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Crispin v. Audigier (C.D. Cal.) (May 26, 2010)

Crispin v. Audigier (C.D. Cal.) (May 26, 2010)

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This looks at whether Facebook messages and wall posts can be subpoenaed in a civil suit, and the treatment of Facebook messages under the Stored Communications Act.
This looks at whether Facebook messages and wall posts can be subpoenaed in a civil suit, and the treatment of Facebook messages under the Stored Communications Act.

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Published by: Venkat Balasubramani on Jun 02, 2010
Copyright:Attribution Non-commercial

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E-Filed: 05.26-10
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIABUCKLEY H. CRISPIN, an individual,Plaintiff,vs.CHRISTIAN AUDIGIER, INC., aCalifornia corporation; NERVOUSTATTOO, INC., a Californiacorporation, SHOP ON STAGE, INC., aCalifornia corporation, CHRISTIANAUDIGIER, an individual; 3A WATCH,LLC, a California limited liabilitycompany, RADIANCE JEWELRY,INC., a California corporation;CHROMEBONES, a business entity of  unknown form, REVOLUTIONEYEWEAR, INC., a Californiacorporation, CA BEVERAGES, LLC, aCalifornia limited liability company, JR 93 INC., a California corporation; NEWWAVE FRAGRANCES, a business entityof unknown form; LE MARAIS LLC, aCalifornia limited liability company;MOOD SIGNATURES LLC, a Califrnoalimited liability company; HTPENTERPRISE TRADING, a Californiacompany of unknown form; SEA ANDSURE LLC, a California limited liabilitycompany; TATTOO DRINK, INC., aCalifornia corporation; TATTOO AIR FRESH, INC., a California corporation;and DOES 1-10, inclusive Defendants.))))))))))))))))))))))))))))))))))))))CASE NO. CV 09-09509 MMM (JEMx)ORDER GRANTING PLAINTIFF’SMOTION FOR REVIEW OFMAGISTRATE JUDGE’S DECISION REPLAINTIFF’S MOTION TO QUASHSUBPOENA
I. FACTUAL AND PROCEDURAL BACKGROUND
Case 2:09-cv-09509-MMM-JEM Document 75 Filed 05/26/10 Page 1 of 37
 
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1
Plaintiff’s Complaint for: 1. Breach of Contract; 2. Direct, Contributory, & VicariousCopyright Infringement; 3. Breach of the Implied Covenant of Good Faith and Fair Dealing; 4.Declaration of Rights as to Artwork; 5. Constructive Trust (“Complaint”), Docket No. 1 (Dec.29, 2009).
2
Plaintiff’s First Amended Complaint for: 1. Breach of Contract; 2. Direct, Contributory,& Vicarious Copyright Infringement; 3. Breach of the Implied Covenant of Good Faith and FairDealing; 4. Declaration of Rights as to Artwork; 5. Constructive Trust (“First AmendedComplaint”), Docket No. 43 (Apr. 2, 2010).
3
Crispin alleges that he licensed fifteen works including Tiger with Roses, Skull withAnchor, Heart with Anchor, Skull Flags, Skull Helmet, Winged Wheel, Eagle, Black Panther,Camo Panther, Eagle Skull, Snake Skull, and Handcuffs. (
 Id.
, ¶ 26, Exh. 1.) Each of theseworks has been registered with the United States Copyright Office. (
 Id.
, ¶ 27.)
4
 Id.
, ¶ 28.
5
 Id.
, ¶¶ 29, 31.
6
First Amended Complaint at 2–3.
2
Plaintiff Buckley Crispin filed this action on December 29, 2009 against Christian Audigier, Christian Audigier, Inc. (“CAI”), and their various sublicensees.
1
On March 19, 2010,Crispin filed a first amended complaint.
2
Crispin alleges that between November 2005 andJanuary 2006, he granted Audigier and CAI an oral license to use certain of his works of art in a limited manner in connection with the manufacture of certain types of garments.
3
Theagreement purportedly required Audigier and CAI to pay a specified sum for the right toreproduce each work of art on street-wear apparel and also required that they include Crispin’slogo on each garment.
4
Crispin alleges that Audigier and CAI have not only failed to include hislogo on a substantial quantity of apparel bearing his artwork, but at times they attributed theartwork to another artist or to Audigier himself.
5
Crispin alleges that Audigier and CAI alsoviolated his rights by sublicensing his artwork without obtaining his consent. He asserts that theartwork has now been used on jewelry, watches, shoes, pet accessories, luggage, sunglasses,swimwear, denim, wine bottles, and a variety of other products that are purportedly outside thescope of the limited oral license.
6
Crispin pleads five causes of action: (1) breach of contract against CAI and Audigier;
Case 2:09-cv-09509-MMM-JEM Document 75 Filed 05/26/10 Page 2 of 37
 
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7
Plaintiff’s Notice of 
 Ex Parte
Motion and Motion for Order Staying Compliance withDefendants’ Subpoenas (“Motion to Quash”), Docket No. 22 (Feb. 24, 2010) at 3.
8
 Id.
, Exhs. 2–4.
9
“ISPs allow individuals to access accounts from which they may send and receive e-mail.The server itself may be local, or it may be wide, such as the Internet. The Internet is not acentralized system and can be thought of as a ‘crazy game of connect-the-dots.’ ISPs giveindividuals the means to send messages from individual computers via commercial e-mail programs or mail-user agents. Essentially, ISPs provide account holders the ability to send,receive, and store opened and unopened e-mails associated with the ISPs’ systems, which may alsobe thought of as the mail servers themselves.” Kimberly S. Cuccia, Note,
 Have You Seen My Inbox? Government Oversteps the Fourth Amendment Again: Goodbye Telephones, Hello E-mail 
,43 V
AL
.
 
U.
 
L.
 
EV
. 671, 676-77 (2009).
3
(2) copyright infringement against all defendants; (3) breach of the covenant of good faith and fairdealing against Audigier and CAI; (4) declaratory relief regarding the works of art against alldefendants; and (5) constructive trust against all defendants.On February 10, 2010, defendants served subpoenas duces tecum on four third-partybusinesses and social networking websites: Black Market Art Company, Facebook, MediaTemple, Inc, and MySpace, Inc.
7
The subpoenas directed to the latter three businesses sought Crispin’s basic subscriber information, as well as all communications between Crispin and tattooartist Bryan Callan, and all communications that referred or related to Audigier, CAI, the EdHardy brand, or any of the sublicensee defendants.
8
Audigier and CAI contend that thisinformation is relevant in determining the nature and terms of the agreement, if any, into whichCrispin and Audigier entered. The subpoena directed to Black Market Art Company sought salesinformation for all apparel that incorporated artwork created by Crispin and that was sold throughBlack Market’s website. Audigier and CAI contend this information is relevant to the measureof damages should Crispin prevail on the merits.On February 24, 2010, Crispin filed an 
ex parte
motion to quash the subpoenas that washeard by Judge John E. McDermott. Crispin raised three arguments regarding the subpoenasserved on Media Temple, Facebook, and MySpace: (1) that they sought electroniccommunications that third-party Internet Service Providers (“ISPs”)
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are prohibited from
Case 2:09-cv-09509-MMM-JEM Document 75 Filed 05/26/10 Page 3 of 37

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