Philpot v. WOS, Inc.
| Decision Date | 22 April 2019 |
| Docket Number | 1:18-CV-339-RP |
| Parties | LARRY G. PHILPOT, Plaintiff, v. WOS, INC., Defendant. |
| Court | U.S. District Court — Western District of Texas |
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.
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. § 501and 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 recordand 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).
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 www.soundstagephotography.com" or "Larry Philpot, www.soundstagephotography.com." (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).
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.
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