Stross v. Hearst Commc'ns, Inc.
| Decision Date | 03 September 2020 |
| Docket Number | NO. SA-18-CV-01039-JKP,SA-18-CV-01039-JKP |
| Parties | ALEXANDER STROSS, Plaintiff, v. HEARST COMMUNICATIONS, INC., HEARST CORPORATION, HEARST NEWSPAPERS, LLC, HEARST NEWSPAPERS II, LLC, HEARST SEATTLE MEDIA, LLC, HEARST MEDIA SERVICES CONNECTICUT, LLC, MIDLAND PUBLISHING COMPANY. LLC, HURON PUBLISHING COMPANY, LLC, EDWARDSVILLE PUBLISHING COMPANY, LLC, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Before the Court is Plaintiff Alexander Stross's Motion for Partial Summary Judgment and Defendants' response. ECF Nos. 98, 106, 112. Upon consideration, the Court concludes the motion shall be DENIED. While Defendants disagree with Stross's contention that he is entitled to summary judgment on their affirmative defenses of collateral estoppel and lack of personal jurisdiction, Defendants voluntarily withdraw these affirmative defenses. Accordingly, Defendants' asserted affirmative defense of collateral estoppel and Defendants' challenge to personal jurisdiction are stricken and dismissed with prejudice.
This is a copyright-infringement case involving photographs taken by Plaintiff Alexander Stross. It is undisputed Stross owns the copyright to the subject photographs which depict a group of "tiny houses" on the Llano River ("the Tiny House photos"). In 2015, through an email exchange, Stross gave the San Antonio Express News and Country Living Magazine, publications owned by two of the Defendants, permission to publish the photos.
In bringing this action, Stross alleges he granted limited authorization to the San Antonio Express News and Country Living Magazine to use the subject photographs in a single article in each publication; however, Defendants made numerous other unauthorized uses of the photographs, particularly through reproduction in social media, while also removing the credit line and a hyperlink to Stross's website. Stross also claims another publication owned by one of the Defendants used a second set of his photographs of another residential property (the Renovation Photos) without authorization.
Based upon these allegations, Stross brings a cause of action for copyright infringement against all Defendants (direct infringement claim). In addition, Stross asserts a cause of action for contributory copyright infringement against all Defendants (secondary infringement claim), stating, Hearst Newspapers induced, and/or materially contributed to the infringing conduct of these entities by sharing his photographs with those individual entities, and facilitating their republication. By doing so, Hearst Newspaper's actions constitute willful infringement of Stross's copyrights because it knew these Defendants' use of his photographs was not authorized and/or because it acted in reckless disregard of Stross's copyright.
Defendants assert the following affirmative defenses: (1) Stross's claims are barred by the doctrine of fair use because the photographs at issue were used for newsworthy purposes, and there was no effect upon the market for the photographs at issue; (2) lack of willfulness because any infringement was inadvertent and not willful; (3) Stross's claim is barred because he licensed some or all of the photographs to one or more of the Defendants for the uses he challenges in this action; (4) Stross's claims are barred because he consented to uses of his allegedly copyrighted works; (5) Stross is barred by the doctrine of collateral estoppel from relitigating any or all of any issues in this action that could be resolved in other litigationconcerning the works at issue in this case; (6) Stross's claims are barred because he failed to mitigate his damages; (7) Stross suffered no actual damages; (8) Stross fails to plead facts sufficient to support an exercise of personal jurisdiction over all Defendants, and not all Defendants are subject to personal jurisdiction; and (9) Stross's claims against all Hearst Defendants are barred by the applicable three-year statute of limitations.
Stross now moves for partial summary judgment on his direct copyright infringement cause of action and upon all of Defendants' affirmative defenses.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that 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(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993).1 A dispute is "genuine" where there is sufficient evidence such that a reasonable jury could return a verdict for the nonmoving party. Id. There is no genuine dispute for trial when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). While all evidence and reasonable inferences are viewed in the light most favorable to the nonmovant, and all disputed facts are resolved in favor of the nonmovant, the judge's function "is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson, 477 U.S. at 249); see also Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 234 (5th Cir. 2016).
The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp., 477 U.S. at 323. The moving party has the burden to "demonstrate the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law" to prevail on its motion. Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 121 (5th Cir. 1982). To do so, the moving party must identify the portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits that demonstrate the absence of a triable dispute of material fact. Celotex Corp., 477 U.S. at 323; Union Planters Nat'l Leasing, 687 F.2d at 121. To meet its initial burden, the moving party must either: (1) present evidence that negates the existence of some material element of the nonmoving party's claim; or (2) point out the nonmoving party lacks sufficient evidence to prove an essential element of its claim. Celotex Corp., 477 U.S. at 331; McKee v. CBF Corp., 299 F. App'x 426, 428 (5th Cir. 2008).
"When a party moves for summary judgment on claims on which the opposing parties will bear the burden of proof at trial, the moving party can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the nonmovants' claims." Armas v. St. Augustine Old Roman Catholic Church, No. 3:17-CV-2383-D, 2019 WL 2929616, at *2 (N.D. Tex. July 8, 2019) (citing Celotex Corp., 477 U.S. at 325); see also Austin v. Kroger Texas, L.P., 864 F. 3d 326, 335 (5th Cir. 2017)). The movant is not required to negate the elements of the nonmovant's case but may satisfy its summary judgment burden by alleging the absence of facts supporting specific elements of the nonmovant's cause(s) of action. Little v. Liquid Air Corp., 37 F. 3d 1069, 1075, 1076 n. 16 (5th Cir. 1994).
If the movant carries that initial burden, the burden shifts to the nonmovant to identify specific facts or present competent summary judgment evidence showing the existence of a genuine fact dispute. Matsushita Elec. Indus. Co., 475 U.S. at 586-87; see also Fed.R.Civ.P. 56(c). Upon the shifting burden "[u]nsubstantiated assertions, improbable inferences, andunsupported speculation are not sufficient to defeat a motion for summary judgment." Heinsohn, 832 F.3d at 234 (citation omitted). Furthermore, the courts have "no duty to search the record for material fact issues." RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010); see also Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012).
Stross contends he is entitled to summary judgment on the direct copyright infringement cause of action because there is no genuine dispute whether Defendants copied and displayed his registered photographs without authorization.
The Copyright Act gives a copyright owner the exclusive right to reproduce the copyrighted work and display it publicly. 17 U.S.C. § 106(1), (5). Copyright infringement can be direct or secondary. BWP Media USA, Inc. v. T & S Software Assocs., Inc., 852 F.3d 436, 439 (5th Cir. 2017). For direct copyright infringement, a plaintiff must prove two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Id. at 438-39 (5th Cir. 2017)(quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, (1991)). In direct-infringement cases, the Fifth Circuit requires the plaintiff also establish the defendant acted with "volitional conduct." BWP Media USA, Inc., 852 F.3d at 439. In the context of the facts in this case, this volitional-conduct requirement protects website owners and internet service providers that merely "serv[e] as ... passive conduit[s] for copyrighted material." Id. at 439-42 (). "Generally, a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract." Energy Intelligence Group, Inc. v. Bank of Am., N.A., 4:17-CV-3767, 2018 WL 3303166, at *6 (S.D. Tex. July 5, 2018) (quoting Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999),abrogated on other grounds by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006...
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