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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PROPET USA, INC.,

Plaintiff,

v.

LLOYD SHUGART,

Defendant.

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CASE NO. C06-0186-MAT

COURT’S PRELIMINARY

 JURY INSTRUCTIONS

DATED this 24th day of September, 2007.

A

Mary Alice Theiler

United States Magistrate Judge 

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PRELIMINARY INSTRUCTION NO. 1

DUTY OF JURY

Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on

the law.

These instructions are preliminary instructions to help you understand the principles that

apply to civil trials and to help you understand the evidence as you listen to it. You will be allowed

to keep this set throughout the trial to which to refer. This set of instructions is not to be taken

home and must remain in the jury room when you leave in the evenings. At the end of the trial, I

will give you a final set of instructions. It is the final set of instructions which will govern your

deliberations.

You must not infer from these instructions or from anything I may say or do as indicating

that I have an opinion regarding the evidence or what your verdict should be.

It is your duty to find the facts from all the evidence in the case. To those facts you will

apply the law as I give it to you. You must follow the law as I give it to you whether you agree

with it or not. And you must not be influenced by any personal likes or dislikes, opinions,

prejudices, or sympathy. That means that you must decide the case solely on the evidence before

you. You will recall that you took an oath to do so.

In following my instructions, you must follow all of them and not single out some and

ignore others; they are all important.

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PRELIMINARY INSTRUCTION NO. 2

BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proof on any claim by a preponderance of the evidence,

it means you must be persuaded by the evidence that the claim is more probably true than not true.

You should base your decision on all of the evidence, regardless of which party presented

it.

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PRELIMINARY INSTRUCTION NO. 3

CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the

parties:

The following facts are admitted by the parties and you should therefore treat these facts

as having been proved:

1. Propet U.S.A., Inc. (hereinafter “Propet”) sells and distributes Propet brand shoes

throughout the United States. Propet advertises its shoes in various media outlets that require

photographs.

2. From 1999-2005 Propet regularly had Lloyd Shugart (hereinafter “Mr. Shugart”)

take photographs.

3. Mr. Shugart invoiced Propet for his services on a per-project basis. 

4. From 2003-2005, Propet paid Mr. Shugart in excess of $100,000. All of Mr. 

Shugart’s invoices were paid. 

Mr. Shugart claims that he provided a film delivery memo with all invoices he sent to

Propet, that he sealed each set of film delivered to Propet with a seal giving notice of the film

delivery memo, and that certain images provided in electronic form contained an electronically

embedded notice of his copyright ownership. He asserts that the film delivery memo included a

number of terms, including, but not limited to, a license to use the photographic images for a

maximum of two years, a prohibition on use of the images by third parties without Mr. Shugart’s

written approval, and an obligation to return all original images.

Mr. Shugart maintains that the film delivery memo constituted a written agreement

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between the parties. He claims that Propet was aware of and accepted the terms of the film

delivery memo, and that Propet violated those terms by, among other things, using certain images

for more than two years following delivery, permitting others to use the images, and failing to

return the images. Mr. Shugart contends that Propet infringed his copyrights. He also contends

that Propet unlawfully removed notice of his copyright ownership from certain images in violation

of the Digital Millennium Copyright Act and that Propet unlawfully failed to return certain images.

Propet disputes Mr. Shugart’s claims. It claims that it paid Mr. Shugart to take

photographs and in return Propet was licensed to use them in all reasonable ways related to

Propet’s business, including the right to provide the photographs to third-party users for

advertising. Propet denies the existence of any written agreement, asserting that it never

authorized or agreed to the film delivery memo and that the film delivery memo was not provided

to it on either all or substantially all of the deliveries of film. It also raises other defenses.

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PRELIMINARY INSTRUCTION NO. 4

PRELIMINARY INSTRUCTION—COPYRIGHT

Mr. Shugart is the copyright owner and seeks damages against Propet for copyright

infringement. Propet denies infringing the copyright and contends it had a license to use Mr.

Shugart’s images. Propet also raises other defenses. To help you understand the evidence in this

case, I will explain some of the legal terms you will hear during this trial.

DEFINITION OF COPYRIGHT

The owner of a copyright has the right to exclude any other person from reproducing,

preparing derivative works, distributing, performing, displaying, or using the work covered by

copyright for a specific period of time.

Copyrighted work can be a literary work, musical work, dramatic work, pantomime,

choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual

work, sound recording, architectural work, mask works fixed in semiconductor chip products, or

a computer program.

Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles

or discoveries cannot themselves be copyrighted.

The copyrighted work must be original. An original work that closely resembles other

works can be copyrighted so long as the similarity between the two works is not the result of

copying.

COPYRIGHT INTERESTS

One who owns a copyright may agree to let another display the copyrighted work. The

person to whom this right is transferred is called a licensee.

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BURDEN OF PROOF

In this case, Mr. Shugart contends that Propet has infringed his copyright. Mr. Shugart has

the burden of proving by a preponderance of the evidence that Propet copied original elements of

the copyrighted work outside the scope of any license to use the work. Preponderance of the

evidence means that you must be persuaded by the evidence that it is more probably true than not

true that the copyrighted work was infringed.

LIABILITY FOR INFRINGEMENT

One who reproduces, distributes, or displays a copyrighted work without authority from

the copyright owner during the term of the copyright, infringes the copyright.

DEFENSES TO INFRINGEMENT

Propet contends that there is no copyright infringement and that it had a license to use Mr.

Shugart’s images. There is no copyright infringement if Propet had an unlimited license to use the

copyrighted work. Propet also raises other defenses to infringement.

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PRELIMINARY INSTRUCTION NO. 5

WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness;

(2) the exhibits which are received into evidence; and

(3) any facts to which the lawyers have agreed.

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PRELIMINARY INSTRUCTION NO. 6

WHAT IS NOT EVIDENCE

In reaching your verdict, you may consider only the testimony and exhibits received into

evidence. Certain things are not evidence, and you may not consider them in deciding what the

facts are. I will list them for you:

(1) Arguments and statements by lawyers are not evidence. The lawyers are not

witnesses. What they have said in their opening statements, will say in their closing arguments, and

at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as

you remember them differ from the way the lawyers have stated them, your memory of them

controls.

(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to 

their clients to object when they believe a question is improper under the rules of evidence. You

should not be influenced by the objection or by the court’s ruling on it.

(3) Testimony that has been excluded or stricken, or that you have been instructed to

disregard, is not evidence and must not be considered. In addition sometimes testimony and

exhibits are received only for a limited purpose; when I give a limiting instruction, you must follow

it.

(4) Anything you may have seen or heard when the court was not in session is not 

evidence. You are to decide the case solely on the evidence received at the trial.

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PRELIMINARY INSTRUCTION NO. 7

EVIDENCE FOR LIMITED PURPOSE

Some evidence may be admitted for a limited purpose only.

When I instruct you that an item of evidence has been admitted for a limited purpose, you

must consider it only for that limited purpose and for no other.

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PRELIMINARY INSTRUCTION NO. 8

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as

testimony by a witness about what that witness personally saw or heard or did. Circumstantial

evidence is proof of one or more facts from which you could find another fact. You should

consider both kinds of evidence. The law makes no distinction between the weight to be given to

either direct or circumstantial evidence. It is for you to decide how much weight to give to any

evidence.

By way of example, if you wake up in the morning and see that the sidewalk is wet, you

may find from that fact that it rained during the night. However, other evidence, such as a turned

on garden hose, may provide a different explanation for the presence of water on the sidewalk.

Therefore, before you decide that a fact has been proved by circumstantial evidence, you must

consider all the evidence in the light of reason, experience, and common sense.

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PRELIMINARY INSTRUCTION NO. 9

RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a lawyer

asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is

not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the

question may be answered or the exhibit received. If I sustain the objection, the question cannot

be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question,

you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard

or ignore the evidence. That means that when you are deciding the case, you must not consider

the evidence that I told you to disregard.

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PRELIMINARY INSTRUCTION NO. 10

CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and

which testimony not to believe. You may believe everything a witness says, or part of it, or none

of it. Neither proof of a fact, nor the weight of the evidence necessarily depends on the number

of witnesses who testify about it.

In considering the testimony of any witness, you may take into account:

(1) the opportunity and ability of the witness to see or hear or know the things 

testified to;

(2) the witness’s memory;

(3) the witness’s manner while testifying;

(4) the witness’s interest in the outcome of the case and any bias or prejudice;

(5) whether other evidence contradicted the witness’s testimony;

(6) the reasonableness of the witness’s testimony in light of all the evidence; and

(7) any other factors that bear on believability.

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PRELIMINARY INSTRUCTION NO. 11

CORPORATIONS

Under the law, a corporation is considered to be a person. It can only act through its

employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its

employees, agents, directors, and officers performed within the scope of authority.

All parties are equal before the law and a corporation is entitled to the same fair and

conscientious consideration by you as any party.

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PRELIMINARY INSTRUCTION NO. 12

CHARTS AND SUMMARIES

Certain charts and summaries not received in evidence may be shown to you in order to

help explain the contents of books, records, documents, or other evidence in the case. They are

not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures

shown by the evidence in the case, you should disregard these charts and summaries and determine

the facts from the underlying evidence.

Certain charts and summaries may be received into evidence to illustrate information

brought out in the trial. Charts and summaries are only as good as the underlying evidence that

supports them. You should, therefore, give them only such weight as you think the underlying

evidence deserves.

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PRELIMINARY INSTRUCTION NO. 13

CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors.

First, you are not to discuss this case with anyone, including members of your family,

people involved in the trial, or anyone else; this includes discussing the case in internet chat

rooms or through internet “blogs,” internet bulletin boards or e-mails. Nor are you allowed to

permit others to discuss the case with you. If anyone approaches you and tries to talk to you

about the case, please let me know about it immediately;

Second, do not read or listen to any news stories, articles, radio, television, or online

reports about the case or about anyone who has anything to do with it;

Third, do not do any research, such as consulting dictionaries, searching the Internet or

using other reference materials, and do not make any investigation about the case on your own;

Fourth, if you need to communicate with me simply give a signed note to the clerk to

give to me; and

Fifth, do not make up your mind about what the verdict should be until after you have

gone to the jury room to decide the case and you and your fellow jurors have discussed the

evidence. Keep an open mind until then.

Finally, until this case is given to you for your deliberation and verdict, you are not to

discuss the case with your fellow jurors.

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PRELIMINARY INSTRUCTION NO. 14

NO TRANSCRIPT AVAILABLE TO JURY

During deliberations, you will have to make your decision based on what you recall of

the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the

testimony as it is given.

If at any time you cannot hear or see the testimony, evidence, questions or arguments,

let me know so that I can correct the problem.

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PRELIMINARY INSTRUCTION NO. 15

TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take

notes, please keep them to yourself until you and your fellow jurors go to the jury room to

decide the case. Do not let note-taking distract you. When you leave, your notes should be left

in the jury room. No one will read your notes. They will be destroyed at the conclusion of the

case.

Whether or not you take notes, you should rely on your own memory of the evidence.

Notes are only to assist your memory. You should not be overly influenced by your notes or

those of your fellow jurors.

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PRELIMINARY INSTRUCTION NO. 16

BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become necessary for me to talk with the

attorneys out of the hearing of the jury, either by having a conference at the bench when the

jury is present in the courtroom, or by calling a recess. Please understand that while you are

waiting, we are working. The purpose of these conferences is not to keep relevant information

from you, but to decide how certain evidence is to be treated under the rules of evidence and

to avoid confusion and error.

Of course, we will do what we can to keep the number and length of these conferences

to a minimum. I may not always grant an attorney’s request for a conference. Do not consider

my granting or denying a request for a conference as any indication of my opinion of the case

or of what your verdict should be.

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PRELIMINARY INSTRUCTION NO. 17

You may notice during the trial that you will pass a lawyer or party to the case in the 

hall or the elevator, or in the street outside, and you will not be greeted. If that happens it

does not reflect any impoliteness. One of the customs of the court is that parties and lawyers

do not greet jurors. The purpose is to avoid any impression of trying to curry favor with the

juror.

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PRELIMINARY INSTRUCTION NO. 18

OUTLINE OF TRIAL

Trials proceed in the following way: First, each side may make an opening statement.

An opening statement is not evidence. It is simply an outline to help you understand what that

party expects the evidence will show. A party is not required to make an opening statement.

Mr. Shugart will then present evidence, and counsel for Propet may cross-examine.

Then Propet may present evidence, and counsel for Mr. Shugart may cross-examine.

After the evidence has been presented, I will instruct you on the law that applies to the

case and the attorneys will make closing arguments.

After that, you will go to the jury room to deliberate on your verdict.

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PRELIMINARY INSTRUCTION NO. 19

CAUTIONARY INSTRUCTION—FIRST RECESS

We are about to take our first break during the trial, and I want to remind you of the

instruction I gave you earlier. Until the trial is over, you are not to discuss this case with

anyone, including your fellow jurors, members of your family, people involved in the trial, or

anyone else, nor are you allowed to permit others to discuss the case with you. If anyone

approaches you and tries to talk to you about the case, please let me know about it

immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to

keep an open mind until all the evidence has been received and you have heard the arguments

of counsel, the instructions of the court, and the views of your fellow jurors.

If you need to speak with me about anything, simply give a signed note to the clerk to

give to me.

I may not repeat these admonitions each time we recess or adjourn, but you should

remember them on such occasions.

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