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HUK-A-POO SPORTSWEAR, INC. v. LITTLE LISA, LTD.
Cite as 74 F.R.D. 621 (1977)

625

dence now raised by defendant is not substantial enough to alter the balance of hardships as evaluated earlier by the Court. Therefore, the conclusion remains that the preliminary injunction should apply.^[1]

This does not mean that the defendant has no opportunity to raise defenses and objections to injunctive relief. On the contrary, Little Lisa may present them at the trial on the merits of this action. The objections are preserved for trial and the objecting party is urged to seek a final determination of all factual and legal issues in dispute.

Accordingly, the defendant’s motion is denied. Similarly, because there are many important factual issues in dispute in this case, the plaintiff’s motion for partial summary judgment is denied.

So ordered.

FIRST WISCONSIN MORTGAGE TRUST, a Massachusetts business trust, Plaintiffs,

v.

FIRST WISCONSIN CORPORATION, a Wisconsin Corporation, First Wisconsin Mortgage Company, a Wisconsin Corporation, and First Wisconsin National Bank of Milwaukee, a National Banking Association, Defendants.

Civ. A. No. 75-C-127.

United States District Court,
E. D. Wisconsin.

June 14, 1977.

posite since federal copyright law would control in conflicts with state law. Nimmer on Copyright § 1.2.

Furthermore, it has been held that the proprietor of a work of art can commission an independent contractor to manufacture the reproduction and still retain authorship of the reproduction. Huk-A-Poo Sportswear, Inc. v. Franshaw, Inc., 411 F.Supp. 15 (S.D.N.Y.1976); Nimmer on Copyright § 63.

↑ Defendant’s counsel urges that

“the Court never had the opportunity to consider any of the aforementioned grounds as defendant was unable to submit opposing papers at the time the preliminary injunction was granted. Extensive discovery subsequently conducted by defendant on an accelerated schedule has provided the basis for defendant making the instant motion.”

Affidavit of Lawrence G. Soicher, sworn to April 15, 1976, at 4. It is apparent, however, that the defendant could have submitted opposing papers at the earlier date but chose not to, preferring to await the more precise results of extended discovery. It was defendant’s tactical decision to forego opposition to the motion in favor of preparing a defense on the merits.

[2] Defendant’s counsel urges that

“the Court never had the opportunity to consider any of the aforementioned grounds as defendant was unable to submit opposing papers at the time the preliminary injunction was granted. Extensive discovery subsequently conducted by defendant on an accelerated schedule has provided the basis for defendant making the instant motion.”

Affidavit of Lawrence G. Soicher, sworn to April 15, 1976, at 4. It is apparent, however, that the defendant could have submitted opposing papers at the earlier date but chose not to, preferring to await the more precise results of extended discovery. It was defendant’s tactical decision to forego opposition to the motion in favor of preparing a defense on the merits.

[1]