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Wodarczyk v. Soft Pretzel Franchise Systems, Inc.

United States District Court, Third Circuit

September 30, 2013

Peter Wodarczyk, Plaintiff,
Soft Pretzel Franchise Systems, Inc., d/b/a Philly Pretzel Factory; Ted Fine; Ron Heil; Gary Nolan, Defendants.



I. Introduction

This case concerns a dispute over the ownership rights of a photograph used in a national marketing campaign for Soft Pretzel Franchise Systems, Inc., doing business as Philly Pretzel Factory (hereinafter, “Philly Pretzel”). Plaintiff, Peter Wodarczyk, filed this action against Defendants, [1] alleging various species of copyright infringement under 17 U.S.C. § 501 et seq. and seeking an injunction prohibiting Defendants from continuing to use the photograph in question. Defendants filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. (ECF 23). For the following reasons, Defendants’ Motion is DENIED.

II. Facts and Procedural History

Plaintiff is a professional photographer. Defendant Ted Fine is the Creative Director for Philly Pretzel. Fine contacted Plaintiff to enlist his services to generate an image for Philly Pretzel’s September 2011 promotional campaign, “Be The Hero.” The concept of the campaign is a play on the iconic image of Clark Kent ripping open his shirt to reveal the red “S” emblem of his Superman costume. See, e.g., “The Secrets of Superman, ” Action Comics 171 (DC Comics Aug. 1952). Fine discussed this concept with Plaintiff, explaining that he wanted an image of a man ripping open his shirt to reveal a Philly Pretzel logo, instead of the “S” of the Superman costume. Fine Dep. at 23-24 (ECF 23-11). On August 4, 2011, Plaintiff met with Fine at the Philly Pretzel offices to conduct a photo shoot for the campaign. Using a digital camera, Plaintiff photographed Fine posing in a suit jacket, dress shirt, tie, and a T-shirt bearing the Philly Pretzel logo, as if he were ripping open his shirt like Superman, with the Philly Pretzel logo set as the focal point of the scene. Plaintiff Dep. at 138 (ECF 33-8). Plaintiff took 145 photographs, id. at 84, which Fine downloaded to his laptop computer at the conclusion of the shoot, Fine Dep. at 43 (ECF 23-11). After the shoot, Fine performed touch-ups and superimposed text on one of the photographs. Plaintiff Dep. at 103-04 (ECF 33-8). This image was incorporated into an advertisement for Philly Pretzel’s September marketing campaign. Answer ¶ 10 (ECF 10).

The parties did not have a written agreement for Plaintiff’s services. Prior to the shoot, they had not discussed ownership, licenses, rights, or releases related to the photographs. At the end of the shoot, Plaintiff inquired about compensation. Plaintiff Dep. at 79 (ECF 23-10). Fine told Plaintiff that he was not going to be paid for the shoot, asserting that they had previously discussed that Plaintiff could use Philly Pretzel as a professional reference in exchange for the photographs.[2] Fine Dep. at 44 (ECF 23-11). Plaintiff protested that he should be paid and then left the Philly Pretzel premises. On September 1, 2011, Plaintiff submitted an invoice to Philly Pretzel for $10, 000. Defendants’ SJ Motion Ex. J (ECF 23-11). On September 16, 2011, Plaintiff registered the 145 photographs taken at the shoot with the United States Copyright Office. Cert. of Copyright Reg. (ECF 33-6). Sometime in October 2011, [3] Plaintiff informed Philly Pretzel that he possessed registered copyrights for the photographs from the shoot and that any use of the photographs by Philly Pretzel would constitute copyright infringement.

On July 10, 2012, Plaintiff initiated this action. In his Amended Complaint, he alleges that the Defendants caused one of the photographs taken on August 4, 2011 to be placed on signs, toll booths, newspapers, magazines, buses, and at least 52 billboards without his authorization and in violation of his registered copyright of the image. Plaintiff brings claims of willful copyright infringement and inducement to infringe a copyright against Philly Pretzel and Ted Fine, as well as copyright infringement against Ron Heil and Gary Nolan. Plaintiff also seeks an injunction against all defendants prohibiting the continued use of the photograph. (ECF 6).

Defendants filed an Answer to Plaintiff’s Amended Complaint on November 5, 2012, in which they asserted that Plaintiff had no ownership interest in the photographs taken on August 4, 2011 or the advertisement that resulted from the photographs. Defendants also took the position that no agreement regarding ownership of the photographs had ever been discussed between Plaintiff and Defendants. Specifically, paragraph 28 of the Amended Complaint alleged the following:

In late July 2011, Mr. Wodarczyk was contacted by the Creative Director of Philly Soft Pretzel, Ted Fine. Mr. Fine requested Mr. Wodarczyk to take photographs for an image intended for use on one advertising billboard for one month.

Am. Complaint ¶ 28 (ECF 6). In their Answer, Defendants responded in a manner far beyond the allegation’s scope, stating

The Answering Defendants admit that the Plaintiff willingly and voluntarily, and without any demand for payment or compensation, allowed Mr. Fine to download the photographs taken by the Plaintiff into a computer owned by the Defendants. Prior to the downloading, there were no agreements, express or implied, between the Plaintiff and Defendants, as to an ownership or property interest in the photographs taken by the Plaintiff and downloaded by the Defendants, other than that the Defendants were taking the photographs for a marketing campaign, and that Plaintiff would be able to represent that the Defendants were a business reference/client on the Plaintiff’s business website, for Plaintiff’s personal financial gain and advancement.

Defendants’ Answer ¶ 28 (ECF 10).

On June 29, 2013, after completion of discovery, Defendants filed a Motion for Summary Judgment, asserting for the first time that Defendant Ted Fine is a joint author of the photograph, along with Plaintiff, and therefore Defendants are unable to infringe Plaintiff’s copyright as a matter of law. (ECF 23). This Court ordered supplemental briefing (ECF 38) and held argument on the ...

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