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Philpot v. WOS, Inc.

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

April 22, 2019

LARRY G. PHILPOT, Plaintiff,
WOS, INC., Defendant.



         Before 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 part.

         I. BACKGROUND

         Philpot 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).[1] 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).


         Summary 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 (2007).

         Once 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).


         A. Summary Judgment Evidence

         Philpot 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).

         Philpot 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).[2] 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” or “Larry Philpot,” (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, at 22).

         WOS 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).

         In 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.” (Id.).

         Several 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).[3] 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).

         B. WOS's Motion for Summary Judgment

         WOS 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.

         1. Copyright Infringement-Fair Use

         Section 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).

         Section 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).

         a. Factor One: The Purpose and Character of the Use

         Under 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).

         There 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.[4] This subfactor tends to weigh against a finding of fair use but is far from dispositive. Campbell, 510 U.S. at 584-85.

         As for 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.

         WOS 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 favor.

         b. Factor Two: The Nature of the Copyrighted Works

         In 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).[5] 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 favor.

         c. Factor Three: The Amount and Substantiality of the Portions Used

         In 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 database ...

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