Boehm, Scott et al v. Martin, Nicholas et al

Filing 84

Introductory Order on Preliminary Injunction. Parties may submit objections to the form of the injunction order by Thursday, August 20, 2015. Objections not received by that deadline will be deemed waived. Signed by District Judge James D. Peterson on 8/17/2015. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SCOTT BOEHM and DAVID STLUKA,

v.

ORDER

Plaintiffs,

15-cv-379-jdp

SCHEELS ALL SPORTS, INC., SCOTT SVEHLA,
SCOTT’S BREWERY COLLECTIBLES,
NICHOLAS MARTIN, SPORTS-4-LESS; LUKE WEIN,
BEYOND STUDIO + PUBLISHING, LLC,
JOHN DOE 1, SCOOTER G SPORTS,
MICHAEL LOVELACE, 22 PROMOTIONS, LLC,
SIGNATURE SPORTS, ANDREW WREDBERG,
AW ARTWORKS, LLC, JESSE WINIECKI,
AMANDA MCVEIGH, JOHN GEORGE,
GAMEDAY SPORTS, ANGELA CLEARY,
EVENT USA CORP., BRIAN BOPREY,
NANCY BOPREY, JOHN DOE 2,
WAUKESHA SPORTSCARDS, and ROBB DOBRATZ,
Defendants.

The court heard argument on plaintiffs’ motion for preliminary injunction on Friday,
August 21, 2015. I determined at the hearing to grant the requested injunction, but I did not
have a proposed order at the hearing. Attached to this order is the court’s proposed order for
injunction, which at this point will bind only those defendants that had been served prior to
the hearing.
Defendants’ objections to the issuance of an injunction are already of record and need
not be repeated. But the parties may submit objections to the form of the injunction order by
Thursday, August 20, 2015. Objections not received by that deadline will be deemed waived.
Entered August 17, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SCOTT BOEHM and DAVID STLUKA,

Plaintiffs,
v.

ORDER FOR
PRELIMINARY
INJUNCTION
15-cv-379-jdp

SCHEELS ALL SPORTS, INC., SCOTT SVEHLA,
SCOTT’S BREWERY COLLECTIBLES,
NICHOLAS MARTIN, SPORTS-4-LESS, LUKE WEIN,
BEYOND STUDIO + PUBLISHING, LLC,
JOHN DOE 1, SCOOTER G SPORTS,
MICHAEL LOVELACE, 22 PROMOTIONS, LLC,
SIGNATURE SPORTS, ANDREW WREDBERG,
AW ARTWORKS, LLC, JESSE WINIECKI,
AMANDA MCVEIGH, JOHN GEORGE,
GAMEDAY SPORTS, ANGELA CLEARY,
EVENT USA CORP., BRIAN BOPREY,
NANCY BOPREY, JOHN DOE 2,
WAUKESHA SPORTSCARDS, and ROBB DOBRATZ,
Defendants.

Plaintiffs, both professional photographers, allege that defendants have infringed their
copyrights by making or selling unauthorized reproductions of their photographs. Plaintiffs
brought similar claims to this court in Boehm v. Zimprich, Case No. 14-cv-16. Plaintiffs have
moved for a preliminary injunction against further acts of infringement by these defendants
and to preserve evidence. On the basis of the parties’ submissions and the presentation of
counsel at the August 14 hearing, the court will grant the injunction.
But the court can grant the injunction only against those defendants who are properly
before the court: Scott Vehla, Scott’s Brewery Collectibles, Nicholas Martin, Luke Wein,
Beyond Studio + Publishing, LLC, Andrew Wredberg, AW Artworks, LLC, Jesse Winiecki,

Amanda McVeigh, Gameday Sports, Angela Cleary, Event USA Corp., Brian Boprey, and
Nancy Boprey. These parties will be referred to in this order as “Enjoined Defendants.” The
other defendants have not been served, despite the court’s order directing service on all
defendants by July 1, 2015. Dkt. 8.
Whether to grant a preliminary injunction is within the discretion of the court, guided
by consideration of the familiar factors. A plaintiff must show: some likelihood of success on
the merits; a lack of an adequate remedy at law; and that irreparable injury would result
without an injunction. Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001). If these
criteria are met, the court must consider the balance of the hardships and the public interest.
Id.
Plaintiffs establish some likelihood of success as to each enjoined defendant. Plaintiffs
divide the defendants into two groups, the “retail defendants” and the “supplier defendants.”
Plaintiffs demonstrate a compelling case on the merits as to the retail defendants: claims
against the retail defendants are well documented in the amended complaint. Dkt. 63. By
and large, the retail defendants do not contest infringement, although some dispute the need
for the injunction, and the court expects all of them will vigorously contest damages.
Plaintiff’s showing as to the supplier defendants is much weaker. Defendants Wein,
Winiecki, and McVeigh deny that they committed any infringement, or at least any
infringement within the limitations period. But plaintiff has adduced evidence that raises
substantial doubts about Winiecki’s and McVeigh’s denials, and plaintiffs adduce
circumstantial evidence that raises at least a reasonable suspicion of infringement as to the
supplier defendants. Accordingly, the court finds that plaintiff has made a sufficient showing
on the merits even as to the supply defendants.

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Plaintiffs also show that there is no adequate remedy at law, and that they face
irreparable harm, because of the potential loss of evidence and the potential for continued,
but undetectable, infringement without an injunction. Some of the retail defendants contend
that they have voluntarily ceased infringing sales. Voluntary cessation of wrongful conduct is
a factor that the court can consider, but it is not dispositive. United Air Lines, Inc. v. Air Line
Pilots Ass’n, Int’l, 563 F.3d 257, 275 (7th Cir. 2009). Plaintiffs’ experiences in the Zimprich
case vividly demonstrates that professed voluntary cessation provides scant protection against
a resistant defendant. The court intends no insult to the integrity of any defendant or their
counsel, but plaintiffs would have no way to detect the loss of evidence or to redress the harm
that would result from that loss.
The balance of harms decisively favors plaintiffs. None of the defendants contend that
any harm that would befall them as a result of an injunction. 1 Most professed that they did
not intend to make or sell any infringing images in the first place, and that they stopped any
such sales as soon as they learned about the allegations of infringement. Plaintiffs, however,
would face serious harm if any defendants made more infringing copies, sold off their
inventories, or disposed of their records.
Finally, the public interest poses no barrier to the injunction. The public interest is
served by enforcement of intellectual property law. A preliminary order of impoundment of
infringing articles and related records is a remedy specifically recognized under the Copyright
Act. 17 U.S.C. § 503(a)(1).
1

Counsel for Winiecki and McVeigh suggested that an injunction would raise some
“presumption” against them, but it does not: even after the injunction, the burden stays on
plaintiffs to prove their claims against all the defendants. And if plaintiffs fail to sustain their
burden, Winiecki and McVeigh will be prevailing parties who may be entitled to attorney
fees.

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Accordingly, a preliminary injunction is ordered as follows:

ORDER FOR PRELIMINARY INJUNCTION
The Enjoined Defendants, their officers, agents, servants, employees, and attorneys,
and any other persons who are in active concert or participation with any of the foregoing,
are, for the pendency of this action, hereby enjoined from:
1. Creating, displaying, selling, or distributing any reproduction in any medium
(including any print, poster, canvas, or any other product) of any photograph
by Scott Boehm or David Stluka;
2. Destroying or otherwise disposing of any reproduction in any medium of any
photograph by Scott Boehm or David Stluka;
3. Destroying or otherwise disposing of any record, communication, or document
relating to the acquisition, sale, inventory, or storage of any reproduction of
any photograph by Scott Boehm or David Stluka.
Those bound by this order are further ordered to:
1. Collect and segregate in some safe place all reproductions in any medium of
any photograph by Scott Boehm or David Stluka in that party’s possession.
The collection and segregation provided for in this order must be completed
within five days of the enjoined party’s receipt of notice of this order.
2. File with the court a report of all reproductions collected and segregated by
that party within 48 hours of completion of the collection and segregation by
that party.

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3. Collect and preserve any record, communication, or document relating to the
acquisition, sale, inventory, or storage of any reproduction of any photograph
by Scott Boehm or David Stluka.
4. Inform every employee in every location of the terms of this order.
Entered August ___, 2015.
BY THE COURT:

________________________________________
JAMES D. PETERSON
District Judge

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