Tattoo Art, Inc. v. Tat International, LLC et al, No. 2:2010cv00323 - Document 134 (E.D. Va. 2012)
Court Description: OPINION AND ORDER - the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion to Show Cause and hereby FINDS Defendants and Third Parties to be in contempt of the Court's May 18, 2011 and June 29, 2011 Orders. Upon a finding of contem pt, the Court has broad discretion to fashion an appropriate remedyto coerce compliance with the terms of the permanent injunction. As a reminder that this Court's permanent injunction, issued June 29, 2011 and incorporated into the Court' s August 23, 2011 Final Order and Judgment, enjoins Third Parties John Pehrson and Tatstore, LLC, the entity that now ownsand controls Tattoo Art's assets, the Court is attaching to this Opinion the two above referenced Orders, which comprise th e injunction in this case. Additionally, Defendant and Third Parties are further ORDERED to: (1) Maintain and preserve the business records of Tat International, LLC until finalresolution of all litigation in this matter or further Court Order; (2) R emove all J.D. Crowe derived images (including any images currently blocked from public access) from any and all computers in Defendants' or Third Parties' custody, possession or control, including but not limited to the web server, and pla ce those images on a disk, a copy of which should be provided to both Plaintiff's counsel and Defendants' counsel within 14 days of entry of this Order; (3) Submit an affidavit from Mr. Knapp regarding the status and disposition of all prod ucts derived from Plaintiff's artwork; and (4) Allow one designated representative of Plaintiff to monitor Tatstore's cloaked MVProom on its website, from now until the conclusion of the appeal pending before the Fourth Circuit. Signed by District Judge Mark S. Davis and filed on 9/7/12. (Attachments: # 1 6/29/11 Order, # 2 8/23/11 Order)(jcow, )
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FILED SEP -7 2012 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA TATTOO ART, CLERK. U.S. DibmiCI COURT Norfolk Division NOPf-'O: K. VA INC., Plaintiff, v. Civil Action No. 2:10cv323 TAT INTERNATIONAL, LLC., et. al., Defendants, and TatStore, LLC, et. al., Third-Parties. OPINION AND ORDER This matter is before Order to Show Cause. Inc. filed a Motion the Court On April for an Defendants Tat International, this Court's June 29, 77 & 84) 2012, Order to LLC, that records. A Following the in addressed at on hearing, good oral Motion faith the motion Court claiming that (ECF Nos. 2011 Order (ECF No. 66) and was directed negotiations argument. an and Kirk Knapp were violating maintain this for Plaintiff Tattoo Art, 2011 permanent injunction order Defendants hearing a Show Cause, as well as the Court's May 18, directing engage 19, following to preserve held June counsel resolve Unfortunately, the to business 7, 2012. meet the and issues parties were unable to come to an agreement and were ordered to file position papers outlining the appropriate remedy to be Court. Based on the reasoning set forth below, IN PART and DENIES ordered by hereby FINDS IN PART Defendants Plaintiff s Motion and Third Parties to this the Court GRANTS to be Show Cause and in contempt of the Court's May 18, 2011 and June 29, 2011 Orders. I. This the Court instant and Order, 77 at FACTUAL AND PROCEDURAL HISTORY previously recounted matter in detail see ECF No. 2-4, and history herein. will in the its procedural February 28, 48 at 6-8, and its Findings, therefore On July 2, 2010, only briefly history of 2011 Opinion see ECF No. reiterate that Plaintiff filed a Complaint against Defendants for copyright infringement and breach of a licensing agreement designs. related ECF No. 1. to Plaintiff's temporary tattoo In February of 2011, this Court granted Plaintiff's Motion for Partial Summary Judgment as to liability against the Defendants, leaving only the issue of damages and Plaintiff's request for permanent injunctive relief.1 48. 1 but After a two day bench trial, on June 29, ECF No. 2011, this Court On May 18, 2011, after the Court's Summary Judgment Opinion, before the Court had issued its Findings on damages and injunctive relief, Magistrate Judge Douglas Miller entered an Order directing that Plaintiff return Defendants' client files produced during discovery to Defendants' counsel. ECF No. 66. However, Defendants were "ordered to maintain and preserve the original client files in the order in which they were produced to plaintiff." Id. entered its Findings of Facts and Conclusions of Law and permanently enjoined Defendants from infringing upon Plaintiff's copyrighted exclusive copying, product tattoo designs rights by otherwise manufacturing, reproducing, or otherwise from such designs. ordered that within thirty on or ECF No. counsel Defendants' direct all or selling, deriving 77 at Plaintiff's distributing, any 75. artwork The Court or also (30) days of the Court's Final Order Plaintiff's Motion for Attorney's Plaintiff's violating infringing indirect Fees, Defendants materials possession of or any return to nature control, or in over which any Defendant possessed any current, future, potential or ECF No. 77 at 76. contingent ownership interest. 2011, this Defendants, Court entered awarding a Final Plaintiff incorporating by reference, injunction order. the order Fourth to Defendants Judgment against and attorney's fees and for purposes of appeal, its prior 2011, Defendants filed a notice of appeal Circuit return damages and ECF No. 84. On September 21, to Order On August 23, Court business continued to of Appeals, files. have See an thereby ECF obligation No. to staying 88. the However, safeguard those materials so that they could comply with the Court's Final Order upon the conclusion of the appeal. ECF No. 77 at 76; see also, May (ordering 18, 2011 Order, ECF No. 66 maintain and preserve the original client that files) . Defendants' On December 5, 2011, Tattoo Art filed in Judgment in the United District of Michigan, this States which Court District was a Motion Court granted, and to Register for the the Western parties have since been involved in garnishment proceedings in that district. ECF No. 103. In late May of 2012, papers, its Plaintiff discovered that business, run. The John Pehrson though contact Parties"). 2011, during an attempt to serve garnishment International TatStore.com, that LLC site had closed continued directed (collectively, to viewers the to "Third Plaintiff ultimately discovered that On October 15, signed a Confession of Judgment Capital Show Cause Tr. Corporation, subsidiary of ("TatStore"). a Plaintiff Defendants: assets Pehrson were Capital all 127, Ex. 3, ), ECF No. placed in Corporation, in favor of a 4, of Tat 5; see also 130 at 35-39. wholly owned TatStore, LLC Id. result filed 1) transferring See ECF No. (Hereinafter "Tr. transferred As on TatStore, International's Assets. Those website, information and Defendants Pehrson its Tat of a these Motion discoveries, to Show on Cause, April 14, alleging were violating this Court's May 18, 2012, that 2011 Order, ECF No. 66, by not properly preserving business records; and 2) were violating this Court's permanent injunction order, ECF Nos. 77 & 84, by continuing to display infringing designs and by improperly conveying Additionally, its Plaintiff business served records notice of Cause on Third Party Defendants TatStore, the and Motion Court's to Show LLC and John Pehrson, claiming that they had "actively aided" Defendants this assets. in violating order. II. Sanctions for STANDARD OF REVIEW civil contempt may be imposed either to enforce a court order or to compensate the other party for any losses sustained as a result of the contempt. Cromer v. Kraft Foods N. Am. Inc., 390 F.3d 812, 821 (4th Cir. 2004) (quoting In re General Motors Corp., 1995)). 61 F.3d 256, 258 demonstrate civil contempt, (4th Cir. Plaintiff must To show the following elements by clear and convincing evidence: (1) The existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) that the decree was in the movant's "favor"; (3) that the alleged contemnor by its conduct violated the terms of the decree and had knowledge (at least constructive knowledge) of such violations; and (4) that [the] movant suffered harm as a result. Ashcroft v. Conoco, Inc., 218 F.3d 288, (quoting Colonial Williamsburg Found, v. 301 (4th Cir. 2000) Kittinqer Co., 792 F. Supp. 1397, 1405-1408 (E.D. Va. 1992)). In this case, only the third and fourth factors are in dispute as to Defendants (Mr. Knapp and Tat International). The parties agree that the Court's permanent injunction as well the Magistrate Judge's May and that the parties Defendants had agree Thus, to whether consider whether 2011 Order are the above with respect to a Plaintiff valid court knowledge of those orders. that Plaintiff. and 18, violation respect to Third Parties (Mr. were Defendants, of suffered decrees either any as Similarly, in favor of the Court is left Court harm decrees, decree a occurred result. Peherson and TatStore, LLC), With the Court must first determine whether it has jurisdiction over them before addressing the contempt allegations lodged against them. III. DISCUSSION A. Personal Jurisdiction over Third Parties As an initial matter, Third Parties argue that this Court does not have personal jurisdiction over them. However, personal jurisdiction is properly extended when nonparties "with actual notice of the court's order . . . , actively aid and abet a party in violating that order." Supp. 2d 642, 129 F.3d 1179, 647 (E.D. Va. 1185 JTH Tax, Inc. v. Lee, 540 F. 2007); see also U.S. (11th Cir. 1997) v. Barnette, ("Non-parties, despite a court's initial lack of personal jurisdiction, may be subject to that court's jurisdiction if, with actual notice of the court's order, they actively aid and abet a party in violating that order"); Reebok Int'l. Ltd. 1392 (9th Cir. 1995) v. McLaughlin, 49 F.3d 1387, 1391- (noting that "the nationwide scope of an injunction carries with it the concomitant power of the court to reach out to nonparties who knowingly violate its order"). standard is 65(d) which binds only consistent states: the with Federal "Every order following who agents, other persons servants, who are in granting (A) of an actual receive personal service or otherwise: officers, Rule employees, and active concert Procedure injunction . notice it the parties; of by (B) the parties' attorneys; and (C) or participation with anyone described in Rule 65(d)(2)(A) or (B)." 65(d)(2) Civil This Fed. R. Civ. Pro. (emphasis added). In this case the Court finds both requirements have been met and an assertion of personal jurisdiction over the Third Parties is appropriate. The evidence before the Court establishes by clear and convincing evidence that Pehrson not only had actual notice of the injunctive order issued by this Court, but also actively aided the Defendants in violating it by taking control of acknowledged in his present at injunction the Tattoo Art's Defendant testimony to the Court that trial order. inventory. and Tr. knew 46. about the Pehrson was Court's Furthermore, Knapp permanent Pehrson himself forthrightly testified that he was familiar with the Court's judgment, and learned about it within days of its entry. 78. Id. at Although Pehrson did not specifically state that he was aware of the injunction prior to taking control of the assets, he did mention that he tried to identify any infringing materials, raising a strong inference that he was, in fact, fully aware of the injunction component of the Court Order.2 at 79. Therefore, Court jurisdiction exercise this over Third finds Party it may Id. appropriately Defendants Pehrson and TatStore. Since the first and second factors of the contempt analysis are not in dispute as is now left violated to to consider either of the Defendants or Third Parties, whether Court's Defendants decrees and and the Court Third whether Parties Plaintiff suffered any harm as a result. B. Transfer of Business Records and Assets Plaintiff violated both first this Court's May 18, records and argues Court's that Defendants permanent and injunction Third Parties order and the 2011 Order by improperly conveying its business assets from Knapp and Tattoo Art to Pehrson and TatStore. 2 This Court's permanent injunction was issued on June 29, 2011 as part of the Court's Findings of Fact and Conclusions of Law. ECF No. 77. The August 23, 2011 attorney's fees. Court incorporated this injunction into its Final Order and Judgment which dealt with ECF No. 84. It was on October 15, 2011, that Pehrson asserts he took complete ownership control over Tattoo Art's inventory and assets. ECF No. 127. Thus, the Court's permanent injunction was in place months before this transfer of assets was final. Furthermore, Pehrson testified he was aware of the Court's judgment (presumably the Court's August 23, 2011 Final Order), "days" after its entry. Tr. at 78. Since the Court's Final Order was filed almost three weeks before the date Pehrson states the transfer of assets occurred on October 15, 2012, it is clear that Pehrson had actual notice of this Court's decree. 8 The Court's defendants the May 18, 2011 Order "maintain and preserve order in which they were clearly the directs original client files produced to plaintiff." the in ECF No. The Court's injunction permanently enjoined defendants from 66. "manufacturing, otherwise selling, deriving distributing, product copyrighted tattoo designs]." ECF No. 77 the on Court's any artwork copying, or injunction went to deliver to plaintiff's counsel all nature in defendants' or that over which any this materials 75. at Defendants defendant business an records Furthermore, direct that "defendants infringing materials possesses directive stayed pending had [Plaintiff's of any direct or indirect possession or control, specific was or from any current, potential or contingent ownership interest." Though reproducing, turn an appeal obligation and to to assets ECF. No 77 at 76. over to all the preserve pursuant to Thus, infringing Fourth Circuit, and maintain both the permanent injunction order and the Court's May 18, ECF Nos. 66, 77, 84. future, all Court's 2011 Order. Plaintiff argues that the conveyance of Tattoo Art's business records and infringing assets to a new entity, Tatstore, LLC, was noted earlier, a direct violation of this Court's decrees. As convincing which the evidence: alleged "(1) Plaintiff The contemnor must existence had show of actual a by clear valid or decree and of constructive knowledge; (2) that the decree was in the movant's favor; (3) that the alleged contemnor by its conduct violated the terms of the decree and had knowledge (at least constructive knowledge) of such violations; and (4) that [the] movant suffered harm as result." 218 F.3d at 301. The Ashcroft, first two prongs a for civil contempt are not contested by Third Parties or Defendants. However, Defendants violation and Third occurred, their Parties knowledge do of dispute such a whether a violation, and although the whether harm was suffered by the Plaintiff. Defendants ownership of transferred, and the the Third Parties business actual records business been preserved and maintained. issue of harm, and not to argue that and records assets has and assets been have still That point, however, goes to the the issue of the violation itself. The Court's permanent injunction order clearly enjoined the sale or conveyance of the infringing assets. Third Parties have Art's assets Because Defendants and conceded that a conveyance occurred on October 15, 2011 of all of Tattoo - including the computers which housed digital files of the Plaintiff's artwork - this Court finds been established. that a See Tr. violation 35-37, of the Court's decrees has 53-54, 74, 78-79. The Court's permanent injunction specifically prohibits the Defendants from "selling" the infringing assets. foreclosure sale which ECF No. transferred all 10 77 at 75. of Tattoo Art's Thus, assets the to TatStore, Third LLC, Parties clear had business of and entirely the the the a 66. and Defendants court-ordered client this obligation Defendants the were a order.3 files" Court of is obligation The possession and injunction, injunction original they have met entity. both Court's under No. control separate after permanent were ECF claim that transferred of preserve records. Defendants occurred knowledge Defendants "maintain have which violation Additionally, to and cannot and accept when records perfectly they to an free to return to this Court to request a modification of the injunction if there was a business failed to make such making such joint a necessity a request or other reason, or to approach request. Thus, the but Plaintiff Court they about finds that Defendants and Third Parties have also violated the Court's May 18, 2011 Order. Now that a violation has been established, the Court must next look to the issue of whether Plaintiff suffered any harm as a result of Defendants' and Third Parties' contempt. Plaintiff acknowledges that any resulting harm is not quantifiable, 3 Furthermore, evidence was offered during the June 7, hearing which established that Mr. Knapp and Mr. but 2012, Pehrson have made (and continue to make) efforts to again sell the assets of TatStore, LLC to prospective buyers. Tr. at 38:14-17; 86:3-7. Though this does not Plaintiff's violation reflect effort an injunction order to appear to argument, this further prohibiting be the evidence violate the assets. 11 primary the "sale" also Court's of any basis for appears to permanent infringing that the Defendants' willful infringement indicates that a more specified harm could be forthcoming, Cause was filed as because this an effort is an action to for and thus the Motion to Show forestall contempt of that harm. court, However, not only the Plaintiff but also the judicial system suffers harm as a result of non-compliance. Travel, See Inc., 710 F. (acknowledging that Omega Supp. there World 169, are two Travel, 171-172 discrete Inc. (E.D. harms v. Omega Va. 1989) in contempt cases). This matter Court has Defendant's previously behavior has observed fallen that "closer end of the spectrum than the innocent end." Judgment, ECF No. 84 at 14. throughout Defendants to the this willful Final Order and have made false assurances in the past, continued to market infringing stencils even after Plaintiff terminated the agreement, do so throughout the initial lawsuit, pendency of the trial itself.4 4 and continued to mediation, and even the This recent violation of the The Court notes that at the Show Cause hearing on the Motion for Contempt, Mr. Knapp admitted to destroying all of the infringing stencils by throwing them out in a dumpster. Tr. at 57-58. Mr. Knapp made clear he threw out these stencils after the Court issued its Summary Judgment Opinion finding infringement but before the Court issued its Findings which ordered the Plaintiffs. Defendants to turn all infringing material over to Id. However, Mr. Knapp could not identify for the Court a specific month or day on which this destruction occurred. Id. Though it is unclear whether Mr. Knapp's actions were done in bad faith, the mere 12 fact that this was not made Court's Orders demonstrates yet again that the only thing that effectively deters sometimes not Of Directors 123 F. Supp. Defendants even that of First 2d 965, is a direct effective. Church 978 is of Order, and See Christian Science Bd. Christ, (W.D.N.C. Court Scientist 2000) v. Robinson, (finding that harm was demonstrated through "the caustic nature of the pleadings filed by Defendants and the history of contentious conduct" and that the violations would likely continue without a "finding of civil contempt"); Omega Real Travel, Inc., (continuous contempt of a court order is harm) aff'd. , 905 F.2d 1530 (4th Cir. has demonstrated the convincing evidence, first three 710 F. order, at 171 sufficient to find 1990). Because Plaintiff elements by clear and and because the blatant contempt for this Court's decrees is a harm against the system, Defendants Supp. in contempt of this Court's the Court FINDS permanent injunction and further FINDS Defendants also in violation of the Court's May 18, 2011 Order. While the Third parties have not previously demonstrated the same behavior as Defendants, the evidence nonetheless reflects that they are also in contempt of both the Court's permanent injunction and May 18, 2011 Orders, and the Court so FINDS. known to the Court troubling. or to Plaintiff until 13 over a year later is C. Display of Infringing Material on the TatStore Website Next, Plaintiff argues that Defendants and Third Parties have further violated the Court's permanent injunction order by continuing to display the infringing designs on the TatStore.com website. Specifically, Plaintiff alleges that: 1) TatStore's website, through a "cloaked"5 portion of the site, still claims that can Plaintiff's still copyrighted access images of works are for Plaintiff's sale work; and and customers 2) Tatstore's website currently displays a video file6 that contains images of Plaintiff's work. ECF No. the burden by clear 113 at 4-5. However, and convincing evidence Plaintiff has to establish such violations, and very little evidence or testimony was offered at the hearing on this Motion to support these contentions. For the video file violation, Plaintiff provided the Court with a screenshot depicting the web page with the video window displayed and located.7 ECF No. violation, 5 showing the 113, Ex. Plaintiff web 4. could address However, not where page, it is only provide accessible video was for the second alleged "Cloaking" refers to a limited access page. public this after the Court with Although it is a subscription to a membership program. 6 This video allegedly offers a "how to" tutorial for purchasers of the airbrush temporary tattoo system banners sold by Defendants. ECF No. 124 at 5. This particular video contains some images of Plaintiff's designs as part of the "how to" tutorial. Id. 7 This page is said to have been accessed by the attorney for Plaintiff on April 6, 2012. 14 screenshots of the supposedly infringing images and in fact acknowledged that it had not actually seen any infringing images on the website; instead Plaintiff only suspected the existence of the infringing images based upon language in an outdated blog entry Tr. referencing at 31; However, see a also, Defendants images of stencils on the website, "cloaked" ECF portion No. admitted created 113, that Ex. contention, 7 (blog entry) . in fact digital infringing designs present Defendants Tr. was asked to remove render them inaccessible, the same Mr. Wolfe, were and at 61:3-11. Third should be done to Id. the Wolfe's images and that he the homepage of link to the video. the video. In support of Parties Benjamin Wolfe, testimony of both Knapp and Pehrson. he at website. but that they had been rendered "invisible" and affidavit by their web director, that TatStore's 3 there from the were not viewable by the public. this of from was provided as well as the affidavit stated public view and further informed that ECF 126. According the TatStore website did not Instead, an to have a the video was accessible only by directly typing the html link into the address bar, or via a "cached"8 website. 8 Google search that is restricted to the TatStore Id. To the Court's frustration, during the hearing, Plaintiff did not offer any qualified witnesses to explain the meaning of the various computer science terms and how different actions such as "caching", "cloaking," or rendering "invisible," work. "Cache" 15 After position from the hearing, paper Russell to Lambert, professional. further the ECF explains "webserver" and as Court, an No. the part of Plaintiff experienced 133, Ex. some doubt to into Id. at question SI Mr. 4. Mr. Wolfe's Lambert's statements an affidavit computer Lambert's between Parties argument that the video file was public. and Mr. as supplemental attached IT 1. differences raises Plaintiff's a science affidavit "website" Defendants not and and a Third accessible to the affidavit regarding further calls the server log records and the "cloaked" portion of the website. Id. at flSI 7- 10. helpful, may However, have though Mr. even been more offered at the hearing, Lambert's helpful affidavit if his testimony have had Additionally, on had and been many unanswered questions still remain. For example, it remains unclear what effect, may was the accessibility if any, of these it is unclear what infringing content, "caching" images. if any, was accessible to MVP members through the "cloaked" page. Last, as the allegedly infringing video was never produced or played for is defined in Merriam-Webster Dictionary as "a computer memory with very short access time used for storage of frequently or recently used instructions or data - also called cache memory." See, Merriam-Webster Online, http://www.merriamwebster .com/dictionary/cache. Consistent with this definition, during the hearing Mr. Knapp described his understanding of "cache" to be that a computer may often store and display an outdated version of certain websites; thus, one must "refresh" their computer in order to see the updated version of the site. Tr. at 70-71. 16 the Court, it have displayed been appear the is unclear what in infringing images may or may not that video file. Thus, it does not evidence before the Court is sufficient to establish the alleged violations. Furthermore, Plaintiff must establish by clear and convincing evidence that the "movant suffered harm as a result" of any violation. Ashcroft, 218 F.3d at 301. Defendants and Third Parties argue that Plaintiff has presented no quantifiable evidence about infringing sales or even the number of customers who were able to view the infringing information is not always necessary, be inferred. when there In trademark a likelihood is images. a this for in some cases, harm may infringement of However, suits, number of injury results purchasers being misled or "simply confused" as to the source of the goods. See Church of Scientology Int'l v. Elmira Mission of the Church of Scientology, 794 Scott Co. Scott Cir. Inc., v. 1985)); 710 F. F.2d 38, Swimming 43 (2nd Cir. Pools, 1986) Inc., 764 see also Omega World Travel, Supp. 169, 171-172 (E.D. Inc. Va. (citing F.2d 62, Joseph 66 (2nd v. Omega Travel, 1989) (finding that confusion caused by Yellow Page postings constituted harm, even when the loss of movant was business). is no evidence that unable However, to show unlike anyone had the seen 17 quantification above the cases, of harm here images or video, or there thus making it unlikely that any individual was confused as to the source of the goods. In this case, however, even if harm were inferred, Plaintiff cannot meet the standard to establish civil contempt. Clear and convincing Defendants and evidence Third Parties has had not been knowledge presented of the that violation. The undisputed testimony at the hearing was that Defendants and Third Parties nonpublic, believed Tr. prove and clear occurred. The screenshot of from July Ex. 1; all infringing material was made and could not be accessed by anyone other than their web developer. by that 70 - 71, 79. convincing only the Furthermore, evidence evidence that offered video and a single Plaintiff did not a by violation Plaintiff sentence 8. Defendant, to rebut this was a in a blog entry 2008 referencing the infringing work. Tr. even ECF No. evidence, 113, produced server logs demonstrating that no computer had accessed the web video outside corroborating nonpublic. Plaintiff of the the parties testimony and that ECF No. 126, Ex. 1 & 2. does not have access to the the internet images provider, had been made The Court acknowledges that Defendant's web server and server logs and is unable to verify the accessibility of these images. submitted The Court affidavit also from notes Mr. that Lambert Plaintiff's potentially recently calls into question the credibility of the server logs Defendants and Third 18 Parties provided However, to Plaintiff the Court. ECF have presented could No. 133 at testimony fl 7-11. from Mr. Lambert during the hearing or could have subpoenaed Defendants' web developer, chose burden to Mr. Wolfe, establish but these not alleged to. Plaintiff has violations convincing evidence and that burden was by the clear simply not met and in this case. Furthermore, civil contempt is only an appropriate sanction when the Court Order is "specific in detail command." In Cir. 1995). case sets address re General Motors Corp., 61 and unequivocal in F.3d 256, 258 (4th Although the Court's permanent injunction in this forth whether clear parameters, maintaining it does "invisible" not images specifically a webpage Therefore, constitutes a violation of the Court Order. on because Plaintiff has not put forth clear and convincing evidence of a violation or "knowledge of a violation" by the Defendants and Third Parties ambiguity on in the these Court's issues, Order, and because neither of Defendant potential nor Third Parties will be held in civil contempt for the purported display of infringing images. IV. CONCLUSION Having carefully considered all claims for contempt, having examined civil contempt, the four this factors Court FINDS 19 necessary that and for a finding Defendants and of Third Parties are in violation of this Court's June 29, 2011 permanent injunction order as well Defendants and improperly conveying Third as the Parties all Court's May violated assets of Tat Parties John Pehrson and Tatstore. the 18, 2011 above International order. orders to by Third Upon a finding of contempt, the Court has broad discretion to fashion an appropriate remedy to coerce compliance with the terms of the permanent injunction. United States v. 1989). Darwin Constr. Accordingly, injunction, issued as 29, 2011 and controls Tattoo Art's assets, the injunction Parties are business two above in this case. records of Order; Remove (2) all LLC, Court's permanent incorporated into the of the entity that now owns Orders, Additionally, Tat to: (1) which Maintain International, litigation in all J.D. Crowe this computers in Defendants' including not and LLC matter or derived images or Third Parties' but limited to comprise Defendant images currently blocked from public access) or control, (4th Cir. the Court is attaching to this referenced further ORDERED resolution and this 756 2011 Final Order and Judgment, enjoins Third Parties John Pehrson and Tatstore, Opinion 873 F.2d 750, a reminder that June Court's August 23, Co./ the and Third preserve the until final further Court (including any from any and all custody, possession the web server, and place those images on a disk, a copy of which should be provided to both Plaintiff's counsel and 20 Defendants' counsel within 14 days of Knapp entry of regarding derived from this the Order; status Plaintiff's representative of and artwork; Plaintiff room on its website, (3) to Submit an affidavit disposition and (4) monitor of Allow all one Tatstore's from Mr. products designated cloaked MVP from now until the conclusion of the appeal pending before the Fourth Circuit.9 The Clerk is DIRECTED to send a copy of this Opinion and Order to counsel for the parties. IT IS SO ORDERED. m&. /s/i Mark S. Davis United States District Judge September "7 2012 Norfolk, Virginia 9 to Plaintiff also requested attorney's fees in the initial Motion Show Cause. However, that request was not included in the position paper, which presented Plaintiff's position on appropriate remedies, so Plaintiff is assumed to have abandoned that request. 21
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