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AAA Flag & Banner Mfg., Co., Inc. v. Flynn Signs and Graphics

April 29, 2010

AAA FLAG & BANNER MFG., CO., INC., PLAINTIFF,
v.
FLYNN SIGNS AND GRAPHICS, INC., A CALIFORNIA CORPORATION; DAVID FLYNN, AN INDIVIDUAL; AND DOES, 1-10 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright II United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING COURT TRIAL

On March 15, 2010, having considered the Motion for Summary Judgment filed by Defendants Flynn Signs and Graphic, Inc. and David Flynn, and having found that Plaintiff AAA Flag & Banner Mfg. Co. Inc. had failed to present sufficient evidence to establish the existence of actual damages or recoverable profits resulting from the alleged infringement of Plaintiff's copyrighted material; and that Plaintiff's second claim for Unfair Competition under California Business & Professions Code section 17200 is preempted by its claim for Copyright Infringement, Plaintiff was permitted to proceed to trial with its copyright claim to the extent it seeks a permanent injunction against the future use of its allegedly copyrighted images.

The action came on for bench trial on April 21, 2010. Plaintiff was represented by Diana Courteau and Jason Barbanell of the Law Office of Courteau & Associates. Defendants were represented by James J. S. Holmes and Kanika D. Corley of Sed wick, Detert, Moran & Arnold LLP.

After consideration of the evidence, briefs and arguments of counsel, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Defendant David Flynn owns a sign manufacturing company, Flynn Signs and Graphic, Inc.

2. Defendants maintained a website where they posted certain images, some of which Defendants authored and others that were authored by others and posted with permission.

3. Defendants obtained the images which are the subject of this action from the website Bannerland.com, after first receiving verbal permission to do so from the owner of Bannerland, Terry Melancon, Sr.

4. Terry Melancon, Sr. neither imposed a time limit on the oral license nor revoked the oral license that governed Defendants' use of the images at issue in this lawsuit.

5. Terry Melancon, Sr. sold Bannerland to Plaintiff, the sale becoming effective January 1, 2000.

6. After the sale of Bannerland to Plaintiff, Plaintiff maintained Bannerland as a separate and distinct banner production company from Plaintiff and provided the public with no notice of the affiliation of the two companies.

7. Defendants were not placed on notice of the sale of Bannerland.

8. Defendants had no knowledge of the sale of Bannerland until they were advised by Plaintiff's counsel that Plaintiff considered Defendants' use of the images to constitute copyright infringement in or about November 2008.

9. Although Defendants believed they had a license to use the images, once adequately identified, the images were promptly removed from Defendants' website. Removal was confirmed by a representative from Plaintiff's ...


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