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Faessler v. United States Playing Card Co.

February 9, 2007


The opinion of the court was delivered by: District Judge Susan J. Dlott


This matter is before the Court on Defendant's Amended Motion to Dismiss or for Summary Judgment and supporting memorandum (doc. 11),*fn1 Plaintiff's response in opposition (doc. 12), and Defendant's reply (doc. 13). For the reasons that follow, the Court treats Defendant's motion as one for summary judgment and GRANTS IN PART and DENIES IN PART Defendant's motion.


Plaintiff Michael Faessler filed this action against Defendant United States Playing Card Company ("USPC") alleging copyright infringement and tortious interference with contract. USPC moved to dismiss Faessler's claims pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment on the claims pursuant to Fed. R. Civ. P. 56.

Faessler's claims arise out of his belief that USPC is producing playing cards that infringe upon Faessler's registered copyright for military insignia playing cards. Faessler claims that in 1980, while he was studying as a cadet in the U.S. Miliary Academy, he began designing a unique deck of playing cards modeled after the Military ranking system. Faessler claims that he introduced this idea to USPC in 1987 but declined the company's offer to publish his cards, as the price quote was not economically viable. Faessler found a different company to manufacture the cards (hereafter referred to as "Military Playing Cards") and began commercial sales of the cards in 1988.

In 1992, Faessler left active duty in order to pursue the opportunity to sell his Military Playing Cards to the Army and Air Force Exchange Services ("AAFES"), a distributor he was unable to solicit while he was on active duty because of the potential conflict of interest. In 1994, Faessler filed for and received four registered copyrights for his Miliary Playing Cards, with styles for the Air Force, Navy, Army, and Marines, listing himself as the author and copyright claimant. Each of the cards included a single rank insignia and an indication of the corresponding rank designation for each of the military branches beginning with the lowest rank on the "2" cards and proceeding up the ranks to the "Ace" cards. (Doc. 9 exs. D (Air Force), E (Navy), F (Army), and G (Marines)). In 1995, Faessler sold his Military Playing Cards to approximately 200 AAFES outlets. The following year, the AAFES entered into a contract with Faessler to distribute all four styles of the Military Playing Cards. Faessler also sold his Military Playing Cards at other retail outlets including Navy Exchange, Ship Stores Afloat, Marine Corps Exchange, and Veterans Canteen Services.

In 1998, one of Faessler's sales representatives informed him that USPC representatives were removing Faessler's Military Playing Cards from their designated shelf space at AAFES outlets and replacing them with USPC's own brand of playing cards. USPC's Patriotic Playing Cards use the same rank insignias and theme as Faessler's cards (lowest rank corresponds to lowest card and highest rank corresponds to highest card) but arrange the insignias differently and use a different cover and different Joker card artwork. (Doc. 9 e's. H (Air Force), I (Navy), J (Army), and K (Marines)). USPC's Patriotic Playing Card line also includes a deck representing the Coast Guard. Faessler claims that in 1999 he sent USPC a "cease and desist letter" concerning the Patriotic Playing Cards but that USPC did not respond.

Faessler continued to sell his playing cards until 2001, when he was placed back on active duty. In 2005, he attempted to re-enter the playing card market but realized that USPC was selling its Patriotic Playing Card line at military exchanges. Faessler filed this suit for copyright infringement and tortious interference with his contract with AAFES on September 6, 2005.


USPC captioned its motion as a motion to dismiss or for summary judgment. Because both parties have presented matters outside the pleadings, the Court will treat the motion as arising under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b); Granger v. Marek, 583 F.2d 781, 785 (6th Cir. 1978).*fn2

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The moving party may support the motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmoving party "must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The task of the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. A genuine issue for trial exists when the evidence is not "so one-sided that one party must prevail as a matter of law." Id. at 252.

Where the moving party bears the burden of proof on an issue, he must show more than the lack of a genuine issue for trial. Rather, "where the moving party has the burden--the plaintiff on a claim for relief or the defendant on an affirmative defense--his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. U.S., 799 F.2d 254, 258-59 (6th Cir. 1986).

Although summary judgment is permissible in copyright infringement actions, the Sixth Circuit has found that a jury's determination of whether two works are substantially similar has "special significance":

A jury deciding the issue of substantial similarity not only makes findings of historical fact, but usually also serves as a proxy for the works' intended audience. In this role as proxy, jurors decide not only what happened, but also can be properly influenced by whether their exposure to the alleged infringing work would diminish their appetite for the copyrighted work. See Kohus, 328 F.3d at 856-57. As the diminished market for copyrighted work is the harm that the copyright law seeks to avoid, this issue is crucial and contains an element of subjectivity not found in most other jury determinations. Therefore, courts have recognized that "granting summary judgment, particularly in favor of a defendant, is a practice to be used sparingly in copyright infringement cases."

Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 321 (6th Cir. 2004) (quoting Wickam v. Knoxville Int'l Energy Exposition, 739 F.2d 1094, 1097 (6th Cir. 1984)) (emphasis added).


USPC sets forth several arguments in support of its motion. First, USPC argues that Faessler's copyright infringement and tortious interference with contract claims are barred in whole or in part by statutes of limitation. In a somewhat related argument, USPC contends that Faessler's copyright infringement claims are barred by the equitable doctrine of laches because Faessler delayed filing this action over seven years and USPC has suffered substantial prejudice. Next, addressing the merits of Faessler's copyright infringement claims, USPC argues that: (1) Faessler's cards failed to include the requisite copyright notice and thus entered the public domain; and (2) there is no infringement because USPC's cards are not substantially similar to Faessler's cards. Finally, USPC argues that Faessler's tortious interference with contract claim fails because Faessler cannot prove that USPC intentionally procured the breach of his contract. The Court will address each of these contentions in turn.

A. Statute of Limitations

1. Copyright Infringement

A plaintiff must bring a civil copyright infringement claim within three years after the claim accrues. 17 U.S.C. § 507(b). "A cause of action for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge." Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994). Because each act of infringement is a distinct harm, the statute of limitations bars infringement claims that accrued more than three years before suit was filed but does not preclude infringement claims that accrued within the statutory period. Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 889 (6th Cir. 2004); see also Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202 (4th Cir. 1997). The copyright holder's recovery in such cases is limited to acts of infringement that accrued within the limitations period. Roley, 19 F.3d at 481.

Based on the three-year limitations period, USPC argues that to the extent Faessler prevails on his copyright infringement claims, he can only recover damages for sales of USPC decks after September 6, 2002, which is three years prior to the date he filed his Complaint. Faessler responds that the Court has the discretion to equitably toll the statute of limitations and that summary judgment on the issue is improper as the record is insufficiently developed on "the numerous issues which may affect [Faessler's] right to calculate damages across time." (Doc. 12 at 15.)

"Because the statute of limitations is an affirmative defense, the burden is on the defendant to show that the statute of limitations has run. If the defendant meets this requirement then the burden shifts to the plaintiff to establish an exception to the statute of limitations." Campbell v. Grand Trunk Western R. Co., 238 F.3d 772, 775 (6th Cir. 2001). USPC has demonstrated by pointing to Faessler's Complaint that Faessler knew of USPC's allegedly infringing playing cards in 1998. (Doc. 1 ¶¶ 18-19.) Faessler alleges that he sent USPC a cease and desist letter the following June. (Id. at ¶ 21.) Nonetheless, Faessler did not file his Complaint until September 6, 2005. Thus, USPC has meet its burden of showing that the statute of ...

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