United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court are the parties' cross-motions for summary
judgment, (Dkts. 27, 28), and the report and recommendation
of United States Magistrate Judge Mark Lane filed on April
19, 2018. (Dkt. 36). Judge Lane recommends that the Court
deny Defendants' motion for summary judgment and grant in
part and deny in part Plaintiff's motion for summary
judgment. (Id.). The Court adopts the report and
John Durant, a photographer, brings this copyright claim
against Defendants Patricia Fortenberry and Greenfield and
Fortenberry, LLC. Durant contends that Defendants displayed
three photographs, to which he has registered copyrights, on
their website and in brochures advertising their business for
three years. (Pl.'s Mot. Summ. J., Dkt. 28, at 1, 5, 7).
Defendants do not dispute infringement, but they contend that
an agreement previously entered into between Durant and a
third party, Seton Hospital, which released Seton from a
copyright claim concerning a group of photographs that
contains the photographs at issue in this suit, also releases
Defendants from infringement claims by Durant. (Defs.'
Mot. Summ. J., Dkt. 27, at 7-8; Defs.' Resp. Pl.'s
Mot. Summ. J., Dkt. 33, at 2-3). The parties also dispute the
amount of damages, if any, that should be awarded to Durant
in the event the Court finds Defendants liable. Durant
contends that he is entitled to the amount that he would have
been able to charge as a fair market license fee for the use
of the three photographs for commercial purposes for three
years, regardless of whether or not Defendants would have
agreed to pay such a price. He argues that this amount is
$18, 000, citing a previous license agreement between Durant
and another party governing the use of different photographs
taken by Durant. (Pl.'s Mot. Summ. J., Dkt. 28, at 5-8).
Defendants contend that Durant is entitled to either nothing
because he has not produced sufficient evidence of the
photographs' value or, at most, $222.21. Defendants
calculate this amount based on the settlement agreement
entered into between Seton and Durant, dividing the amount
paid by the number of photographs included in the release.
(Pl.'s Mot. Summ. J., Dkt. 27, at 9).
Federal Magistrates Act
may file specific, written objections to the proposed
findings and recommendations of the magistrate judge within
fourteen days after being served with a copy of the report
and recommendation, thereby securing de novo review
by the district court. 28 U.S.C. § 636(b); Fed.R.Civ.P.
72(b). Defendants Greenfield and Fortenberry, LLC and
Patricia Fortenberry (together, “Defendants”)
filed objections on May 3, 2018. Defendants object to two
aspects of the recommendation: (1) the finding that Defendant
is liable for copyright infringement and was not covered by
the third-party contractual release under which Defendant
seeks shelter, and (2) the finding that factual disputes
surrounding the correct amount of damages preclude the award
of summary judgment on that issue to either side at this
stage. Accordingly, Defendants are entitled to de
novo review on these aspects of the report and
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute is “genuine” only if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact
issue is ‘material' if its resolution could affect
the outcome of the action.” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The moving party must demonstrate
“the absence of a genuine issue of material fact with
respect to those issues on which the movant bears the burden
of proof at trial.” Transamerica Ins. Co. v.
Avenell, 66 F.3d 715, 719 (5th Cir. 1995). “Where
the non-movant bears the burden of proof at trial, ‘the
movant may merely point to the absence of evidence and
thereby shift to the non-movant the burden of demonstrating
by competent summary judgment proof that there is an issue of
material fact warranting trial.'” Nola Spice
Designs, L.L.C. v. Haydel Enterprises, Inc., 783 F.3d
527, 536 (5th Cir. 2015) (quoting Transamerica, 66
F.3d at 718-19).
movant meets its initial burden, the burden then shifts to
the nonmoving party to establish the existence of a genuine
issue for trial. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585-87 (1986);
Wise v. E.I. Dupont de Nemours & Co., 58 F.3d
193, 195 (5th Cir. 1995). “After the non-movant has
been given the opportunity to raise a genuine factual issue,
if no reasonable juror could find for the non-movant, summary
judgment will be granted.” Miss. River Basin
Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000).
The parties may satisfy their respective burdens by tendering
depositions, affidavits, and other competent evidence.
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
for summary judgment “must be considered separately, as
each movant bears the burden of establishing that no genuine
issue of material fact exists and that it is entitled to
judgment as a matter of law.” Shaw Constructors v.
ICF Kaiser Engineers, Inc., 395 F.3d 533, 538-39 (5th