The opinion of the court was delivered by: Honorable Christina A. Snyder
Present: The Honorable CHRISTINA A. SNYDER
MONICA SALCIDO LAURA ELIAS N/A
Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants
Christopher Cummiskey David Pierce Duane Bartsch Lisa Boswell Peter Haven R. Gregory Amundson Proceedings: DEFENDANT'S REQUEST FOR RULINGS ON EVIDENTIARY OBJECTIONS FILED IN CONJUNCTION WITH PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 128]
DEFENDANT'S MOTIONS IN LIMINE (filed March 18, 2013) [Dkt. Nos. 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 135]
DEFENDANT'S REQUEST FOR A JURY QUESTIONNAIRE
Plaintiffs Richard Machowicz ("Machowicz") and his wholly-owned LLC, Mindlab Media ("Mindlab"), filed the instant action on April 21, 2011. Plaintiffs filed the operative Second Amended Complaint ("SAC") on February 28, 2012, against defendants LWRC International, LLC ("LWRCI"), UCT Arms, LLC ("UCT"), Tango Down, Inc., SPS Technologies, LLC, NICORR, and Over the Beach.*fn1 The SAC asserts five claims for relief: (1) Copyright Infringement pursuant to 17 U.S.C. §§ 101 et seq.; (2) Lanham Act violations pursuant to 15 U.S.C. § 1125; (3) common law right of publicity; (4) violation of Cal. Civ. Code § 3344; and (5) violation of Cal. Bus. & Prof. Code §§ 17200 et seq. ("UCL"). Dkt. No. 72. Defendant LWRCI is the only defendant remaining in this action.
On March 18, 2013, defendant filed eleven motions in limine; plaintiffs opposed the motions on March 25, 2013. The Court held a pretrial conference on April 15, 2013. After considering the parties' arguments, the Court finds and concludes as follows.
Plaintiff Machowicz is a television personality, a former Navy Seal, the author of a best-selling book, a weapons expert, and a motivational speaker. Mindlab is the business entity responsible for loaning out the services of Machowicz, its managing member, and for holding any intellectual property associated with him.
Defendant LWRCI is a developer, manufacturer, marketer, and seller of sophisticated firearm weapons and accessories. LWRCI was created in April 2008, following an asset purchase from Lietner-Wise Rifle Company, and bills itself as a sophisticated developer and manufacturer of accurate and reliable firearm weapons and accessories. Defendant advertises its products through print advertisements in magazines and other "gun periodicals" and over the internet.
Plaintiffs contend that LWRCI wrongfully capitalized on Machowicz's goodwill and notoriety by misappropriating his image and using it in unauthorized advertisements, along with other commercial uses. Pls.' Memo. of Contentions of Fact and Law at 1. In particular, plaintiffs claim that LWRCI delivered a rifle to Machowicz in June of 2010 to be used on his Spike TV show, and in exchange, Machowicz emailed defendant a "fan photograph" of himself holding the LWRCI rifle. Id. at 2. Thereafter, defendant's Vice President, Darren Mellors, replied to plaintiff's email, asking "How can I use the pics? Can I use them in print advertising?" After receiving no response to his email, Mellors submitted an advertisement containing the photograph to Guns & Ammo magazine, in addition to publishing the photograph on defendant's website.
Defendant contends that, in fact, Machowicz and Mellors entered into an agreement whereby LWRCI would provide plaintiff with a free rifle, in exchange for plaintiff delivering a photograph of himself holding the rifle that defendant could use in print and internet advertising. As such, defendant argues that ...