Yesterday, U.S. District Court judge William Quarles denied Rosebud's summary-judgment motion, which sought to settle the question of the plaque-maker's liability, and present at trial only the question of damages – the amount of money Professional Laminating should have to pay.
A trial date has not yet been set, according to James Astrachan, an attorney for Rosebud, but "the judge's order holds that a factual dispute exists as to whether the defendant's use is a fair use," Astrachan explains. "We believe it cannot be a fair use, and are prepared to prove that at trial."
Professional Laminating, according to court documents, has acknowledged copying the Baltimore covers in advertising and in the crystal display pieces without permission. It had hoped to use another defense with respect to the plaques – "the first sale doctrine," which, in essence, says that if Professional Laminating purchased the Baltimore issues whose covers were laminated onto plaques, they'd be free to do so – but Quarles ruled that argument cannot be presented at trial. In laminating the covers, Quarles wrote, "they significantly altered" them by "physically separating the magazine covers from the magazines and cutting the cover pages to fit the wooden boards."
Professional Laminating's attorney, Allan Noble, did not immediately respond to an email seeking comment.