United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DLTFEY, JR. UNITED STATES DISTRICT
matter is before the Court on Defendants Panacea Management
Group LLC (“Panacea”) and Lee Schulman's
(“Schulman”) (together, “Defendants”)
Motion for Summary Judgment , Plaintiff Floyd Anthony
Fey's (“Plaintiff”) Motion for Leave to file
Plaintiff's Local Rule 56.1(B)(2) Response to Statement
of Undisputed Material Facts and Plaintiff's Local Rule
56.1(B)(2)(b) Statement of Additional Material Facts 
(“Motion for Leave”), and Defendants' Daubert
Motion to Exclude Proposed Expert Testimony of Anna Fey 
is a professional artist in Atlanta, Georgia.
(Defendants' Statement of Undisputed Material Facts
[32.2] (“DSMF”) ¶¶ 1-2). In 1994, Tommy
Turrentine (“Turrentine”) commissioned Plaintiff
to create a drawing of the Old Vinings Inn restaurant (the
“Restaurant”) for $125. (DSMF ¶¶ 12,
20). Turrentine owned the Restaurant at the time. (DSMF
¶ 12). Plaintiff completed the drawing and told
Turrentine that “the picture of the restaurant could
only be hung as wall art.” ( at 37; DSMF ¶
18). The drawing depicted the exterior of the Restaurant, was
eleven by fourteen inches, and was done using graphite pencil
on paper. ([32.8] at 1). Plaintiff's name appeared in the
bottom-left corner of the drawing. ([1.1]). Turrentine
displayed the drawing on the Restaurant's wall.
in 1994, Turrentine asked Plaintiff to update the drawing to
reflect architectural changes to the Restaurant. (DSMF ¶
22). Plaintiff used an overlay to make the requested
modification to the drawing. (DSMF ¶ 23). This increased
the drawing's dimensions to eleven by eighteen inches.
([32.8] at 1). Plaintiff gave Turrentine a photostatic print
of the modified drawing (the “Drawing”) but kept
the original in his possession. (DSMF ¶¶ 26-27).
Plaintiff did not charge Turrentine for the modification
because he was happy with the publicity he received from
having the drawing on display in the Restaurant. (DSMF ¶
24). Plaintiff's name remained in the bottom-left corner
of the Drawing. ([1.2]). Plaintiff is unwilling to sell the
Drawing-or prints of the Drawing-to third parties because it
is a commissioned work. (DSMF ¶¶ 15-17).
April 2013, Panacea leased the Restaurant building and
purchased the Restaurant's remaining assets, including
its intellectual property. (DSMF ¶¶ 8, 10;  at
18-19). Although the photostatic print of the
Drawing no longer hung in the Restaurant at the time of the
purchase, Schulman, the sole member of Panacea, found a copy
of the Drawing in a Restaurant advertisement in a local
newspaper dated February 1996. (DSMF ¶¶ 9, 38, 43;
 at 55). Plaintiff's name was not visible or legible
on this version of the Drawing. (DSMF ¶ 46). Schulman
located the advertisement in a scrapbook in a museum across
the street from the Restaurant. (DSMF ¶ 38). He made a
copy of the Drawing, with the permission of the museum
curator, and began using the Drawing to promote the
Restaurant. (DSMF ¶ 39). Schulman did not know who
created the Drawing, and believed that Panacea was authorized
to use it because Panacea had acquired the Restaurant's
intellectual property. (DSMF ¶¶ 40-41).
September 11, 2013, Plaintiff visited the Restaurant for the
first time since 1994, and met with Schulman. (DSMF
¶¶ 27, 29-30). Plaintiff noticed that a copy of the
Drawing, taken from the newspaper advertisement, was
displayed on the Restaurant's gift cards and menus. (DSMF
¶¶ 31, 36). Plaintiff told Schulman that he created
the Drawing. (DSMF ¶ 32). Schulman told Plaintiff he
could “show his work at the restaurant . . . at no
charge, ” and gave Plaintiff a business card that had a
version of the Drawing on it. ( at 76; DSMF ¶¶
33, 37). Plaintiff did not ask Schulman to stop displaying
the Drawing. ( at 74).
the meeting, Plaintiff sent Schulman a letter expressing
“concern that [his] name was nowhere associated with
the [Drawing] at all.” ( at 58; DSMF ¶ 44).
Plaintiff asked Schulman to “ensure that his name was
always associated with the [Drawing] in the future.”
( at 75; DSMF ¶ 44). Plaintiff did not receive a
response. ([32.8] at 2). Shortly after sending the letter,
Plaintiff saw a copy of the Drawing on the Restaurant's
website. (DSMF ¶ 48).
year later, on October 31, 2014, Plaintiff's counsel sent
Schulman a letter, noting that the Drawing appeared on the
Restaurant's website and social media accounts, and on
third party websites such as urbanspoon.com. ([32.8] at 2).
The letter stated that Plaintiff's name did not appear on
these versions of the Drawing, and demanded payment of a $23,
000 license fee or a $30, 000 purchase price for the Drawing.
([32.8] at 2-3; DSMF ¶ 49).
November 17, 2014, Defendants' counsel responded to
Plaintiff's letter and agreed to investigate the alleged
copyright infringements. (DSMF ¶ 52). The same day,
Plaintiff registered his Drawing with the United States
Copyright Office. (DSMF ¶ 60). In December 2014, Panacea
offered to purchase an unlimited license to the Drawing.
(DSMF ¶ 61). Plaintiff declined the offer, and
Defendants immediately began to remove the Drawing from the
Restaurant's website and social media accounts, third
party websites featuring the Restaurant, and the
Restaurant's marketing materials, including gift cards,
business cards, and menus. (DSMF ¶ 61). Defendants
replaced the Drawing with a monochromatic version
(“Monochromatic Photograph”) of a color
photograph (“Color Photograph”) of the
Restaurant. (DSMF ¶ 53; [28.1] at 84-85;  at 5).
Panacea acquired the Color Photograph when it purchased the
Restaurant's assets and intellectual property. (DSMF
¶ 54). Panacea made the Monochromatic
Photograph appear green and white to reflect the colors of
the Restaurant. (DSMF ¶ 59).
March 31, 2016, more than a year later, Plaintiff's
counsel sent a second letter to Defendants, alleging that the
Monochromatic Photograph infringed Plaintiff's copyright
interest in the Drawing. (DSMF ¶ 62). On April 8, 2016,
Defendants' counsel responded to Plaintiff's letter,
denying the alleged copyright infringement on the grounds
that the Monochromatic Photograph and the Drawing are
materially different. ([32.13] at 1-2). Defendants'
counsel also confirmed that Panacea had ceased
“reproducing, distributing or displaying the [Drawing]
in any medium that it controls” and that it had
“no interest” in using the Drawing in the future.
([32.13] at 2).
August 6, 2016, Plaintiff filed his Complaint , asserting
six claims for relief. Counts 1 and 2 assert claims for
copyright infringement on the grounds that Defendants used
the Drawing and the Monochromatic Photograph, allegedly a
derivative of the Drawing, without Plaintiff's
permission. Count 3 alleges that that, in violation of 17
U.S.C. § 1202, Defendants intentionally “removed,
covered or replaced the inscription ‘Tony
Fey'” on the Drawing. (Compl. ¶ 68). Count 4
seeks attorney's fees, under 17 U.S.C. § 505, on the
grounds that “Defendants' conduct in this dispute
has been objectively unreasonable and unduly
litigious.” (Compl. ¶ 76). Count 5 asserts a state
law claim for unjust enrichment on the grounds that
“equity and good conscience demand that Plaintiff be
compensated for the benefits received by Defendants with
regard to Plaintiff's work.” (Compl. ¶ 81).
Count 6 seeks a permanent injunction, under 17 U.S.C. §
502 and O.C.G.A. § 10-1-370 et seq., enjoining
Defendants “from making future infringing uses of the
Plaintiff's protected work.” (Compl. at 23; Compl.
February 2, 2017, Defendants filed their Daubert Motion,
seeking to exclude the testimony of Anna Fey
(“Fey”), Plaintiff's wife and proposed
damages expert, on the grounds that her methodology is not
reliable. Also on February 2, 2017, Defendants filed their
Motion for Summary Judgment, seeking summary judgment on
Plaintiff's claims. On February 27, 2017, Plaintiff filed
his response brief but, in violation of the Local Rules, did
not file his response to Defendants' Statement of
Undisputed Material Facts [32.2]. On March 28, 2017, two
weeks after Defendants filed their reply brief, Plaintiff
sought leave to untimely file his response to Defendants'
Statement of Undisputed Material Facts and his statement of
additional material facts. Defendants oppose Plaintiff's
DEFENDANTS' DAUBERT MOTION
admission of expert evidence is governed by Federal Rule of
Evidence 702, which provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Evid. 702. This provision requires district courts to
“act as gatekeepers, excluding evidence unless is it
reliable and relevant.” Hughes v. Kia Motors
Corp., 766 F.3d 1317, 1328 (11th Cir. 2014).
“District courts are charged with this gatekeeping
function to ensure that speculative, unreliable expert
testimony does not reach the jury under the mantle of
reliability that accompanies the appellation ‘expert
testimony.'” Id. at 1328-29. “The
decision to exclude expert testimony is committed to the
sound discretion of the District Court.” Id.
Eleventh Circuit “has set out three requirements that
an expert must meet before his opinions may be admitted.
First, the expert must be qualified on the matter about which
he intends to testify. Second, he must employ reliable
methodology. Third, the expert's testimony must be able
to assist the trier of fact through the application of
expertise to understand the evidence or fact in issue.”
Id. at 1329 (internal citations omitted). “The
proponent of the expert opinion must carry the burden of
establishing qualification, reliability, and
an expert's testimony is reliable depends on the
particular facts and circumstances of the particular case,
” including “(1) whether the methodology can be
and has been tested, (2) whether the theory or technique has
been subjected to peer review, (3) the known or potential
rate of error of the methodology employed, and (4) whether
the methodology is generally accepted.” Id.
These factors are only general guidelines, and the trial
judge has “considerable leeway in deciding in a
particular case how to go about determining whether
particular expert testimony is reliable.” Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
has identified Fey, his wife, as an expert witness on the
issue of damages in this action. Fey produced her expert
report on November 24, 2016. Defendants ...