Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`AMY LEE SULLIVAN d/b/a DESIGN KIT,
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`Plaintiff,
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`v.
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`FLORA, INC.,
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`Defendant.
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`OPINION and ORDER
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`15-cv-298-jdp
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`Plaintiff Amy Lee Sullivan is suing defendant Flora, Inc. for copyright infringement of
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`33 illustrations that she created for Flora as part of two advertising campaigns. All issues
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`regarding infringement, including willfulness, were resolved in a previous trial. The case is
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`scheduled for trial on August 12 to decide the issue of statutory damages. The first jury decided
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`that issue too, but the court of appeals vacated that decision—twice—because the district court
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`decided as a matter of law when it should have allowed the jury to decide the question whether
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`the illustrations were 33 individual works or two compilations. Sullivan v. Flora, Inc., 936 F.3d
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`562 (7th Cir. 2019); Sullivan v. Flora, Inc., 63 F.4th 1130 (7th Cir. 2023).1 The court of appeals
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`referred to the 2019 decision as Flora I and the 2023 as Flora II, so this court will do the same.
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`This order addresses the pending motions before the court, resolving some of the
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`motions and reserving a ruling on others for further discussion during the final pretrial
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`conference.
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`1 After the second remand, the case was reassigned to a different judge.
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`

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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 2 of 14
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`A. Sullivan’s motions in limine
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`ANALYSIS
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`1. Motion regarding communications between Joseph Silver and Tricia Terpstra
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`Joseph Silver was the production specialist Flora hired to develop two animated videos
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`for its products “7-Sources” and “Flor-Essence.” Tricia Terpstra was a marketing executive for
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`Flora. Sullivan wishes to exclude any testimony and exhibits regarding communications from
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`Silver to Terpstra in which Silver expressed opinions that he was a joint author of the 33
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`illustrations at issue, that Sullivan performed work for hire, or that Sullivan did not have a
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`valid copyright for any other reason. Sullivan contends that such evidence is no longer relevant
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`because the court of appeals already affirmed the jury’s determination that Flora willfully
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`infringed Flora’s copyrights. Sullivan also contends that the testimony is improper expert
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`testimony, hearsay, and unfairly prejudicial. Sullivan lists numerous exhibits from the first trial
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`that she says should be excluded.
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`Flora does not dispute that infringement and willfulness were resolved in the first trial,
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`it says it does not intend to call Silver as a witness, and it does not seek to offer most of the
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`exhibits on Sullivan’s list. But it says that it should be permitted to offer Exhibit 603, which is
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`an email from Silver to Terpstra that includes the following statements:
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`We double-checked and have confirmed that the Flora videos do
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`not violate any copyrights. All illustrators and animators we use
`are For Hire, and none have been granted copyrights either by
`written or verbal contract. Furthermore, all illustrators and
`animators, including the one who emailed Flora, have been paid
`in full for their services.
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`It's unclear to me why the vendor in question decided to contact
`you in this fashion. But I wanted to assure you that everything is
`in order regarding copyrights. If she continues to contact Flora,
`please feel free to let me know so that I can handle the situation
`for you.
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`2
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`

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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 3 of 14
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`Flora contends that the email is relevant to showing the “circumstances of infringement,” which
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`is one of the factors for assessing the amount of statutory damages. Seventh Circuit Pattern
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`Jury Instruction 12.8.4. Flora does not explain what it means by this, but the only apparent
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`relevance of the email is to show that Terpstra relied on Silver’s representation when deciding
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`to use Sullivan’s illustrations without Sullivan’s permission.2 So the only “circumstances of
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`infringement” this email shows are related to willfulness. Allowing Flora to present this exhibit
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`would likely only confuse the jury regarding how they should consider the evidence in light of
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`the instruction that defendant’s infringement was willful.
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`The court’s tentative conclusion is to exclude Exhibit 603 and any related testimony.
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`But this ruling could work both ways. If Flora cannot present evidence undermining a finding
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`of willfulness, then it may follow that Sullivan cannot present evidence supporting a finding of
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`willfulness. If Sullivan believes that she should be allowed to present additional evidence
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`beyond that instruction to show the degree of willfulness, it raises the question whether Flora
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`should be allowed to do the same, and, if so, what evidence is permissible.
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`So the court will reserve a ruling on this motion to allow further discussion during the
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`final pretrial conference on the following issues: (1) whether Sullivan plans to offer evidence
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`regarding the fact or degree of willfulness; (2) if so, whether Sullivan should be permitted to
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`offer such evidence; and (3) if so, whether Exhibit 603 or other similar evidence is admissible
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`to rebut Sullivan’s evidence.
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`2 For this reason, the court disagrees with Sullivan’s objections that the exhibit is improper
`expert testimony or inadmissible hearsay. The exhibit is not being offered for the truth, but for
`the effect that it had on Flora.
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`3
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 4 of 14
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`2. Motion regarding Dennis Kleinheinz testimony
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`Dennis Kleinheinz is a financial evaluation expert. Among other things, his report
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`calculates Flora’s net profits on 7 Sources, Flor-Essence, and Floradix between 2013 and 2016.
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`Dkt. 134.3 As with Mager, Sullivan includes Kleinheinz on her witness list, Dkt. 390, but this
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`motion is not about Kleinheinz’s testimony at trial. Rather, Sullivan wishes to present
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`Kleinheinz’s calculations to the jury as “undisputed facts.” Dkt. 397, at 2. She does not explain
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`the purpose of the evidence.
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`Flora does not dispute the accuracy of Kleinheinz’s figures, but Flora says that its net
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`profits are not relevant. It acknowledges that the Seventh Circuit pattern jury instructions list
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`“the expenses that Defendant saved and the profits that he earned because of the infringement”
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`as a relevant factor in determining statutory damages. Seventh Circuit Instruction 12.8.4. But
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`Flora says that is a different question from the amount of net profits, and Kleinheinz did not
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`offer any opinions on the effect that Sullivan’s illustrations had on Flora’s sales. Without the
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`causal connection, Flora says that Sullivan cannot rely on Flora’s profits as a measure of
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`damages.4
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`As Flora points out, the factor identified in the pattern instruction is not about all
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`profits; it is about profits earned “because of the infringement.” It does not appear that
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`3 Floradix is another Flora product. Sullivan produced evidence in the first trial that Flora used
`her illustrations in videos to promote that product. Dkt. 327, at 18.
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`4 Flora also says that the factor in the pattern jury instructions about lost profits is not discussed
`in Seventh Circuit case law, suggesting it is not actually a factor the jury should consider. But
`the district court used the pattern jury instructions during the first trial, see Dkt. 254, at 3, and
`Flora did not object to them on appeal. So Flora forfeited any objections on remand. Sullivan,
`63 F.4th at 1138 (“[A]ny issue that could have been but was not raised on appeal is waived.”).
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`4
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 5 of 14
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`Kleinheinz gave an opinion about the portion of Flora’s profits that are attributable to the
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`infringement.
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`The court cannot rule on it without knowing the purpose of the evidence or whether
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`Sullivan has other admissible evidence showing what portion of Flora’s profits were attributable
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`to the infringement. The parties should be prepared to discuss these issues during the final
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`pretrial conference.
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`Flora objects to Kleinheinz’s testimony on two other grounds as well. First, Flora says
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`that Judge Conley excluded Kleinheinz’s testimony from the first trial, and it cites one of Judge
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`Conley’s pretrial rulings. Dkt. 411, at 1 (citing Dkt. 203). That is misleading. The order Flora
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`cites did not exclude evidence about Flora’s profits. Rather, Judge Conley concluded that
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`Kleinheinz’s testimony was not needed because there was no factual dispute about Kleinheinz’s
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`figures, so the parties could stipulate to Flora’s net profits. Dkt. 203, at 8. Second, Flora says
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`that Sullivan did not disclose Kleinheinz as an expert on “statutory damages.” But Sullivan is
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`not offering Kleinheinz as an expert on statutory damages; she just wants to present his
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`calculations on Flora’s profits, which Flora does not dispute. So the only question is whether
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`those figures are relevant to any issue the jury will consider in light of other evidence that
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`Sullivan intends to offer. That should be the focus of the discussion during the final pretrial
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`conference.
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`3. Motion to permit Sullivan to use a computer while testifying
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`Sullivan says that she created the illustrations at issue on an Apple computer, but “[t]he
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`computer systems used by Sullivan’s attorneys and the related trial software are
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`Windows-based systems.” Dkt. 398, at 1. Sullivan asks for permission “to show things, if
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`necessary, on her Apple computer in order to adequately present evidence to the jury.” Id.
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`5
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 6 of 14
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`Flora does not say whether it objects generally to Sullivan’s use of a computer while
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`testifying. Instead, it objects to Sullivan using her computer to “present expert opinion
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`testimony” or “present[] any factual information regarding storage of electronic files by Flora.”
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`Dkt. 412, at 1.
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`The court cannot rule on this motion without more information. Sullivan does not
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`provide any details in her motion regarding how she plans on relying on her computer to present
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`evidence, and how that evidence will be displayed to the jury and others in the courtroom.
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`Flora seems to assume that Sullivan is attempting to serve as her own expert or testify about
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`electronic storage, but that is not what the motion says. The court will reserve a ruling on this
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`motion, so Sullivan can provide details about why and how she wishes to use an Apple
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`computer while testifying.
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`4. Motion regarding previous court proceedings
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`Sullivan asks that the jury be instructed that she has already proven infringement and
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`that Flora acted willfully. She did not submit a single proposed instruction that provides the
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`necessary background information. Instead, different parts of that information are repeated
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`throughout numerous instructions that Sullivan proposes.
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`Flora does not oppose the motion in principle, but it asks “that such an instruction(s)
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`takes the form of what was submitted in Flora’s Proposed Jury Instructions.” Dkt 413, at 1.
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`Flora does not identify where in its proposed instructions that specific proposal is. Its proposed
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`statement of the case includes one sentence on the issue: “A first trial determined that Flora
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`willfully infringed two Copyright Registrations owned by Sullivan for uses of illustrations
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`outside of the motion graphics.” Dkt. 404, at 2. Flora also asks for a ruling that the parties not
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`refer to the first jury’s damages determinations.
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`6
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 7 of 14
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`The court agrees with the parties that an instruction will be needed to inform the jury
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`what issues have already been decided. But there should be one instruction that summarizes
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`the issues that have already been decided and are relevant to the jury’s determinations for this
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`trial. That instruction will need to have enough context so the jury understands what the
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`instruction means, so basic concepts like copyright infringement and willfulness may need to
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`be explained. But the details of the first trial or any subsidiary finding, such as the finding on
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`joint authorship, are unnecessary. Neither side should be raising those issues in this trial, so
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`they do not need to be explained to the jury. The parties should confer on an appropriate
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`instruction that can be read to the jury at the beginning of the trial about issues already
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`resolved. If the parties cannot agree, they may submit competing proposals, along with any
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`objections to the other side’s proposal.
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`The court also agrees with Flora that the parties should not be discussing the first jury’s
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`statutory damages award. If Sullivan believes that the first jury’s damages findings are relevant,
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`she may raise that issue during the final pretrial conference.
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`5. Motion regarding burden of proof
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`Sullivan seeks a ruling that Flora has the burden to show that the 33 illustrations at
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`issue are part of two compilations rather individual works. But the general rule is that plaintiff
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`has the burden to prove damages, Assaf v. Trinity Medical Center, 821 F.3d 847, 848
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`(7th Cir. 2016) and, as Sullivan acknowledges, “[d]etermining whether individual works are
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`part of a compilation is a threshold statutory damages question.” Flora II, 63 F.4th at 1144.
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`Sullivan cites no authority that treated this issue as an affirmative defense that the defendant
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`must prove or that created a presumption in favor of the copyright holder.
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`7
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 8 of 14
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`The reasons Sullivan provides for flipping the burden are not persuasive. First, she says
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`that the court of appeals referred to Flora’s position on the compilation-versus-individual-works
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`issue as a “contention.” She quotes the following two sentences: (1) “Flora disagreed,
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`contending that the illustrations were part of two broader compilations and thus, if Sullivan
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`prevailed, §504(c)(1) limited her to just two statutory damage awards—one award for
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`infringement on the illustrations used in each of the two advertising campaigns.” Flora I, 936
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`F.3d at 565; and (2) “Flora’s main contention on appeal is that the district court committed
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`legal error in determining that Sullivan could collect statutory damages for infringement on
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`each of the 33 illustrations as separate works.” Id. at 567. These statements are not informative.
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`A contention is simply a position that a party takes on an issue. A party can “contend” that an
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`issue should be decided in its favor regardless of where the burden lies. The court of appeals
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`did not hold or imply that Flora has the burden of proof.
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`There is a passage in Flora II that Sullivan does not cite in her motion but is worth
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`mentioning. It is in the context of the court’s discussion of Flora’s argument that some of the
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`33 illustrations do not have independent economic value because they contain “Flora-specific
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`content—e.g., Flora trademarks, product names, and logos.” Flora II, 63 F.4th at 1144. The
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`court of appeals concluded that the district court should not have rejected this argument as a
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`matter of law, reasoning as follows:
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`[T]he district court criticized Flora for “nitpick[ing] individual
`illustrations or aspects of individual illustrations, arguing that at
`least some of the 33 illustrations do not have separate economic
`value.” We remanded, however, for Flora to do just that: to try
`and prove that certain illustrations lack independent economic
`value. Flora has successfully created a genuine dispute of material
`fact on these issues.
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`8
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 9 of 14
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`Id. This court does not read this passage as shifting the burden of proof to Flora. The reference
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`to what Flora could “try and prove” was not a statement about which party has the burden of
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`proof. Rather, the court made the statement in the context holding that the district court erred
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`by taking an issue away from the jury. So the statement is most reasonably read to mean only
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`that Flora was entitled to present its evidence to the jury. If the court of appeals had intended
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`to issue a holding on the burden of proof, it is unlikely that the court would have buried that
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`holding in a discussion about a different issue.
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`Second, Sullivan says that she proved during the first trial that she is the sole author of
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`all 33 illustrations and that Flora infringed her copyrights. These observations are true but
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`beside the point. Those are issues of liability. Proving liability does not relieve the plaintiff of
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`proving damages.
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` Third, Sullivan says that placing the burden of proof on her will require her to prove a
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`negative, specifically, that her illustrations are not part of two compilations. But the question
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`before the jury will be whether some or all of the illustrations have independent economic
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`value, apart from the collection in which they are included. Flora I, 936 F.3d at 572. If the
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`court were to accept Sullivan’s position, it would require Flora, not Sullivan, to prove the
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`negative that the illustrations do not have economic value.
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`The bottom line is that determining whether the illustrations have independent
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`economic value is ultimately part of the question of what Sullivan’s damages are, so it is
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`appropriate to place the burden of proving that issue on Sullivan. The court will deny this
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`motion.
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`9
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 10 of 14
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`6. Motion regarding Danny Mager
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`Danny Mager served as an expert witness for Sullivan in the first trial. Among other
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`things, Mager offered an opinion in his report that between $3,000 and $6,000 “is a reasonable
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`amount for [each] re-use of Amy Sullivan’s illustrations given the complexity of her illustrations
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`and the international, multi-language intended uses of her work.” Dkt. 132, at 7. During trial,
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`Mager clarified that he was referring to the “market value” of each use of each illustration, not
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`the illustrations collectively. Trial Trans., Dkt. 277, at 33:13–19.
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`Mager is included on Sullivan’s witness list, Dkt. 390, but she appears to be requesting
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`in her motion that she provide a summary of his opinion during the trial in lieu of testimony:
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`The opinion testified to by Mager should be admitted as
`undisputed evidence. Sullivan should not be required to incur
`additional expenses for preparation and testimony of an expert
`witness where the testimony is known, clear and agreed to by the
`parties.
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`The jury should be instructed that: “Mr. Mager was engaged as a
`marketing expert on behalf of the Plaintiff Amy Sullivan, d/b/a
`Design Kit (‘Sullivan’) to testify about the market value of the use
`of Sullivan’s individual illustrations. Mr. Mager’s testimony is
`based on his 30-plus years of experience working in the creative
`marketing and advertising industry and in consideration of
`information he reviewed in professional publications by his
`various marketing associations and with reference to the Graphic
`Artist Guild Handbook ‘Pricing and Ethical Guideline’—it is his
`opinion that each additional use of each of Sullivan’s registered
`illustrations have a market value of between $3,000.00 and
`$6,000.00.”
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`Dkt. 401, at 2.
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`Flora objects to the summary and to allowing Mager to testify, relying on a portion of
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`Flora II in which the court of appeals was discussing the district court’s reasons for concluding
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`as a matter of law that Sullivan could obtain statutory damages for each illustration. The
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`district court had relied in part on Mager’s trial testimony “that the illustrations had
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`10
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 11 of 14
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`stand-alone, economic value to the copyright holder.” 63 F.4th at 1143. The court of appeals
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`rejected this argument, reasoning as follows:
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`Sullivan’s expert, Mager, was disclosed as an expert on, and
`testified regarding, actual damages, not statutory damages.
`Neither party disclosed an expert to testify as to statutory
`damages. Specifically, Mager testified that “the market value” “for
`a reuse of each illustration” is “[b]etween 3 and $6,000.” The
`district court erred by relying on Mager's testimony regarding
`actual damages to grant summary judgment on the issue of
`statutory damages. Mager did not base his opinion on any
`independent evaluation of the specific illustrations at issue.
`Indeed, Mager did not even know how many illustrations there
`were, stating “I think it was 44 illustrations.” Instead, Mager’s
`testimony assumed that each of the 33 illustrations were entitled
`to a separate statutory damages award—which was proper at the
`time, considering the court had previously instructed the jury that
`it may consider each of the 33 illustrations as “an independent,
`copyrighted work”—then used his personal experience and
`“benchmarks to determine [reuse] price, including the Graphic
`Artists Guild Handbook for Pricing & Ethical Guidelines and the
`Second Wind Pricing Survey.”
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`We vacated the jury’s statutory damages award, however, because
`the court failed to instruct the jury on the independent economic
`value test, and we remanded for the court to apply that test and
`determine the correct number of statutory damages awards.
`Flora I, 936 F.3d at 572. Finding that an illustration is entitled to
`a separate statutory damages award requires first finding that the
`illustration has independent economic value. Thus, Mager’s
`testimony, which assumed that Sullivan’s illustrations were each
`entitled to a separate statutory damages award (i.e., assumed the
`illustrations had independent economic value), cannot now
`(without more) be used to establish that those same illustrations
`have independent economic value in the first place. Mager’s
`testimony may be relevant to whether or not any individual
`illustration constitutes a “work,” but it does not conclusively show
`that any illustration is not nonetheless part of a “compilation.”
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`63 F.4th at 1143–44.
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`As has been the case with other aspects of the court of appeals’ opinion, the parties
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`disagree about what this passage means for the admissibility of Mager’s testimony. Flora reads
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`11
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`

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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 12 of 14
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`the passage to mean that Mager may not testify about issues related to statutory damages.
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`Sullivan believes that the court of appeals left the door open on that issue.
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`This court’s reading of Flora II is that Sullivan may not rely on Mager to establish that
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`any of the individual illustrations have independent economic value. As the court of appeals
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`observed, Mager simply assumed that they did. This renders Mager’s opinion unhelpful to the
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`jury. Even if Sullivan establishes with other evidence that all of the illustrations have
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`independent economic value, Mager’s opinion would not help to establish the economic value
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`for a particular illustration because, as the court of appeals observed, “Mager did not base his
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`opinion on any independent evaluation of the specific illustrations at issue.” So if Sullivan
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`wanted to rely on Mager to place a value on each illustration, Mager would have needed to
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`amend his report to conduct an evaluation of each illustration. Without such an evaluation,
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`Mager’s opinion that each use of an illustration has a market value of $3,000 to $6,000 has no
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`foundation and is therefore inadmissible.
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`The court will deny this motion. Sullivan may not rely on Mager’s opinion that each
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`use of each illustration has a market value of $3,000 to $6,000.
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`B. Flora’s motions in limine
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`1. Motion to present Tricia Terpstra’s testimony by video deposition
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`As already discussed, Terpstra was a marketing executive for Flora during the events
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`relevant to this case. Flora says that Terpstra is no longer an employee, and she lives in
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`Washington, so she cannot be compelled to travel to Wisconsin for trial. Flora seeks permission
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`to present her deposition testimony at trial under Federal Rule of Civil Procedure 32(a). The
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`transcript of the deposition is on the docket. Dkt. 385.
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`12
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 13 of 14
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`Sullivan does not object to using the deposition in lieu of live trial testimony, so the
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`court will grant this motion. Sullivan raises a substantive objection to pages 28 and 29 of
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`Terpstra’s deposition testimony, in which Terpstra discusses Exhibit 603. The court discussed
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`Exhibit 603 in the context of Sullivan’s motion in limine regarding communications between
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`Terpstra and Silver. The court’s tentative conclusion was to exclude that exhibit and related
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`testimony. But the court reserved a ruling to allow further discussion during the final pretrial
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`conference. The resolution of that issue will also resolve Sullivan’s objection to pages 28 and
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`29 of the deposition.
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`2. Motion to exclude to expert testimony on statutory damages
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`This motion is essentially the mirror image of Sullivan’s motion regarding Danny
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`Mager. The only expert testimony that Sullivan wishes to present on statutory damages is
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`Mager’s opinion that the market value of each illustration is $3,000 to $6,000. The court
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`explained in its ruling on Sullivan’s motion regarding Danny Mager why that opinion is not
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`admissible. The court will grant this motion.
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`One other issue requires attention. Both parties seek leave to make minor changes to
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`their proposed jury instructions, and they have submitted the revised versions. Dkt. 429 and
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`Dkt. 430. The court will grant these motions.
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`IT IS ORDERED that:
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`ORDER
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`1. The court rules on plaintiff Amy Lee Sullivan’s motions in limine as follows:
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`a. The motion regarding communications between Joseph Silver and Tricia
`Terpstra, Dkt. 396, is GRANTED as unopposed as to all evidence other
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`13
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`Case: 3:15-cv-00298-jdp Document #: 433 Filed: 07/29/24 Page 14 of 14
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`than Exhibit 603 and related testimony. The court reserves a ruling on
`that aspect of the motion.
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`b. The court reserves a ruling on the motion regarding the testimony of
`Dennis Kleinheinz, Dkt. 397.
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`c. The court reserves a ruling regarding the use by Sullivan of an Apple
`computer, Dkt. 398.
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`d. The motion regarding references to the first trial and subsequent appeals,
`Dkt. 399, is GRANTED. The parties are directed to confer on an
`appropriate instruction that can be read to the jury at the beginning of
`the trial about issues already decided. If the parties cannot agree, they
`should exchange proposals with each other and then submit competing
`proposals to the court, along with any objections to the other side’s
`proposal. The deadline for the
`joint submission or competing
`submissions is 10 a.m. on July 31.
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`e. The motion regarding the burden of proof, Dkt. 400, is DENIED. The
`burden on proving damages remains with Sullivan.
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`f. The motion regarding the testimony of Danny Mager, Dkt. 401, is
`DENIED. Sullivan may not rely on Mager’s opinion that each use of each
`illustration has a market value of $3,000 to $6,000.
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`2. The court rules on defendant Flora, Inc.’s motions in limine as follows:
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`a. The motion to present the video deposition of Tricia Terpstra, Dkt. 383,
`is GRANTED as unopposed. The court will determine during the final
`pretrial conference which portions of the video deposition will be
`permitted at trial.
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`b. The motion to exclude expert testimony on statutory damages, Dkt. 393,
`is GRANTED.
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`3. The parties’ motions for leave to amend their proposed jury instructions, Dkt. 429
`and Dkt. 430, are GRANTED.
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`Entered July 29, 2024.
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`BY THE COURT:
`
`/s/
`________________________________________
`JAMES D. PETERSON
`District Judge
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`14
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