vilenchiks Motion for Summary Judgment [Docket No. 93] is
GRANTED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: August 31, 2007.
 

 
 
 

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