(C06-0186-MAT) - 1 

Defendant’s Motion for Partial Summary Judgment 

MANN LAW GROUP 

1420 Fifth Avenue, Suite 2200 

Seattle, WA 98101 

TELEPHONE: 206.274.5100 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

 Honorable Mary Alice Theiler 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON AT SEATTLE 

PROPET USA, INC., 

Plaintiff, 

v. 

LLOYD SHUGART, 

Defendant. 

No. C06-0186 MAT 

MOTION FOR PARTIAL 

SUMMARY JUDGMENT 

DISMISSING PLAINTIFF’S 

COMPLAINT SEEKING 

INJUNCTIVE RELIEF 

NOTE ON MOTION 

CALENDAR: July 13, 2007

I. INTRODUCTION 

Defendant Lloyd Shugart (“Mr. Shugart”), through undersigned counsel, hereby 

moves, pursuant to Fed. R. Civ. P. 56, for partial summary judgment dismissing Plaintiff 

Propet, USA, Inc.’s (“Propet”) claim for injunctive relief. Based on the undisputed facts, 

Propet can neither allege nor offer evidence to sustain a claim for injunctive relief because 

Mr. Shugart has been held to be the legal owner of the photographs that are the subject of this 

action and Mr. Shugart has maintained all his rights in his copyright. Propet has further 

acknowledged Mr. Shugart’s ownership and rights in the photographs. The undisputed facts 

demonstrate that Mr. Shugart is the copyright owner of the photographs, and that Mr. Shugart 

cannot be permanently enjoined from exercising his exclusive right in the photographs. 

Case 2:06-cv-00186-MAT Document 74 Filed 06/18/07 Page 1 of 6
(C06-0186-MAT) - 2 

Defendant’s Motion for Partial Summary Judgment 

MANN LAW GROUP 

1420 Fifth Avenue, Suite 2200 

Seattle, WA 98101 

TELEPHONE: 206.274.5100 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

Because no genuine issue of material fact exists with respect to Mr. Shugart’s 

ownership and rights, plaintiff’s complaint seeking injunctive relief should be dismissed. 

II. UNDISPUTED FACTS 

The relevant undisputed facts are supported by the accompanying Exhibits A, B and 

C. 

The undisputed facts show that Mr. Shugart is the copyright owner of the photographs 

that are the subject of this action. This Court has determined in its Order RE: Summary 

Judgment Motions dated May 3, 2007 (attached hereto as Exhibit A) that Mr. Shugart was 

entitled to judgment as a matter of law in his motion for partial summary judgment regarding 

copyright ownership. This Court found that there have been no written agreements as to the 

transfer of Mr. Shugart’s copyright ownership. As stated in the Copyright Act, “[a] transfer 

of copyright ownership, other than by operation of law, is not valid unless an instrument of 

conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner 

of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. §204(a). Thus, Mr. 

Shugart is the copyright owner and he has maintained all his rights in the photographs. 

The undisputed facts further show that Propet concedes and acknowledges Mr. 

Shugart’s copyright ownership and his rights in the photographs. Propet does not dispute the 

fact that Mr. Shugart is the copyright owner. “Since there is also no fact dispute that he and 

Propet failed to execute a contract or other writing that spelled out a requirement that the 

transfer his rights to Propet, then Shugart is in the position of ‘copyright owner.’” See 

Plaintiff’s Motion for Summary Judgment, p. 12, attached hereto as Exhibit B. Further, 

Propet also acknowledges that Mr. Shugart is able to exercise his rights in the photographs. 

“Propet also acknowledges that Shugart has the right to sell or license to others his copyright 

rights, whatever that are, because Propet did not execute a written contract with Shugart.” See 

Propet’s Reply to Shugart’s Memorandum in Opposition to Propet’s Motion for Summary 

Judgment, p. 3, attached hereto as Exhibit C. 

Case 2:06-cv-00186-MAT Document 74 Filed 06/18/07 Page 2 of 6
(C06-0186-MAT) - 3 

Defendant’s Motion for Partial Summary Judgment 

MANN LAW GROUP 

1420 Fifth Avenue, Suite 2200 

Seattle, WA 98101 

TELEPHONE: 206.274.5100 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

III. ARGUMENT 

A. Propet is Unable to Maintain a Claim for Injunctive Relief. 

Propet’s Amended Complaint for Declaratory and Injunctive Relief Concerning 

Copyright pray for relief that is not available to an implied non-exclusive licensee. Propet has 

claimed that it is in the position of an implied non-exclusive licensee; however, this claim 

eviscerates its prayer for injunctive relief. Specifically, in its Amended Complaint, Propet 

demands that this Court (1) permanently enjoin Mr. Shugart from selling or offering for sale 

any Propet Photos on E-Bay, (2) permanently enjoin Mr. Shugart from transferring any right, 

title or interest in Propet Photos to third parties without advance written approval of Propet, 

and (3) permanently enjoin Mr. Shugart from threatening Propet customers with copyright 

infringement claims relating to their use of “Propet Photos.” See Propet’s Amended 

Complaint Prayer for Relief, ¶C – E. 

B. Propet Cannot Prohibit Mr. Shugart from Selling or Offering for Sale, 

Transferring any Right, Title or Interest in Mr. Shugart’s Photographs. 

The demands for injunctive relief by Propet violates one or more of the exclusive 

rights of a copyright owner enumerated under §106 of the Copyright act. In particular §106 

of the Copyright Act clearly provides that it is the “owner of copyright” who has the right to 

do such things as “reproduce the copyrighted work,” (§106(1)), “prepare derivative works 

based on the copyrighted work,” (§106(2)) and “distribute copies...of the copyrighted work to 

the public by sale, or other transfer of ownership...” (§106(3)). Section 106 further expressly 

provides that the copyright owner’s right to do such things is “exclusive,” meaning, of course, 

that no one else (such as Propet) enjoys such rights. As copyright owner, Mr. Shugart is 

entitled to sell, offer for sale, transfer any right, title or interest in his photographs. Thus, 

Propet’s demand for injunctive relief, essentially seeks relief far in excess than would be 

available under the “implied” license it claims to have received. Given that this Court and 

Propet agree that there has been no transfer of Mr. Shugart’s copyright ownership in the 

Case 2:06-cv-00186-MAT Document 74 Filed 06/18/07 Page 3 of 6
(C06-0186-MAT) - 4 

Defendant’s Motion for Partial Summary Judgment 

MANN LAW GROUP 

1420 Fifth Avenue, Suite 2200 

Seattle, WA 98101 

TELEPHONE: 206.274.5100 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

photographs, See this Court’s Order RE: Summary Judgment Motions, there is simply no way 

Propet could have obtained the exclusive rights it seeks to enforce against Mr. Shugart. 

Further, Propet has acknowledged that its claim for injunctive relief preventing Mr. 

Shugart from selling, offering for sale, transferring any right, title or interest in his 

photographs should be denied. In particular, Propet has acknowledged that Mr. Shugart has 

the right to sell or license to others his copyright. See Propet’s Reply to Shugart’s 

Memorandum in Opposition to Propet’s Motion for Summary Judgment, p. 3. 

C. Propet Cannot Prohibit Mr. Shugart from Enforcing His Copyrights Against 

Propet Customers who Misuse Mr. Shugart’s Photographs. 

Propet is not permitted to restrict Mr. Shugart’s exclusive rights. An implied nonexclusive license only allows the licensee to use the work at issue. Effects Associates v. 

Cohen at 558 and Oddo v. Ries, 743 F.2d 630, 636 (9th Cir. 1984). Nothing in such a license 

restricts the copyright owner (i.e., Mr. Shugart) from exercising the exclusive rights set out in 

17 U.S.C. §106. Accordingly, a copyright owner is entitled to protect his rights and assert his 

rights against suspected infringers his copyright. Thus, as the copyright owner, Mr. Shugart is 

entitled to assert his rights against Propet’s customers relating to their use of Mr. Shugart’s 

photographs. As noted by this Court and acknowledged by all parties, Mr. Shugart has not 

transferred any of his rights in his photographs. Mr. Shugart was, is, and remains the 

copyright owner. Thus, Propet is not entitled to prohibit Mr. Shugart from protecting his 

copyrights. An injunction restricting a copyright owner from asserting his rights is improper. 

 Accordingly, Propet has no standing to limit and restrict Mr. Shugart’s rights as 

demanded in its Amended Complaint. 

IV. CONCLUSION 

For the forgoing reasons, Mr. Shugart’s Motion for Partial Summary Judgment should 

be granted and Propet’s claim for injunctive relief should be dismissed. Such action by this 

 // 

// 

Case 2:06-cv-00186-MAT Document 74 Filed 06/18/07 Page 4 of 6
(C06-0186-MAT) - 5 

Defendant’s Motion for Partial Summary Judgment 

MANN LAW GROUP 

1420 Fifth Avenue, Suite 2200 

Seattle, WA 98101 

TELEPHONE: 206.274.5100 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

Court is respectfully solicited. An appropriate proposed order accompanies this motion. 

Dated this 18th day of June, 2007. 

/s/ Philip P. Mann 

Philip P. Mann, WSBA No: 28,860 

Mann Law Group 

1420 Fifth Avenue, Suite 2200 

Seattle, Washington 98101 

(206) 274-5100 

phil@mannlawgroup.com 

Attorneys for Defendant Lloyd Shugart 

Case 2:06-cv-00186-MAT Document 74 Filed 06/18/07 Page 5 of 6
(C06-0186-MAT) - 6 

Defendant’s Motion for Partial Summary Judgment 

MANN LAW GROUP 

1420 Fifth Avenue, Suite 2200 

Seattle, WA 98101 

TELEPHONE: 206.274.5100 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

CERTIFICATE OF SERVICE 

I hereby certify that on this 18th day of June, 2007, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which will send notification of such 

filing to the following: 

Bruce A. Kaser bruce@vantagelaw.net

James L. Phillips james.phillips@millernash.com, 

Dated this 18th day of June, 2007. 

/s/ Eryn Y. K. Deblois 

Eryn Y. K. Deblois 

Mann Law Group 

1420 Fifth Avenue, Suite 2200 

Seattle, Washington 98101 

(206) 274-5100 

Case 2:06-cv-00186-MAT Document 74 Filed 06/18/07 Page 6 of 6