CASE 0:06-cv-01164-ADM-AJB Document 108 Filed 08/31/07 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`Chris Gregerson,
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`Plaintiff,
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`v.
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`Vilana Financial, Inc., a Minnesota
`Corporation; Vilana Realty, Inc., a
`Minnesota Corporation; and Andrew
`Vilenchik, a private individual,
`
`MEMORANDUM OPINION
`AND ORDER
`Civil No. 06-1164 ADM/AJB
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`Defendants.
`______________________________________________________________________________
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`Chris Gregerson, pro se.
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`Boris Parker, Esq., Bassford Remele, Minneapolis, MN, on behalf of Defendants.
`______________________________________________________________________________
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`I. INTRODUCTION
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`On August 15, 2007, oral argument before the undersigned United States District Judge
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`was heard on Plaintiff Chris Gregerson’s (“Gregerson”) Motion for Summary Judgment [Docket
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`No. 88] and Defendant Andrew Vilenchik’s (“Vilenchik”) Motion for Summary Judgment
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`[Docket No. 93]. For the reasons set forth herein, Gregerson’s Motion is granted in part and
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`denied in part, and Vilenchik’s Motion is granted.
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`II. BACKGROUND
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`The facts of this case are set forth in the Court’s previous Orders [Docket Nos. 21, 54],
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`and therefore only a brief summary of the facts is necessary here. Gregerson has alleged
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`copyright infringement against Defendants Vilenchik, Vilana Financial, Inc. (“Vilana
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`Financial”), and Vilana Realty, Inc. (“Vilana Realty”) (collectively “Defendants”) on the basis
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`that Defendants took two photographs from Gregerson’s professional photography website
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`without permission and used them in phone book advertisements, web advertisements, print
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`advertisements in a local Russian-language newspaper, advertising brochures, and a local
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`business directory. After discovering the use of the photographs, Gregerson contacted
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`Defendants and apprised them of the fees due. Defendants have not paid Gregerson for their use
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`of the photographs, and aver that they lawfully purchased the photographs in question from
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`Michael Zubitskiy, a mysterious individual that neither party has been able to locate.
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`After discovering Defendants’ use of his photographs, Gregerson created a website on
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`which he discusses Defendants and the photograph situation in an allegedly disparaging way.
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`Defendants have filed counterclaims for deceptive trade practices, trademark infringement,
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`interference with contractual and business relationships, appropriation, and unjust enrichment,
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`arguing that Gregerson has used Defendants’ trade and service marks in his websites to divert
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`internet traffic from Defendants’ websites to Gregerson’s websites, and has caused Defendants to
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`lose business.
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`Both parties have filed Motions for Summary Judgment. Vilenchik asks that he be
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`dismissed as an individual Defendant from the suit because all actions taken by him were in his
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`capacity as a corporate officer. Gregerson moves for partial summary judgment on liability for
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`his copyright infringement claims and complete summary judgment on all of Defendants’
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`counterclaims.1
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`1 The procedural history of this case is complicated. Prior to Gregerson’s commencement
`of this federal lawsuit, Vilana Financial instituted a state court action against Gregerson, alleging
`claims for defamation and appropriation. State Ct. Am. Compl. [Docket No. 11]. After
`Gregerson filed this federal lawsuit, Vilana Financial’s state court case was removed and
`consolidated with the instant case. Notice of Removal [Docket No. 11]. Defendants later filed
`an Answer and Counterclaims [Docket No. 22], which they amended once [Docket No. 55],
`asserting new claims and reasserting the appropriation claim. After initially reasserting the
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`A.
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`Standard
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`III. DISCUSSION
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`Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “if the
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`pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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`affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
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`party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Matsushita Elec.
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`Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc.,
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`477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for
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`summary judgment, the Court views the evidence in the light most favorable to the nonmoving
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`party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not
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`“rest on mere allegations or denials, but must demonstrate on the record the existence of specific
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`facts which create a genuine issue for trial.” Krenik v. County of Le Sueur, 47 F.3d 953, 957
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`(8th Cir. 1995).
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`B.
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`Vilenchik’s Personal Liability
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`Vilenchik argues that he should be dismissed from this lawsuit because Gregerson fails to
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`make any allegations in his Amended Complaint [Docket No. 76] that Vilenchik is personally
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`liable for the acts of Vilana Financial, a corporation. Vilenchik argues that he has not
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`defamation claim, Defendants have since chosen to withdraw it. See Docket Nos. 22, 55.
`Defendants also aver they “did not carry [the defamation] claim forward from their state court
`action; instead Defendants asserted new and distinct claims as part of this federal action.” Defs.’
`Mem. [Docket No. 97] at 9. Accordingly, there is no defamation claim in this case. There has
`also been no further mention or pursuit of any removed, consolidated state court claims.
`Therefore, to avoid any future confusion, the Court finds Defendants’ removed, consolidated
`state court claims to be dismissed, and the only claims now asserted by any Defendants in this
`case are the claims set forth in Defendants’ Amended Answer and Counterclaims [Docket No.
`55].
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`disregarded the corporate form and is not the alter ego of Vilana Financial. Vilenchik further
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`argues that Gregerson has failed to make any veil piercing allegations. Gregerson responds that
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`as Vilana Financial’s sole board member and sole shareholder, Vilenchik is vicariously liable for
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`Vilana Financial’s infringing activity. Gregerson also argues that Vilenchik is personally liable
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`for his own tortious conduct.
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`Gregerson relies on Pinkham v. Sara Lee Corporation, 983 F.2d 824 (8th Cir. 1992) as
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`authority that Vilenchik may be held vicariously liable. In Pinkham, Camex sold Sara Lee
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`300,000 copies of Pinkham’s book without informing Pinkham of the sale or paying her royalties
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`from it. 983 F.2d at 826. In examining Pinkham’s claims, the court set forth the standard for
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`vicarious liability on infringement: “(1) the right and ability to supervise the infringing activity;
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`and (2) an obvious and direct financial interest in exploitation of copyrighted materials.” Id. at
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`834. The court found that Camex’s president and sole shareholder could be personally and
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`vicariously liable because he personally approved the sale of Pinkham’s books to Sara Lee and
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`the price to be charged, and it was reasonable to infer that Camex anticipated profits from the
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`sale of Pinkham’s books. Id. Likewise, Camex’s independent agent could be personally and
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`vicariously liable because he was personally involved in the sale of the 300,000 books and
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`received a commission for the sale. Id.
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`In this case, Vilenchik can not be vicariously liable for Vilana Financial’s use of
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`Gregerson’s photographs because the second element of the Pinkham test is not satisfied. As the
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`sole corporate officer and shareholder of Vilana Financial, it is reasonable to assume that
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`Vilenchik had the right and ability to supervise the creation of the advertisements that utilized
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`Gregerson’s photograph. However, Gregerson can not establish that Vilenchik had an obvious
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`and direct financial interest in the use of Gregerson’s photographs. Although Vilana Financial
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`may have profited indirectly by attracting customers through the use of an ad with an
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`aesthetically pleasing photograph, such indirect profit is too attenuated to serve as a basis for
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`holding Vilenchik vicariously liable. If Vilenchik had sold Gregerson’s photographs to others
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`like Camex’s president and independent agent had with Pinkham’s book, the Pinkham holding
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`would be apposite as a direct financial benefit. Because Pinkham is distinguishable and because
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`Vilenchik did not derive an obvious and direct financial interest in the use of Gregerson’s
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`photographs, Vilenchik is not vicariously liable for Vilana Financial’s infringing activity.
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`Gregerson next cites to Minn. Stat. § 302A.251, subd. 4, which states in relevant part:
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`“The articles shall not eliminate or limit the liability of a director . . . (b) for acts or omissions
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`not in good faith or that involve intentional misconduct or a knowing violation of law.” This
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`statute addresses limitations on personal liability in articles of incorporation and does not serve
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`as a basis for holding Vilenchik personally liable.
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`Gregerson relies on Oxmans’ Erwin Meat Company v. Blacketer, 273 N.W.2d 285, 289
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`(Wis. 1979), for the proposition that individuals are personally liable for their own tortious
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`conduct. Although this is a true statement of the law, it does not apply to the facts of the instant
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`case. Vilenchik, the sole officer and shareholder of Vilana Financial, used Gregerson’s
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`photograph without Gregerson’s permission to create an ad for Vilana Financial. This is an
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`action Vilenchik necessarily would have taken in his capacity as a corporate officer of Vilana
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`Financial. It is not sufficient to allege that Vilenchik committed a tort; rather, to hold Vilenchik
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`personally liable, Gregerson must allege that the Court should pierce the corporate veil.
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`However, Gregerson makes no such allegations, and the facts of the case do not suggest that
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`piercing the corporate veil would be warranted. See Victoria Elevator Co. v. Meriden Grain Co.,
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`283 N.W.2d 509, 512 (Minn. 1979). Accordingly, Gregerson has failed to create a genuine issue
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`of material fact with respect to Vilenchik’s personal liability, and Vilenchik’s Motion for
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`Summary Judgment is granted.
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`C.
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`Copyright Infringement
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`Gregerson moves for partial summary judgment against Defendants on the issue of
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`liability for copyright infringement of photographs #2891 and #2258. “A claim for copyright
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`infringement involves two elements: (1) ownership and validity of the copyright, and (2)
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`potential violation of the copyright owner’s exclusive rights by, for example, unauthorized
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`reproduction and distribution of the copyrighted work.” Pinkham, 983 F.2d at 830. Gregerson
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`has produced certificates of copyright registration for all photos taken in 2002 and 2004, which
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`include images #2891 and #2258. Am. Compl. Exs. [Docket No. 77] C, M. Gregerson’s
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`certificates of copyright registration constitute sufficient evidence of existence and ownership of
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`a valid copyright for images #2891 and #2258, and there is no genuine dispute as to the
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`ownership of the photos in question.
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`Gregerson has also produced sufficient evidence to establish that his exclusive rights
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`were violated by Defendants’ unauthorized reproduction and distribution of his copyrighted
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`photos. A comparison of Gregerson’s photograph of the Minneapolis skyline (Image #2891)
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`with the photograph of the Minneapolis skyline used by Defendants in a phone book
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`advertisement, web advertisements, print advertisements in a Russian newspaper, and an
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`advertising brochure, reveals that the two photographs are the same. Am. Compl. Exs. A-C, F-
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`H, N; Gregerson Aff. [Docket Nos. 91, 92] Ex. D. Similarly, a comparison of Gregerson’s
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`photograph of a house (Image #2258) with the photograph of a house used by Vilana Financial
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`in an advertising brochure demonstrates that the two pictures are identical. Am. Compl. Exs. L-
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`N. Gregerson avers that Defendants’ use of his photographs was without his knowledge or
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`consent, and Gregerson by happenstance discovered his photograph in Defendants’ phone book
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`advertisement. Am. Compl. ¶ 16. Gregerson believes that Vilenchik took his photographs from
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`his website without authorization to create the advertisements. Am. Compl. ¶ 20.
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`Defendants concede that they used two photographs in advertisements that appear to be
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`substantially similar to Gregerson’s photographs. However, Defendants aver that they lawfully
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`procured the photographs in question from “Michael Zubitskiy,” and were unaware that the
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`photographs belonged to Gregerson. Defendants also argue that they could not have procured
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`the photographs from Gregerson’s website because the photos used in the advertisements were of
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`high-resolution quality. The photographs, if taken directly from Gregerson’s website, are
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`accessible only in low resolution. However, “[o]nce a plaintiff has proven that he or she owns
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`the copyright on a particular work, and that the defendant has infringed upon those ‘exclusive
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`rights,’ the defendant is liable for the infringement and this liability is absolute.” Pinkham, 983
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`F.2d at 829. Defendants’ intent is irrelevant because Defendants are “liable even for ‘innocent’
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`or ‘accidental’ infringements.” Id. “Even where the defendant believes in good faith that he is
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`not infringing a copyright, he may be found liable.” Id.
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`Gregerson has established that he owns a valid copyright for images #2891 and #2258,
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`and that Defendants used his photographs without permission in advertisements. Regardless of
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`whether Defendants believe they procured Gregerson’s photographs lawfully, it has been
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`established that they reproduced and distributed the photos in question. Accordingly, Gregerson
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`is entitled to summary judgment as to liability on his copyright claims. Gregerson’s copyright
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`claims are now limited to the issue of damages for the use of the photos. At trial, the witnesses
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`and the evidence will focus solely on the proper measure of damages, and no introduction of
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`testimony or evidence with respect to how Defendants procured the photographs in question will
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`be allowed.
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`D.
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`Trademark Infringement
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`Defendants assert a claim for trade name, mark, and insignia infringement and dilution
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`under Minn. Stat. § 333.28 and 15 U.S.C. §§ 1114, 1125. Defendants argue that Gregerson has
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`used Defendants’ registered trade and service marks in the subject and metatags of Gregerson’s
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`websites to divert internet traffic from Defendants’ websites onto Gregerson’s websites.
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`Defendants argue that Gregerson’s use of Defendants’ trade and service marks in website
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`metatags causes search engines such as Google and Yahoo to highly rank Gregerson’s websites,
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`such that a consumer conducting a search using the terms Vilana, Vilana Financial, or Vilana
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`Realty, is likely to be directed to Gregerson’s websites. Defendants argue that Gregerson’s
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`actions have created actionable initial interest confusion. Gregerson argues that his use of
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`Defendants’ trade and service marks is not infringing because it is only for identification
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`purposes in essays, and there is no likelihood of confusion.
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`An element common to Minn. Stat. § 333.28 and 15 U.S.C. §§ 1114, 1125 is that
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`Gregerson’s use of Defendants’ trade and service marks must be likely to cause confusion. “The
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`likelihood of customer confusion is ‘the hallmark of any trademark infringement claim.’”
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`Transclean Corp. v. Bridgewood Servs., Inc., 77 F. Supp. 2d 1045, 1092 n.28 (D. Minn. 1999)
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`(citation omitted), aff’d in part and vacated in part, 290 F.3d 1364 (Fed. Cir. 2002). “The
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`ultimate inquiry always is whether, considering all the circumstances, a likelihood exists that
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`consumers will be confused about the source of the allegedly infringing product.” Hubbard
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`Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 602 (8th Cir. 1999). Factors to
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`consider include:
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`(1) the strength of the owner’s mark; (2) the similarity of the owner’s mark to the alleged
`infringer’s mark; (3) the degree to which the products compete with each other; (4) the
`alleged infringer’s intent to “pass off” its goods as those of the trademark owner; (5)
`incidents of actual confusion; and (6) whether the degree of care exercised by the
`consumer can eliminate a likelihood of confusion that otherwise would exist.
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`Id.
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`Initial interest confusion can also lead to trademark infringement. “Initial interest
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`confusion in the internet context derives from the unauthorized use of trademarks to divert
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`internet traffic, thereby capitalizing on a trademark holder’s goodwill.” Australian Gold, Inc. v.
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`Hatfield, 436 F.3d 1228, 1239 (10th Cir. 2006). A defendant’s use of a plaintiff’s trademarks in
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`his metatags for the purpose of diverting internet traffic away from the plaintiff’s website and
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`onto the defendant’s website can constitute trademark infringement, but “[a] defendant’s use of a
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`trademark in metatags in a descriptive manner can constitute a non-infringing fair use.” Faegre
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`& Benson, LLP v. Purdy, 367 F. Supp. 2d 1238, 1246-47 (D. Minn. 2005).
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`The likelihood of confusion factors are not readily applied to the unusual facts of the
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`instant case. Gregerson and Defendants are not competitors and do not sell similar
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`products—Vilana Financial sells mortgages and financial services, Vilana Realty sells real estate
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`services, and Gregerson sells photographs. The fact that the parties’ products do not compete
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`with one another weighs heavily against a finding of likelihood of confusion. Defendants have
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`submitted affidavits from three individuals claiming Gregerson’s website has created confusion
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`amongst customers, brokers, and lenders. Smith Aff. [Docket No. 35]; Fischer Aff. [Docket No.
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`36]; Richardson Aff. [Docket No. 37]. However, the affiants aver generally that there is
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`confusion with respect to Gregerson’s website and the nature and purpose of the content
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`involving Vilana Financial, and do not give specific examples of customers or individuals in the
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`real estate business becoming confused as to whether Vilana sells photographs or whether
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`Gregerson is affiliated with Vilana. It is highly unlikely that someone looking for any of
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`Vilana’s services became confused and accidentally bought photographs instead.
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`Defendants have established that there may be “initial interest confusion” in the sense
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`that some individuals using search engines to look for Vilana Financial’s website may instead
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`have landed on Gregerson’s website. However, the “initial interest confusion” cases generally
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`concern competing products. See, e.g., Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp.,
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`174 F.3d 1036, 1062-65 (9th Cir. 1999). Also, like the defendant in Purdy, Gregerson’s website
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`contains critical commentary about Defendants, and Gregerson’s use of Defendants’ trade and
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`service marks is intended to catalogue and describe the contents of his website, not merely to
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`divert internet users from Defendants’ websites. See 367 F. Supp. 2d at 1246-47. The Court
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`concludes that Defendants have failed to demonstrate on the record the existence of specific facts
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`which create a genuine issue for trial with respect to likelihood of confusion. Gregerson’s
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`Motion for Summary Judgment is granted with respect to Defendants’ claims for trade and
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`service mark infringement.
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`E.
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`Cyberpiracy
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`Defendants assert that Gregerson has violated the Cyberpiracy Prevention Statute, 15
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`U.S.C. § 1125(d), by having a bad faith intent to profit by using a domain name that is identical
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`to or confusingly similar to Defendants’ trade and service marks. Defendants have failed to
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`create a genuine issue of material fact that Gregerson had a bad faith intent to profit by using
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`Defendants’ trade and service marks in a domain name. In addition, with respect to
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`“http://www.cgstock.com/essays/vilana.html,” the internet address in question,
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`“www.cgstock.com” is the domain name and “/essays/vilana.html” is the path to a file. The
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`American Heritage dictionary defines “URL,” or “uniform resource locator,” as: “An internet
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`address (for example, http://www.hmco.com/trade/), usually consisting of the access protocol
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`(http), the domain name (www.hmco.com), and optionally the path to a file or resource residing
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`on that server (trade).” The American Heritage Dictionary of the English Language 1893 (4th
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`ed. 2000). Therefore, Defendants are unable to establish that Gregerson uses a domain name that
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`is identical or confusingly similar to Defendants’ trade and service marks. See 15 U.S.C. §
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`1125(d)(1)(A). Gregerson’s Motion for Summary Judgment is granted with respect to the
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`cyberpiracy portion of Defendants’ claims for trade and service mark infringement.
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`F.
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`Deceptive Trade Practices
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`Defendants assert a claim for deceptive trade practices under Minn. Stat. § 325D.44.
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`Gregerson argues that Defendants have not offered any evidence that Gregerson has disparaged
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`their business through false or misleading representations of fact. Defendants respond that
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`Gregerson has disparaged Defendants on his commercial photography website by posting, and
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`allowing other users to post, comments that Defendants are thieves, members of the Russian
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`mafia, and actively engaged in fraudulent business conduct and predatory lending practices.
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`Minn. Stat. § 325D.44, subd. 1, states in relevant part:
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`A person engages in a deceptive trade practice when, in the course of business, vocation,
`or occupation, the person: (8) disparages the goods, services, or business of another by
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`false or misleading representation of fact; . . . or (13) engages in any other conduct which
`similarly creates a likelihood of confusion or of misunderstanding.
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`In order to prevail on a deceptive trade practices claim, Defendants “need not prove competition
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`between the parties or actual confusion or misunderstanding.” Minn. Stat. § 325D.44, subd. 2.
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`The Court finds that Defendants have submitted sufficient facts to create a genuine issue of
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`material fact as to whether Gregerson has disparaged their business through false or misleading
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`representations of fact. Defendants have submitted evidence that Gregerson has posted, or
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`allowed others to post, comments on his commercial photography website that, if untrue or
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`misleading, make damaging comments about Defendants’ business. See Parker Aff. [Docket No.
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`99] Exs. E, F. Whether or not the comments are true is not the subject for summary judgment
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`consideration. Accordingly, Gregerson’s Motion for Summary Judgment is denied with respect
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`to Defendants’ counterclaim for deceptive trade practices.
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`G.
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`Interference with Contractual and Business Relationships
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`Count three of Defendants’ counterclaims asserts a claim for interference with
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`contractual and business relationships. Gregerson argues that he is entitled to summary
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`judgment on this claim because all statements he made about the Defendants on his website are
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`true. Defendants respond that Gregerson’s use of Defendants’ names on his commercial
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`photography website induced other third persons not to enter into or continue relations with
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`Defendants. In support of their arguments, Defendants offer comments from users on
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`Gregerson’s website, such as: “I intend to let all my family and friends know about Mr.
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`Vilenchik’s theft, and to discourage them from doing any business with Vilana Financial,” and
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`“Vilenchik and Vilana are idiots, greedy and dishonest idiots—never do any business with
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`Vilenchik.” Parker Aff. Ex. N. Defendants also cite to the affidavit of Pauline Fischer, an
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`account executive with a company that has worked with Vilana Financial. Fischer noted a drop
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`in the number of closing requests for Vilana Financial, and believes Gregerson’s website is
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`confusing and detrimental to Vilana Financial’s success. Fischer Aff. ¶¶ 4-7. Also, an affidavit
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`from James Smith, a Vilana Financial client, notes Smith’s hesitation at doing business with
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`Vilana Financial as a result of Gregerson’s website. Smith Aff. ¶¶ 10-11.
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`Minnesota has adopted the Restatement (Second) of Torts’ standard for the tort of
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`intentional interference with prospective contractual relations:
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`One who intentionally and improperly interferes with another’s prospective contractual
`relation (except a contract to marry) is subject to liability to the other for the pecuniary
`harm resulting from loss of the benefits of the relations, whether the interference consists
`of (a) inducing or otherwise causing a third person not to enter into or continue the
`prospective relation or (b) preventing the other from acquiring or continuing the
`prospective relation.
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`United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-33 (Minn. 1982) (citing the Restatement
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`(Second) of Torts § 766B). Defendants have submitted sufficient evidence to create a genuine
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`issue of material fact as to whether Gregerson committed the tort of intentional interference with
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`prospective contractual relations. After viewing Gregerson’s website, Defendants’ evidence
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`suggests customers and other businesses became wary of doing business with Defendants.
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`Although Gregerson is correct that truth is a defense to liability, all of Gregerson’s statements on
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`his website have not yet proven to be true. See Glass Serv. Co. v. State Farm Mut. Auto. Ins.
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`Co., 530 N.W.2d 867, 871 (Minn. Ct. App. 1995) (“no liability for interference on part of one
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`who merely gives truthful information to another”). Accordingly, Gregerson’s Motion for
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`Summary Judgment is denied with respect to Defendants’ counterclaim for interference with
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`contractual and business relationships.
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`H.
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`Appropriation
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`Count four of Defendants’ Counterclaims asserts a claim for appropriation. Gregerson
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`has moved for summary judgment on Defendants’ appropriation counterclaim, arguing that he
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`has not used Vilenchik’s name or likeness for his own benefit, but only to identify Vilenchik in
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`an essay about Vilenchik. Gregerson also argues that a corporation can not bring an action for
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`invasion of privacy. Defendants respond that use of Defendants’ names and service marks on a
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`disparaging internet website linked to Gregerson’s commercial photography webpage is tortious
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`appropriation. Defendants also argue that Gregerson took a picture of Vilenchik without
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`Vilenchik’s permission and posted it on his website. Defendants assert Vilenchik has asked
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`Gregerson to take the photograph off the website, but Gregerson has refused to do so.
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`“Appropriation protects an individual’s identity and is committed when one ‘appropriates
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`to his own use or benefit the name or likeness of another.’” Lake v. Wal-Mart Stores, Inc., 582
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`N.W.2d 231, 233 (Minn. 1998). In recognizing the tort of appropriation, the Supreme Court of
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`Minnesota relied on the Restatement (Second) of Torts. Id. The Restatement describes the ways
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`in which an individual can invade another’s privacy:
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`The common form of invasion of privacy under the rule here stated is the appropriation
`and use of the plaintiff’s name or likeness to advertise the defendant’s business or
`product, or for some similar commercial purpose. Apart from statute, however, the rule
`stated is not limited to commercial appropriation. It applies also when the defendant
`makes use of the plaintiff’s name or likeness for his own purposes and benefit, even
`though the use is not a commercial one, and even though the benefit sought to be
`obtained is not a pecuniary one.
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`Restatement (Second) of Torts § 652C, comment b.
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`Defendants have alleged sufficient facts to create a genuine issue of material fact as to
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`whether Gregerson has committed the tort of appropriation. Gregerson has used Defendants’
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`names in a disparaging way on an internet website that is linked to Gregerson’s commercial
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`CASE 0:06-cv-01164-ADM-AJB Document 108 Filed 08/31/07 Page 15 of 17
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`photography website. Arguably, the use of Defendants’ names may bring Gregerson increased
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`consumer traffic to his commercial website. However, even without a commercial aspect,
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`Defendants have alleged sufficient facts that Gregerson has used their names and Vilenchik’s
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`photograph for his own purposes and benefit, to the detriment of Defendants.
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`In addition, the Restatement (Second) of Torts § 652I states: “Except for the
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`appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only
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`by a living individual whose privacy is invaded.” Comment c to the Restatement (Second) of
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`Torts § 652I states:
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`A corporation . . . has no personal right of privacy. It has therefore no cause of action for
`any of the four forms of invasion covered by §§ 652B to 652E. It has, however, a limited
`right to the exclusive use of its own name or identity in so far as they are of use or
`benefit, and it receives protection from the law of unfair competition. To some limited
`extent this may afford it the same rights and remedies as those to which a private
`individual is entitled under the rule stated in § 652C.
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`Accordingly, Gregerson’s argument that the corporate Defendants may not bring a cause of
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`action for appropriation is unfounded. Gregerson’s Motion for Summary Judgment is denied
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`with respect to Defendants’ counterclaim for appropriation.
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`I.
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`Injunction
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`In count five of their counterclaims, Defendants ask for an injunction. Gregerson asks
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`for summary judgment on this count, and Defendants ask that Gregerson’s Motion be denied. In
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`the Court’s November 7, 2006 Order, Defendants’ Motion for Injunctive Relief was denied.
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`There is no reason to revisit the November 7, 2006 Order at this time, but also no reason to
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`remove injunction as a possible remedy for Defendants, should they prevail at trial. Gregerson’s
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`Motion for Summary Judgment barring injunctive relief is denied.
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`J.
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`Unjust Enrichment
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`CASE 0:06-cv-01164-ADM-AJB Document 108 Filed 08/31/07 Page 16 of 17
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`Count six of Defendants’ counterclaims is a claim for unjust enrichment. Gregerson
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`moves for summary judgment, arguing that Defendants have produced no evidence that
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`Gregerson received something of value to which he was not entitled. Defendants respond that
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`Gregerson has benefitted financially at Defendants’ expense. “In order to establish a claim for
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`unjust enrichment, the claimant must show that another party knowingly received something of
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`value to which he was not entitled, and that the circumstances are such that it would be unjust for
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`that person to retain the benefit.” Schumacher v. Schumacher, 627 N.W.2d 726, 729 (Minn. Ct.
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`App. 2001). Gregerson’s Motion for Summary Judgment with respect to Defendants’ claim for
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`unjust enrichment is granted. Defendants’ claim that Gregerson received increased profits in his
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`commercial photography business or “something of value” as a result of his website commentary
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`on Defendants is purely speculative.
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`IV. CONCLUSION
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`Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
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`HEREBY ORDERED that:
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`1. Plaintiff Chris Gregerson’s Motion for Summary Judgment [Docket No. 88] is
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`GRANTED IN PART AND DENIED IN PART. Specifically, Gregerson’s Motion is
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`GRANTED with respect to (1) liability on his copyright infringement claims, and (2)
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`Defendants’ counterclaims for trade and service mark infringement and unjust enrichment.
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`Gregerson’s Motion is DENIED with respect to Defendants’ counterclaims for deceptive trade
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`practices, interference with contractual and business relationships, appropriation, and injunctive
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`relief; and
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`CASE 0:06-cv-01164-ADM-AJB Document 108 Filed 08/31/07 Page 17 of 17
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`2. Defendant Andrew Vilenchik’s Motion for Summary Judgment [Docket No. 93] is
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`GRANTED.
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`BY THE COURT:
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` s/Ann D. Montgo