United States District Court, W.D. Texas, Austin Division
LARRY G. PHILPOT, Plaintiff,
WOS, INC., Defendant.
PITMAN UNITED STATES DISTRICT JUDGE
the Court are cross motions for summary judgment filed by
Plaintiff Larry G. Philpot (“Philpot”), (Dkt.
26), and Defendant WOS, Inc. (“WOS”), (Dkt. 25).
Having considered the parties' motions and the responsive
briefing, the record, and the relevant law, the Court finds
that each motion should be granted in part and denied in
is a freelance photographer who mostly photographs musicians
at live performances. (Compl., Dkt. 1, at 4). At issue in
this case are two of his photographs: one of Lukas Nelson and
another of Kenny Chesney. (Philpot Decl., Dkt. 26-1, at
3-4). WOS is a media company that operates a
website called Wide Open Country (“WOC”), which
publishes news, entertainment, and lifestyle content related
to country music. (WOS Mot. Summ. J., Dkt. 25, at 4). In
2015, WOS created and published two articles on WOC featuring
Philpot's Nelson and Chesney photos. (Id. at
5-7). Philpot alleges that WOS published the photos without
proper attribution and therefore violated the Creative
Commons License under which he makes the photos available.
(Compl., Dkt. 1, at 6-10). He also alleges that WOS scrubbed
the metadata from the photos before publishing them.
(Id. at 13-14). He now sues WOS for copyright
infringement in violation of 17 U.S.C. § 501 and for
removing copyright management information in violation of 17
U.S.C. § 1202(b). (Id. at 11- 14). WOS seeks
summary judgment on each of Philpot's claims, (Dkt. 25),
and Philpot seeks partial summary judgment on each of
WOS's defenses, (Dkt. 26).
judgment is appropriate when there is no genuine dispute as
to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A dispute
regarding a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A
fact is material if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Tex., 560
F.3d 316, 326 (5th Cir. 2009) (quotations and footnote
omitted). The Court must view the evidence in the light most
favorable to the nonmovant and draw all reasonable inferences
in the nonmovant's favor, Rosado v. Deters, 5
F.3d 119, 122-23 (5th Cir. 1993), and cannot make credibility
determinations or weigh the evidence, Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). That
said, when one party's version of the facts “is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent
summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
Furthermore, the nonmovant is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
“sift through the record in search of evidence”
to support the nonmovant's opposition to the motion for
summary judgment. Id. After the nonmovant has been
given the opportunity to raise a genuine factual issue, if no
reasonable juror could find for the nonmovant, summary
judgment will be granted. Miss. River Basin Alliance v.
Westphal, 230 F.3d 170, 175 (5th Cir. 2000).
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 Eng'rs, Inc., 395 F.3d
533, 538-39 (5th Cir. 2004).
Summary Judgment Evidence
has been a professional photographer, in his view, since
2008. (Philpot Dep., Dkt. 25-1, at 179). He has no training
in photography and has never been employed full-time as a
photographer; he works as a freelancer. (Id.;
id. at 200; Compl., Dkt. 1, at 1, 4). He is formally
affiliated with “OnStage Magazine, ” a company he
created to gain access to bigger events, but which does not
actually produce magazines or generate advertising revenue.
(Philpot Dep., Dkt. 25-1, at 183-84). He has never been hired
to photograph a concert or other event. (Id. at
182). He is compensated for his work mostly in concert
tickets, food, and drinks. (Id. at 180, 190-91).
Pressed to identify monetary compensation for his work,
Philpot testified that once he did a shoot for a
hidden-camera show and that he once earned $0.88 for an image
of Prince that he took at a concert he paid $2, 000 to
attend. (Id. at 189-90). He sells prints of his
photos but has made “not very much”
money-possibly less than $100 total-doing so. (Id.
at 194). He loses money on his photography work almost every
year. (Id. at 213-14).
took the Nelson photo in 2009 and the Chesney photo in 2013.
(Philpot Decl., Dkt. 26-1, at 3-4). He registered each one
with the U.S. Copyright Office the year they were taken,
(Certificates of Registration, Dkt. 26-1, at 11, 16), and
made both publicly available for free by uploading them to
Wikimedia Commons under a Creative Commons License
(“CCL”). (Philpot Decl., Dkt. 26-1, at
5-6). That license conditions use of the images
on attribution-provided “in any reasonable
manner”-that includes the author's name, the title
of the work, and “to the extent reasonably practicable,
” the work's “Uniform Resource
Identifier” (“URI”). (CCL, Dkt. 26-1, at
21- 22; see also Wikimedia License Summaries, Dkt.
26-1, at 28, 33). On the Wikimedia page for both photos,
Philpot states that attribution should be made to
“Larry Philpot of
www.soundstagephotography.com” or “Larry
(Wikimedia License Summaries, Dkt. 26-1, at 27, 33). The
Chesney photo's Wikimedia page also names the author as
“Nightshooter”-Philpot's username-next to his
attribution line. (Id. at 27). The CCL for the
Chesney and Nelson photos terminates automatically if the
licensee breaches any term of the license. (CCL, Dkt. 26-1,
launched WOC in 2015. (O'Dwyer Aff., Dkt. 25-1, at 59).
Since then, it has been run by a full-time staff of four and
relies mostly on freelancers to create content.
(Id.). WOS is no stranger to CCLs-it often uses
images licensed under CCLs and has a guide instructing
freelance writers to “familiarize yourself with the
different types of CC licenses.” (O'Dwyer Dep.,
Dkt. 25-1, at 106-07; O'Dwyer Aff., Dkt. 25-1, at 59). In
that guide, WOS tells freelancers that CCL-licensed images
should have a source page with information about the license
and that they must attribute the image as instructed by the
author. (O'Dwyer Dep., Dkt. 25-1, at 107).
2015, WOS created and published an article titled
“Father of Two Beaten to Death After Kenny Chesney
Concert.” (Chesney Article, Dkt. 25-1, at 37).
Underneath the headline is a photo of the man and his
children alongside Philpot's Chesney photo.
(Id.). Under the photos is an attribution line that
reads: “Twitter/AlexRozierK5, Wikimedia
Commons/Nightshooter.” (Id.). That same year,
WOS created and published an article titled “See Willie
and Merle's Sons Cover of ‘Seven Spanish
Angels.'” (Nelson Article, Dkt. 25-1, at 42).
Underneath the headline is Philpot's Nelson photo
alongside a photo of Ben Haggard. (Id.). Underneath
the photos is an attribution line that reads:
“Wikimedia Commons, Facebook/Ben Haggard.”
years ago, Philpot began using software to search the
Internet for infringing uses of his copyrights because he
“wasn't making any money at all” on his
photography. (Philpot Dep., Dkt. 26-1, at 197-99). Since
then, Philpot guesses that he has probably filed over 50
copyright infringement lawsuits. (Id. at
207). On January 9, 2018, counsel for Philpot
sent WOS a cease-and-desist letter claiming that they had
“just learned” about WOS's infringing use of
the Nelson photo and asking them to stop displaying it.
(Bowen Letter, Dkt. 25-1, at 137). WOS was not notified that
it was infringing Philpot's rights to the Chesney image
until being served with the complaint. (O'Dwyer Aff.,
Dkt. 25-1, at 60). After receiving the letter, WOS changed
the attribution line for the Nelson photo from
“Wikimedia Commons” to “Nightshooter,
” Philpot's Wikimedia username. (O'Dwyer Dep.,
Dkt. 25-1, at 76). Philpot then filed this action, in which
he seeks $150, 000 in damages for each photo. (Compl., Dkt.
1, at 12).
WOS's Motion for Summary Judgment
seeks summary judgment on all of Philpot's claims: his
set of copyright-infringement claims and his set of
information-removal claims. (WOS Mot. Summ. J., Dkt. 25, at
8-18). Regarding the former, WOS does not dispute that its
use of Philpot's photos infringed his copyrights in those
images; it argues only that its use of those photos
constitutes “fair use” under 17 U.S.C. §
107. (Id. at 13-18). Regarding the latter, WOS
argues that there is not material issue of fact as to the
intent elements of Philpot's claims. (Id. at
8-13). The Court will consider each set of claims separately.
Copyright Infringement-Fair Use
106 of the Copyright Act confers a bundle of exclusive rights
to the owner of a copyright, including the right “to
publish, copy, and distribute the author's work.”
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539, 547 (1985). But these rights are subject to
“certain statutory exceptions, ” including the
“privilege of other authors to make ‘fair
use' of an earlier author's work.” Id.
(citing 17 U.S.C. § 107). Section 107 was intended to
codify the pre-existing judicial doctrine of fair use, which
was “traditionally defined as ‘a privilege in
others than the owner of the copyright to use the copyrighted
material in a reasonable manner without his
consent.'” Id. at 549 (citing H. Ball, Law
of Copyright and Literary Property 260 (1944)). Fair use is
an affirmative defense for which WOS has the burden to
establish that its otherwise infringing use of Philpot's
photos is excused. Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 590 (1994).
107 of the Copyright Act permits the unauthorized use or
reproduction of copyrighted work if it is “for purposes
such as criticism, comment, news reporting, teaching . . .
scholarship, or research.” 17 U.S.C. § 107. Fair
use is a mixed question of law and fact and requires a
case-by-case determination on whether a particular use of a
copyrighted work is fair. Campbell, 510 U.S. at 577;
Harper & Row, 471 U.S. at 560. Making that
determination requires consideration of four factors: (1) the
purpose and character of the use; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the
portion used in relation to the copyrighted work as a whole;
and (4) the effect on the potential market for or value of
the copyrighted work. 17 U.S.C. § 107. These factors are
non-exclusive, Harper & Row, 471 U.S. at 560,
and are to be “weighed together, in light of the
purposes of copyright, ” Campbell, 510 U.S. at
578. Accordingly, some courts have described “the
ultimate test of fair use” as “whether the
copyright law's goal of promoting the Progress of Science
and useful Arts would be better served by allowing the use
than by preventing it.” Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir.
2006) (citation and internal quotation marks omitted).
Factor One: The Purpose and Character of the Use
the first factor, courts consider the culpability of a
defendant's conduct in acquiring or using a work, the
extent to which such use is transformative, and whether such
use is for commercial or noncommercial purposes. See
Harper & Row, 471 U.S. at 562 (“Relevant to
the character of the use is the propriety of the
defendant's conduct.”) (cleaned up); id.
(“The fact that a publication was commercial as opposed
to nonprofit is a separate factor that tends to weigh against
a finding of fair use.”); Campbell, 510 U.S.
at 578-79 (“[T]he more transformative the new work, the
less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair
use.”). Neither party argues that WOS's culpability
is relevant here; each instead focuses on whether WOS used
Philpot's photos for commercial purposes and whether its
use is transformative. (WOS Mot. Summ. J., Dkt. 25, at 14-15;
Resp. WOS Mot. Summ. J., Dkt. 29, at 6-10).
is no genuine dispute that WOS's use of Philpot's
photos is commercial. WOS is a for-profit business that earns
advertising revenue based on pageviews. (O'Dwyer Dep.,
Dkt. 26-1, at 72-73, 82). WOS used Philpot's photos to
drive traffic to its articles about Chesney and Nelson; that
traffic earned the company revenue. (WOS Interrog. Resp.,
Dkt. 26-1, at 60-61 (admitting that WOS earned $6.41 from the
Chesney article and $119.83 from the Nelson article)).
Although WOS downplays its uses as “nominally
commercial” because the Chesney article brought in only
$6.41, the question is whether WOS “st[ood] to profit
from exploitation of the copyrighted material without paying
the customary price”-here, attribution-and not whether
WOS was especially successful at profiting from its
exploitation. This subfactor tends to weigh against a
finding of fair use but is far from dispositive.
Campbell, 510 U.S. at 584-85.
whether WOS's use is transformative, the question is
“whether the new work merely supersedes the objects of
the original creation, . . . or instead adds something new,
with a further purpose or different character, altering the
first with new expression, meaning, or message.”
Id. at 579 (cleaned up). The importance of this
subfactor is determined on a sliding scale: “the more
transformative the new work, the less will be the
significance of other factors, like commercialism, that may
weigh against a finding of fair use.” Id.
argues that its use is transformative because Philpot's
purpose for his photos “is to depict artists in
concert, ” while WOS used the photos for “news
commentary about the murder of the father of two” (the
Chesney photo) and for “commentary unrelated to the
image's subject” (the Nelson photo). (WOS Mot.
Summ. J., Dkt. 25, at 14, 17). Neither article concerned the
performance depicted in Philpot's photos, and WOS argues
that it could have interchangeably used any other photo of
Chesney or Nelson for the articles. (Id.). Philpot
responds that there is “no transformation of any
kind” because WOS and Philpot both used the photos for
the same purpose: to identify Chesney and Nelson. (Resp. WOS
Mot. Summ. J., Dkt. 29, at 8). This disagreement about how to
characterize Philpot's purpose and WOS's is a fact
issue for a jury. For purposes of deciding WOS's motion,
the Court finds that a reasonable jury could conclude that
both parties used the Chesney and Nelson photos for the same
purpose. When, as here, a work is reproduced exactly for the
same purpose, the use is not transformative. See Balsley
v. LFP, Inc., 691 F.3d 747, 759 (6th Cir. 2012) (quoting
Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19
(9th Cir. 2003)) (“Where ‘an original work is
merely retransmitted in a different medium' or where the
‘resulting use of the copyrighted work . . . [is] the
same as the original use,' the new work is not
‘transformative.'”). Viewing the facts in the
light most favorable to Philpot, this factor weighs in his
Factor Two: The Nature of the Copyrighted Works
considering nature of the copyrighted work, courts look at
“the extent to which [the work] is a creative work
enjoying broader copyright protection as opposed to a factual
work requiring broader dissemination.” Nunez v.
Caribbean Int'l News Corp., 235 F.3d 18, 23 (1st
Cir. 2000) (citing Harper & Row, 471 U.S. at
563-64). A use is less likely to be deemed fair
when the copyrighted work is a creative product. Stewart
v. Abend, 495 U.S. 207, 237 (1990); see also Harper
& Row, 471 U.S. at 563 (“The law generally
recognizes a greater need to disseminate factual works than
works of fiction or fantasy.”). Although photographs
have “varying degrees of creativity, ”
Balsley, 691 F.3d at 760, a reasonable jury could
agree with Philpot that the Chesney and Nelson photos reflect
Philpot's creative judgments about things like angle,
framing, and timing. (Resp. WOS Mot. Summ. J., Dkt. 29, at
10-11). When creative judgments are apparent in a
photograph-even if the purpose of the image is to document or
convey factual information-courts tend to hold that the work
is creative in nature. Monge v. Maya Magazines,
Inc., 688 F.3d 1164, 1177 (9th Cir. 2012);
Kelly, 336 F.3d at 820. Viewing the facts in the
light most favorable to Philpot, this factor weighs in his
Factor Three: The Amount and Substantiality of the Portions
considering the amount and substantiality of the portions
used, courts “examine both the quantitative and
qualitative aspects of the portion of the copyrighted
material taken.” Monge, 688 F.3d at 1178
(citing Campbell, 510 U.S. at 586). “While
wholesale copying does not preclude fair use per se, copying
an entire work militates against a finding of fair
use.” Kelly, 336 F.3d at 820. That said,
“the extent of permissible copying varies with the
purpose and character of the use.” Bill Graham
Archives, 448 F.3d at 613 (citing Campbell, 510
U.S. at 586-87). So, for example, courts have concluded that
wholesale copying does not necessarily weigh against finding
fair use when doing so is necessary to make a fair use of the
image. See Kelly, 336 F.3d at 821 (finding the
wholesale replication of images used for a search engine