Beaulieu v. Stockwell

46 F.4th 871

Allen BEAULIEU, individually doing business as Allen Beaulieu Photography, Plaintiff - Appellant

v.Clint STOCKWELL, an individual; Thomas Martin Crouse, an individual; Charles Willard Sanvik, an individual, also known as Chuck; Studio 1124, LLC, a Minnesota limited liability company; Does, 3 through 7, Defendants - Appellees

No. 21-3833

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2022

Filed: August 30, 2022

Counsel who presented argument on behalf of the appellant and appeared on the appellant's brief was Gabriel K. Gillett, of Chicago, IL. The following attorneys appeared on the appellant's brief; Russell M. Spence, Jr., of Minneapolis, MN., Grace C. Signorelli-Cassady, of Chicago, IL., Daniel S. McCord, of Chicago, IL., and Jacob P. Wentzel, of Chicago, IL.

Counsel who presented argument on behalf of appellee Charles Willard Sanvik and appeared on the appellee's brief was Edward F. Fox, of Minneapolis, MN.

Counsel who presented argument on behalf of appellees Clint Stockwell and Studio 1124, LLC and appeared on the appellees’ brief was Michael L. Puklich, of Chanhassen, MN.

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

BENTON, Circuit Judge.

Allen Beaulieu, Prince's photographer, claims his former collaborators and a potential investor in a book project kept his photographs and used them without permission. He sued. The district court¹ granted summary judgment on all claims. Beaulieu appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Allen Beaulieu was the artist Prince's personal photographer from 1979 to 1984. He shot album covers and three world tours for him. In 1984 Beaulieu registered a copyright for his original photographs.

In 2014, Beaulieu began working on a book of the photos. He hired Thomas Martin Crouse, a writer and publisher, to assist with the stories and captions. In 2015, Clint Stockwell joined the project, scanning and storing digital copies of the photos. Stockwell was the sole owner of Studio 1124, a limited liability company.

In April 2015, Beaulieu and Stockwell entered into a contract. In May and June, Beaulieu and Crouse entered into two more contracts.

In April 2016, Prince died, leading the collaborators to expect increased interest in Beaulieu's photos. Stockwell, soliciting investors, sent an MP4 slideshow and press release of Beaulieu's photos to about a dozen people, including Charles W. Sanvik. In May 2016, Beaulieu gave an unknown, uncatalogued number of photos to Stockwell to digitize and expand the proposed book. But their collaboration fell apart. Beaulieu demanded his photos back. His attorney retrieved some of them from Stockwell's home. Beaulieu had them for three months before giving them back to his attorney. They did not make an inventory of the photos at any time.

There are 4,015 copyrighted photos in Beaulieu's collection, of which 567 are 2 ¼". According to the complaint, Beaulieu provided Stockwell "all of his Photos," which totaled "approximately 3,000." In his deposition he claimed Stockwell still had 5,200 out of 6,000 photos. But at the same time, he claimed he got back 1,500, not 800. During discovery, Beaulieu revealed he provided 3,198 photos to the Minnesota Historical Society in February and July 2018 for his book it ultimately published. He also admitted in his deposition to finding an envelope with transparencies from "60 different photo sessions ... some had multiple sheets" that he left by his computer. At summary judgment, 18 months into litigation, Beaulieu had not finished inventorying the photos in his possession.

A forensic examination of at least 26 electronic devices belonging to Stockwell, Crouse, the company, and Sanvik did not uncover any evidence of "unlawful access, transmission and/or copying of Plaintiff's data, as alleged in the complaint."

The district court granted summary judgment to all defendants. Beaulieu appeals the judgment and the costs awarded to Sanvik.

"This court reviews de novo the grant of summary judgment." Green Plains Otter Tail, LLC v. Pro-Env't, Inc. , 953 F.3d 541, 545 (8th Cir. 2020). Summary judgment is appropriate if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) . This court must view the evidence and all reasonable inferences most favorably to the nonmoving party. Weitz Co., LLC v. Lloyd's of London , 574 F.3d 885, 892 (8th Cir. 2009).

"The moving party has the burden of showing the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law." Enter. Bank v. Magna Bank of Mo. , 92 F.3d 743, 747 (8th Cir. 1996). The party opposing a properly supported motion for summary judgment "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I.

Beaulieu sued Stockwell, his company, Crouse, and Sanvik for conversion. "To constitute conversion, one must exercise dominion over property that is inconsistent with the owner's right to the property, or some act must be done that ... deprives the owner of possession permanently or for an indefinite length of time." McKinley v. Flaherty , 390 N.W.2d 30, 32 (Minn. Ct. App. 1986). To prove conversion, a plaintiff must show: (1) a "property interest" and (2) that the defendant "deprives the plaintiff of that interest." Noble Sys. Corp. v. Alorica Cent., LLC , 543 F.3d 978, 986 (8th Cir. 2008), quoting Olson v. Moorhead Country Club , 568 N.W.2d 871, 872 (Minn. Ct. App. 1997).

Physical photos are "tangible personal property" under Minnesota law. See, e.g. , Sprint Spectrum LP v. Comm'r of Revenue , 676 N.W.2d 656, 659 (Minn. 2004). Intellectual property and digital copies of photos are not tangible property and cannot be the subject of conversion claims. See, e.g. , Bloom v. Hennepin County , 783 F. Supp. 418, 440-41 (D. Minn. 1992) (declining to extend the tort of conversion to intellectual property, which would contravene Minnesota precedent), citing H.J., Inc. v. International Tel. & Tel. Corp ., 867 F.2d 1531 (8th Cir. 1989).

Beaulieu presents two possible theories of conversion. The first is an ongoing conversion, that the collaborators still have his photos. The second is a technical conversion, that the collaborators kept his photos for several months after he demanded their return. Beaulieu made his first demand for their return in either June or August 2016 (he alleges different dates in his complaint and on appeal. His attorney retrieved them in October).

For his ongoing conversion theory, Beaulieu never identifies the photos he alleges Stockwell and Crouse have. He describes an elaborate system for counting how many photos he took of Prince based on the number of film rolls he brought with him to each shoot. This method is irrelevant to the number of photos he gave Stockwell and Crouse three decades later or the number, if any, they kept after Beaulieu's lawyer tried to retrieve them. Beaulieu has never provided a complete inventory of the photos for any time period relevant to this lawsuit: how many he had in 2016, how many he gave to Stockwell and Crouse, how many his attorney retrieved, or how many he later gave back to his attorney. "A [claim] founded on speculation or suspicion is insufficient to survive a motion for summary judgment." Yarborough v. DeVilbiss Air Power, Inc. , 321 F.3d 728, 730 (8th Cir. 2003). Beaulieu provides no evidence whatsoever that Stockwell or Crouse still have any of his photos, or that he ever gave them any of those he now claims are missing. He has not given a firm inventory of how many he believes are missing. An extensive forensic protocol did not identify any of his materials in their possession or any wrongful use. Beaulieu provides nothing more than speculation and suspicion against Stockwell and Crouse.

While Beaulieu has a method for counting the total number of his photos, this is not sufficient to substantiate his allegations. He cites Continental Grain Co. v. Frank Seitzinger Storage, Inc. , 837 F.2d 836, 840 (8th Cir. 1988), where the initial amount of grain loaded was measured by trucks weighed on a scale. Here, by contrast, Beaulieu provides no measure of how many photographs he gave Stockwell and Crouse. He also cites United States v. Espino , 317 F.3d 788, 797 (8th Cir. 2003), where lay witnesses testified, based on experience, about weights and quantities of methamphetamine a defendant sold. That is perhaps analogous to Beaulieu describing how many photos he initially took, but irrelevant to his failure to enumerate how many photos he gave his collaborators decades later. The number of photos he took in the 1980s is not an issue in this case.

Beaulieu also accuses Sanvik of conspiracy to convert. He alleged in his complaint that: "Sanvik still possesses Plaintiff's Photos and/or copies made from them." But Beaulieu produced no evidence that Sanvik ever possessed any of his physical photos, or used or conspired to use them in a way that interfered with his right of possession. Beaulieu admitted as much in his deposition:

Q: All right. Tell me what facts you have, Mr. Beaulieu, that Mr. Sanvik has possession of any of your Prince photographic material?

A: Well, the – Clint took my photographs so I have no – I mean he could have gave them to Sanvik very – I have no idea.

Q: You don't have any evidence that any photographs were ever given to Mr. Sanvik. Right?

A: No. They were out of my possession.

Q: Right. So you don't know?

A: I don't know.

Beaulieu also accuses Sanvik of unlawful use due to "suspicious circumstances," which he finds in one line Sanvik emailed to Stockwell. Sanvik wrote: "These are times when you don't give up! However, if you have nothing in writing it may be the only alternative." That line alone, even read most favorably for...