govinfo:USCOURTS-gand-1_22-cv-00064-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
RAY SCOTT FUSS, : 
: 
 
 
Plaintiff, :  
 : 
: 
CIVIL ACTION NO. 
            1:22-cv-64-AT  
v. 
 
: 
: 
 
FREDERICK M. BENSCH, et al., : 
: 
 
Defendants. :  
OPINION & ORDER 
This matter begins with a handshake deal between a young artist, Scott Fuss, 
and a young brewer, Frederick Bensch; it ends with a $366 million acquisition of 
Bensch’s brewing company decades later . In 1996, Plaintiff Scott Fuss, an artist 
and designer, was introduced to Defendant Frederick Bensch and his business 
partners, who were in the process of establishing Sweetwater Brewing Company. 
For $500 and a promise of free beer, Fuss designed a logo for Bensch and his new 
brewery — a rainbow trout that would become an iconic piece of Atlanta art. The 
logo design would swim across Sweetwater beer cans for decades, as the company 
became a top craft brewery and expanded its reach far past Atlanta. Fuss’s design 
work became a seminal emblem in Sweetwater’s marketing. But Fuss, Bensch, and 
Sweetwater never executed a written contract as to the ownership or  licensing 
rights over the logo and associated artwork. 
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Twenty-four years after that first meeting, Sweetwater was sold to Aphria for 
$366 million. The sale did not escape Fuss’s notice. When he reached out to Bensch 
about the transfer of his a rtwork in the Aphria deal — a transaction that  valued 
Sweetwater’s intellectual property at $92 million — Fuss was swiftly rebuffed. Fuss 
brought suit alleging, at bottom, that the continuing use of the a rtwork after the 
Aphria acquisition violated the terms of the parties’ handshake deal and long-term 
business relationship . From that core allegation flows complicated questions of 
contract interpretation, vicarious and contributory copyright infringement, 
derivative works, fraud, and more. Both parties have provided robust records in 
support of their respective positions. But in a case so centrally rooted in the 
conflicting testimony of two parties to an unwritten agreement, credibility is king. 
For that reason and  the additional reasons explained further below, the Court 
largely denies Defendants’ Motions for Summary Judgment. 
I. BACKGROUND
1 
A. Creation and Licensing of Artwork 
Plaintiff Scott Fuss is an artist who , beginning in 1996,  operated a solo art 
and graphic design firm, Petroglyph Studios. (Deposition of Scott Fuss (“Fuss 
 
1 When deciding a motion for summary judgment, the Court must view the evidence and 
all factual inferences in the light most favorable to the party opposing the motion (here, 
Plaintiff). See, e.g., Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 
1231, 1241 (11th Cir. 2007). Bearing that in mind, the Court provides the following 
statement of facts to place the Court’s legal analysis in the context of this case. This factual 
description does not represent actual findings of fact. In re Celotex Corp., 487 F.3d 1320, 
1328 (11th Cir. 2007). 
 
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Depo.”), Doc. 215 at 14 ). Also in 1996, Defendant Frederick (“Freddy”) Bensch , 
along with Matt Patterson, Michael Sloan, and Kevin McNerney, started the 
Sweetwater Brewing Company  (“Sweetwater”)2. (Bensch Defs .’ SMF, Doc. 217-2 
¶ 1). In the fall of that year, a co-worker of Fuss’s introduced him to Patterson, who 
indicated that the  fledgling brewery was looking for an artist to design branding 
materials. (Fuss Depo., Doc. 215 34:8– 36:2).  
The barebones of this story are undisputed: Sweetwater commissioned Fuss 
to design its  logo, which he did in exchange for $500 and free beer. In early 
November 1996, Fuss first met with Bensch, Patterson, and Sloan to discuss the 
possibility of his designing branding artwork for Sweetwater . (Bensch Defs.’ SMF 
217-2 ¶ ¶ 15– 16; Pl .’s SMF, Doc 237 -64 ¶ 1). The parties agree that, at the first 
meeting, Bensch, Sloan, and Patterson reviewed Fuss’s portfolio and asked Fuss to 
illustrate a logo for Sweetwater. (Bensch Defs.’ SMF, Doc. 217-2 ¶ 17).   
But from there, the factual fissures that dominate this case begin to emerge. 
Fuss testified that two meetings occurred between the parties: one in which he was 
commissioned to draw the logo and was paid $500, and a second in which he 
delivered the final artwork with no proposed edits. (Fuss Depo., 42:23– 43:15; Pl.’s 
SMF, Doc. 241 -47 ¶ 3). The Defendants assert that three meetings between the 
parties occurred: one at which Fuss was commissioned to draw the logo, the second 
at which the Sweetwater partners p rovided feedback on Fuss’s drawing, and the 
 
2 As discussed below, Sweetwater and its corporate affiliates are also Defendants in this 
matter. See infra at 18–19. 
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third in which Fuss presented the drawings in final form and was paid $500. 
(Deposition of Frederick Bensch (“Bensch Depo. ”), Doc. 216 86:7 – 124:12). At  
either the second or third meeting, Sweetwater asked Fuss to also sculpt a trout -
shaped tap handle for the brewery, which Fuss agree d to do. (Bensch Defs.’ SMF, 
Doc. 217-2 ¶ 20). 
 As a result of those 1996 meetings, Fuss drew two pieces of art for 
Sweetwater, collectively referred to as the “Artwork”: first, the “Trout Banner,” 
which depicts the iconic Sweetwater rainbow trout behind  a scrolled banner and, 
second, the “Fishing Scene,” which foregrounds the leaping rainbow trout and 
depicts two fishermen in the background. 
 
(Trout Banner, Ex. 3 to 3AC, Doc. 260-3 at 2; Fishing Scene, Ex. 2 to 3AC, Doc.260-
2 at 2). T he parties dispute who first proposed the  fish. According to Plaintiff, 
Sweetwater “indicated [] they wanted to portray in their logo an outdoor lifestyle.” 
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(Pl.’s SMF, Doc. 237-64 ¶ 3). Bensch, however, testified that he and his co-founders 
“decided that the fish was going to be our center point. . . . We needed to have the 
rainbow trout be the main focal point.” (Bensch Depo., Doc. 216 93:13– 16).  
After meeting with the Sweetwater partners and delivering the Artwork, 
Fuss delivered an invoice to Sweetwater dated Ja nuary 27, 1996 (an error — it 
should have said  1997). (Pl.’s SMF, Doc. 237 -64 ¶ ¶ 13– 14). The invoice read: 
“Concept, design and illustrate: Sweetwater Brewing Company logo (color and 
black & white versions) [;] Sweetwater Bottle logo[;] Sculpt dimensional ‘ Leaping 
Trout’ tap handle,” and was paid as agreed. 
 
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(Artwork Invoice, Ex. 5 to Fuss Depo., Doc. 217-7). It is undisputed that Fuss kept 
the original versions of his drawings and delivered digitized versions to 
Sweetwater. (Pl.’s SMF, Doc. 237 -64 ¶ 12; Bensch Defs .’ SMF, Doc. 217 -2 ¶ 23 
(citing Fuss Interrog. No. 4)). The parties also agree that Fuss created the Artwork 
in his studio, using his materials, and at his own expense. (3AC, Doc. 174 ¶ 42). At 
no point was Fuss an employee of Sweetwater. ( Pl.’s SMF, Doc. 237-64 ¶¶ 71– 72).  
And similarly, no evidence was presented  suggesting Fuss was an associate of 
Sweetwater, subject to agreed, specified contract terms.   
Most crucially, the parties dispute what was agreed to at their two, or three, 
meetings in 1996. Bensch testified: “I bought the logo, and I bought the fis h tap 
handle and I bought the fishing scene.” (Bensch Depo, Doc. 216  16:8– 10).3 
Defendants further assert that “none of the founders discussed with Plaintiff any 
limits on [Sweetwater’s] use rights for the artwork at any time prior to this lawsuit.” 
(Bensch Defs.’ SMF, Doc. 217- 2 ¶ 26 (citing Bensch Depo., Doc. 216 113:1 –5; 
Declaration of Matt Patterson (“Patterson Decl.”) , Doc. 217 -19 ¶¶ 32, 36)). 
Plaintiff’s recollection is far different: “Fuss proposed that for the $500 already 
given [Sweetwater] could use [the Artwork] as long as (a) Bensch owned 
[Sweetwater] . . . and (b) [Sweetwater] acknowledged Fuss as the owner of the 
copyrights.” (Pl.’s SMF, Doc. 237-64 ¶ 9 (citing Fuss Interrog. No. 4) (emphasis in 
original)). This is the factual dispute at the heart of the case. 
 
3 At this juncture in the litigation, the Defendants’ position has shifted from the idea that 
Sweetwater owns the Artwork to the idea that Sweetwater has an unconditional license. 
(See generally Bensch Defs.’ MSJ, Doc. 217-1). 
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B. Growth of Sweetwater 
i. 2002 Litigation & 2003 Assignment 
 Over the next 25 years, Sweetwater grew to become a successful craft 
brewery. And over those decades, Fuss and Bensch stayed in contact. Though the 
agreement between Fuss and Sweetwater was never memorialized in writing past 
the invoice described above, two subsequent writings between the parties are 
relevant to this matter. 
 On June 5, 2002, Sweetwater filed a trademark  infringement lawsuit in 
Virginia against a restaurant using its trademarks,  “Sweetwater Tavern” and 
“Sweetwater Light,” to sell beer and other products. See SweetWater Brewing Co., 
LLC v. Great American Restaurants, Inc. , 266 F. Supp. 2d. 457 (E.D. Va. 2003). 
(Pl.’s SMF, Doc. 237-64 ¶ 24). In October 2002, Bensch asked Fuss if Sweetwater 
could take temporary physical possession of the original Artwork drawings to help 
prove Sweetwater’s trademark rights. (Id. ¶¶ 25– 26). Plaintiff agreed but drafted 
an agreement specifying the  drawings to be loaned  and the attendant conditions , 
the “2002 Agreement.” (2002 Agreement, Ex. 6 to Fuss Depo., Doc. 217 -8). The 
2002 Agreement, which was signed by both Bensch and Fuss and notarized, reads 
in relevant part:  
I, Frederick Bensch, acknowledge receipt of the following items 
which are the copywritten materials and the property of 
Ray Scott Fuss  and/or Scott Fuss doing business as 
Petroglyph Studio. 
I agree to return the following materials to Ray Scott Fuss on or 
no la
ter than the mutually agreed upon date of Dec [sic] 2002. 
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(Id. at 2 (emphasis added)).   
 Also in connection with the Virginia trademark litigation,  Bensch executed 
a declaration in support of Sweetwater’s motion for summary judgment. ( Pl.’s 
SMF, Doc. 237 -64 ¶¶ 28 – 33). Bo th pieces of Artwork were exhibits to the 
declaration, and each prominently  shows F uss’s signature and handwritten 
copyright notice dated 1996. (Id. ¶¶ 31– 34; see also Bensch Declaration, Ex. 6 to 
3AC, Doc. 262 -2 at 46 – 47). Sweetwater ultimately won a permanent inju nction 
and damages in that litigation,  SweetWater v. Great Am. Restaurants , 266 
F. Supp. 2d at 465, and timely returned the Artwork to Fuss. 
 In 2003, the parties crossed paths again when Bensch approached Fuss to 
request a transfer and assignment of all rights associated with the trout tap handle 
that Fuss had designed for the company.4 (Pl.’s SMF, Doc. 237-64, ¶¶ 36–43 ; 2003 
Assignment, Ex. X to Damages MSJ, Doc 210 -26). That agreement, which again 
was signed by both Fuss and Sweetwater, reads in relevant part:  
Whereas, Assignor [ Fuss] was retained by Assignee [Sweetwater 
Brewing Company, LLC] to author a three -dimensional visual work 
comprising a representation of a trout, photographs of which are 
attached hereto, including, but not limited to all two- dimensional 
representations thereof (collectively, the “Work”); and 
Whereas, Assignee is desirous of acquiring the entire right, title, and 
interest in and to the Work in any and all forms of media  now known 
or which may hereinafter become known. 
(2003 Assignment, Ex. X to Damages  MSJ, Doc 210 -26 at 2 ). The assignment 
 
4 This request belies the notion that Bensch “ bought the logo, and [] the fis h tap handle 
and [] the fishing scene” at the parties’ original meetings in 1996. (Deposition of Frederick 
Bensch (“Bensch Depo.”), Doc. 216 16:8– 10). 
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further stated that  
for good and valuable consideration . . . Assignor hereby sells, assigns, 
transfers to Assignee, its successors and assigns, the entire right, title, 
and interest in and to the Work [including] all worldwide copyrights[;] 
all other intellectual property associated with the Work[;] all rights of 
action against third parties Assignor had, has, or may have; together with 
the exclusive, unlimited, and perpetual right throughout the world to 
secure statutory copyrights and renewals, reissues, and extensions of 
such copyrights[.]
5  
It does not appear that Fuss actually received additional consideration for this 
assignment. (Pl.’s SMF, Doc. 237-64 ¶ 42; Defs.’ Damages SMF, Doc 210-29 ¶ 51). 
ii. Fuss’s Copyright Registrations 
In 2017 and 2018, respectively, Mr. Fuss applied for and received federal 
copyright registrations for the Fishing Scene and the Trout Banner. (3AC, Doc. 174 
¶ 98). The Fishing Scene’s effective date of registration was September 26, 2017; it 
was assigned registration number VA0002084616. ( Id.; see also Fishing Scene 
Copyright Reg., Ex. 8 to 3AC, Doc. 260 -8). The Trout Banner’s effective date of 
registration was March 7, 2018; it was assigned registration numbe r 
VAu001326605. (3AC, Doc. 174 ¶ 98; see also Trout Banner Copyright Reg., Ex. 9 
to 3AC, Doc. 260-9). 
iii. 2018 Sale Offer 
On March 27, 2018, amid an unrelated conversation, Fuss wrote to Bensch: 
“I’ve been evaluating the liquidation of some of my intellectual properties, 
 
5 The assignment encompassed only the three-dimensional sculpted trout handle, and no 
party disputes as such. In deposition testimony, Bensch indicated that Sweetwater 
requested the tap handle assignment because a manufacturer sought explicit proof of 
ownership. (Bensch Depo., Doc. 216 197:2– 201:7). 
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SweetWater collateral being among them. Contact me when you have a chance. I’d 
like to see if you are interested in purchasing copyrights and original works: 
Banner art, Logotype, Label art, concept sketches etc.” (March 2018 Emails, Ex. 15 
to Fuss Depo., Doc. 217 -10 at 2). Fuss testi fied in his deposition that, in a call 
following that email, he and Bensch discussed his offer of sale:  
I just made him aware that I was putting the offer out there to sell, and 
I said, look, you don’t have to do anything right now, but, you know, 
whenever you sell the brewery, you need to square up on the 
intellectual properties, and he said okay. We were both okay. 
(Fuss Depo., Doc. 215 172:16 – 19 (emphasis added)). Bensch does not necessarily 
dispute the contents of that call, though his impression was certainly different than 
Fuss’s, as Bensch testified in his deposition: 
I was surprised that Scott was reaching out and wanted to sell his 
original artworks, and then he’s bringing up trying to sell the 
copyrights, which sounded kind of fishy to me because we had already 
bought those and paid for everything back in 1996. And now, after 20 
years, he’s bringing that up. And I was pretty confused by the inbound. 
(Bensch Depo., Doc. 216 304:8– 15). The record does not reflect other offers of sale 
between 1996 and the events leading up to this litigation. 
C. Events Leading to the Instant Suit 
i. Aphria Merger and Acquisition 
 In 2019, Sweetwater was in acquisition negotiations with Canadian cannabis 
co
mpany Aphria, Inc. (3AC, Doc. 174 ¶ 26 ). The negotiations resulted in Aphria’s 
acquisition of Sweetwater in late 2020, which was publicly announced on 
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November 4, 2020.  (Id. ¶¶ 100– 103; Bensch Defs.’ SMF, Doc. 217-2 ¶ 51). 6 The 
acquisition was valued at $366 million, with $92 million of that price allocated to 
Sweetwater’s intellectual property assets. (3AC, Doc. 174 ¶ 103).  
 As part of the formal merger and acquisition, Sweetwater was required to 
disclose its intellectual property holdings. Specifically, Section 3.8 of the 
Agreement of Merger and Acquisition reads in relevant part: 
(a) Set forth on Section 3.8(a) of the Disclosure Letter is a complete 
and accurate list of all Company Intellectual Property that is (i) 
Registered Intellectual Property as of the date hereof and that 
has not otherwise lapsed, been abandoned, expired, or been  
canceled . . . that are material to the conduct of the Businesses 
of the Company and any of its Subsidiaries. Each item of 
Company Registered Intellectual Property is valid and 
enforceable, and each item of Company Registered Intellectual 
Property is subsisting. No loss or expiration of any Company 
Owned Intellectual Property is threatened in writing, pending, 
or reasonably foreseeable. 
 
(b) Except as set forth on Section 3.8(b) of the Disclosure Letter, 
the Company and its Subsidiaries collectively own or have 
the rights to use, pursuant to a written, enforceable 
license agreement, all Intellectual Property Rights 
that are reasonably necessary for or material to the 
conduct of the businesses  of the Company and any of its 
Subsidiaries. . . . 
 
(e) Except as set forth on Section 3.8(e) of the Disclosure Letter, 
the Company or one of its Subsidiaries has secured from each 
employee, contractor or other Person who is or was involved in 
the creation or development of any Company Intellectual 
Property, a written agreement containing (A) a present, 
affirmative assignment of all Intellectual Property 
developed by such employee, contractor, or Person 
rights in such Company Intellectual Property  for on 
behalf of, or during their employment by the Company or any 
 
6 In 2021, Aphria completed a merger with Tilray, Inc., which is now Sweetwater’s parent 
company. (3AC, Doc. 174 ¶ 8). 
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of its Subsidiaries . . . . 
(Aphria M&A Agreement, Ex. 1 to 3AC, Doc. 261 -1 at 28– 29 (emphasis added)).  
The referenced  Disclosure Letter does not reflect Sweetwater’s license in the 
Artwork, nor does it reflect Fuss’s ownership of the Artwork. The Disclosure Letter 
also does not indicate that Sweetwater itself owns or owned the copyright interest 
in the Artwork.  
ii. Trustee Interest7 
At the time of the Aphria transaction, two trusts — Defendants No Quarter 
Trust and Tortoise Trust — owned a significant amount of Sweetwater stock. ( Pl.’s 
Resp. to Trustee Defs.’ MSJ, Doc. 241 at 4 –5). As such, the acquisition was 
effectuated in part by the sale of those two trusts’ stock to Aphria. ( Id. at 5).8 As 
part of that transaction, the Trustees signed the Written Consent of the Members 
of SW Brewing Company, LLC in Lieu of Special Meeting, which stated, in relevant 
part, that the Trustees had “reviewed the Acquisition Agreement and the other 
Transaction Documents, and [] determined that it is advisable for the Company to 
enter into, execute, deliver and perform its obligations under the Ac quisition 
Agreement[.]” (Trustee Defs .’ SMF, Doc. 218 -2 ¶¶ 8– 9). After approving the 
 
7 The Court notes that much of the parties’ discussion as to the Trustees and their liability 
is heavily redacted and thus takes care regarding its analysis of confidential information. 
However, the Court also takes notice of the parties’ discussion of the Trustees and their 
possible liability in open court at the hearing on the instant motions. (See generally MSJ 
Hearing Tr., Doc. 268 84:13– 134:8). 
 
8 The Trustees of No Quarter Trust are Sharon Bensch, Ian Easton, and Hampton Mallis; 
the Trustee of Tortoise Trust is a corporate entity, Wood Duck, LLC. (Trustee Defs.’ MSJ, 
Doc. 218-2). Both trusts, by way of their Trustees, are Defendants in the instant litigation. 
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Acquisition Agreement, the Trustees appointed Chilly Water, LLC (Bensch’s 
corporate entity) to represent them “in connection with the Merger and the 
transactions contemplated by the Acquisition Agreement.” (Id. ¶ 10 (citing Aphria 
M&A Agreement, Ex. 1 to 3AC, Doc. 261 -1 at 65– 66)). That appointment granted 
to Chilly Water  
full power and authority to do and perform each and every act and 
thing requisite and necessary to be done in connection with the 
transactions contemplated by the Acquisition Agreement . . . [and] to 
bind each such person in accordance with the Acquisition Agreement 
and the other Transaction Documents, and to consummate the 
Merger. 
(Id. ¶ 11). In short, as the agent of Chilly Water, Bensch executed the Aphria merger 
agreement on behalf of the Trustees. 
iii. Fuss Asserts Copyright Interest 
 On November 9, 2020 — a few days after the public announcement of the 
Aphria transaction — Fuss texted Bensch: “Congratulations on the sale of 
Sweetwater Brewing Co. to Aphira [sic]. That’s big news! Along those lines, when 
you have a chance, give me a shout to discuss my holdings of original artwork and 
the associated copyrights. Thanks! Scott[.]” (Fuss/Bensch Text Messages, Ex. C to 
Damages MSJ, Doc. 210-5). On November 10, Bensch responded: “Hi Scott - 
appreciate that. Ok if I get back to you on this afte r Thanksgiving [sic]. Beyond 
buried at this point as I’m sure you can image [sic]. Best[.]” ( Id.). They agreed to 
talk on December 2. (Id.) 
On November 12, 2020, day
 s after this text exchange, Sweetwater attorney 
Stephen Schaetzel filed an expedited application to register the Trout Banner with 
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the U.S. Copyright Office. (Pl.’s SMF, Doc. 237-64 ¶ 69; Sweetwater Registration, 
Ex. 12 to Pl.’s Resp. to Bensch Defs.’ MSJ, Doc. 237-13 at 2). Record evidence shows 
Bensch’s involvement in this application process. Specifically, when the Copyright 
Office followed up with Sweetwater’s attorney seeking a color version of the Trout 
Banner, Bensch helped move this process along. (Email Between Copyright Office 
& Sweetwater, Ex. 12 to Pl.’s Resp to Bensch Defs.’ MSJ, Doc. 237-13 at 8, 10; Email 
Between Bensch & Thoren, Ex. 15 to Pl.’s Resp to Bensch Defs.’ MSJ, Doc. 237-16 
at 2). In its copyright application, Sweetwater indicated the Trout Banner was a 
“work for hire,” i.e. created by an employee within the scope of their employment.9 
(Sweetwater Registration, Ex. 12 to Pl.’s Resp. to Bensch Defs.’ MSJ, Doc. 237-13 
at 3 ). On November 25, 2020 — the day before Thanksgiving — Sweetwater’s 
expedited registration was approved by the Copyright Office. ( Id. at 16). Also on 
November 25, the Aphria transaction formally closed. (Pl.’s SMF, Doc. 237-64 ¶ 76; 
Bensch Defs.’ SMF, Doc. 217-2 ¶ 46). 
 On December 2, 2020, Fuss and Bensch spoke via telephone. ( Pl.’s SMF, 
Doc. 237-64 ¶¶ 62– 63, 78– 79; Bensch Defs.’ SMF, Doc. 217-2 ¶ 54). According to 
Fuss’s deposition testimony as to the call, he indicated to Bensch that 
we need to talk about the squaring up on the intellectual properties, 
the logos, and all the things associated with the Sweetwater 
intellectual properties, and then he said, I own that shit. . . . I own the 
copyrights and so forth, and he said, I’m the fisherman in the fucking 
boat or I’m – something to that effect. 
(Fuss Depo., Doc. 215 279:19 – 280:5). Bensch, meanwhile, testified that “for the 
 
9 17 U.S.C. § 101. 
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first time, shockingly enough, Scott was claiming that we owed him more money 
for the drawings that we had paid him for back in 1996. . . . He said, ‘Now that you 
sold your brewery, you gotta pay me money.’” (Bensch Depo., Doc. 216 291:16 –
293:14). The December 2 nd conversation ended, unsurprisingly, without 
resolution of the dispute.  
 On December 7, Plaintiff’s counsel reached out to Sweetwater’s outside 
counsel, notifying him that Plaintiff authored and owned the Artwork: “Our client 
owns copyrighted artwork upon which the SweetWater branding was built. This is 
most certainly a matter that should be addressed prior to any sale of the company. 
. . . Time is of the essence in this matter, with sale pending for SweetWater 
Brewing.” (December 2020 Hoots Emails, Ex. 12 to 3AC , Doc. 260 -12 at 2).  On 
December 24, defense counsel responded indicating that “Mr. Fuss was considered 
and treated as if he were an employee”; that the Artwork was “works for hire”; and 
that “[a] ccordingly, SweetWater owns the copyright in the subject designs.” 
(December 2020 Schaetzel Letter , Ex. 5 to Plaintiff’s Resp. to Bensch Defs.’ MSJ, 
Doc. 237-6 at 3).
10 Defense counsel also asserted that “[b]ecause SweetWater owns 
the copyright in these designs as works made for hire, ” Fuss’s 2017 and 2018 
 
10 The Court notes that no record evidence reflects that Fuss was, at any time, a 
Sweetwater employee. At the time of this correspondence, defense counsel relied on the 
fact that Fuss “drew the SweetWater designs, was paid for his work and proceeded to take 
full advantage of his employee-like status by accepting beer at the brewery for more than 
two decades.” (December 2020 Schaetzel Letter, Ex. 5 to Pl.’s Resp. to Bensch Defs.’ MSJ, 
Doc. 237-6 at 3). But Plaintiff contends that he was not a Sweetwater employee when he 
created the Artwork because he was not provided wages, employee tax return s, or any 
employee benefits. (Pl.’s SMF, Doc. 237 -64 ¶¶ 71, 72) . Defendants no longer appear to 
argue that Fuss was an employee or that the Artwork constitutes  works for hire.  
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copyright registrations of the Artwork were “invalid.” (Id.). 
On January 19, 2021, Plaintiff’s counsel responded, rebutting the work-for-
hire assertion and noting that “not only has Mr. Fuss asserted claims of ownership 
in the works over the years, but your client has affirmatively acknowledged Mr. 
Fuss’s ownership rights.” (January 2021 Hoots Letter, Ex. 14 to 3AC, Doc. 260 -14 
at 2). Plaintiff’s counsel also, at that point, indicated that “Mr. Fuss developed and 
delivered copies of his work product to SweetWater in return for $500 and an 
understanding with Mr. Bensch  that Mr. Fuss would be compensated more 
fully if/when SweetWater was sold.” (Id. (emphasis added)). On February 9, 
2021, Sweetwater’s outside counsel responded, shifting away from the work -for-
hire argument and asserting that “Sweetwater enjoys an implied license to use the 
trout design[.]” (February 2021 Hyland Letter, Ex. 15 to 3AC, Doc. 260-15 at 3).  
On May 18, 2021, Plaintiff’s counsel wrote to defense counsel with a 
notification that Fuss intended to terminate Sweetwater’s license. 
Mr. Fuss was, is, and remains the author and owner of the 
Copyrighted Material. Based solely on your client’s words, conduct, 
and actions, which are adversarial to, and flatly contradict, the history 
of the relationship between the parties and the 2002 Agr eement, and 
further which constitute openly false representations of ownership in 
the Copyrighted Material to the detriment of Mr. Fuss’s rights in 
same, the agreement between the parties has been breached.  
Therefore, be advised: 
EFFECTIVE IMMEDIATELY: Mr. Fuss hereby terminates 
each
, every, and all licenses and permissions to use the 
Copyrighted Material in any way. Be further advised that 
Mr. Fuss has not sold, assigned, licensed, conveyed or 
otherwise transferred any right, titl e, or interest in the 
Copyrighted Material to Aphria, Tilray or any other assign 
or successor in interest to Mr. Bensch or SweetWater 
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Brewing[.] 
(Termination Letter, Ex. 16 to 3AC, Doc. 260-16 at 4 (emphasis in original) ). The 
next day, Plaintiff’s counsel also sent defense counsel a Formal Notice to Cease and 
Desist. (Cease & Desist, Ex. 17 to 3AC, Doc. 260-17). This litigation soon followed. 
D. Instant Litigation 
 On September 17, 2021, Plaintiff brough suit in the Superior Court of Fulton 
County against Bensch and various Sweetwater corporate entities, alleging 
“intentional conversion, fraud, deceit, concealment, and misrepresentations 
concerning Mr. Fuss’s intellectual property .” (State Ct. Compl., Doc. 1- 1). 
Defendants removed the case to this Court in January 2022. (Doc. 1). Plaintiff 
subsequently twice amended his Complaint, including to  modify the corporate 
Defendants. (Docs. 23; 35). The current Defendants ar e: Frederick Bensch; Class 
V, Inc.; Sweetwater Brewing Company, LLC; SW Brewing Company, LLC; SWB 
Management, LLC; Chilly Water, LLC; Sharon Bensch, as Trustee of No Quarter 
Trust; Wood Duck, LLC, as Trustee of Tortoise Trust; Cheese Grits, LLC; Aphria, 
Inc.; Four Twenty Corporation; Sweetwater Colorado Brewing Company, LLC; and 
Tilray Brands, Inc. (3AC, Doc. 174). 
 In December 2022, Defendants Bensch , S
 W Brewing Company, LLC, 
SweetWater Brewing Company, LLC, Class V, Inc., No Quarter Trust, and Tortoise 
Trust moved for Judgment on the Pleadings. (Docs. 82; 83). In September 2023, 
the Court denied those motions  in full, finding that, at that juncture, “the Court  
[was] unable to determine as a matter of law that Defendants’ act of consummating 
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18 
 
the Merger did not constitute a breach of the license agreement between the 
parties.” (Order on MJOP, Doc. 115 at 30). As a result, the Court also could not find 
that the “ Trust Defendants did not authorize infringing conduct by their 
authorization of the Merger.” (Id.). This matter then proceeded to discovery. 
 In the meantime, Sweetwater rebranded. In April 2024, Sweetwater 
launched its new logo: 
 
(Sweetwater Website, Ex. 19 to Pl.’s Resp. to Damages MSJ, Doc. 232-20 at 2). As 
a result, and with the leave of Court, Plaintiff filed its Third Amended  Complaint, 
the operative pleading here. (Docs. 135; 174). The  Third Amended Complaint 
includes thirteen counts against the above-listed Defendants: 
Count Claim Defendants 
I Fraud 
Bensch; SW Brewing Company, LLC; 
Sweetwater Brewing Company, LLC; 
Aphria, Inc.; Tilray, Inc.  
II Fraudulent Concealment 
Bensch; SW Brewing Company, LLC; 
Sweetwater Brewing Company, LLC; 
Aphria, Inc.; Tilray, Inc. 
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III Breach of Fiduciary Duty 
Bensch; SW Brewing Company, LLC; 
Sweetwater Brewing Company, LLC; 
Aphria, Inc.; Tilray, Inc. 
IV Slander of Title 
Bensch; Sweetwater Brewing 
Company, LLC; Four Twenty 
Corporation 
V Breach of Contract 
(Express Oral) 
Bensch; Class V, Inc.;  
Sweetwater Brewing Company, LLC 
VI Breach of Contract 
(Implied in Fact) 
Bensch; Class V, Inc.;  
Sweetwater Brewing Company, LLC 
VII 
Declaratory Judgement 
(Plaintiff is Sole Owner of 
Copyrighted Material) 
All Defendants 
VIII 
Declaratory Judgement 
(Plaintiff Properly 
Terminated Any License) 
All Defendants 
IX Declaratory Judgement 
(False Registration) Sweetwater Brewing Company, LLC 
X Copyright Infringement 
(Direct) 
Sweetwater Brewing Company, LLC; 
Sweetwater Colorado Brewing Co., 
LLC; Cheese Grits, LLC 
XI Copyright Infringement 
(Vicarious) 
Tilray Brands, Inc.;  
Four Twenty Corporation; 
SW Brewing Company, LLC 
XII Copyright Infringement 
(Vicarious; Bensch as CEO) 
SW Brewing Company, LLC; 
Sweetwater Brewing Company, LLC; 
Sweetwater Colorado Brewing Co.; 
LLC; Cheese Grits, LLC; Class V, Inc. 
XIII Copyright Infringement 
(Contributory) 
SW Brewing Company, LLC; Chilly 
Water, LLC; SWB Management, 
LLC; Trustees for No Quarter Trust;  
Trustee for The Tortoise Trust 
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(Doc. 258 -1). Discovery in this matter closed in April 2025, and the parties 
voluntarily proceeded to mediation in May 2025, which did not yield a resolution. 
(JSR, Doc. 193). On June 20, 2025, Defendants moved for summary judgment. 
The Defendants, collectively, have brough t three Motions for Summary 
Judgment. First, Bensch, along with his corporate entities  Chilly Water and Class 
V (the “Bensch Defendants”) moved for summary judgment as to Plaintiff’s claims 
of fraud (Count I), fraudulent concealment (Count II), breach of fiduciary duty 
(Count III), breach of express contract (Count V), breach of implied con tract 
(Count VI), direct copyright infringement (Count X), vicarious copyright 
infringement (Counts XI, XII), and contributory copyright infringement (Count 
XIII). The Bensch Defendants also move d for summary judgment as to Plaintiff’s 
claim for a declarat ory judgment that he properly terminated the alleged license 
for the Artwork (Count VIII). ( See generally  Bensch Defs.’ MSJ, Doc. 217 -1). 
Second, the trustees of both No Quarter Trust and Tortoise Trust (the “Trustee 
Defendants”) have moved for summary judgment on Plaintiff’s contributory 
copyright infringement claim (Count XIII), the sole claim against them.  ( See 
generally Trustee Defs.’ MSJ, Doc. 218-1). Finally, all Defendants have moved for 
summary judgment as to the calculation of actual damages on Pla intiffs’ 
infringement, fraud, fraudulent concealment, and breach of fiduciary duty claims. 
(See generally Damages MSJ, Doc. 210 -1).
11 Those Motions are fully briefed and 
 
11 No Defendant has moved for summary judgement as to the slander of title claim (Count 
IV); the claim for a declaratory judgment regarding Plaintiff’s ownership (Count VII); or 
the claim for a declaratory judgment regarding the duplicative registration (Count IX). 
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ripe for the Court’s adjudication. (Damages MSJ, Doc. 210; Pl.’s Resp. to Damages 
MSJ, Doc. 232; Defs.’ Reply ISO Damages MSJ, Doc. 249; Bensch Defs.’ MSJ, Doc. 
217; Pl.’s Resp to Bensch Defs.’ MSJ, Doc. 237; Bensch Defs.’ Reply ISO MSJ, Doc. 
252; Trustee Defs.’ MSJ, Doc. 218; Pl.’s Resp. to Trustee Defs.’ MSJ, Doc. 241; 
Trustee Defs.’ Reply ISO MSJ, Doc. 253).  The Court also has benefited from oral 
argument held on these Motions. (MSJ Hearing Tr., Doc. 268). 
II. LEGAL STANDARD 
The Court shall grant summary judgment if the record 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). A factual issue is genuine if there is 
sufficient evidence for a reasonable jury to return a verdict in favor of the non -
moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 
factual issue is material if resolving the factual issue might change the suit’s 
outcome under the governing law . Id. The motion should be granted only if no 
rational fact finder could return a verdict for the non-movant. Id. at 248– 49. 
When ruling on a Motion for Summary Judgment, the Court must view all 
evid
ence in the record in the light most favorable to the non -moving party and 
resolve all factual disputes in the non -moving party’s favor. See Reeves v. 
Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000). The moving party 
need not positively disprove the opponent’s case; rather, the moving party must 
establish the lack of evidentiary support for the non -moving party’s position. See 
Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). If the moving party meets this 
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initial burden , the non -moving party must then present competent evidence 
beyond the pleadings to show that there is a genuine issue for trial  and survive 
summary judgment. Id. at 324– 26. The essential question is “whether the evidence 
presents a sufficient disagreement to require submission to a jury or whether it is 
so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 
251– 52. “Where the record taken as a whole could not lead a rational trier of fact 
to find for the nonmoving  party, there is no ‘genuine issue for trial.’” Scott v. 
Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith 
Radio Corp., 475 U.S. 574, 587 (1986)). In evaluating a Motion for Summary 
Judgment, the Court may consider “depositions, documents, electronically stored 
information, affidavits or declarations, stipulations (including those made for 
purposes of the motion only), admissions, interrogatory answers, or other 
materials” in the record.” Fed. R. Civ. P. 56(c)(1)(A). 
III. THE LICENSE 
The Court now turns to the substance of Defendants’ Motions. At 
 the crux of 
Plaintiff’s claims — and, thus, Defendants’ Motions — is the l icense given to 
Sweetwater in 1996. The question of whether the Bensch Defendants can be held 
liable for copyright infringement relies on  (1) whether a license between Fuss and 
Sweetwater existed; (2) the scope of that license; and (3) whether  and when Fuss 
effectively revoked that license. Without making conclusions about the scope of the 
license, the Court cannot adjudicate Plaintiff’s direct infringement claim (Count X) 
or any of the offshoot infringement claims (Counts XI, XII, XIII). The parties agree 
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that, in 1996, Fuss created the Artwork for the fledgling Sweetwater brewery and 
licensed the Artwork to Sweetwater. (Bensch Defs.’ SMF, Doc. 217-2 ¶¶ 15– 26; Pl.’s 
SMF, Doc 237-64 ¶¶ 1– 13). The contours of that license, however, are not clear.12  
A. Creation of the License   
The Court starts, naturally, at the beginning — the inception of the 
relationship between Fuss and Sweetwater and the creation of the license. Neither 
party asserts that a written license was executed in 1996 at the beginning of the 
Fuss/Sweetwater relationship.  The Bensch Defendants contend  that Plaintiff 
granted Sweetwater an “unconditioned, unlimited, irrevocable nonex clusive 
license in the artwork.” (Bensch Defs.’ MSJ, Doc. 217-1 at 15). Plaintiff, conversely, 
argues that “Fuss and [Sweetwater] had an express agreement that provided a 
conditional license to [Sweetwater] to use the logo art.” (Pl.’s Resp. to Bensch Defs.’ 
MSJ, Doc. 237 at 18) (emphasis in original).13 In Plaintiff’s view, this distinction is 
highly material, because an express license , unlike an implied license, would 
purportedly allow for the conditions that Plaintiff alleges , which are described in 
depth below. (MSJ Hearing Tr., Doc. 268 60:4– 20). However, implied licenses can 
 
12 Bensch personally appears to represent throughout his deposition and elsewhere that 
Sweetwater has owned copyright to the Artwork since the original transaction in 1996. 
(Bensch Depo., Doc. 216 16:8 –10 ; December 2020 Schaetzel Letter, Ex. 5 to Plaintiff’s 
Resp. to Bensch Defs.’ MSJ, Doc. 237 -6 at 3 ). This contention does not appear to have 
been adopted by his lawyers  at this juncture , nor is it supported by the record. ( See 
generally Bensch Defs.’ MSJ, Doc. 217-1). 
 
13 The parties appear to agree that, because it is not in writing, the license must be non-
exclusive. Jacob Maxwell, Inc. v. Veeck , 110 F.3d 749, 752 (11th Cir. 1997) (“In contrast 
to an exclusive license, a nonexclusive license to use a copyright may be granted orally, or 
may even be implied from conduct.” (cleaned up)).  
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also be limited in scope, essentially a version of conditionality. Latimer v. Roaring 
Toyz, Inc., 601 F.3d 1224, 1235 (11th Cir. 2010)  (“Implied licenses may be limited 
and a defendant who exceeds the scope of an implied license commits copyright 
infringement.”). 
“Whether express or implied, a license is a contract governed by ordinary 
principles of state contract law.”  McCoy v. Mitsubishi Cutlery, Inc., 67 F.3d 917, 
920 (Fed. Cir. 1995). “An express contract is one where the intention of the parties 
and the terms of the agreement are declared or expressed by the parties, in writing 
or orally, at the time it is entered into.” Classic Restorations, Inc. v. Bean, 155 Ga. 
App. 694, 699 ( Ga. Ct. App. 1980). Conversely, “[a]n implied contract is one not 
created or evidenced by distinct and explicit language, but inferred by the law as a 
matter of reason and justice.” Id. “There cannot be an express and implied contract 
for the same thing existing at the same time between the same parties. It is only 
when the parties themselves do not expressly agree, that the law interposes and 
raises a promise.” Id. “[W]here there is a conflict in the evidence as to the existence 
of an oral contract or as to its terms, the matter must be submitted to a jury for 
resolution.’” Rome v. Polyidus Partners LP, 322 Ga. App. 175, 178 ( Ga. Ct. App. 
2013) (quoting Dover v. Mathis, 549 S.E.2d 541, 542 (Ga. Ct. App. 2001)). 
As discussed su
 pra at 2–6, the parties disagree about virtually every detail 
related to the creation of the license . In Defendants’ telling, an implied license for 
Sweetwater’s use of the Artwork arose when “Plaintiff delivered the finished 
products to [Sweetwater], and [Sweetwater] paid Plaintiff the $500 for the 
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artwork.” (Bensch Defs.’ SMF, Doc. 217-2 ¶ 20). According to Defendants, “none 
of the founders discussed with Plaintiff any limits on [Sweetwater’s] use rights for 
the artwork at any time prior to this lawsuit.” ( Id. ¶ 26 (citing Bensch Depo., Doc. 
216 113:1 – 5; Patterson Decl., Doc. 217- 19 ¶¶ 32, 36) ). Plain tiff testifies that the 
licensing was much more explicit than that. In his telling, Fuss allowed Sweetwater 
to use the Artwork for their branding as long as (1) Bensch owned the brewery and 
(2) the company recognized Fuss as the copyright owner. ( Pl.’s SMF, Doc 237-64 
¶¶ 9– 10 (citing Fuss Interrog. No. 4 )). In other words, the parties fundamentally 
disagree about how the license  was created and, as discussed below, the scope of 
that license. Such factual disputes about the terms of the license  seriously 
complicate the possibility of summary judgment on Plaintiff’s infringement claims. 
B. Scope of the License 
Specifically, Plaintiff contends that the license  was oral, express, and 
limited, with  two key condition s. In his account of the deal, Fuss allowed 
Sweetwater to use the Artwork “as long as (a) Bensch owned [Sweetwater] . . . 
and (b) [Sweetwater] acknowledged Fuss as the owner of the Copyright.” ( Pl.’s 
Resp. to Bensch Defs.’ MSJ, Doc. 237 at 10 (emphasis in original)). Conversely, the 
Bensch Defendants take the position that the license is implied, unconditional, and 
irrevocable. Bensch denies that any whiff of Fuss’s al leged conditions existed 
before the instant suit. (Bensch Depo., Doc. 216 16:8– 14). 
“[W]hen there is no dispute as to the existence of a license, and instead the 
Par
ties’ dispute is over the scope of an admittedly existent license, ‘the copyright 
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owner bears the burden of proving that the defendant’ s copying was 
unauthorized,’” i.e., Defendant must “show that Plaintiff cannot sustain its burden 
of demonstrating that Defendant exceeded that license’s scope.” Virtual Studios, 
Inc. v. Royalty Carpet Mills, Inc. , 2014 WL 12495340, at *6 (N.D. Ga. Feb. 10, 
2014) (Murphy, J.) (quoting Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2d Cir. 
1995)). At the su mmary judgment stage, however, that burden of proof exists 
within the framework of construing the facts in the non -movant’s (Plaintiff’s) 
favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 
The dispute over the scope of the lic ense here relates to two alleged 
conditions subsequent. A condition subsequent is one that, if triggered, “will bring 
something else to an end.” Black’s Law Dictionary (12th ed. 2024). “The breach of 
a condition subsequent may destroy the party ’s rights under the contract or may 
give a right to damages to the other party, according to a true construction of the 
intention of the parties.” O.C.G.A.  § 13 -3-4; see also Jordan Realty Co. v. 
Chambers Lumber Co. , 176 Ga. 624 (1933). “ [N]o precise technical words are 
required to create a condition subsequent, and the court will look to the intent of 
the parties as expressed in the agreement. ” John K. Larkins, Jr., Georgia 
Contracts: Law and Litigation § 5:5 (citing Munford, Inc.  v. Citizens & Southern 
Nat’l Bank, 151 Ga. App. 112 (Ga. Ct. App. 1979); Jones v. Williams , 132 Ga. 782 
(Ga. 1909)).  Nevertheless, “where there is a conflict in the evidence as to the 
existence of an oral contract or as to its terms, the matter must be submitted to a 
jury for resolution.’” Rome, 322 Ga. App. at 178. 
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One case arising out of this district is particularly  instructive as to how  
parties establish a license and circumscribe its scope . In Virtual Studios , Judge 
Harold L. Murphy of the Northern District of Georgia held that, in the face of 
disputed evidence about the duration of a written license, summary judgment was 
inappropriate. There, the plaintiff, a company that created “digital room scenes,” 
sued a carpet manufacturer for copyright infringement, alleging defendant’s 
continued use of plaintiff’s digital images exceeded the scope of the parties’ non-
exclusive license. Virtual Studios, Inc. , 2014 WL 12495340, at *2–5. The plaintiff 
alleged that the license carried a one- year limitation, which the defendant denied 
agreeing to. Id. at *7. The Court found that “[b]ecause the only evidence [it had] to 
rely on [was] the competing testimony of the Parties, it must leave resolution [of] 
the terms of the disputed licensing agreement to the jury.” Id. “Consequently, while 
the Court holds, and the Parties do not dispute, that Plaintiff granted Defendant a 
non-exclusive license to use the Disputed Images, the Court decline [s] to find 
whether or not such license included a one-year limitation on Defendant’s use.” Id.  
 In a more recent case, the Southern District of Florida established the 
co
nditions of an oral implied license only after its findings at a bench trial . HH 
Advert., Inc. v. Unique Vacations, Inc. , 2025 WL 2027556  (S.D. Fla. July 21, 
2025). There, the plaintiff advertising agency provide d discounted services to the 
defendant resort, but retained ownership rights to its photos until the relationship 
ended, at which point defendant would purchase them. Despite factual 
ambiguities, the district court’s “firsthand observation . . . at [the bench] trial, as 
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well as its review of corroborating evidence” allowed the court to make factual 
findings as to the license conditions.14 Eventually, “the Court conclude[d] [that] 
Defendants had an implied license to use the Works ,” that the plaintiff had 
“effectively communicated the temporal restriction before delivering any works, 
and [that] the parties’ subsequent conduct confirmed they continued to operate 
under that original understanding .” Id. at *16– 19. Again, however, these factual  
findings were made only after the benefit of a bench trial. 
1. Bensch Ownership of Sweetwater 
With the benefit of this legal context, the Court returns to the license at hand. 
Plaintiff alleges that the license  conferred in 1996 included two conditions . First, 
Sweetwater “was permitted to continue using the Logo Art only so long as Freddy 
Bensch remained an ‘owner’” of the brewery. (Pl.’s Resp. to Bensch Defs.’ MSJ, 
Doc. 237 at 7). In deposition testimony, Plaintiff indicated that , when the license  
was formed in 1996, he made this condition clear: “[T]hey could use [the Artwork] 
as long as Freddy owned the brewery [.] . . . I stated that.” (Fuss Depo., Doc. 215  
72:15– 18; see also generally id. at 70:11– 75:19). Bensch’s recollection of the 1996 
agreement differs entirely: “I bought the logo, and I bought the fish tap handle and 
 
14 The court there found that plaintiff orally licensed the works  despite the fact that “ in 
the leadup to a proposed — but ultimately unconsummated — sale of the resort brands,” 
the defendant’s CEO “did not discuss Plaintiff's intellectual -property rights with the 
potential buyer and had no plan to compensate Plaintiff in connection with the sale.  . . . 
Nor did Defendants provide documents to the potential buyer describing a payment 
agreement or Plaintiff's ownership rights — despite uploading Plaintiff's price list to a 
data room during the due-diligence process.” HH Advert., Inc. v. Unique Vacations, Inc., 
2025 WL 2027556, at *5 (S.D. Fla. July 21, 2025). These omissions are strikingly close to 
Sweetwater and Bensch’s own conduct during the merger negotiations with Aphria. 
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I bought the fishing scene. . . . And everything went with it. There was never any 
discussion about anything else.” (Bensch Depo., Doc. 216 16:8– 14).  
According to Fuss, the condition regarding Bensch’s ownership of the 
brewery arose again in March 2018 , when Fuss wrote to Bensch regarding “the 
liquidation of some of [his] intellectual properties, SweetWater collateral being 
among them ” and gauging Bensch’s “ interest[] in purchasing copyrights and 
original works: Banner art, Logotype, Label art, concept sketches etc. ” (March 
2018 Emails, Ex. 15 to Fuss Depo., Doc. 217 -10 at 2). According to Fuss’s 
deposition, he and Bensch subsequently discussed this offer over the phone.  
I just made him aware that I was putting the offer out there to sell, and 
I said, look, you don’t have to do anything right now, but, you know, 
whenever you sell the brewery, you need to square up on the 
intellectual properties, and he said okay. We were both okay. 
(Fuss Depo., Doc. 215 172:16– 19 (emphasis added)). Bensch ’s recollection of the 
call differed sharply: 
I was surprised that Scott was reaching out and wanted to sell his 
original artworks, and then he ’s bringing up trying to sell the 
copyrights, which sounded kind of fishy to me because we had already 
bought those and paid for everything back in 1996. And now, after 20 
years, he’s bringing that up. And I was pretty confused by the inbound. 
(Bensch Depo., Doc. 216 304:8– 15). 
Plaintiff’s counsel also a
 ddressed  the Bensch Ownership Condition in a 
letter to defense counsel during the events leading up to this litigation:  “Mr. Fuss 
developed and delivered copies of his work product to SweetWater in return for 
$500 and an understanding with Mr. Bensch that Mr. Fuss would be 
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compensated more fully if/when SweetWater was sold. ” (January 2021 
Hoots Letter, Ex. 14 to 3AC, Doc. 260-14 at 2 (emphasis added)). 
 Plaintiff’s position is that “when Freddy Bensch ceased being an owner due 
to the Aphria merger . . . the Bensch Ownership Condition terminated 
[Sweetwater’s] license rights in November 2020.” (Pl.’s Resp. to Bensch Defs.’ 
MSJ, Doc. 237 at 7). The Bensch Defendants, meanwhile, find the term in itself to 
be “uncorroborated,” “fabricated,” “nonsensical,” and “too vague to be enforced.” 
(Bensch Defs.’ MSJ, Doc. 217-1 at 8, 10). 
 In short, both sides present sworn, completely contradictory testimony as to 
whether the license , from its inception in 1996, was conditioned on Bensch’s 
ownership of the brewery. Given this inconsistency in the evidence  presented, the 
Court has no choice but to find a factual dispute as to whether the license was 
conditioned on Bensch’s ownership — a dispute that relies significantly on witness 
credibility, which would be an inappropriate factor for the Court to weigh at this 
phase. See e.g., Allen-Sherrod v. Henry Cnty. Sch. Dist., 248 F. App’x 145, 147 (11th 
Cir. 2007) (“It is a hornbook principle that it is not proper for a district court to 
assess witness credibility when consider [ing] a motion for summary judgment as 
such determinations are reserved for the [factfinder] .”). The Court’s inability at 
this juncture to rule on the validity of this condition or whether the parties’ actually 
agreed on this condition poses  a substantial barrier to the Bensch Defendants’ 
Motion for Summary Judgment regarding the infringement claims. 
  
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2. Recognition of Fuss as Copyright Owner 
Plaintiff next alleges that the parties’ license was conditioned on the promise 
that Sweetwater would “acknowledge” Fuss as owner of the Artwork’s copyright. 
(Pl.’s Resp. to Bensch D efs.’ MSJ, Doc. 237 at 10).  The notion that a copyright 
owner shall be treated as such  is implicit in the Copyright Act : “The owner of any 
particular exclusive right [comprised in a copyright] is entitled, to the extent of that 
right, to all of the protection and remedies accorded to the copyright owner by this 
title.” 17 U.S.C. § 201 (d)(2). But the record evidence regarding this condition is 
thinner than the evidence related to the first condition.  
Three key facts, however, remain the same. Again , in Plaintiff’s telling, he 
“proposed that for the $500 already given [Sweetwater]  could use [the Artwork] 
as long as (a) Bensch owned [ the brewery ] . . . and (b) [Sweetwater] 
acknowledged Fuss as the owner of the copyrights.” ( Pl.’s SMF, Doc. 237-64 ¶ 9). 
But Defendants’ position is that “none of the founders discussed with Plaintiff any 
limits on [Sweetwater’s] use rights for the artwork at any time prior to this lawsuit.” 
(Bensch Defs.’ SMF, Doc. 217 -2 ¶ 26 ). A gain, the direct factual contradiction in 
sworn testimony precludes summary judgment as to the scope of the license. 
Despite their current position as to the license con
 ditions, the Defendants 
have in the past repeatedly acknowledged that Fuss owns the copyright to the 
Artwork in the decades preceding th is litigation. Specifically, alt hough Bensch 
contended in his deposition testimony that he “bought the logo, and [] the fish tap 
handle and [] the fishing scene,” (Bensch Depo, Doc. 216 16:8 – 10), numerous 
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documents indicate his knowledge otherwise. In 2002, when Fuss loaned Bensch 
the physical copies of the original artwork, Bensch signed a notarized agreement 
reading in part: “I, Frederick Bensch, acknowledge receipt of the following items 
which are the copywritten materials and the property of Ray Scott Fuss 
and/or Scott Fuss doing business as Petroglyph Studio.” (2002 Agreement, Ex. 
6 to Fuss Depo., Doc. 217 -8 (emphasis added)). And in 2003, Bensch asked for — 
and Fuss agreed to — the transfer and assignment of all rights associated with the 
trout tap handle that the latter had designed for the company. (Pl.’s SMF, Doc. 237-
64, ¶ 36; 2003 Assignment, Ex. X to Damages MSJ, Doc 210 -26). Fuss does not 
dispute this assignment. The post -hoc assignment of the rights in the trout tap 
handle belie s the notion that Bensch “bought” the Artwork and the tap handle,  
along with all associated rights,  in 1996. In short, though Defendants dispute the 
existence of a contract term recognizing Fuss as the copyright owner of the 
Artwork, record evidence indicates that, until the events leading up to this 
litigation, they in fact did recognize as such.   
Assuming arguendo that the licen
 se included a term recognizing Fuss as the 
copyright owner , Sweetwater’s effort to register a duplicative, last- minute 
copyright of the Trout Banner would be an explicit breach of the license agreement. 
Sweetwater’s belated registering of an ownership interest in the copyright of the 
Artwork in November 2020 effectively sought to formally repudiate Fuss’s 
ownership interest. Fuss asserts that Defendants’ recognition of him as the 
copyright owner was an express condition of the license from its inception. If the 
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Court found that to be true, the duplicative registration in November 2020 would 
be crucial evidence of Defendants’ breach of that condition.  
3. Ambiguity of Conditions 
Seeking summary judgment despite the presence of factual disputes, the 
Bens
ch Defendants argue that, even if the conditions regarding (1) Bensch’s 
ownership of the brewery and (2) Fuss’s recognition as the copyright owner were 
legitimate, they would be unenforceably ambiguous. (Bensch Defs.’ MSJ, Doc. 217-
1 at 10– 11, 11 n.2). As to the Bensch Ownership Condition, the Defendants contend 
that “Bensch was not ‘the owner’ of SWB when Plaintiff says this condition was 
agreed upon” and “was not even the largest percentage owner at the time.” (Bensch 
Defs.’ MSJ, Doc. 217-1 at 12 (emphasis added)). Rather, “Bensch was only one of 
numerous owners of the brewery until 2012 when he divested all of his holdings in 
SWB companies.” (Id. at 12). Thus, in the view of the Bensch Defendants, Plaintiff’s 
condition that Bensch “own” the brewery is insufficiently specific and, indeed, was 
never fully satisfied  — even at the time the license  was conferred . Plaintiffs, 
conversely, argue that the law supports a broad view of “ownership” and that 
“Bensch qualified as an ‘owner’ of [Sweetwater] through the entire time period 
from 1996 to 2020 under the correct interpretation of that term.” ( Pl.’s Resp. to 
Bensch Defs.’ MSJ, Doc. 237 at 22). The Bensch Defendants similarly contend that 
the second term — regarding recognition of Plaintiff  as the copyright owner of the 
Artwork — is “vague and unenforceable” because “how one is ‘treated’ is not an 
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enforceable contract term and not sufficiently certain or definite to be enforced.  
(Bensch Defs.’ MSJ, Doc. 217-1 at 11 n.2).  
Defendants’ contention that the two  asserted conditions, regarding Bensch’s 
ownership of the brewery and Fuss’s recognition as copyright owner, are 
unenforceably uncertain , presents, in the first instance, a question of law. 
“Contracts, even when ambiguous, are to be construed by the court and no jury 
question is presented unless after application of applicable rules of construction 
an ambiguity remains.” Am. Cas. Co. v. Crain-Daly Volkswagen, Inc., 129 Ga. App. 
576, 579 (Ga. Ct. App. 1973). Even a contract so uncertain as to be unenforceable 
may “later acquire precision and become enforceable” through the subsequent 
words, conduct, or acts of the parties. Pine Valley Apartments Ltd. P’ship v. First 
State Bank, 143 Ga. App. 242, 244 – 45 (Ga. Ct. App. 1977). “The parties’ conduct 
constitutes, in effect, a rule of construction that may be applied by the court in 
resolving an ambiguity or by the jury where there is an issue of fact.” Larkins, 
Georgia Contracts  § 9:6 (citing Eickhoff v. Eickhoff , 263 Ga. 498 (Ga. 1993) , 
overruled on other grounds by Lee v. Green Land Co., Inc., 272 Ga. 107 (2000); 
Transkey, Inc. v. Adkinson, 225 Ga. App. 457 (Ga. Ct. App. 1997)). In other cases, 
if a contract term is ambiguous and the parties’ intent differed at the time of 
contract formation, “the meaning placed on the contract by one party and known 
to be thus understood by the other party  at the time shall be held as the true 
meaning.” O.C.G.A. § 13-2-4. 
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In short, Georgia law prescribes numerous tools of construction to allow 
courts to resolve contractual ambiguities. But the Court cannot, at this juncture, 
even conduct that analysis because of the pending factual dispute regarding the 
terms of the agreement — i.e., whether the controlling license between Fuss and 
Sweetwater was an oral agreement made in 1996 or an agreement implied by the 
course of conduct over the subsequent decades. The Bensch Defendants ask the 
Court to find two contractual terms unenforceably uncertain while fact issues 
remain about what, exactly, the contractual terms are. This argument is not ripe at 
this juncture. 
C. Termination of the License 
Thus far, in examining the license  bet
 ween Plaintiff and Sweetwater, the 
Court has found a host of factual disputes — as to the creation, the scope, and the 
enforceability of any contract conditions. Similar factual disputes exist regarding 
the termination of the license . The parties maintain different theories as to the 
termination — and, in fact, terminability  — of the license. In Defendants’ view, 
“Plaintiff admits he granted [Sweetwater] an oral, non-exclusive license to use the 
artwork in exchange for $500 and free beer ,” and “the law is clear that the license 
was irrevocable, which bars most of his claims.” (Bensch Defs.’ MSJ, Doc. 217-1 at 
4). This is because “[w]hen coupled with consideration, an implied non -exclusive 
license is irrevocable .” (Id. at 5 (quoting Lulirama Ltd., Inc. v. Axcess Broad. 
Servs. Inc., 128 F.3d 748, 757 (5th Cir. 1997)).  
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In Plaintiff’s view, however, the license automatically terminated upon the 
consummation of the Aphria acquisition, by which Sweetwater “ breached and 
effectively abandoned the license agreement under the agreement’s own terms ,” 
i.e., the two conditions described above. (Pl.’s Resp. to Bensch Defs.’ MSJ, Doc. 237 
at 19). Plaintiff also contends that Bensch’s and Sweetwater’s “act of filing the false 
copyright registration asserting SweetWater’s own copyright ownership  on 
November 12, 2020 is so anathema to the central tenet of a nonexclusive copyright 
license that it is destructive to the license and even vitiates it,” rendering it either 
void or voidable. (MSJ Hearing Tr., Doc. 268 46:21– 25; Sweetwater Registration, 
Ex. 12 to Pl.’s Resp. to Bensch Defs.’ MSJ, Doc. 237-13 at 2). Either way, Plaintiff 
asserts that  the license terminated automatically when the Aphria transaction 
finalized in November 2020. In Plaintiff’s view, the cease-and-desist notice sent by 
his counsel in May 2021 served as a n extra safety mechanism to confirm and 
reiterate the termination of the license. (MSJ Hearing Tr., Doc. 268 47:1– 13). 
Both parties’ posit ions have some legal merit. Numerous federal courts 
agree that consideration makes a copyright license irrevocable. See Karlson v. Red 
Door Homes, LLC, 18 F. Supp. 3d 1301, 1315– 17 (N.D. Ala. 2014) (collecting cases). 
Importantly, “a license is a contract governed by ordinary principles of state 
contract law.” McCoy, 67 F.3d at 920. In the context of land licenses, the Supreme 
Court of Georgia has indeed held that “a gratuitous license may be revoked at will, 
while a license for which consideration has been paid may not be revoked at will.” 
Young v. Beasley, 271 Ga. 684, 684 (Ga. 1999) (footnotes omitted). Under Georgia 
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37 
 
law, reliance is also material in the revocability of a license. Brown v. Wood , 124 
Ga. App. 500, 501 (Ga. Ct. App. 1971) (“[E]ven a license becomes irrevocable when 
the licensee on the faith of the license expends money and erects valuable 
improvements necessary to enjoy the license.”). 
Regardless, law in the Eleventh Circuit and elsewhere also reflects the notion 
that a copyright license can become revocable (though not automatically revoked) 
if materially breached. In Jacob Maxwell, Inc., the district court found — and the 
Eleventh Circuit affirmed — that a songwriter had given a minor league baseball 
team a non -exclusive, implied license to use his copyrighted work, requesting 
payment and recognition as the songwriter. The plaintiff there argued that the 
license “should be treated as having been cancelled in its entirety by the 
[defendant’s] material breach of their oral understanding when it failed both to 
reimburse [his] costs and publicly to acknowledge [him]  at games as the song ’s 
creator.” Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 753 (11th Cir. 1997). The 
Eleventh Circuit disagreed, holding that “[s] uch a breach would do no more than 
entitle [plaintiff] to rescind the agreement and revoke its permission to play the 
song in the future .” Id. (citing Fosson v. Palace (Waterland), Ltd.,  78 F.3d 1448, 
1455 (9th Cir. 1996))
15 (emphasis in original); see also HH Advert., Inc. v. Unique 
Vacations, Inc., 2025 WL 2027556, at *17 (S.D. Fla. July 21, 2025)  (“If the parties 
 
15 “[O]nce a non-breaching party to an express copyright license obtains and exercises  a 
right of rescission by virtue of a material breach of the agreement, any further distribution 
of the copyrighted material would constitute infringement .” Fosson v. Palace 
(Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996) (emphasis in original). 
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so intend, a license can be terminable at will after an agreed -upon term or after a 
certain event occurs. ” (citing Korman v. HBC Fla., Inc. , 182 F.3d 1291, 1294 – 95 
(11th Cir. 1999))). 
Under this regime, if indeed the Court were to find that Fuss’s proposed 
conditions controlled , Sweetwater’s potential violations — continuing to use the 
Artwork after filing a false copyright registration asserting it owned the Artwork, 
and after Bensch had divested completely from ownership  — would make the 
license voidable, but not automatically void as of the consummation of the Aphria 
transaction. See, e.g., Marshall v. New Kids on the Block P’ship, 780 F. Supp. 1005, 
1009 (S.D.N.Y., Dec. 20, 1991) (“Case law in this Circuit indicates that a copyright 
licensee can make himself a ‘stranger’ to the licensor by using the copyrighted 
material in a manner that exceeds either the duration or the scope of the license.”). 
Assuming that either of those conditions made the license voidable, the agreement 
would then be void and terminated as of the cease -and-desist notice sent by 
Plaintiff’s counsel on May 19, 2021.   
Having explained the appropriate framework under which to analyze the 
termi
nation of Sweetwater’s license, the Court returns to its oft- repeated refrain: 
factual issues abound. Without determining the scope of the license , for the 
reasons explained supra at 25–35, the Court cannot determine whether the 
Defendants materially breached the scope of the license, rendering it voidable. The 
factual disputes plaguing the license essentially preclude the Court from ruling on 
the Plaintiff’s infringement claims at this juncture  (Counts X, XI, XII, XIII) , as 
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described below. The Court, thus, must also deny summary judgment as to Count 
VIII, regarding whether Plaintiff properly terminated the license. 
IV. INFRINGEMENT CLAIMS 
As detailed above, the Court has found significant and material factual 
disputes regarding the existence, scope, and termination of Defendants’ license to 
use the Artwork. The Court will now address specifically how those findings bear 
on Plaintiff’s claims of copyright infringement and Defendants’ Motion for 
Summary Judgement as to those claims. Generally speaking, “[a] copyright owner 
waives his right to sue for copyright infringement while the nonexclusive license is 
in effect.” Wilchombe v. TeeVee Toons , Inc., 555 F.3d 949, 956 (11th Cir. 2009) 
(citing Jacob Maxwell, 110 F.3d at 753). But, “[a] defendant who exceeds the scope 
of an implied license commits copyright infringement.” Latimer v. Roaring Toyz, 
Inc., 601 F.3d 1224, 1235 (11th Cir. 2010); see also Hoeltzell v. Caldera Graphics, 
2012 WL 13012954, at *4 (S.D. Fla. June 11, 2012)  (“Since a nonexclusive license 
does not transfer ownership of the copyright from the licensor to the licensee, the 
licensor can bring suit for copyright infringement if the licensee’s use goes beyond 
the scope of the nonexclusive license.”). 
Plaintiff’s direct copyright infringement claim  (Co
 unt X), as articulated in 
the operative complaint, alleges that Sweetwater continued to distribute products 
and merchandise bearing the Artwork following Plaintiff’s termination of the 
license. (3AC, Doc. 174 ¶¶ 327– 340). Plaintiff also asserts numerous claims flowing 
from Defendants’ alleged direct infringement conduct. Fuss alleges that Bensch, 
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40 
 
personally, as well as Tilray, Four Twenty Corporation, and SW Brewing Company, 
LLC are vicariously liable for Sweetwater’s allegedly infringing behavior (Counts 
XI, XII). Plaintiff also alleges that the Trustee Defendants are contributorily liable 
for the infringement (Count XIII). Defendants seek summary judgment on the 
direct copyright infringement claim (Count X) but note that “[w] ithout a direct or 
primary infringement, Plaintiff’s vicarious and contributory infringement claims 
[also] fail as a matter of law. ” (Bensch Defs.’ MSJ, Doc. 217 -1 at 15).  The Court 
examines these claims in turn. 
A. Copyright Infringement vs. Breach of Contract 
 A threshold question is whether Plaintiff’s proper remedy, if infringement 
were found, would be in copyright or contract law.16 As Judge Murphy wrote: 
The question of whether the breach of a contract licensing or assigning 
a copyright gives rise to a federal cause of action under the Copyright 
Act is a complex issue in a “murky” area. Under certain circumstances, 
when a licensee violates the terms of a nonexclusive license 
agreement, the licensor’ s only remedy against the licensee is in 
contract. 
Virtual Studios, Inc., 2014 WL 12495340, at *7 (quoting Schoenberg v. Shapolsky 
Publishers, Inc., 971 F.2d 926, 931 (2d Cir. 1992) ); see also Davis v. Tampa Bay 
Arena, Ltd., 2013 WL 3285278 (M.D. Fla. June 27, 2013). But,  
[t]he heart of the argument [] concerns whether the terms of the [non-
exclusive license] are conditions of, or merely covenants to, the 
copyright license.  . . . [I]f the terms of the [nonexclusive license] 
allegedly violated are both covenants and conditions, they may serve 
to limit the scope of the license and are governed by copyright law. If 
 
16 Plaintiff has alleged both copyright infringement under federal law and breach  of 
contract under state law. (3AC, Doc. 174 ¶¶ 255– 279, 320– 345). 
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they are merely covenants, by contrast, they are governed by contract 
law. 
Virtual Studios, Inc., 2014 WL 12495340, at *7 (quoting Jacobsen v. Katzer, 535 
F.3d 1373, 1380 (Fed. Cir. 2008)). 
 Two cases in this district are instructive. In Virtual Studios, the district court 
held that the one-year term of a copyright license was a condition, not a covenant, 
based on Eleventh Circuit and Second Circuit case law. Id.  at *8– 9. A second case 
adopted a similar distinction: if breach of a term would lead to further payment, it 
is a covenant; if it would lead to termination, it is a condition. Micr osoft Corp. v. 
Ebix, Inc., 2014 WL 12543889 (N.D. Ga. Feb. 14, 2014) (Pannell, J.). In Microsoft, 
the court was asked to categorize a provision that allowed the licensee to make 
copies of the licensed software, as long as it subsequently paid for them. Under 
another provision of the Microsoft  contract, violations of the agreement could be 
cured within 30 days. Id. at *4. The court was “inclined to agree with [the licensee] 
that these provisions should be read as covenants to pay for licensed use of 
[licensor] products after the fact.” Id. at *6; see also Jacob Maxwell, Inc., 110 F.3d 
at 754 (holding failure to pay and provide recognition were not conditions 
precedent but could still entitle licensor to recover damages in state contract 
action); Graham v. James, 144 F.3d 229 (2d Cir. 1998)  (holding non-payment of 
royalties pursuant to oral license was breach of covenant, not condition).  
 This line of cases suggests th
 at Fuss’s asserted terms, regarding Bensch’s 
ownership and his own ownership recognition, are conditions, rather than 
covenants. Like the one-year term limit in Virtual Studios, and unlike the provision 
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in Microsoft, Fuss’s proposed terms define the permissible scope of the license, 
rather than obligating further compensation. 17 Nevertheless, given the Court’s 
previous conclusion that the conditions themselves cannot be adjudicated at this 
juncture without factual findings, the Court declines to definitively hold that the 
elusive terms of this agreement were intended to be conditions. Such a holding 
would require the Court to evaluate the parties’ intent at the time of contracting, 
specifically to adjudicate whether the terms implied the possibility of terminating 
the license in the case of breach. Given the above-described factual disputes about 
the scope of the license, such a finding would be inappropriate herein. 
B. Derivative Liability 
Summary judgment on Plaintiff’s core infringement claim is impossible at 
this juncture for another reason: the parties leave completely unaddressed the 
issue of whether Defendant’s refreshed logo is an improper derivative work, which 
would extend the possible infringement through the present day. A “derivative 
work” is one that is “ based upon one or more preexisting works ” but has been  
recast, transformed, or adapted.” 17 U.S.C. § 101.  “ Such a work — if it is non-
infringing and sufficiently original— qualifies for a separate copyright, although 
this copyright does not protect the preexisting material employed in the derivative 
work.” Montgomery v. Noga, 168 F.3d 1282, 1290 (11th Cir. 1999) (citing 17 U.S.C. 
 
17 On the other hand, in Jacob Maxwell Inc., the Eleventh Circuit found that the promise 
of “public recognition of authorship” was a covenant, not a condition precedent, because 
the plaintiff “did not make [it  a] condition[] precedent to the permission he gave.” 110 
F.3d at 753 – 54. Again, however, this determination was based on the district court’s 
ability to evaluate the terms themselves. 
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§ 103; Stewart v. Abend,  495 U.S. 207, 223 – 24 (1990)). “[P]rotection for a work 
employing preexisting material in which copyright subsists does not extend to any 
part of the work in which such material has been used unlawfully. . . . Thus, 
[derivative works]  do not qualify for copyright protection if they are [] made 
without [the copyright holder’s]  authorization.” Latimer, 601 F.3d at  1233– 34 
(quoting 17 U.S.C. § 103(a)). 
As discussed supra at 18, in 2024, Sweetwater launched a rebrand campaign 
and released a new logo across its products. This more modern logo, like Fuss’s 
original drawing, depicted a fish with a curved tail behind the word “Sweetwater.” 
(3AC, Doc. 174 ¶ 166). P laintiff thus amended his complaint to include an 
allegation of copyright infringement via an unauthorized derivative work: 
Starting in approximately April of 2024, Sweetwater Brewing 
Company, LLC and Sweetwater Colorado Brewing Company, LLC 
have also produced, reproduced and displayed the rebranded 
Sweetwater logo, which is an unauthorized derivative work of the Fuss 
Copyright in the Trout Banner artwork, without permission, license 
or proper authority from Plaintiff in violation of 17 U.S.C.S. § 106(2). 
These actions are further examples of direct copyright infringement 
on their part. 
(Id. ¶ 340). Under this theory of the case, Sweetwater could be liable for direct 
co
pyright infringement (by its use of an unauthorized derivative) even if it had a 
valid license to Plaintiff’s original artwork. That is because the “owner of copyright 
[] has the exclusive rights . . . to prepare [or authorize] derivative works based upon 
the copyrighted work.” 17 U.S.C. § 106(2). Given the absence of briefing by either 
party, however, the Court declines to analyze whether Sweetwater’s rebranded logo 
constitutes an unauthorized derivative work. The Court’s inability to adjudicate 
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one facet of Plaintiff’s direct infringement claim on the current record — a s well as  
properly evaluate the related vicarious liability issues — heightens the difficulty the 
Court faces in assessing these claims without a full evidentiary trial.  
C. Trustee Liability [Doc. 218] 
One additional issue as to the infringement claims requires the Court’s 
attention. Two Defendants — the Trustees of No Quarter Trust and the Trustee of 
Tortoise Trust (collectively, the “Trustee Defendants”) — have moved for summary 
judgment as to the sole count against them, Count XIII (Contributory 
Infringement). Because of the additional elements of contributory infringement, it 
would be possible to adjudicate these claims without necessarily ruling  as to the 
core copyright infringement. The Court thus examines the Trustees’ Motion for 
Summary Judgment [Doc. 218]. 
1. Background on Trustee Defendants 
Both No Quarter Trust and Tortoise Trust are Bensch family trusts. 18 No 
Quarter Trust was established by Freddy  Bensch; Sharon Bensch serves as the 
Trustee, and is thus a named Defendant in this matter. (MSJ Hearing Tr., Doc. 268 
97:14– 17; Trustee Defs.’ Reply ISO MSJ, Doc. 253 at 8). “The only beneficiaries of 
[No Quarter Trust]  are [Freddy] Bensch’s spouse, his descendants, and such 
charitable organizations as the Trustee may select.” (Trustee Defs.’ Reply ISO MSJ, 
 
18 As the Court understands it, George and Sharon Bensch are the parents of Frederick 
Bensch. (MSJ Hearing Tr., Doc. 268 84:17– 18, 102:8–9 ). 
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Doc. 253 at 10). Freddy Bensch serves as the “protector” of No Quarter Trust, which 
allows him the power to replace a Trustee. (MSJ Hearing Tr., Doc. 268 98:7– 16).  
Tortoise Trust, meanwhile, was established by George Bensch. Its principal 
beneficiary is his spouse , and its additional beneficiaries are his descendants 
(including Freddy Bensch) and charitable organizations as occasionally chosen by 
the Truste e. ( Id. 100:22– 101:20). The Trustee of Tortoise Trust is Wood Duck, 
LLC, a corporate entity and named Defendant in this matter. (Id. 84:21– 23). 
At the time of the Aphria transaction , No Quarter Trust and Tortoise Trust 
collectively controlled a majority of the relevant stock in Sweetwater, meaning that 
the trusts’ approval was necessary to sell that stock and, thus, close the merger and 
acquisition. (Pl.’s Resp. to Trustee Defs.’ MSJ, Doc. 241 at 18; MSJ Hearing Tr., 
Doc. 268 111:15– 21). Plaintiff argues that the Trustees’ participation in the Aphria 
transaction — which, under Plaintiff’s theory, terminated the license  and started 
the clock on Sweetwater’s infringement — constituted contributory infringement. 
(3AC, Doc. 174 ¶¶ 381– 400; Pl.’s Resp. to Trustee Defs.’ MSJ, Doc. 241 at 21– 25).  
The Eleventh Circuit “has stated the well -settled test for a contributory 
infringer as ‘one who, with knowledge of the infringing activity, induces, causes or 
materially contributes to the infringing conduct of another.’” Cable/Home 
Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990) . “The 
standard of knowledge is objective: ‘Know, or have reason to know.’’” Id.  
It is axiomatic that a contributory infringement claim cannot survive unless 
it 
is underlied by a successful direct infringement claim. Cable/Home Commc'n 
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Corp., 902 F.2d at 845. Thus, there are essentially three elements of a contributory 
infringement claim: (1) a finding of direct infringement; (2) the contributor’s 
knowledge of the infringing activity; and (3) a finding that  the contributor 
“induce[d], cause[d] or materially contribute[d] to” the infringement. As detailed 
supra at 22–42 , the Court has found substantial and genuine disputes of material 
fact sufficient to preserve Plaintiff’s direct liability claims at this stage. For similar 
reasons, the question of whether the Trustee Defendants “i nduce[d], cause[d] or 
materially contribute[d] to” any putative infringement raises questions of fact.
19  
Nevertheless, if the Plaintiff cannot, as a matter of law, establish knowledge, 
these two factual issues are irrelevant to the survival of the contributory 
infringement claim. Plaintiff’s counsel has conceded that the Trustees had no 
independent knowledge of the infringing activity — that is, they would not have 
known about the scope or conditions of the license . (MSJ Hearing Tr., Doc. 268 
131:19– 132:9). However, Plaintiff contends that the Court should impute Bensch’s 
knowledge of the license and its condi tions onto the trusts, because they are so 
closely aligned. (3AC, Doc. 174 ¶¶ 381– 400; Pl.’s Resp. to Trustee Defs.’ MSJ, Doc. 
241 at 24 ). T he Trustee Defendants argue that Nevada law precludes imputing 
Bensch’s knowledge onto the trusts. (Trustee Defs.’ Reply ISO MSJ, Doc. 253 at 8, 
 
19 Parenthetically, the Trustee Defendants also argue that, as a matter of law, they cannot 
be held accountable for infringement which, under their view, did not begin until the 
termination letter in May 2021. ( Trustee Defs.’ MSJ, Doc. 218 -1 at 8–10 ). Because the 
Trustees divested all interest in Sweetwater in the Aphria transaction in November 2020, 
they contend that they cannot be held responsible for conduct that entirely post -dated 
their involvement and ownership in the company. But this contention relies on a factual 
dispute the Court has already declined to rule on at this stage. See supra at 35–39. 
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13). Given the Plaintiff’s concession regarding the Trustees’ lack of independent 
knowledge, (MSJ Hearing Tr., Doc. 268 1 31:19– 132:9), that argument, if true, 
would defeat the contributory infringement claim against the Trustees. The Court 
thus focuses its analysis on the issue of knowledge. 
2. Trustee Knowledge 
Trust administration is fundamentally a state law issue. Both trusts at issue, 
No Quarter Trust and Tortoise Trust, are Nevada trusts and the terms of both trusts 
require administration under Nevada law. (Trustee Defs.’ Reply ISO MSJ, Doc. 253 
at 6). Georgia and Nevada law agree that Nevada law should thus govern. Nev. Rev. 
Stat. § 164.045(1)(a) (“The laws of this State govern the validity and construction 
of a trust if [] [t]he trust instrument so provides[.]”); O.C.G.A. § 53 -12-5 (“The 
meaning and effect of the trust provisions shall be determined by [t]he law of the 
jurisdiction designated in the trust instrument unless the effect of the designation 
is contrary to the public policy of the jurisdiction having the most significant 
relationship to the matter at issue .”). The Court thus turns to the question of 
whether, as a matter of Nevada law, the Plaintiff can impute Bensch’s knowledge 
onto the Trusts. 
 A trust is not an independent legal entity, but rather a fiduciary relationship 
leg
ally represented by the trustee. See Restatement (Third) of Trusts § 2; 
Americold Realty Tr. v. Conagra Foods, Inc., 577 U.S. 378, 383 (2016). Put 
otherwise, a trust “is not a natural person capable of taking action on its own 
behalf. The trustee is the person so empowered[.]” Mathis v. County of Lyon, 2014 
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WL 1413608, at *2 (D. Nev. Apr. 11, 2014)  (interpreting Nevada law) , aff’d, 591 
F. App’x 635 (9th Cir. 2015) . “A trustee has the powers provided in the trust 
instrument, expressed by law or granted by the court upon petition, as necessary 
or appropriate to accomplish a purpose of the trust.” Nev. Rev. Stat. Ann. 
§ 163.023. The trustee, thus, generally bears the responsibility of “ invest[ing] and 
manag[ing] trust property as a prudent investor would.” Id. § 164.745.  
 In other words, the default presumption is that the choices of the trust are 
dictated by the trustee.  But Plaintiff alleges that “Bensch’s knowledge of the 
vitiation of the Fuss License due to the failure of its conditions . . . and the 
concomitant infringement of the Fuss Copyrights, is chargeable to the Trustees.” 
(Pl.’s Resp. to Trustee Defs.’ MSJ, Doc. 241 at 23).  Plaintiff advances, essentially, 
two theories as to why Bensch’s knowledge should be imputed onto the Trustees. 
First, Plaintiff argues that , as a totality of the circumstances, Bensch had such a 
close, controlling relationship with the Trusts  and Trustees  that he effectively 
directed their decisionmaking. Second, Plaintiff underscores the fact that Chilly 
Water, LLC (Bensch’s LLC) was appointed by the Trustees to act as their agent in 
connection with the Aphria transaction. (3AC, Doc. 174 ¶¶ 386– 91).  
Plaintiff’s theory tha
 t Bensch’s knowledge imputes directly upon the Trusts 
is clearer as to No Quarter Trust. Indeed, in sealed filings, Plaintiff points to 
numerous examples purporting to demonstrate Bensch’s involvement with No 
Quarter Trust . (See, e.g. , Doc. 242 -1 *SEALED*). Pla intiff also underscores 
Bensch’s status as the grantor (AKA settlor) of No Quarter Trust. ( Pl.’s Resp. to 
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Trustee Defs.’ MSJ, Doc. 241 at 12). Bensch’s relationship to Tortoise Trust is less 
robust: as a descendant of the settlor, he is admittedly one of the beneficiaries of 
the trust. (MSJ Hearing Tr., Doc. 268 101:5– 12). 
Under the plain text of Nevada law, “[a]b sent clear and convincing evidence, 
a settlor of an irrevocable trust shall not be deemed to be the alter ego of a trustee 
of an irrevocable trust.” Nev. Stat. Rev. § 163.418. Moreover, Nevada strictly 
constrains what evidence may be evaluated. “[R]equests for the trustee to hold, 
purchase or sell any trust property” or the fact that the settlor has “executed [] 
documents related to the trust . . . in isolated incidents” is not “sufficient evidence 
for a court to fin d that the settlor controls or is the alter ego of a trustee.” Id. 
Similarly, the fact that the “settlor [] holds unrestricted power to remove or replace 
a trustee” or is an “officer of a corporation” when “all or part of the trust property 
consists of an interest ” in the corporation “must not be considered exercising 
improper dominion or control over a trust.” Id. § 163.4177.  
As the Trustee Defendants see it, Plaintiff has not made — or, even , 
approached — an evidentiary showing that Bensch had undue influence over the 
Trusts. That point is well-taken and supported by Nevada law.  
But the fact that Bensch was not acting as an “alter ego” of the Trustees does 
not p
reclude the idea that Bensch, via Chilly Water, LLC, was acting as an agent for 
the Trusts. Most compelling as to Plaintiff’s argument is the language in the Aphria 
Agreement designating Bensch as the Trusts’ exclusive agent for all events related 
to or arising out of the Aphria transaction: 
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(a) Prior to entry into this Agreement, the Company and the 
Unitholders (other than the Blocker Members) shall appoint Chilly 
Water, LLC to act as the representative for the benefit of each 
Unitholder (other than the Blocker Members) as the exclusive agent 
and attorney-in-fact to act on behalf of each Unitholder (other than 
the Blocker Members), in connection with the transactions 
contemplated hereby. 
 
(b) The Securityholders’ Representative shall have the authority to act 
for and on behalf of the Unitholders (other than the Blocker 
Members)[.] . . . The Securityholders’ Representative shall for all 
purposes be deemed the sole authorized agent of the Unitholders 
(other than the Blocker Members) from and after Closing until such 
time as the agency is terminated. . . . Notices or communications to or 
from the Securityholders’ Representative shall constitute notice to or 
from each of the Unitholder (other than the Blocker Members) during 
the term of the agency. . . . 
 
(d) A decision, act, consent or instruction of the Securityholders’ 
Representative shall constitute a decision, act, consent or instruction 
of all of the Unitholders (other than the Blocker Members) and shall 
be final, binding and conclusive upon each such Person. 
(Aphria M&A Agreement, Ex. 1 to 3AC, Doc. 261 -1 at  65– 66). U nder Plaintiff’s 
theory of the case, all of Bensch’s knowledge at the time the Aphria transaction was 
finalized and closed was imputed onto the Trusts because his corporate entity 
Chilly Water, LLC, was acting as their “exclusive agent and attorney -in-fact . . . in 
connection with the transaction[].” Id. 
 A n agent’s knowledge is “imputed to the principal if knowledge of the fact is 
ma
terial to the agent’ s duties to the principal .” Restatement (Third) Of Agency 
§ 5.03 (2006); see also United States v. Cooksey , 275 F. 670, 674 (9th Cir. 1921) , 
aff’d 262 U.S. 215  (1923) (“[N]otice to, or knowledge of, an agent, while acting 
within the scope of his authority and in reference to a matter over which his 
authority extends, is notice to or knowledge of the principal.”) . “The existence of 
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an agency relationship is generally a question of fact for the jury if the facts showing 
the existence of agency are disputed, or if conflicting inferences can be drawn from 
the facts.” Schlotfeldt v. Charter Hosp. of L.V. , 112 Nev. 42, 47 ( Nev. 1996). The 
scope of an agency relationship is also a factual question. Pennymac Corp. v. 
Javalina Options Ltd., 135 Nev. 699 (Nev. 2019). 
 Applying that framework here, it would be reasonable to impute Chilly 
Water’s (Bensch’s) knowledge onto the Trustees and Trusts to the degree it was 
within the scope of the principal – agent relationship, i.e., “in connection with the 
[Aphria] transaction[].” (Aphria M&A Agreement, Ex. 1 to 3AC , Doc. 261-1 at 65–
66). Whether Bensch’s knowledge relevant to potential infringement (knowledge 
of the asserted license conditions, knowledge of the license  termination, and the 
filing of the duplicative copyright registration) falls within the scope of his role as 
the Trustees’ agent in the Aphria transaction is a question of fact. Because 
questions of fact remain about the scope of Chilly Water’s agent relationship with 
the Trusts , which determines the possibility of the Trustee’s knowledge of 
infringement, summary judgment on the contributory infringement claim is 
inappropriate at this juncture. 
V. ADDITIONAL CLAIMS 
In addition to his intellectual property claims, Plaintiff also asserts a handful 
of st
ate law business torts arising out of Defendants’ pattern of conduct. First,  
Plaintiff asserts a claim for breach of fiduciary duty, alleging that Bensch and 
Sweetwater breached their fiduciary duty to him by failing to disclose to Aphria his 
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ownership of the Artwork; failing to negotiate with him for an assignment of the 
Artwork rights; and by obtaining a false copyright registration of his work. (3AC, 
Doc. 174 ¶¶ 224– 25). The Bensch Defendants dispute the entire premise of the 
claim, alleging  that, as a matter of law, the parties did not share a fiduciary 
relationship. (Bensch Defs.’ MSJ, Doc. 217-1 at 25). Plaintiff also brings claims of 
fraud and fraudulent concealment, arising out of Bensch’s alleged failure to 
disclose to Fuss Sweetwater’s position that it owned the intellectual property rights 
to the Artwork, as well as the timeline of the Aphria transaction closing. 
The analyses for all three state law claims rest on whether Plaintiff can 
establish that the Bensch Defendants had an obligation to disclose certain closely 
held information, as a result of either their business relationship or other 
contextual factors around their discussions. Though the conduct at issue across all 
three claims is largely the same, the different standards under Georgia law lead the 
Court to reach a split conclusion. The Court will grant summary judgment for the 
Defendants as to Plaintiff’s  breach of fiduciary duty claim (Count III), because 
Plaintiff has not established a disputed factual record from which the Court could 
find a fiduciary relationship. However, the Court will deny summary judgment as 
to Plaintiff’s fraud and fraudulent concealment claims (Count I, II), because 
Plaintiff has established a factual dispute as to whether the particular 
circumstances surrounding his relationship with Bensch and Sweetwater gave rise 
to an obligation to share relevant information about the Aphria transaction.  
  
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A. Breach of Fiduciary Duty (Count III) 
“A plaintiff must prove three elements to establish a claim for breach of 
fiduciary duty: ‘(1) the existence of a fiduciary duty; (2) breach of that duty; and (3) 
damage proximately caused by the breach.’” Wilchombe v. TeeVee Toons, Inc., 555 
F.3d 949, 958– 59 (11th Cir. 2009) (quoting SunTrust Bank v. Merritt, 272 Ga.App. 
485 (Ga. Ct. App. 2005)). Fiduciary relationships are the exception, rather than 
the rule, among professional relationships.  
A fiduciary relationship arises only where one party is so situated as 
to exercise a controlling influence over the will, conduct, and interest 
of another or where, from a similar relationship of mutual confidence, 
the law requires the utmost good faith, s uch as the relationship 
between partners, principal and agent, etc. Business relationships are 
not ordinarily confidential relationships. . . . Examples of a 
confidential relationship in business include parties with a history of 
business dealings with eac h other or a relationship that is not arms -
length, such as a partnership or principal and agent. 
Id. at 959 (cleaned up). “ A confidential relationship must be shown by proof and 
that burden of proof rests on the party claiming such a relationship exists.” Id.  
 The Court does not find that the circumstances alleged, under Georgia law, 
create a genuine dispute of material fact as to whether a fiduciary relationship 
existed between Fuss, on the one hand, and Bensch and Sweetwater on the other.  
In support of a fiduciary relationship, Plaintiff points heavily to a pre -litig
 ation 
communication from Defendants’ counsel to Plaintiff’s counsel noting, in part, that 
“[Fuss] enjoyed a relationship of trust and generosity with Sweetwater” and 
“enjoyed a decades-long special relationship with Sweetwater’s founders that gave 
him perks and access not enjoyed by the general public.” (Pl.’s Resp. to Bensch 
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Defs.’ MSJ, Doc. 237 at 30 (quoting February 2021 Hyland Letter, Ex. 6, Doc. 237-
7 at 2)). But “[t]he fac t that parties . . . have trust and confidence in each other ’s 
integrity, does not automatically establish a confidential relationship.” Wilchombe, 
555 F.3d at 959. This fact alone, then, does not move the needle very far.  
 Plaintiff next argu es that Bensch’s position as the Sweetwater liaison for 
Aphria and the primary, long -time point of contact for Plaintiff made him “so 
situated as to exercise a controlling influence over [Fuss’s]  will, conduct, and 
interest.” (Pl.’s Resp. to Bensch Defs.’ MSJ, Doc. 237 at 30– 31). Plaintiff alleges 
that “Bensch sat alone at the intersection of Fuss’ copyright, knowledge of the Fuss 
license terms, and Aphria’s interest in IP-related disclosures, reps and warranties.” 
Id. And, indeed, the Court acknowledges the leverage that Defendants held over 
Plaintiff, in particular at the time of the Aphria transaction. But mere leverage does 
not establish the sort of partnership that gives rise to a fiduciary relationship. 
 Importantly, co urts have found that a licensor and licensee do not typically 
form a fiduciary relationship without express circumstances to the contrary.  For 
example, Judge Beverely Martin, when sitting in the Northern District of Georgia  
and applying Georgia law, held that a technology company licensing its intellectual 
property to an oil company did not share a fiduciary relationship with its licensee, 
citing the absence of any express agreement or joint business venture between the 
two parties. Barney Holland Oil Co. v. FleetCor Techs., Inc., 2007 WL 9702207, at 
*9 (N.D. Ga. Aug. 17, 2007) . Key to the court’s finding was the fact that the two 
companies were “engaged in a transaction  . . . i n [an] effort to further their own 
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separate business objectives.” Id. (quoting Kienel v. Lanier, 190 Ga. App. 201, 204 
(Ga. Ct. App. 1989)); see also Rossi v. Darden , 2016 WL 11501449 (S.D. Fla. July 
19, 2016)  (finding, under Florida law, no fiduciary relationship between patent 
owner and licensor).20  
 In limited cases, Georgia courts have found possible confidential (fiduciary) 
relationships between buyers and sellers, sufficient to send the issue to a jury. See 
Howard v. Barron, 612 S.E.2d 569 (Ga. Ct. App. 2005). But in Howard, the court 
found a possible confidential relationship, appropriate for jury adjudication, only 
because of an “issue of fact regarding whether [the seller]  exercised a controlling 
influence over the [buyers].” Id. at 573. As explained above, the mere commercial 
leverage Sweetwater held over Fuss does not constitute a controlling influence, 
given Plaintiff had distinct commercial interests from the Defendant. 
 In this instance , the Court does not see evidence put forth by Plaintiff to 
substantiate a fiduciary relationship between the parties. Plaintiff has not alleged 
that Defendants exercised a high degree of controlling influence, that they were 
engaged in a joint venture wherein loyalty was to be expected, or that there was 
any express agreement of a mutual fiduciary relationship. “Whether two parties 
have a fiduciary relationship is typically resolved by the trier of fact, but mere 
 
20 It is true that the Eleventh Circuit has found that, in cases of an exclusive copyright 
license, the licensor has a limited “fiduciary obligation not to allow its own copyright to 
be used to the detriment of its licensees.” Original Appalachian Artworks, Inc. v. S. 
Diamond Assocs., Inc., 911 F.2d 1548, 1552 (11th Cir. 1990). That finding is not applicable 
here, however, both because the exclusive license in that case created a distinct mutual 
relationship and because the parties there had an express contractual agreement that the 
licensor would have the “sole right” to pursue infringement claims. Id
. 
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allegations that a fiduciary relationship existed will not create a genuine issue for 
trial.” Barney Holland Oil Co. , 2007 WL 9702207, at *8. Because, as a matter of 
law, the record evidence could not substantiate a fiduciary relationship, the Court 
finds no genuine dispute of material fact and will grant summary judgment to the  
Defendants as to Plaintiff’s Breach of Fiduciary Duty claim (Count III).    
B. Fraud (Counts I, II) 
Plaintiff next brings claims of fraud and fraudulent concealment. “Under 
Georgia law, ‘[t]he tort of fraud has five elements: (1) a false representation or 
omission of a material fact; (2) scienter; (3) intention to induce the party claiming 
fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages.’” Amin 
v. Mercedes -Benz USA, LLC , 301 F. Supp. 3d 1277, 1296 (N.D. Ga. 2018) 
(Totenberg, J .) (quoting ReMax N. Atlanta v. Clark , 244 Ga.  App. 890 (Ga. Ct. 
App. 2000)).
 In the context of fraudulent concealment claims like Plaintiff’s here, 
“a plaintiff must prove the same five elements of a fraud claim,” except that (1) “the 
scienter element requires that the alleged defrauder had actual, not merely 
constructive, knowledge of the fact concealed ” and (2) “only the suppression of a 
material fact which a party is under an obligation to communicate can support such 
a claim.” Id. (quoting O.C.G.A. § 23–2– 53).  
The Bensch Defendants primarily contest whether Bensch or Sweetwater 
was
 “under an obligation” to communicate certain information regarding their 
position on the Artwork ownership and the Aphria transaction. Specifically, Fuss 
alleges that Defendants failed to “advise Plaintiff that [Bensch]  believed he already 
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owned the Fuss IP and that Plaintiff did not own it”; “that [Bensh] had no intention 
of including Plaintiff in the Aphria transaction or protect [ing] Plaintiff’s interests 
in the Fuss IP”; “that the Closing would [] occur before December 2, 2020,” when 
their call was scheduled; and that Sweetwater would file a duplicative, last-minute 
copyright application for the Artwork. (3AC, Doc. 174 ¶¶ 180– 81, 189). Unlike his 
claim for breach of fiduciary duty, Plaintiff may sustain his fraud claims in one of 
two ways. “The obligation to communicate may arise from the confidential 
relations of the parties or from the particular circumstances of the case.” O.C.G.A. 
§ 23-2-53. The Court has already described above why a confidential or fiduciary 
relationship does not exist between the parties  and thus turns to w hether the 
requisite “particular circumstances” existed between the parties to support 
Plaintiff’s fraud claims. 
“The Georgia Supreme Court has set forth two factors necessary to establish 
such
 ‘particular circumstances’ for [fraud by concealment] : ‘(1) the intentional 
concealment of a fact (2) for the purpose of obtaining an advantage or a benefit.’” 
Porter Pizza Box of Fla., Inc. v. Pratt Corrugated Holdings, Inc. , 2018 WL 
11447570, at *7 (N.D. Ga. Nov. 8, 2018)  (Totenberg, J.) (quoting Ga.  Real Estate 
Com. v. Brown , 152 Ga.  App. 323, (Ga. Ct. App. 1979) ) (holding “ alleged 
intentional failure to disclose the sale of []  assets [] with the intent of reaping the 
benefits of [purchase agreement]” supported fraud claim “based on the ‘particular 
circumstances’ of this case even without ‘confidential relations’”). Put another way, 
“the particular circumstances of the case may give rise to an obligation to 
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communicate where there is a concealment of ‘intrinsic qualities of the article 
which the other party by the exercise of ordinary prudence and caution could not 
discover.’” Amin, 301 F. Supp. 3d at 1296 (quoting McCabe v. Daimler AG , 948 
F.Supp.2d 1347, 1368 (N.D. Ga. 2013)). 
Record evidence supports the possibility that Bensch’s omissions in his 
communications with Fuss — including details about the Aphria deal  and about 
Bensch’s own plan to file a duplicative copyright application for the Artwork — 
were intentional and/or for his own benefit. For example , Fuss asserts that, after 
he reached out to Bensch on November 9 , 20 20, about the Aphria transaction, 
“Bensch sought to buy time by feigning the inability to find time to speak ,” 
presumably so that Sweetwater could obtain the necessary copyright registration 
and finalize th e merger before their conversation. ( Pl.’s Resp. to Bensch Defs.’ 
MSJ, Doc. 237 at 14 ). This contention, if found to be true, would be probative of 
deceptive intent . But that conclusion would require a factual adjudication 
inappropriate at this juncture.  
Most notably, Sweetwater and Bensch’s midnight filing of the duplicative 
copy
right application reflects intentional concealment for their own benefit. 
Sweetwater, apparently with Bensch’s involvement,  filed for this last -minute 
registration immediately after Fuss asserted his long-standing copyright 
ownership to Bensch and mere days before the Aphria acquisition closed. (Pl.’s 
SMF, Doc. 237 -64 ¶ 69; Sweetwater Registration, Ex. 12 to Pl.’s Resp.  to Bensch 
Defs.’ MSJ, Doc. 237-13 at 2; Email Between Bensch & Thoren, Ex. 15 to Pl.’s Resp 
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to Bensch Defs.’ MSJ, Doc. 237-16 at 2). As discussed supra at 10–12 , Sweetwater 
made no disclosure of Fuss’s ownership — or its own limited rights to the Artwork  
— to Aphria during the merger proceedings. The Defendants have provided no 
explanation regarding this belated registration, other than to reiterate their 
position that Sweetwater’s license was irrevocable — which, regardless, would not 
entitle it to a copyright registration — and to imply that it was a possible “mistake.” 
(MSJ Hearing Tr., Doc. 268 22:9 – 23:15). Certainly, the question of why 
Sweetwater proceeded to register Fuss’s Artwork at the precise moment it did — 
the precise moment it was necessary for its financial windfall — raises serious 
factual issues relevant to the “particular circumstances” at issue in this case. 
The record, a t the very least, supports the possibility that Bensch and 
Sweetwater “concealed”  from Fuss  the “intrinsic qualities” of the Aphria 
acquisition — specifically details related to the closing of the transaction and the 
fact that Fuss’s copyright ownership was not disclosed . Amin, 301 F. Supp. 3d at 
1296. The Bensch Defendants contend  that Fuss could have contacted Aphria 
himself, but chose not to. ( Bensch Defs.’ SMF, Doc. 217 -2 ¶  47). But it seems 
implausible to the Court that Fuss could have acq uired details of the Aphria 
transaction “by the exercise of ordinary prudence and caution ” and simply picked 
up the phone, given that he had nowhere been named as an interested party who 
owned crucial Sweetwater intellectual property. Amin, 301 F. Supp. 3d at 1296. 
These facts create the distinct possibility that the interactions between Sweetwater, 
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Bensch, and Fuss gave rise to those “particular circumstances” that would 
necessitate disclosure. 
Defendants imply that “particular circumstances” giving rise to fraudulent 
concealment are rare, primarily arising in cases of “dependent relationships” or 
“extraordinary” cases. (Bensch Defs.’ MSJ, Doc. 217-1 at 21). Those two examples 
proffered by Defendant are illustrative, but not definitive.  In the first instance, 
fraudulent concealment claims can arise either  “from the confidential relations of 
the parties or from the particular circumstances of the case.” O.C.G.A. § 23 -2-53. 
If the “particular circumstances of [a] case” required a dependent relationship, that 
category of fraudulent omission cases would be redundant of those arising out of 
confidential relationships. Because “particular circumstances” fraud claims are 
separate from those arising out of a fiduciary duty, they cannot, logically, be 
defined by the same type of closely held, dependent relationship.  
Moreover, this Court has found viable fraudulent concealment claims in, for 
exa
mple, relationships with vendors — hardly the “extraordinary” circumstances 
Defendant sees as necessary. See, e.g. , Porter Pizza Box of Fla., Inc., 2018 WL 
11447570, at *7; Amin , 301 F. Supp. 3d at 1296 ; In re 3M Combat Arms Earplug 
Prods. Liab. Litig. , 2021 WL 753563, at *7 (N.D. Fla. Feb. 2, 2021)  (applying 
Georgia law and finding, on summary judgment, “a triable issue of fact as to 
whether the ‘particular circumstances’ of this case warrant an imposition of a duty 
to disclose”). For these reasons, the Court finds a genuine dispute of material fact 
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as to whether th is case’s factual posture presents the sort of “particular 
circumstances” that would give rise to a fraudulent concealment claim here. 
VI. DAMAGES [Doc. 210] 
The Court thus turns to the final, and somewhat separate, Motion for 
Summary Judgment. The Defendants’ third Motion [Doc. 210] seeks to establish a 
framework for calculating Plaintiff’s actual damages, should he succeed on his 
direct infringement claim. Specifically, Defendants claim that the model used by 
Plaintiff’s expert — a reasonable royalty calculation based on a hypothetical 
negotiation — is out -of-sync with both the value of Fuss’s Artwork and the 
calculations courts typically apply in similar scenarios. Plaintiff argues such an 
analysis is inappropriate for summary judgment. 
When copyright infringement is established, “the plaintiff may recover his 
‘actu
al damages and any additional profits of the infringer . . . that are attributable 
to the infringement[.]’” Pronman v. Styles, 645 F. App’x 870, 873 (11th Cir. 2016) 
(quoting 17 U.S.C. §§ 504(a)(1), (b)). Actual damages are usually “measured by the 
revenue that the plaintiff lost as a result of the infringement.” Id. (quoting 
Montgomery v. Noga,  168 F.3d 1282, 1294 – 95 (11th Cir.  1999)) (cleaned up) . 
“When, as in this case, the plaintiff cannot show lost sales, lost opportunities to 
license, or diminution in the value of the copyright, many circuits award actual 
damages based on the fair market value of a license covering the defendant’s use.” 
Bitmanagement Software GmBH v. United States, 124 F.4th 1368, 1374 (Fed. Cir. 
2025). “To establish the fair market value, the plaintiff can either (1) show what 
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compensation he previously received for the infringed work or (2) show 
benchmark licenses, what licensors have paid for similar work.” Garden World 
Images Ltd. v. WilsonBrosGardens.com LLC., 2019 WL 8017802, at *3 (N.D. Ga. 
Oct. 31, 2019) (Totenberg, J.). “The value of this license should be calculated based 
on a hypothetical, arms -length negotiation between the parties ,” i.e., “ what a 
willing buyer would have been reasonably required to pay to a willing seller for 
plaintiffs’ work.” Gaylord v. United States, 678 F.3d 1339 , 1343 (Fed. Cir. 2012); 
see also Montgomery, 168 F.3d at 1295. 
Each party has submitted expert reports reflecting their proposed 
calculation of damages. Plaintiff’s primary damages expert, Daniel Cenatempo, 
proposed two methodologies to estimate damages .21 T he first methodology 
measured “reasonable royalty” damages 22 to project the results of a hypothetical 
negotiation for the license, based on the factors laid out in Georgia-Pacific Corp. 
v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970). The second methodology 
proposed a lump-sum fixed-fee license, which Cenatempo framed as a prepayment 
of running royalties. Both resulting calculation s resulted in damages of many 
millions. In rebuttal, Defendants’ damages expert Abel Teshome contended that 
Cenatempo’s analyses were fundamentally flawed because they “necessarily [led] 
back to a running royalty” calculation, and further disputed several of Cenatempo’s 
 
21 Cenatempo’s full report is available under seal only. ( See Expert Report of Daniel J. 
Cenatempo (“Cenatempo Report”), Doc. 211-1 *SEALED*). 
 
22 “Reasonable royalties” are defined as the royalties customarily paid for the type of use 
to which the defendant has put the infringing material. 
 
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accounting calculation decisions .23 Each party also enlisted experts on graphic 
design — Robert Wallace for Plaintiff and Ellen Shapiro for Defendants . Shapiro, 
in part, opined on the typical fee structure in the graphic design industry. 
(Damages MSJ, Doc. 210-1 at 21). 
At bottom, Defendants ask the Court to reject the running royalty model as 
a damages calculation methodology because, in their view, “there is no evidence in 
the record to support a royalty tied to sales or company performance.”  (Damages 
MSJ, Doc. 210 -1 at 17).  Specifically, Defendants assert that a royalties model 
should be a non-starter for the Court because (1) “[a]ll of Fuss’s historical invoices 
and agreements in the record evidence a business practice of charging a one-time, 
fixed fee for his services ” and (2) “graphic design is a fee -based industry.” (Id. at 
19, 21). Defendants contend that “[t] he evidence does not support the inferential 
leap that Cenatempo made to arrive at his inflated actual damages amount ,” i.e., 
his use of a running royalty model. (Id. at 10, 18). As discussed above, Defendants 
also provide their own experts to detail their conceptual and mathematical qualms 
with Cenatempo’s calculation. (Id. at 21). Plaintiff  argues summary judgment is 
inappropriate here because it asks “this Court to resolve factual disputes regarding 
the application of the Georgia-Pacific factors, the relative weight of various factors, 
and to assess the credibility of competing economic narratives. ” (Pl.’s Resp. to 
Damages MSJ, Doc. 232 at 10). 
 
23 Teshome’s full report is available under seal only. (See Expert Report of Abel Teshome 
(“Teshome Report”), Doc. 207-3 *SEALED*). 
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Conflicting expert testimony generally precludes summary judgment. See, 
e.g., Edwards Sys. Tech., Inc. v. Digital Control Sys., Inc. , 99 Fed. Appx. 911, 921 
(Fed. Cir. 2004) (summary judgment improper in patent context given “battle of 
the experts”); Scripps Clinic & Rsch.  Found., 927 F.3d 1565, 1578 (Fed. Cir. 1991) 
(“Trial by document is an inadequate substitute for trial with witnesses, who are 
subject to examination and cross -examination in the presence of the decision -
maker.”). “In the face of conflicting expert testimony, it is the province of the [fact-
finder] to decide which expert, if either, to credit.” Outback Steakhouse of Fla., 
LLC v. 137 Acres, LLC , 2022 WL 4596677, at *7 (N.D. Ga. June 24, 2022) (Story, 
J.) (quoting Fireman’s Fund Ins. Co. v. Holder Constr. Grp., LLC , 362 Ga.  App. 
367, 373 (Ga. Ct. App. 2022)) ; see also EPL, Inc. v. USA Fed. Credit Union , 173 
F.3d 1356 (11th Cir. 1999)  (holding “jury should hear evidence ” in copyright case 
“and decide between the differing methods of analyses of the parties ’ experts as 
well as their conflicting conclusions”).   
The Defendants’ summary judgment motion as to Plaintiff’s damages 
calc
ulation ultimately asks the Court to assess Cenatempo’s credibility and 
accuracy — quintessentially factual questions — at a stage of the proceeding where 
such factual adjudication is verboten. The case law in this Circuit agrees. See, e.g. , 
Telecomm. Tech. Servs., Inc. v. Siemens Rolm Commc’ns, Inc., 66 F. Supp. 2d 
1306, 1320 (N.D. Ga. 1998) (holding “conflicting testimony of [] experts presents 
genuine issues of material fact that must be resolved by a jury” where defendant 
contended that plaintiff’s expert testimony was “insufficient to support plaintiffs’ 
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theory of recovery” and had “presented expert testimony of its own that reaches a 
conclusion directly contrary to that of plaintiffs’ expert”) ; United Food & Com. 
Workers Unions & Emps. Pension Fund v. Mercer Hum. Res. Consulting, Inc. , 
2008 WL 11406166, at *4 (N.D. Ga. Apr. 4, 2008) ( where defendant argued 
damages claim was overly speculative, denying summary judgment because of 
material factual disputes regarding  “[d]efendant’s valuation methods and 
assumptions, as well as the amount of damages”);  ITT Corp. v. Xylem Grp., LLC , 
963 F. Supp. 2d 1309 (N.D. Ga. 2013)  (denying summary judgment on actual 
damages where plaintiff claimed royalty rate was “too speculative” and “based only 
on a hypothetical royalty rate that cannot be verified based on an established, 
historical royalty rate”).  
In response to the Court’s concerns, Defendants addressed this issue in 
some depth at the hearing on their pending Motions: 
There is absolutely no industry evidence that for a graphic logo anyone 
charges a reasonable royalty times products, and there is absolutely 
no evidence in the record that Fuss charges that way or that  
Sweetwater pays that way.  And so that makes it beyond the pale of 
competing experts. That makes it fundamentally and completely 
devoid of a factual basis. That is why it is appropriate to do it now and 
not wait until trial. . . . I think the fundamental underpinnings are so 
off that it doesn’t deserve to see the light of day in trial. 
(MSJ Hearing Tr., Doc. 268 148:9–18
 , 149:22– 23). But that argument would make 
a circular proceeding of summary judgment motions . Essentially, Defendants 
contend that, while c ourts generally may not make factual or credibility 
determinations on summary judgment, in this specific case , the proffered expert 
evidence is so unfactual  and so uncredible, that the Court should dismiss it  as 
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completely unreliable . But the Defendants’ legal and expert critiques of 
Cenatempo’s expert report ultimately do not eliminate a genuine dispute of 
material fact as to how damages should be calculated. Rather, they underscore it. 
 In supp ort of  their summary judgment motion and critiques of Plaintiff’s 
damages framework, Defendants rely significantly on Polar Bear Prods., Inc. v. 
Timex Corp., 384 F.3d 700 (9th Cir. 2004), and Oracle Corp. v. SAP AG, 765 F.3d 
1081 (9th Cir. 2014). (See, e.g., Damages MSJ, Doc. 210 -1 at 17– 21; MSJ Hearing 
Tr., Doc. 268 138:4 – 149:25). In Polar Bear , where a movie company sued a 
watchmaker for improperly using its footage, the Ninth Circuit upheld a $315,000 
jury award on actual damages based on a lost license fee calculation, but set aside 
the $2.1 million award for indirect profits because plaintiff “failed to demonstrate 
a nonspeculative causal link” for part of those profits and because “the jury did not 
delineate the individual components of its total indirect profits award.” 384 F.3d 
at 708– 16. Similarly, i n Oracle, the Ninth Circuit approved of  the district court’s 
decision to remit a  $1.3 billion jury verdict, holding that “the jury awarded 
damages using an undue amount of speculation” given plaintiff Oracle’s failure to 
provide “the range of the reasonable market value for the hypothetical license in 
question.” 765 F.3d at 1089 (quoting Polar Bear Prods., 384 F.3d at 709) (cleaned 
up). The appellate court specifically pointed out that, “because Oracle has no 
history of granting similar licenses, and has not presented evidence of ‘benchmark’ 
licenses in the industry approximating the hypothetical license in question here, 
Oracle faced an uphill b attle.” Id. at 1093. As defense counsel pointed out at oral 
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argument, these cases underscore that, even in lost license fee and hypothetical 
negotiation scenarios, damages cannot be unduly speculative.  (MSJ Hearing Tr., 
Doc. 268 138:4– 148:23). In Defendants’ view, then, these cases would counsel the 
Court to reject Plaintiff’s damages framework because he lacks sufficient evidence 
to support use of a running royalty calculation. 
Importantly, however, the appellate decisions in both Oracle and Polar Bear 
came after jury trials. In other words, by  asking the Court to evaluate at this 
juncture whether Plaintiff’s damages framework is unduly speculative, the 
Defendants seek relief that Oracle and Polar Bear neither address nor advise. And, 
notably, in Polar Bear, the Ninth Circuit rejected the jury’s indirect profits figure 
based on a factual issue — specifically, whether the plaintiff had provided sufficient 
evidence for the jury to find defendant’s profits attributable to a particular instance 
of infringing use. This analysis only underscores the factual nature of this question. 
Moreover, Defendants’ critique of Cenatempo’s calculation is not merely 
tha
t it is “speculative,” as was the crux of the issue in both Polar Bear  and Oracle. 
Rather, Defendants argue that his “fundamental underpinnings are so off  that it 
doesn’t deserve to see the light of day in trial ,” i.e., that Cenatempo’s entire use of 
a running royalty framework — not merely the lack of evidence to support it — is 
problematic. (MSJ Hearing Tr., Doc. 268 149:14 – 25). This is fundamentally an 
issue of credibility. As the Court has made clear, credibility determinations are 
inappropriate herein. See  Allen-Sherrod v. Henry Cnty. Sch. Dist. , 248 F. App ’x 
145, 147 (11th Cir. 2007)  (“It is a hornbook principle that it is not proper for a 
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district court to assess witness credibility when consider [ing] a motion for 
summary judgment as such determinations are reserved for the [factfinder].”). 
 Along similar lines, Defendants’ summary judgment motion as to the 
damages framework is untenable because it asks the Court to make Daubert -like 
findings regarding Cenatempo’s methodology without providing any of the 
information critical to Daubert motions. “[T]he Rules of Evidence— especially Rule 
702— do assign to the trial judge the task of ensuring that an expert’ s testimony 
both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. 
Merrell Dow Pharms., Inc ., 509 U.S. 579, 597 (1993). But the Defendants make 
clear that is not their request here and, indeed, that they “reserve the right to 
challenge Cenatempo’s analysis under the Georgia Pacific factors and the amounts 
identified during the Daubert  process.” (Damages MSJ, Doc. 210 -1 at 10– 11 n.5). 
Rather, Defendants ask the Court to cast aside Plaintiff’s primary damages expert 
and substitute the Court’s own assessment of factual correctness. This request goes 
further than even Daubert would allow for. See Columbus Drywall & Insulation, 
Inc. v. Masco Corp., 2009 WL 856306, at *6 (N.D. Ga. Feb. 9, 2009) (Carnes, J.) 
(holding that “a battle of the experts that must be resolved by a jury” because 
“Daubert does not permit the Court to ‘evaluate the credibility of opposing experts 
and the persuasiveness of competing scientific studies’”(quoting Quiet Tech. DC -
8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003))). 
 In sum, the Court finds that the parties’ dueling expert testimony as to the 
ca
lculation of infringement damages precludes summary judgment at this juncture 
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given the required — and, at this stage, inappropriate — credibility determinations 
required in such an adjudication. Defendants also moved for summary judgment 
as to the calculation of damages on Plaintiff’s fraud and breach of fiduciary duty 
claims, arguin g that those damages “like the alleged copyright infringement 
[damages]” are essentially equal  “ to the fair market value of the Logo Art.” 
(Damages MSJ, Doc. 210-1 at 22).  To the degree the Motion  relates to the breach 
of fiduciary duty claim, it is moo t. See supra at 53–56. Otherwise, the remaining 
damages calculations rely on the calculation of infringement damages. It is thus 
impossible to grant summary judgment on the issue of fraud damages given the 
inability to determine an infringement damages framework at this juncture. 
Summary judgment is thus inappropriate for the Motion writ large. 
VII. CONCLUSION 
The facts make the law. Nowhere is this more true than in this proceeding, 
in which the parties give, at times, entirely divergent factual accounts . The 
significant disputes of fact and questions of credibility woven  throughout this 
matter run contrary to the grant of summary judgment , except as to the specific 
claims referenced below. Given the parties’ decision to proceed with a bench trial, 
it is highly possible that this Court will sit as the ultimate factfinder in a mere few 
months. But that is not the Court’s role right now.   
For the reasons above, the Court DENI
 ES IN FULL Defendants’ Motion 
for Summary Judgment on Plaintiff’s Actual Damages Theory [Doc. 210]. The 
Court GRANTS IN PART the Bensch Defendants’ Motion for Partial Summary 
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Judgment [Doc. 217], as to the Defendants’ breach of fiduciary duty claim (Count 
III). The Court otherwise DENIES that Motion as well. The Court DENIES IN 
FULL the Trustee Defendants’ Motion for Summary Judgment [Doc. 218].  
 T rial in this matter is scheduled to begin on Thursday, August 13, 2026. The 
Court is aware of the parties’ mediation efforts, which the parties previously 
indicated may resume following issuance of the Court’s decision on summary 
judgment. The Court encourages the parties to resume their mediation . To the 
degree helpful, the parties are welcome to request a teleconference with the Court 
to discuss the status of mediation.  
 Given the upcoming trial, the Court sets the following deadlines. The parties 
shall report to the Court the results of their mediation by June 1, 2026 . In the 
event mediation does not succeed, the parties should submit their consolidated 
pretrial order by July 8, 2026, and the Court will conduct a pretrial conference 
on July 23, 2026. Trial will commence on August 13, 2026. 
IT IS SO ORDERED this 19th day of March, 2026.
  
 
 
_____________________________ 
     Honor able Amy Totenberg   
          United States District Judge  
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