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Payton v. Defend, Inc.

United States District Court, D. Hawaii

December 19, 2017

KEONI PAYTON, Plaintiff,
v.
DEFEND, INC., and MICHAEL BUNTENBAH aka MIKE MALONE, Defendants.

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION.

         This case involves alleged copyright infringement. Defendants seek summary judgment, arguing: (1) Plaintiff Keoni Payton lacks a protected copyright in his “Defend Hawaii” image; (2) Payton's copyright claims are barred by the copyright merger doctrine and/or the related scènes à faire doctrine; (3) Payton's copyright claims violate Defendants' First Amendment rights; and (4) Payton is not entitled to statutory damages or attorney's fees. The court denies the motion.

         II. BACKGROUND.

         On June 24, 2015, Payton filed the Complaint in this matter, asserting claims of direct copyright infringement (Count I), contributory infringement (Count II), and vicarious copyright infringement (Count III). See ECF No. 1.

         The Complaint alleges that Payton designed and owns an image containing a drawing of an AR-15 rifle, along with the words “Defend” and “Hawaii”:

         (IMAGE OMITTED)

         See ECF No. 1, ¶¶ 10-11. According to the Complaint, Defendants are using this image (or one similar to it) on clothing and other products and have been infringing since February 2010. Id. ¶¶ 23, 28. 30. The Complaint also alleges that, on June 23, 2015, Defendants' website listed t-shirts for sale using the copyrighted image:

         (IMAGE OMITTED)

         Payton says he alone designed the image in 2004. See Deposition of Keoni Payton at 41-43, ECF No. 112-2, PageID # 760-61. Payton says he used a preinstalled font on his Mac Computer called “Stencil” for the words “Defend Hawaii.” He says that he then used Adobe Photoshop or Adobe Illustrator to stretch the letters into arches. Id. at 44-48, PageID # 761-62. For the weapon in the image, Payton says he took a picture of a model AR-15 Airsoft gun and made it into a silhouette using Photoshop's pen tool. Id. at 48-49, PageID # 762. Payton says that it only took a couple of hours to create the image and that he started to sell stickers and t-shirts with the image on them in 2005. Id. at 53, 68, PageID #s 763, 767.

         Payton's ex-girlfriend, Averi Saunders, tells a different story. She says that in 2006 she and Payton were watching an episode of Dave Chappelle's show when Spike Lee appeared wearing a “Defend Brooklyn” image. She says that, after watching the episode, Payton made the “Defend Hawaii” image, getting his inspiration for the “Defend Hawaii” image from the “Defend Brooklyn” image he saw Spike Lee wearing. See Decl. of Averi Saunders ¶¶ 1-5, ECF No. 96-11, PageID #s 625-26; see also ECF No. 96-12, PageID # 629 (image of Spike Lee wearing t-shirt with “Defend Brooklyn” image on it from Chappelle's Show on July 9, 2006). Payton says that Saunders's recollection is wrong. See ECF No. 112-2 at 100, PageID # 775. Although Payton recalls watching the show with Saunders, Payton says that he recalls thinking at the time that the “Defend Brooklyn” people had copied his design. See ECF No. 112-2 at 98, PageID # 775.

         Saunders says that, after creating the image, Payton was incarcerated on drug-related charges. See Saunders Decl. ¶ 7, ECF No. 96-11, PageID # 626. Saunders recalls that, while imprisoned, Payton told her to use the image for their family, as she was pregnant with his child. Id. ¶ 8, PageID #s 627. According to Saunders, she and Justin Anderson formed Defend Hawaii, LLC, in 2008. Id., PageID # 626-27. She says that she subsequently went into business with Defendant Michael Buntenbah. She terminated Defend Hawaii, LLC, created Defend, Inc., then sold her shares of Defend, Inc., to Buntenbah, believing that “all interest in the Subject Image” was also transferred to Defend, Inc., and its owner, Buntenbah. Id. ¶ 10, PageID # 627.

         In December 2014, Payton registered the “Defend Hawaii” image with the federal Copyright Office, Registration Number VA 1-934-173. ECF No. 112-3 (copy of copyright registration), PageID #s 824-25. Earlier in 2014, a trademark had been registered for a “Defend Brooklyn” image with a silhouette of an AK-47:

         (IMAGE OMITTED)

         According to the trademark registration for that image, it was first used in 1996. See ECF No. 96-9, PageID #s 621-22. The owner of the “Defend Brooklyn” image is unrelated to any party in this action.

         Payton concedes that the “Defend Hawaii” and “Defend Brooklyn” images are similar. See Payton Decl. at 99, ECF No. 112-2, PageID # 775. He says that the two images appear to use the same “Stencil” font and include a weapon, but that he did not copy the Defend Brooklyn image. Id. at 59-60, PageID # 765. Payton, however, concedes that it is possible that he saw the “Defend Brooklyn” image before he created his “Defend Hawaii” image. Id. at 57, PageID # 764.

         III. SUMMARY JUDGMENT STANDARD.

         The summary judgment standard was set forth in this court's order of October 17, 2017. See ECF No. 106. That ...


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