1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WHITEVOID GMBH, et al., Case No. 3:25-cv-03720-JSC

8 Plaintiffs,

ORDER CONVERTING

9 v. PRELIMINARY INJUNCTION INTO

TRIAL ON THE MERITS UNDER

10 LUX ENTERTAINMENT S.P.A., et al., RULE 65(A)(2) 11 Defendants. Re: Dkt. No. 10

12 13 WHITEvoid and its founder, Christopher Bauder, bring copyright infringement, Visual 14 Artists Rights Act (VARA), and conversion claims against Lux Entertainment S.p.A., Lux 15 America Inc., and Balloon Museum USA LLC (collectively “Lux”). On the same day Plaintiffs 16 filed this action, they filed a motion for preliminary injunction seeking to enjoin Defendants from 17 further public exhibition of Plaintiffs’ Electric Moons art installation. (Dkt. No. 10.) After the 18 parties stipulated to an extended briefing schedule, the motion came before the Court for hearing 19 on June 26, 2025. For the reasons stated on the record, the Court converts the motion for a 20 preliminary injunction into a jury trial on the merits under Federal Rule of Civil Procedure 21 65(a)(2). Given Defendants’ admission at oral argument that it does not intend to return the 22 Electric Moons exhibit to Plaintiffs at the conclusion of the exhibition in San Francisco, the Court 23 concludes an expedited trial is warranted and thus combines the motion for preliminary injunction 24 with trial of the matter. 25 Plaintiffs’ copyright and conversion claims turn, at least in part, on the interpretation of 26 the parties’ contract and the parties’ termination and/or breach(es) of the contract. Although both 27 parties agree the contract provides German law governs, neither party has provided the Court 1 902 F.3d 940, 949-50 (9th Cir. 2018) (stating under Federal Rule of Civil Procedure 44.1 parties 2 have an “informational duty to the court” to provide “the district court with the information 3 needed to determine the meaning of the foreign law.”). Likewise, the Court cannot resolve the 4 factual questions regarding whether there has been a “modification of [Bauder’s] work which 5 would be prejudicial to his or her honor or reputation” for purposes of his VARA claim on the 6 current record without resolving these liability-related disputes of fact. See 17 U.S.C. § 7 106A(a)(3)(A). While the Court is mindful of Plaintiffs’ allegations of harm, Plaintiffs conceded 8 at oral argument that the harm alleged has been going on “for months” before this action was even 9 filed. 10 Accordingly, the Court sets a jury trial to commence on August 26, 2025. The procedures 11 governing trial are set forth in the pretrial order below. 12 *** 13 PRETRIAL ORDER 14 I. Referral to Magistrate Judge Cousins 15 The Court refers the parties to Magistrate Judge Cousins for a settlement conference at a 16 time and place to be set by Judge Cousins in consultation with the parties. 17 II. Case Management Schedule 18 The parties shall immediately meet and confer and cooperate in adopting an expedited 19 discovery schedule. For example, they should be able to agree to production of relevant written 20 documents without the need for formal discovery requests. The schedule should include the dates 21 and locations of all depositions. On or before July 9, 2025, the parties shall jointly file with the 22 Court their proposed expedited discovery plan. 23 III. Trial Date 24 A. Jury trial will begin August 26, 2025, at 8:00 a.m., in Courtroom 8, 19th Floor, 25 U.S. District Court, 450 Golden Gate, San Francisco, California. 26 B. The Court is expecting the length of the trial to not exceed 5 court days. 27 IV. Pretrial Conference 1 19th Floor. Lead trial counsel for each party shall attend. 2 A. At least seven days prior to date of the Final Pretrial Conference the parties shall do 3 the following: 4 1. In lieu of preparing a Joint Pretrial Conference Statement, the parties shall 5 meet and confer in person, and then prepare and file a jointly signed Proposed Final Pretrial Order 6 that contains: (a) a brief description of the substance of claims and defenses which remain to be 7 decided; (b) a statement of all relief sought; (c) all stipulated facts; (d) a joint exhibit list in 8 numerical order, including a brief description of the exhibit and Bates numbers, a blank column 9 for when it will be offered into evidence, a blank column for when it may be received into 10 evidence, and a blank column for any limitations on its use; and (e) each party’s separate witness 11 list for its case-in-chief witnesses (including those appearing by deposition), including, for all such 12 witnesses (other than party plaintiffs or defendants), a short statement of the substance of his/her 13 testimony and, separately, what, if any, non-cumulative testimony the witness will offer. For each 14 witness, state an hour/minute time estimate for the direct examination (only). Items (d) and (e) 15 should be submitted as appendices to the proposed order. The proposed order should also state 16 which issues, if any, are for the Court to decide, rather than the jury. 17 2. File a joint set of proposed instructions on substantive issues of law 18 arranged in a logical sequence. If undisputed, an instruction shall be identified as “Stipulated 19 Instruction No. ____ Re ___________,” with the blanks filled in as appropriate. If disputed, each 20 version of the instruction shall be inserted together, back to back, in their logical place in the 21 overall sequence. Each such disputed instruction shall be identified as, for example, “Disputed 22 Instruction No. ____ Re ____________ Offered by _________________,” with the blanks filled 23 in as appropriate. All disputed versions of the same basic instruction shall bear the same number. 24 Any modifications to a form instruction must be plainly identified. If a party does not have a 25 counter version and simply contends that no such instruction in any version should be given, then 26 that party should so state (and explain why) on a separate page inserted in lieu of an alternate 27 version. With respect to form preliminary instructions, general instructions, or concluding 1 of the Ninth Circuit Model Jury Instructions. Other than citing the numbers, the parties shall not 2 include preliminary, general, or concluding instructions in the packet. 3 3. File a separate memorandum of law in support of each party’s disputed 4 instructions, if any, organized by instruction number. 5 4. File trial briefs on any controlling issues of law. 6 5. File proposed verdict forms, joint or separate. 7 6. File and serve any objections to exhibits. 8 7. File a joint simplified Statement of the Case to be read to the jury during 9 voir dire as part of the proposed jury instructions. Unless the case is extremely complex, this 10 statement should not exceed one page. 11 B. Any motions in limine shall be submitted as follows: at least twenty (20) calendar 12 days before the conference, the moving party shall serve, but not file, the opening brief. At least 13 ten (10) calendar days before the conference, the responding party shall serve the opposition. 14 There will be no reply. When the oppositions are received, the moving party should collate the 15 motion and the opposition together, back-to-back, and then file the paired sets at least seven (7) 16 calendar days before the conference. Each motion should be presented in a separate memorandum 17 and properly identified, for example, “Plaintiff’s Motion in Limine No. 1 to Exclude . . . .” Each 18 party is limited to bringing five motions in limine. The parties are encouraged to stipulate where 19 possible, for example, as to the exclusion of witnesses from the courtroom. Each motion should 20 address a single, separate topic, and contain no more than seven pages of briefing per side. 21 C. Hard-copy courtesy copies of the above documents shall be delivered by NOON 22 the day after filing. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form 23 shall also be submitted via e-mail as Word attachments to jsc_settlement@cand.uscourts.gov. The 24 Court requests that all hard-copy submissions be three-hole-punched. 25 V. Pretrial Arrangements 26 A. Should a daily transcript and/or real-time reporting be desired, the parties shall 27 make arrangements with the Supervisor of the Court Reporting Services, at 1 B. During trial, counsel may wish to use overhead projectors, laser-disk/computer 2 graphics, poster blow-ups, models, or specimens of devices. Equipment should be shared by all 3 counsel to the maximum extent possible. The Court provides no equipment other than an easel. 4 The United States Marshal requires a court order to allow equipment into the courthouse. For 5 electronic equipment, parties should be prepared to maintain the equipment or have a technician 6 handy at all times. The parties shall tape extension cords to the carpet for safety. The parties may 7 work with the deputy clerk, Ada Means (415-522-2015), on all courtroom-layout issues. 8 SCHEDULING 9 Trial will be conducted from 8:00 a.m. to 2:30 or 3:00 p.m., depending on the availability 10 of witnesses. Due to the Labor Day holiday, there will not be trial on Friday, August 29, 2025 11 nor, of course, Labor Day, Monday, September 1, 2025. Counsel must arrive by 8:00 a.m., or 12 earlier as needed, for any matters to be heard out of the presence of the jury. The jury will be 13 called at 8:30 a.m. 14 THE JURY 15 The Jury Office asks prospective jurors to complete an online jury questionnaire in 16 advance of their summons date. The standard questionnaire available on the Northern District’s 17 website at http://www.cand.uscourts.gov/wp-content/uploads/attorneys/Internet-version_Standard- 18 CAND-Trial_SurveyMonkey_3-2022.pdf. The parties are allowed to add 10 case specific 19 questions to the questionnaire. The parties shall meet and confer, and to the extent possible, file a 20 joint list of proposed questions to add to the questionnaire. To the extent that the parties cannot 21 agree, they may submit separate proposed questions from which the Court will choose 10. The 22 parties joint or separate submissions are due 21 days before trial. The Court will provide the 23 parties with the survey responses the Friday before trial. 24 In civil cases, there are no alternate jurors and the jury is selected as follows: Eighteen to 25 twenty jurors are called to fill the jury box and the row in front of the bar, and are given numbers 26 (1 through 20). The remaining potential jurors will be seated in the public benches. Hardship 27 excuses will usually be considered at this point. Counsel may conduct a limited voir dire. 1 will consider whether to fill in the seats of the stricken jurors. If so, questions will be asked of the 2 additional jurors and cause motions as to them will be considered. After a short recess, each side 3 may exercise its allotment of peremptory challenges out of the presence of the potential jurors. 4 The eight (or such other size as will constitute the jury) surviving the challenge process with the 5 lowest numbers become the final jury. If more (or fewer) than eight jurors are to be seated, then 6 the starting number will be adjusted. So too if more than a total of six peremptories are allowed. 7 Once the jury selection is completed, the jurors’ names will be read again and they will be seated 8 in the jury box and sworn. The Court may alter this procedure in its discretion and after 9 consultation with the parties. 10 WITNESSES 11 At the close of each trial day, all counsel shall exchange a list of witnesses (other than for 12 impeachment) for the next two full court days and the exhibits that will be used during direct 13 examination (other than for impeachment of an adverse witness). Within 24 hours of such notice, 14 all other counsel shall provide any objections to such exhibits and shall provide a list of all 15 exhibits to be used with the same witness on cross-examination (other than for impeachment). The 16 first notice shall be exchanged prior to the first day of trial. All such notices shall be provided in 17 writing. 18 EXHIBITS 19 A. Prior to the Final Pretrial Conference, counsel must meet and confer in person to 20 consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over 21 the precise exhibit. 22 B. Use numbers only, not letters, for exhibits, preferably the same numbers as were 23 used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g., 24 Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single 25 exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant 26 should not re-mark the exact document with another number. Different versions of the same 27 document, e.g., a copy with additional handwriting, must be treated as different exhibits with 1 marked and referred to as “Trial Exhibit No. _____,” not as “Plaintiff’s Exhibit” or “Defendant’s 2 Exhibit.” 3 C. Exhibits tags: Exhibits must be labeled in the lower right-hand corner with the 4 exhibit number in a prominent, bold typeface. 5 D. Counsel must consult with each other and with the deputy clerk at the end of each 6 trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If 7 there are any differences, counsel should bring them promptly to the Court’s attention. 8 E. The parties shall provide the Court with one official set of the record exhibits seven 9 (7) days before the Pretrial Conference. Each exhibit must be separated with a label divider 10 identifying the exhibit number. Spine labels should indicate the numbers of the exhibits that are in 11 the binders. At trial, the parties shall provide individual witness exhibit binders which contain all 12 the exhibits the parties expect to use with the witness. The parties shall provide two copies of each 13 witness binder: one for the witness and one for the Court. 14 F. Before the closing arguments, counsel must confer with the deputy clerk to make 15 sure the exhibits in evidence are in good order. 16 G. Exhibit notebooks for the jury will not be permitted without prior permission from 17 the Court. Publication must be by poster blow-up, overhead projection, or such other method as is 18 allowed in the circumstances. It is permissible to highlight, circle or underscore in the 19 enlargements as long as it is clear that it was not on the original. 20 21 CHARGING CONFERENCE 22 As the trial progresses and the evidence is heard, the Court will fashion a comprehensive 23 set of jury instructions to cover all issues actually being tried. Prior to the close of the evidence, 24 the Court will provide a draft final charge to the parties. After a reasonable period for review, one 25 or more charging conferences will be held at which each party may object to any passage, ask for 26 modifications, or ask for additions. Any instruction request must be renewed specifically at the 27 conference or it will be deemed waived, whether or not it was requested prior to trial. If, however, 1 affirmatively re-request it at the charging conference in order to give the Court a fair opportunity 2 to correct any error. Otherwise, as stated, the request will be deemed abandoned or waived. 3 4 IT IS SO ORDERED. 5 Dated: June 27, 2025 6 ; ne

ACQUELINE SCOTT CORLE

8 United States District Judge 9 10 11 g 12

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