Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`ORDER
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` 19-cv-586-wmc
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`ERIC AND TRACY EHMANN,
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`Plaintiffs,
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`v.
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`NICHOLAS AND TRISH METROPOLUS,
`d/b/a Home of The Hodag Wear, d/b/a
`Metro Screenprinting and Embroidery,
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`Defendants.
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`With the trial in this case set for trial Monday, March 15, 2021, and the final
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`pretrial conference (“FPTC”) to take place tomorrow, March 5, at 10:00 a.m. via Zoom,
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`the court issues the following preliminary rulings with respect to their respective motions
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`in limine.
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`BACKGROUND
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`Pro se plaintiffs Eric and Tracy Ehmann are proceeding on claims that defendants
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`Nicholas and Trish Metropolus infringed a copyright under 17 U.S.C. §§ 501-505.
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`Plaintiffs allege that in 2006, Tracy Ehmann created a number of original artistic designs
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`of the mascot for the City of Rhinelander, known as the “Hodag,” then registered a
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`copyright in those Hodag logos, which consist of graphics and lettering (the “Hodag logos”
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`or “logos”), before later transferring all of her ownership and copyright interests in the
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`logos to her husband, Eric Ehmann. Plaintiffs do not allege in their complaint when this
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`transfer occurred, but they were married in 2008 and sold merchandise with the Hodag
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`logos from 2009 to 2011. However, plaintiffs do represent in their objections to
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`defendants’ proposed jury instructions that the transfer occurred by October 9, 2009.
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`Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 2 of 12
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`Plaintiffs further allege that they discovered in 2019 that defendants were using the
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`copyrighted Hodag logos owned by Eric Ehmann to print and sell merchandise online, as
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`well as in defendants’ store, all without Mr. Ehmann’s license or permission to do so.
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`Through their counsel, defendants both dispute Eric Ehmann’s ownership interest
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`in any of the logos. They also allege that in or around 2007, Tracy Ehmann verbally
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`granted them permission to use her logos in return for the satisfaction of an unpaid debt
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`with their store. In contrast, while plaintiffs admit that Tracy Ehmann had an outstanding
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`bill with defendants, they deny granting defendants permission to use her logos to satisfy
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`her debt. Rather, plaintiffs allege that in the summer of 2009, Tracy presented defendants
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`with a non-exclusive licensing agreement, which Eric Ehmann drafted, to use a different
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`copyrighted design for a 20-foot sculpture of Rhinelander mascot (“The Hodag sculpture”)
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`for a period of two years, as satisfaction for her debt. Defendants deny ever receiving or
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`entering into this licensing agreement.
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`Still, there appears to be no signed copy of any purported licensing agreement, nor
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`of any the alleged copyright transfer agreement between Tracy and Eric Ehmann. Plaintiffs
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`allege that these agreements and all other documents relating to plaintiffs’ sales of the
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`Hodag merchandise were lost in a flood in 2010. However, plaintiffs will seek to introduce
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`a computerized copy of the licensing agreement they allegedly drafted in 2009, along with
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`expert testimony from Data Narro that the metadata for the document shows it was last
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`modified on July 23, 2009.
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`Plaintiffs filed an early motion for summary judgment, which the court denied
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`because there are genuine issues of material fact as to the ownership of the logos (Dkt.
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`Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 3 of 12
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`#56). Defendants never filed a motion for summary judgment.
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`ISSUES FOR TRIAL
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`Based on the parties’ past submissions in this case, which were limited, the issues
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`for the jury to decide at trial would appear to be: (1) whether Tracy Ehmann authorized
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`defendants to use the Hodag logos in 2007, and if so, for how long; and (2) whether Eric
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`Ehmann is the current owner of the copyright via the alleged transfer in October 2009.
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`However, defendants now seem to dispute the validity of the copyright itself. Specifically,
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`in their proposed jury instruction no. 12.2.1, defendants propose to include language that
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`the copyright interest in the Hodag logos “may have been waived/forfeited by publication
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`without proper statutory copyright notice,” and “there was a failure to publish the work in
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`accordance with the copyright statutes.” Defendants’ proposed jury instructions also
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`suggest that, at some point, Tracy may have abandoned her copyright.
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`Unclear is whether defendants’ claims of authorized use and abandonment are
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`based on the same set of facts as the grant of permission. Legally, these two affirmative
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`defenses are very different, since authorized use suggests merely a nonexclusive, oral license
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`to use the copyrighted work in a particular manner, while abandonment is a relinquishment
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`of the copyright altogether. See Muhammad-Ali v. Final Call, Inc., 832 F.3d 755, 760-62
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`(7th Cir. 2016); Shanlian Quan v. Ty, Inc., 2019 WL 1281975, at *8 (N.D. Ill. Mar. 20,
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`2019).
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`Defendants have filed no related motion in limine, cited no authority for their
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`assertion, nor proposed additional jury instructions on the validity issue. Moreover, the
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`Seventh Circuit has not decided if the issue of validity should be determined by the bench
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`Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 4 of 12
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`or jury. 7th Cir. Instr. 12.3.1, cmt. 1 (citing Gaiman v. McFarlane, 360 F. 3d 644, 648 (7th
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`Cir. 2004), and Pub’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 478 (7th Cir. 1996)).
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`Accordingly, before the court in advance of trial, is how and in what order to address
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`the two principal questions noted above regarding copying and Eric’s standing in the case,
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`as well as potentially, the validity of the copyright. Although Eric Ehmann’s alleged current
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`ownership of the copyright affects his standing and entitlement to damages, there appears
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`no dispute that Tracy Ehmann was the owner of any enforceable copyright in 2007, when
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`she allegedly abandoned her copyright and/or granted defendants permission to use the
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`logos.
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`OPINION
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`A. Plaintiffs’ Motions for Leave “to File Papers” (Dkt. ##110, 112)
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`Plaintiffs mistakenly read their deadline for filing their pretrial disclosures and
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`documents to be February 19, rather than February 5, and accordingly filed their
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`disclosures 3-4 days late (on February 8 and 9). Defendants oppose the motions on the
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`ground that plaintiffs did not provide a good excuse for the late filings and ask that: (1)
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`plaintiffs’ statement about their expert witness’s qualifications and experience (Dkt. #113)
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`not be accepted; and (2) plaintiffs not be allowed to call any witnesses not identified in
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`their initial disclosures.
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`Although defendants argue that it is unfair that plaintiff effectively had a few extra
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`days to prepare their Rule 26(a)(3) disclosures, plaintiffs are proceeding pro se, and
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`defendants do not seem to have suffered any real prejudice as a result of the very short
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`delay. Although defendants state that they did not know about some of the witnesses
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`Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 5 of 12
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`listed in plaintiffs’ final disclosures, they do not develop this argument or identify any
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`reason that plaintiffs should have named these witnesses sooner, whether under Fed. R.
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`Civ. P. 26 or other discovery obligations. Finally, it looks like plaintiffs’ initial expert
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`witness report did not include Erik Thompson’s qualifications, but defendants never
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`challenged the report on that ground before their own expert response deadline and have
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`not raised the issue in a motion of their own since.
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`If needed, the court can address any remaining failure to disclose issues regarding
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`plaintiffs after hearing from the parties at the FPTC. Accordingly, the court will RESERVE
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`ruling definitively on these motions until then.
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`B. Plaintiffs’ Motion to Exclude Character Evidence (Dkt. #93)
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`Plaintiffs seek to exclude evidence about Eric Ehmann’s 20-year-old criminal
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`convictions and history of filing civil lawsuits, and Tracy Ehmann’s alleged substance
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`abuse. They do not provide any details about any of these things, arguing generally that
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`such evidence is irrelevant and unduly prejudicial under Fed. Rs. Evid. 403, 608(b), and
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`609.
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`Defendants respond that they should be allowed to introduce evidence of the
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`following to show plaintiffs’ tendency to be untruthful:
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`o Eric Ehmann’s convictions in 1999 for uttering counterfeit obligations or
`securities under 18 U.S.C. § 472, and 2002 conviction for bank fraud and
`misuse of social security numbers under 18 U.S.C. § 1344.
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`Although Eric Ehmann’s criminal convictions are old, they appear to relate to
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`fraudulent claims and documents. Given that this case turns at least in part on documents
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`that Eric and Tracy Ehmann say once existed but were destroyed, the convictions may have
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`more relevance than typical, although only if Eric were to take the stand, and then only for
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`impeachment purposes. The court will discuss this further with the parties at the FPTC.
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`o Evidence that Eric Ehmann made similar copyright accusations against
`Rhinelander Brewing Company (he alleged that they infringed Tracy
`Ehmann’s copyrights in their advertising) and Dave Meinert’s screenprinting
`business, Shirts, Signs, and Designs.
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`No other information is provided about these lawsuits. While these previous claims
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`of copyright infringement also might be relevant for impeachment purposes, defendants
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`have provided no information to make that determination, including the nature of the
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`claims, the outcome of suits, and whether they are enough to show a pattern or practice.
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`o Tracy Ehmann’s “substance abuse” issues around the time she was
`operating her business and allegedly granted defendants permission to use
`the Hodag logos and presented a licensing agreement to defendants regarding
`a different work. Defendants also apparently intend to present testimony
`from Tracy’s ex-husband and other, unidentified evidence of Tracy’s
`substance abuse and financial hardship, as well as debts to defendants in an
`effort to show that Tracy may not remember events as they occurred and had
`reason to turn over the logos to defendants in payment of her debt to them.
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`The court is unpersuaded by defendants’ argument regarding Tracy Ehmann’s
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`possible substance abuse at the time some of these events took place. Of particular concern
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`is testimony defendants seek to introduce from her ex-husband, who it would appear could
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`only testify that Tracy was using while he was married to her for a 3-week period. That is
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`both too tangential and obviously highly prejudicial. Moreover, defendants have offered
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`no evidence that Tracy Ehmann was impaired by substances at the time she was allegedly
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`negotiating with them. Finally, if Tracy was too impaired in the past to recall the relevant
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`events, this would also call into question her ability to grant permission to defendants to
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`use her logos, as well as the reasonableness of defendants’ reliance on that consent.
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`Without more, this evidence will be excluded, except to the extent plaintiffs may dispute
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`owing money to defendants or financial hardship around the time of the alleged
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`negotiations over use of the logos or sculpture, and even then, only as to those debts.
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`Accordingly, the motion is RESERVED IN PART AND DENIED IN PART as set
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`forth above.
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`C. Defendants’ Eight Motions In Limine (Dkt. #98)
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`1. Exclude hearsay testimony or references by Eric Ehmann
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`Defendants argue that Eric Ehmann should be barred from testifying about (or
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`referencing in opening or closing) any conversations and events he was not a part of,
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`including Tracy Ehmann’s discussions with defendants, in which he did not take part.
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`Plaintiffs argue that Eric Ehmann will call Tracy Ehmann as a witness and may
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`reference her testimony as part of his case, including opening and closing statements.
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`However, Eric Ehmann also says that he recollects Tracy telling him about statements that
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`she made at the time of the event in question but that she can no longer remember.
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`To the extent that Eric is claiming to “act as Tracy’s attorney,” including asking
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`questions while she is on the stand, this motion is GRANTED. Otherwise, the rules of
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`evidence apply, meaning that Eric Ehmann may not testify to matters outside his personal
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`knowledge.
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`Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 8 of 12
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`2. Motion to Preclude Eric Ehmann from testifying on Tracy
`Ehmann’s behalf or acting as Tracy Ehmann’s counsel or advisor
`(Unopposed)
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`This motion is GRANTED consistent with the ruling as to defendants’ MIL No. 1
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`above. As defendants suggest, Eric Ehmann is not an attorney and cannot act as counsel.
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`While both Tracy Ehmann and he may testify on direct, neither will do so in question and
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`answer form. Of course, this still allows for clarifying questions of each other as it concerns
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`their unique claims at the close of their direct testimony, as well as cross-examination by
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`opposing counsel. Either may also make opening statements and closing arguments and
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`question other witnesses on their own behalf.
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`3. Preclude Eric Ehmann from correcting Tracy Ehmann’s testimony
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`This motion is GRANTED except to the extent that Eric Ehmann seeks to ask
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`clarifying questions or testify to matters within his personal knowledge. In particular, Eric
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`Ehmann may not provide testimony regarding what Tracy Ehmann told him, unless it falls
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`into the prior consistent statement exception.
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`4. Exclude testimony or references to statements from individuals not
`disclosed as witnesses (Unopposed)
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`This motion is DENIED, since no witnesses are specified, except as it relates to
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`plaintiffs’ late-filed Rule 26(a)(3) disclosures, as discussed above, which will be discussed
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`during the FPTC.
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`5. Exclude expert testimony from any of plaintiffs’ witnesses except
`Data Narro
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`It is unclear what expert testimony, if any, defendants are concerned about.
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`Plaintiffs’ only expert appears to be Erik Thompson, the director of Data Narro, whom
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`plaintiffs apparently disclosed on or about May 15, 2020, well in advance of their June 15
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`deadline. Moreover, defendants say they received a letter from Data Narro on May 29,
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`2020, which contained disclosures of testimony by Thompson.
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`This motion is GRANTED except to Erik Thompson’s testimony as timely
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`disclosed.
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`6. Exclude references to non-exclusive licensing agreement as an
`original, executed contract
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`There is no signed copy of the non-exclusive licensing agreement that Tracy Ehmann
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`alleges she gave defendants in the summer of 2009 for the Hodag sculpture or image.
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`Plaintiffs do have an unsigned copy of the agreement (Dkt. #52-2) that Eric Ehmann
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`allegedly created on his former work computer, which he no longer has access to, but
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`transferred to an external USB drive in December 2009 and put on another USB drive in
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`April 2014. Plaintiffs say that the unsigned draft document is an exact copy of the signed
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`original, and their expert will testify that the metadata for the file saved on the USB drive
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`from 2014 shows the document was last edited in July 2009.1
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`1 While defendants had moved to compel plaintiffs to produce all of their computer equipment,
`drives, and storage devices, the court previously allowed defendants only Data Narro’s forensic
`copy of the two digital files that compose the licensing agreement, along with the necessary
`metadata, because plaintiffs’ entire USB drive contained other, sensitive and private information
`not bearing on the issues in dispute. (Dkt. #85.)
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`Defendants seek to exclude any evidence of the agreement on the ground that no
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`signed copy exists and the document’s authenticity is in question. Defendants have not
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`developed their argument in any detail or cited any legal authority apart from referencing
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`Fed. R. Evid. 1003, which allows the admission of a “duplicate copy” if there is no genuine
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`question about its authenticity.
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`Obviously, there is a genuine dispute about the agreement’s authenticity here.
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`Moreover, plaintiffs did not mention an alleged, signed licensing agreement in their early
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`motion for summary judgment, but apparently offer it now to show that Tracy Ehmann
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`had an alternative means of settling her debt with defendants involving artwork separate
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`from the logos at issue in this case. The parties can certainly testify as to whether they
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`signed any licensing agreement, and what the agreement contained, but this does not
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`answer whether the unsigned copy of the agreement may be admitted into evidence, even
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`if plaintiffs’ expert says that the particular copy was not edited after 2009. While the
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`expert’s testimony would tend to show that an agreement was created in 2009, it offers no
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`insight as to the parties actually entering into that agreement. Still, the court will
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`RESERVE pending further input from the parties because the alleged licensing agreement
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`was non-exclusive and is not required to be in writing. 17 U.S.C. §§ 101, 204(a).
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`7. Exclude prior court orders and decisions as legal conclusions
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`Based on their experience at Nicholas Metropolus’s deposition, defendants are
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`concerned that plaintiffs will seek to introduce as evidence the court’s previous orders—
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`specifically, any summary of the facts of this case. Plaintiffs have not responded to this
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`motion, but they list the general categories of pleadings, affidavits, motions, “rulings and
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`orders in this case” as potential exhibits. (Dkt. #111 at 3.) All such documents will be
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`excluded from admission or reference except as they represent a prior statement by an
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`opposing party or are otherwise permitted solely for impeachment purposes. Specifically,
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`court orders may not be submitted as exhibits because they are not evidence. If either
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`party believes that the court should take judicial notice of a fact or include a statement of
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`law in the jury instructions, they should indicate that in writing to the court. The motion is
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`GRANTED as set forth above.
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`8. Exclude evidence of plaintiffs’ actual damages
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`Defendants argue that plaintiffs have not provided an accounting of any actual
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`damages (e.g., decrease in market value, lost profits, or licensing fee) during discovery as
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`required under Fed. R. Civ. P. 26(a)(1)(A)(iii). Plaintiffs stated in their initial disclosures
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`that they were unable to quantify their damages before discovery, but have apparently
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`never supplemented their disclosures and Tracy Ehmann testified further at her deposition
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`that she had did not know her damages and had no way of calculating them. Plaintiffs do
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`not respond to these arguments, stating only that if the court excludes evidence of actual
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`damages, it should also preclude defendants from presenting evidence related to its sales
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`of Hodag logos because Nicholas Metropolus testified that he does not have this
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`information. However, it seems clear from plaintiffs’ proposed jury instructions (included
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`within their opposition to defendants’ proposed instructions) that they intend to seek
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`statutory damages.
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`Case: 3:19-cv-00586-wmc Document #: 136 Filed: 03/04/21 Page 12 of 12
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`This motion will be GRANTED as essentially unopposed.
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`IT IS ORDERED THAT:
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`ORDER
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`1. Plaintiffs’ Motions for Leave “to File Papers” (Dkt. ##110, 112) is RESERVED.
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`2. Plaintiffs’ Motion to Exclude Character Evidence (Dkt. #93) is RESERVED IN
`PART AND DENIED IN PART as set forth above.
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`3. Defendants’ Motion In Limine (Dkt. #98) is GRANTED IN PART, DENIED IN
`PART AND RESERVED IN PART as set forth above.
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`Entered this 4th day of March, 2021.
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`BY THE COURT:
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`/s/
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`WILLIAM M. CONLEY
`District Judge
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`12
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