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Duncanson v. SJ Wathen Bloomington, LLC

United States District Court, M.D. Florida, Orlando Division

February 27, 2018

MEGAN AROON DUNCANSON, et al., Plaintiffs,
SJ Wathen Bloomington, LLC, et. al, Defendants.



         This cause is before the Court following a one-day bench trial on Monday, November 28, 2016. Having considered the pleadings, evidence, argument, and relevant legal authority, and having made determinations on the credibility of the witnesses, the Court hereby renders its decision on the merits of this case pursuant to Federal Rule of Civil Procedure 52.

         I. BACKGROUND

         Plaintiffs, Megan Arron Duncanson (“Duncanson”) and Sheri Marie Wiseman (“Wiseman”) initiated this action against a variety of defendants on May 5, 2014. (Doc. 1). Plaintiffs are visual artists who have authored and hold copyrights to various works of art. Defendants hosted “paint parties” where customers were taught to paint a featured painting during the party. Plaintiffs allege that Defendants used their copyrighted works at various paint parties without their permission, in violation of the United States Copyright Act, 17 U.S.C. § 101.

         The operative pleading is the Second Amended Complaint (Doc. 146), which contains a total of 163 counts of direct, contributory, and vicarious contributory copyright infringement. After several years of extensive motion practice, Plaintiff Wiseman and all defendants except for Defendant SJ Wathen Bloomington, LLC (“Bloomington”) have been dismissed from the action. Duncanson and Bloomington litigated the remaining counts from the Second Amended Complaint (Counts 71-78) in a bench trial before the Court on November 28, 2016. Counts 71, 73, 75, and 77 allege direct infringement, and Counts 72, 74, 76, and 78 allege contributory infringement. In lieu of closing arguments, the parties submitted post-trial briefs containing their final arguments. (Docs. 313, 315).

         The issues before the Court are as follows:

1. Whether Duncanson owns the various works of art involved in this dispute, known as Blue Depth, Bubbling Joy Collection, and Twisting Love 2007;
2. Whether Bloomington had any knowledge of the infringement activity that occurred; and
3. The correct calculation of damages.


         This Court has jurisdiction pursuant to 28 U.S.C. §1331, as the case involves the alleged violation of the United States Copyright Act.


         1. Duncanson is a full-time artist who has painted professionally since 1999. (Doc. 308, 17:3-9). Duncanson sells her artwork through her personal website, and through other on-line art websites, including Print on Demand, Fine Art America, Zazzle,,, Redbubble, and Society6. (Id. at 26:18-24). Duncanson licensed the use of her artwork to Uptown Art-a paint party studio-which teaches students to paint some of her artwork during paint classes. (Id. at 44:14-25). Pursuant to her licensing agreement with Uptown Art, Ducanson receives a licensing fee of $2 for every student who attends a paint party class where her artwork is taught. (Id. at 44:25-45:14).

         2. In 2006, Duncanson painted original works she entitled Blue Depth, (Id. at 21:13-15, 22:9-10), and Bubbling Joy (Id. at 19:18-25). In 2007, Ducanson painted an original work she entitled Twisting Love (Id. at 24:17-19). She created each of these paintings from her own imagination while working in her personal paint studio. (Id. at 20:7; 23:2; 25:18).

         3. In 2013, Duncanson submitted copyright registration applications to the United States Copyright Office (“USCO”) for the paintings Blue Depth, Bubbling Joy, and Twisted Love. (Id. at 86:9-89:9). As a result, the USCO issued certificates of registration for Blue Depth (VA 1-11-154), Bubbling Joy (1-860-451), and Twisting Love (VA 1-872-086). (Id.).

         4. Wine and Canvas is a business model in the business of paint parties. (Id. at 6:9-20). At all relevant times, Defendant Bloomington was a licensee of Wine and Canvas, and hosted paint parties where artists teach students how to paint a featured painting through step-by-step instructions. (Id. at 210:2-6).

         5. The artists who teach the paint classes are hired by Bloomington as contractors. (Id. at 159:9-10). The contracted artists choose what artwork they want to teach, and submit a copy of that artwork to Bloomington. (Id.).

         6. Prior to the parties, Bloomington makes a copy of the artwork and submits it to Wine and Canvas corporate for approval. (Id.). Bloomington advertises the featured artwork on its website,, and on its facebook page. (Id. at 156:6-7).

         7. On, customers can look at a calendar for parties scheduled at numerous locations across the country, and view images of the paintings that will be taught at those parties. (Id. at 44:2-13). Customers can then click on the image of the painting they are interested in and sign up and pay for the class on the website. (Id.). The cost of the class, as advertised on the website, is $35 per student. (Id. at 51:2-5).

         8. Bloomington also displays the artists' artwork on the walls of the Bloomington studio. (Id. at 159:1-3).

         9. In 2012, someone notified Duncanson that paint party studios were using her original artwork. (Id. at 46:7-47:8). After searching online, Duncanson found her artwork being used on and Bloomington's facebook page. (Id.). Specifically, Duncanson found pictures of students painting her original artwork in paint classes held by Bloomington. (Id.). Duncanson also found her original artwork displayed in the calendar ...

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