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Durant v. Greensfield and Fortenberry, LLC

United States District Court, W.D. Texas, Austin Division

June 28, 2018

JOHN DURANT, Plaintiff,



         Before 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 recommendation.

         I. BACKGROUND

         Plaintiff John Durant, a photographer, brings this copyright claim against Defendants Patricia Fortenberry and Greenfield and Fortenberry, LLC.[1] 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).


         A. Federal Magistrates Act

         A party 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 recommendation.[2]

         B. Summary Judgment

         Summary 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).

         The 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).

         If the 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. 1992).

         Cross-motions 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 Cir. 2004).


         A. ...

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