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Maslon Attorneys Win Summary Judgment from United States District Court for the District of Minnesota

May 28, 2009

Maslon attorneys David Schultz and Keiko Sugisaka recently won summary judgment from the United States District Court for the District of Minnesota in the case of Thomsen v. Famous Dave's of America, Inc. et al., Civil No. 07-1989 (DWF/RLE), 2009 WL 397972 (D. Minn. 2009). Famous Dave's is a chain of American barbeque restaurants, created in 1995 by founder Dave Anderson. In 1995, Anderson hired Allen Thomsen to paint signs and décor to be used at the first Famous Dave's location, in the Linden Hills neighborhood in Minneapolis, Minnesota. This restaurant was a "flagship" for what Anderson envisioned would become a national chain of restaurants. As Famous Dave's continued to expand and open new restaurants, it continued to hire Thomsen to paint signs in some of its new locations.

In 2001, another sign painter employed by Famous Dave's told Thomsen that he intended to incorporate décor ideas from a restaurant Thomsen was working on into the design of the restaurant that individual was working on. Soon thereafter, Thomsen claimed copyright ownership of the signs he had painted for Famous Dave's. To resolve this dispute, Anderson and Thomsen entered into a settlement agreement ("Settlement Agreement"). The Settlement Agreement was negotiated and entered into without the participation of attorneys.

The key provision of the Settlement Agreement, which Famous Dave's has dubbed the "Copyright Release Clause," provided that "Thomsen is releasing all copyright, proprietary design and sign work to [Famous Dave's] in all other restaurants that he has worked on which the exception of Sioux Falls, Burnsville, Crosslake, and Wisconsin Dells. This does not preclude [Thomsen] from producing or manufacturing these signs for Famous Dave's."

Thomsen brought the current action against Famous Dave's in 2007, alleging copyright infringement, inducement to infringe, vicarious infringement, and conspiracy to infringe with respect to works that Thomsen had created between 1995-2000. Thomsen also alleged that Famous Dave's breached the terms of the Settlement Agreement, and sought a determination that the Settlement Agreement was ineffective.

Famous Dave's filed for summary judgment, arguing that Thomsen's infringement claims were barred by the terms of the Copyright Release Clause, which unambiguously transferred ownership of each of the copyrights at issue to Famous Dave's in 2001.

Thomsen argued that the Copyright Release Clause did not unambiguously assign the copyrights to Famous Dave's. Instead, Thomsen stated that the Settlement Agreement "speaks in terms of releasing past infringement claims and specifically contemplates lawsuits for infringements that might take place after the agreement was signed."

The Federal District Court for the District of Minnesota, Judge Donovan W. Frank, disagreed. The Court pointed out that the Copyright Release Clause "is not limited to the release of past infringement claims. The clause does not mention 'lawsuits' or 'infringement claims' but instead explicitly releases 'all copyright, proprietary design and sign work.'" Accordingly, the Court granted summary judgment to Famous Dave's, finding that the Settlement Agreement unambiguously transferred ownership of each of the copyrights at issue to Famous Dave's.

The Court also dismissed Thomsen's contract claims, finding that they failed as a matter of law.

Famous Dave's is currently awaiting ruling on a motion for fees and costs under 17 U.S.C. § 505 and 28 U.S.C. § 1927, as well as on a motion for summary judgment on its counterclaims for breach of contract (based on the Settlement Agreement) and declaratory judgment.


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