Philpot v. MyArea Network, Inc.

Filing 66

ORDER: Defendant MyArea Network, Inc.'s Motion for Summary Judgment (Doc. # 51) is DENIED. Plaintiff Larry G. Philpot's Motion for Partial Summary Judgment (Doc. # 53) is GRANTED in part and DENIED in part. Summary judgment is granted only on MyArea's fifth and sixth affirmative defenses. Summary judgment is denied in all other respects. Signed by Judge Virginia M. Hernandez Covington on 6/28/2021. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LARRY G. PHILPOT,
Plaintiff,
v.

Case No. 8:20-cv-1239-VMC-TGW

MYAREA NETWORK, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant MyArea Network, Inc.’s Motion for Summary Judgment
(Doc. # 51) and Plaintiff Larry G. Philpot’s Motion for
Partial Summary Judgment (Doc. # 53), both filed on May 5,
2021. The Motions have been briefed. (Doc. ## 56, 62, 65).
For the reasons that follow, MyArea’s Motion is denied, and
Philpot’s Motion is granted in part and denied in part as set
forth below.
I.

Background
A.

MyArea

According to the affidavit of Scott Conlon, president
and CEO of MyArea, MyArea is a public social media platform
which

allows

users

to

independently

post

information,

commentary, and news about their community. (Doc. # 51-1 at

1

Conlon

Aff.

at

independent

¶

2).

However,

contractors

to

MyArea

upload

at

content

times
to

hires

MyArea’s

websites. (Doc. # 53-1 at Conlon Dep. at 31:11-32:10, 44:1825).
MyArea’s
residents

“mission

and

is,

businesses

in

part,

to

create

to

support

synergy

local
between

individuals and their community.” (Doc. # 51-1 at Conlon Aff.
at ¶ 3). MyArea “was created as a platform for local residents
to

report

stories,

commentary,

and

news

about

local

businesses, events, resources, and organizations.” (Id. at ¶
4). “To further its mission, [MyArea] owns and operates the
websites www.727area.com (‘727 Website’) and www.512area.com
(‘512 Website’).” (Id. at ¶ 5). “The 727 Website and 512
Website are free online media platforms designed to allow
users to freely post commentary, news, and content about local
entertainment,

events,

businesses,

and

resources

to

the

public.” (Id. at ¶ 6). MyArea does not charge website visitors
for access to the 727 Website or the 512 Website. (Id. at ¶¶
7, 8).
But

MyArea

is

also

a

commercial

entity

—

it

is

a

“marketing and technology business” that “utilize[s] the
technology platform that [it has] built and provide[s] those
services and solutions to small and medium-sized businesses.”
2

(Doc. # 53-1 at Conlon Dep. at 11:6-12:6). While MyArea “does
not publish articles or posts on the 727 Website or the 512
Website to directly generate profit” (Doc. # 51-1 at Conlon
Aff. at ¶ 9), it indirectly profits from advertising revenue
generated from views of articles on the websites. (Id. at ¶¶
17, 24; Doc. # 53-1 at Conlon Dep. at 30:21-31:10).
B.

Philpot

Philpot retired from General Motors in 2002. (Doc. # 601

at

Philpot

Dep.

at

9:4-15).

Philpot

has

worked

freelance photographer since approximately 2008.

as

(Id.

a
at

11:9-22). The only type of photography that Philpot does
professionally is photography of musicians in concert. (Id.
at 29:20-24; Doc. # 1 at ¶¶ 1, 12). Philpot is not a member
of any photography related professional associations. (Doc.
# 60-1 at Philpot Dep. at 8:21-24).
Philpot’s last business-related photography engagement
occurred in approximately September or October of 2019. (Id.
at 14:18-23). He was not paid for this photography engagement
or for any of the photographs from his last business-related
photography engagement. (Id. at 16:7-17:8). In fact, during
his deposition, Philpot was unsure of the last time he was
compensated for photographs he has taken. (Id. at 17:9-19).

3

Rather, the last time Philpot could recall getting paid
for his photography was when he pursued another infringement
enforcement action. (Id. at 17:17-25). During his deposition,
Philpot could not recall any instances in which he was paid
for his photographs outside of alleged infringement actions.
(Id.

at

18:1-12,

19:4-15).

The

majority

of

Philpot’s

compensation for his photographs has come primarily from
pursuing enforcement actions related to his rights under his
copyrights and Creative Commons Licenses (“CCL”). (Id. at
19:23-20:4, 38:24-39:9). But, according to his declaration,
Philpot

has

also

“been

paid

a

license

fee

for

[his]

photography” through a stock photography agency. (Doc. # 531 at Philpot Decl. at ¶ 3).
Philpot also offers many of his photographs for free use
on

the

free

photo-sharing

website,

Wikimedia

Commons

(“Wikimedia”), subject to CCLs. (Id. at ¶¶ 13-25). Philpot
posted the two photographs at issue in this case, the Nelson
photograph

and

the

Santana

photograph,

onto

Wikimedia,

subject to CCLs. (Doc. # 60-1 at Philpot Dep. at 41:19-23,
49:18-21, 68:12-16; Doc. # 1 at ¶¶ 26, 30). Many people have
used the Nelson and Santana photographs in accordance with
the CCLs by providing proper attribution. (Doc. # 56-1 at
Philpot Decl. at ¶¶ 2-3). According to his declaration, the
4

attribution

required

by

the

CCLs

provides

Philpot

with

“monetary value in the form of advertising.” (Doc. # 53-1 at
Philpot Decl. at ¶ 24).
Philpot’s

purpose

behind

uploading

his

photographs,

including the Nelson photograph and the Santana photograph,
onto

the

Wikimedia

website

was

to

market

his

freelance

photography, and to eventually display his photographs to get
more access to concerts and more recognition. (Doc. # 60-1 at
Philpot Dep. at 52:12-19).
Philpot believes that his work has value because it is
able to get him access into events and more recognition. (Id.
at

77:22-78:1,

80:10-12).

He

also

believes

that

his

photographs have monetary value. (Id. at 25:20-21).
C.

Nelson Photograph

The Nelson photograph shows Willie Nelson performing in
concert at a Farm Aid event in 2009. (Doc. # 60-1 at Philpot
Dep. at 36:7-16, 65:12-15, Ex. 1).
Philpot testified during his deposition that his purpose
in taking the Nelson photograph was to depict “a great moment
in time” and “to capture [Nelson’s] personality.” (Id. at
36:20-24). But, according to his declaration, Philpot created
the Nelson photograph “to identify Willie Nelson.” (Doc. #
53-1 at Philpot Decl. at ¶ 7). Philpot emphasizes the “several
5

creative decisions, including selecting the subject matter,
angle

of

photography,

exposure,

composition,

framing,

location, and exact moment of creation,” he made in taking
the Nelson photograph. (Id. at ¶ 8). When Philpot took the
photograph, he did not have plans to sell or license it. (Doc.
# 60-1 at Philpot Dep. at 12:13-18, 13:14-19).
Philpot

first

displayed

the

Nelson

photograph

on

Wikimedia. (Doc. # 1 at ¶ 26; Doc. # 53-1 at Philpot Decl. at
¶ 13). The Nelson photograph was available on Wikimedia
subject to a CCL. (Doc. # 60-1 at Philpot Dep. at 41:19-23;
Doc. # 53-1 at Philpot Decl. at ¶ 13). The CCL granted by
Philpot

does

not

require

users

to

provide

monetary

compensation for the use of the Nelson photograph, but rather
allows anyone to use the Nelson photograph for free subject
to certain requirements. (Doc. # 60-1 at Philpot Dep. at 43:717). Under the CCL that Philpot granted as to the Nelson
photograph,

one

of

the

requirements

for

use

obligated

licensees to attribute Philpot as the photograph’s creator.
(Id.; Doc. # 53-1 at Philpot Decl. at ¶ 14).
At his deposition, Philpot did not know how many times
he has licensed the use of or given permission for the use of
the Nelson photograph to anyone via the CCL. (Doc. # 60-1 at
Philpot

Dep.

at

53:6-10,

77:16-21).
6

However,

there

is

evidence the Nelson photograph has been used permissibly by
others under the CCL many times. (Doc. # 56-1 at Philpot Decl.
at ¶¶ 2-3). According to his declaration, Philpot also offers
to license the Nelson photograph for $3,500. (Doc. # 53-1 at
Philpot Decl. at ¶ 37). Philpot did receive approximately
$5,000.00 for the Nelson photograph from another third-party
who used the image without permission somewhere between 20142016. (Doc. # 60-1 at Philpot Dep. at 18:12-19:3).
On October 4, 2016, MyArea published an article entitled
“Willie

Nelson

Comes

Home

to

Austin

City

Limits

Music

Festival” on the 512 Website. (Doc. # 51-1 at Conlon Aff. at
¶ 11; Doc. # 51-1 at Ex. C). The Austin City Limits article
was written by Alex Koch to report on the Austin City Limits
Music Festival event coming to Austin. (Doc. # 51-1 at Conlon
Aff. at ¶ 12; Doc. # 7-9). Although Conlon did not know during
his deposition whether Koch was an independent contractor for
MyArea (Doc. # 53-1 at Conlon Dep. at 16:9-17:6), Conlon
averred in his affidavit that MyArea did not pay Koch for the
Austin City Limits article. (Doc. # 51-1 at Conlon Aff. at ¶
13).
The article listed details surrounding the Austin City
Limits Music Festival at Zilker Park in Austin, Texas. (Doc.
# 51-1 at Ex. C; Doc. # 7-9). The Austin City Limits article
7

contained images of Willie Nelson and discussed Nelson’s
expected performance at the event and also commented on
Nelson’s being a Texas native. (Id.). The Austin City Limits
article did not contain any commentary or criticism of the
Nelson photograph itself. (Doc. # 53-1 at Philpot Decl. at ¶
33; Doc. # 53-1 at Conlon Dep. at 25:19-26:20). Rather,
according to Conlon, the purpose of the article and its use
was “for news reporting and commentary on issues of public
concern.” (Doc. # 51-1 at Conlon Aff. at ¶¶ 2, 3, 4, 6, 10;
Doc. # 53-1 at Conlon Dep. at 23:13-21, 29:17-18, 29:22-30:4,
140:18-23; 143:3-18).
Philpot

learned

of

MyArea’s

display

of

the

Nelson

photograph on May 30, 2017. (Doc. # 60-1 at Philpot Dep. at
56:3-11; Doc. # 53-1 at Philpot Decl. at ¶ 26). But Philpot
did not request MyArea to take down the Nelson photograph nor
contact MyArea about its display of the Nelson photograph.
(Doc. # 60-1 at Philpot Dep. at 56:17-24, 57:8-58:12). MyArea
first received notice of the alleged infringement of the
Nelson photograph upon receipt of the complaint in this case
in

May

2020.

(Doc.

#

51-1

at

Conlon

Aff.

at

¶

14).

“Immediately upon learning of the alleged infringement of the
Nelson

photograph,

[MyArea]

removed

the

image

Nelson from the 512 Website.” (Id. at ¶ 15).
8

of

Willie

MyArea has never charged a visitor to the 512 Website
for access to the Austin City Limits article. (Id. at ¶ 16).
From October 4, 2016, through May 29, 2020, MyArea generated
$10.63 in revenue from advertisements run on the webpage
displaying the Austin City Limits article. (Id. at ¶ 17).
D.

Santana Photograph

The Santana photograph shows Carlos Santana performing
in concert in Indianapolis, Indiana in 2010. (Doc. # 60-1 at
Philpot Dep. at 44:4-15, Ex. 4). Philpot testified during his
deposition that his purpose in taking the Santana photograph
was to capture “a great moment in time.” (Id. at 47:24-48:2).
Also, in his declaration, Philpot avers that he created the
Santana photograph “to identify Carlos Santana.” (Doc. # 531 at Philpot Decl. at ¶ 16). Philpot emphasizes the “several
creative decisions, including selecting the subject matter,
angle

of

photography,

exposure,

composition,

framing,

location, and exact moment of creation,” he made in taking
the Santana photograph. (Id. at ¶ 17).
Philpot

first

displayed

the

Santana

photograph

on

Wikimedia in October 2013. (Doc. # 1 at ¶ 30). The Santana
photograph was available on Wikimedia subject to a CCL. (Doc.
# 60-1 at Philpot Dep. at 49:18-21, 68:12-16). The CCL granted
by

Philpot

does

not

require
9

users

to

provide

monetary

compensation for the use of the Santana photograph, but rather
allows anyone to use the Santana photograph for free subject
to certain requirements. (Id. at 50:15-20). Under the CCL,
one

of

the

requirements

for

use

obligated

licensees

to

attribute Philpot as the creator of the photograph. (Id. at
50:5-20).
At his deposition, Philpot did not know how many times
he has licensed the use of the Santana photograph to another
individual or business via the CCL. (Id. at 53:24-54:1).
Still, the Santana photograph has been used permissibly by
others under the CCL many times. (Doc. # 56-1 at Philpot Decl.
at ¶¶ 2-3). The only money Philpot has received from the
Santana photograph is the result of settlement of copyright
infringement claims. (Doc. # 60-1 at Philpot Dep. at 50:2151:5).
In April 2019, MyArea displayed an event page entitled
“Santana at Al Lang Stadium” on its 727 Website. (Doc. # 511 at Conlon Aff. at ¶ 18; Doc. # 51-1 at Ex. D). The Santana
at Al Lang event page was created by independent contractors
Kris Jane Mangaron and Emma Simms to report on Carlos Santana
coming to Al Lang Stadium in Saint Petersburg, Florida. (Doc.
# 51-1 at Conlon Aff. at ¶¶ 19-20; Doc. # 7-10; Doc. # 53-1
at Conlon Dep. at 31:11-32:10, 44:16-25). Emma Simms was paid
10

$15.00 by MyArea for the article that was published with the
Santana photograph. (Doc. # 51-1 at Conlon Aff. at ¶ 20).
The

Santana

at

Al

Lang

event

page

listed

details

surrounding Carlos Santana coming to perform at Al Lang
Stadium. (Doc. # 7-10). The Santana at Al Lang event page
included an altered version of the Santana photograph. (Id.).
Specifically, a majority of the background was cropped and a
banner with text announcing Santana’s presence was placed at
the bottom of the cropped image. (Id.; Doc. # 60-1 at Philpot
Dep. at 71:8-24). The Santana at Al Lang event did not contain
any commentary or criticism of the Santana photograph itself.
(Doc. # 53-1 at Philpot Decl. at ¶ 54; Doc. # 53-1 at Conlon
Dep. at 32:20-23, 43:23-44:2). Rather, according to Conlon,
the purpose of the article and its use was “for news reporting
and commentary on issues of public concern.” (Doc. # 51-1 at
Conlon Aff. at ¶¶ 2, 3, 4, 6, 10; Doc. # 53-1 at Conlon Dep.
at 23:13-21, 29:17-18, 29:22-30:4, 140:18-23; 143:3-18).
Philpot

learned

of

MyArea’s

display

of

the

Santana

photograph around May 19, 2020. (Doc. # 60-1 at Philpot Dep.
at 69:25-70:7). But Philpot did not request MyArea to take
down the photograph nor contact MyArea about its display of
the photograph. (Id. at 71:4-6).

11

Instead, MyArea first received notice of the alleged
infringement of the Santana photograph upon receipt of the
complaint in this case. (Doc. # 51-1 at Conlon Aff. at ¶ 21).
“Immediately upon receipt of notice of this lawsuit, [MyArea]
removed the image of Carlos Santana from the 727 Website.”
(Id. at ¶ 22).
MyArea has never charged a visitor to the 727 Website
for access to the Santana at Al Lang event page. (Id. at ¶
23). From April 2019, through May 29, 2020, MyArea generated
$3.46 in revenue from advertisements run on the webpage
displaying the Santana at Al Lang event page. (Id. at ¶ 24).
E.

Procedural History

Philpot initiated this case on May 29, 2020, asserting
a claim for copyright infringement against MyArea. (Doc. #
1). MyArea filed its answer and affirmative defenses on August
24, 2020. (Doc. # 25). The case proceeded through discovery.
Now, Philpot and MyArea both move for summary judgment.
(Doc. ## 51, 53). The Motions are briefed (Doc. ## 56, 60,
65), and are ripe for review.
II.

Legal Standard
Summary judgment is appropriate “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.”
12

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). “When a moving party has discharged its
burden,

the

non-moving

party

must

then

‘go

beyond

the

pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue

13

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Finally,

the

filing

of

cross-motions

for

summary

judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions 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–
14

39 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary
judgment

will

not,

granting

summary

in

themselves,

judgment

unless

warrant
one

of

the

the

court

in

parties

is

entitled to judgment as a matter of law on facts that are not
genuinely disputed . . . .” (quotation omitted)).
III. Analysis
MyArea moves for summary judgment on its affirmative
defense of fair use. (Doc. # 51). In contrast, in his Motion
for Partial Summary Judgment (Doc. # 53), Philpot argues that
MyArea’s use of his photographs was not fair use and that
none of MyArea’s other affirmative defenses listed in its
answer apply.
The Court will begin its analysis with MyArea’s Motion.
A.

MyArea’s Motion1

“Fair use is a defense that can excuse what would
otherwise be an infringing use of copyrighted material.”
Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1238 (11th
Cir. 2014)(citing 17 U.S.C. § 107 (“[T]he fair use of a
copyrighted

work

.

.

.

is

not

an

infringement

of

Philpot is correct that MyArea’s Motion impermissibly
exceeds the page limit set by Local Rule 3.01(a). (Doc. # 56
at 8). Nevertheless, in the interest of resolving motions on
the merits, the Court declines to strike MyArea’s Motion.
1

15

copyright.”)). “To prevail on a claim of fair use, a defendant
must convince the court that allowing his or her unpaid use
of copyrighted material would be equitable and consonant with
the purposes of copyright.”

Id.

“In order to make this

determination, the court must carefully evaluate the facts of
the case at hand in light of four considerations, which are
codified in the Copyright Act of 1976: (1) the purpose of the
allegedly infringing use, (2) the nature of the original work,
(3) the size and significance of the portion of the original
work that was copied, and (4) the effect of the allegedly
infringing use on the potential market for or value of the
original.” Id.
“These factors establish the contours within which a
court may investigate whether, in a given case, a finding of
fair use would serve the objectives of copyright.” Id. “[A]
given factor may be more or less important in determining
whether a particular use should be considered fair under the
specific circumstances of the case” and the factors should
not be added up mechanically to determine fair use. Id. at
1260. “Fair use involves both questions of law and questions
of

fact.”

Id.

at

1255.

“The

fair

use

analysis

must

be

performed on a case-by-case/work-by-work basis.” Id. at 127172.
16

1.

Factor One

“The first fair use factor is ‘the purpose and character
of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes.’” Id. at
1261 (quoting 17 U.S.C. § 107(1)). “The inquiry under the
first factor has several facets, including (1) the extent to
which

the

use

is

a

‘transformative’

rather

than

merely

superseding use of the original work and (2) whether the use
is for a nonprofit educational purpose, as opposed to a
commercial purpose.” Id.
The “initial inquiry under the first factor asks whether
[MyArea’s] use is transformative, i.e., ‘whether the new work
merely supersede[s] 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 1262 (citation omitted). “A
nontransformative use, on the other hand, is one which serves
the same ‘overall function’ as the original work.” Id. The
Eleventh Circuit has advised that “[e]ven verbatim copying
‘may be transformative so long as the copy serves a different
function than the original work.’” Id. (quoting Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir.
2007)).
17

MyArea argues that its use of the Nelson and Santana
photographs

was

transformative

because

its

use

of

the

photographs “added something new.” (Doc. # 51 at 18). It
argues that “[at] the time they were taken, Philpot intended
to capture musicians at concert in some creative manner to
capture [the musician’s] personality during a great moment in
time.”

(Id.).

According

to

MyArea,

Philpot’s

purpose

in

taking the photographs is different from the purpose of the
photographs in the articles — “to allow [MyArea’s] users to
report on a local newsworthy event” and for “news reporting
and commentary on issues and events of local public interest.”
(Id. at 19-20). Additionally, MyArea emphasizes that the
Santana photograph was altered to some extent — “a majority
of the photograph has been cropped out, and a large banner
has

been

inserted

with

text

reciting

the

headline”

—

suggesting that its use was transformative. (Id. at 19).
The Court disagrees. Taking the evidence in the light
most favorable to Philpot, MyArea’s use of the photographs
was not transformative. A reasonable jury could conclude that
the photographs served the same purpose in the articles as
when Philpot created them. See Brammer v. Violent Hues Prods.,
LLC, 922 F.3d 255, 264 (4th Cir. 2019)(“Violent Hues used the
Photo expressly for its content — that is, to depict [the
18

neighborhood

of]

Adams

Morgan

—

rather

than

for

data

organization or historical preservation. Instead, Violent
Hues’ sole claim to transformation is that its secondary use
of

the

Photo

provided

film

festival

attendees

with

‘information’ regarding Adams Morgan. But such a use does not
necessarily create a new function or meaning that expands
human thought; if this were so, virtually all illustrative
uses of photography would qualify as transformative.”); see
also

Philpot

v.

WOS,

Inc.,

No.

1:18-CV-339-RP,

2019

WL

1767208, at *5 (W.D. Tex. Apr. 22, 2019)(“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. Viewing the facts
in the light most favorable to Philpot, this factor weighs in
his

favor.”

(citations

omitted)).

Indeed,

according

to

Philpot’s declaration, the purpose of both photographs was
“to identify” the musician depicted. (Doc. # 53-1 at Philpot
Decl. at ¶¶ 7, 16)
While MyArea argues the photographs were transformed
because they were used for news and commentary, this argument
19

is unpersuasive when taking the evidence in the light most
favorable to Philpot because the articles did not provide
commentary or criticism of the photographs themselves. See
Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d
339, 352 (S.D.N.Y. 2017)(“Display of a copyrighted image or
video may be transformative where the use serves to illustrate
criticism, commentary, or a news story about that work. For
instance, a news report about a video that has gone viral on
the Internet might fairly display a screenshot or clip from
that

video

to

illustrate

what

all

the

fuss

is

about.

Similarly, a depiction of a controversial photograph might
fairly accompany a work of commentary or criticism about the
artistic merit or appropriateness of the photograph. In each
such case, the copyrighted work is itself the subject of the
story, transforming the function of the work in the new
context.” (citations omitted)). Additionally, the fact that
the

Nelson

photograph

was

not

altered

and

the

Santana

photograph was merely cropped with a banner added to the
bottom

with

Santana’s

face

still

visible

weigh

against

finding that the use was not transformative. See Violent Hues
Prods., LLC, 922 F.3d at 263 (“The only obvious change Violent
Hues made to the Photo’s content was to crop it so as to

20

remove negative space. This change does not alter the original
with ‘new expression, meaning or message.’”).
Next, the Court must consider whether the use of the two
photographs was commercial. “The crux of the profit/nonprofit
distinction is not whether the sole motive of the use is
monetary gain but whether the user stands to profit from
exploitation of the copyrighted material without paying the
customary price.” Harper & Row Publishers, Inc. v. Nation
Enters., 471 U.S. 539, 562 (1985).
Taking the evidence in the light most favorable to
Philpot,

MyArea’s

use

of

both

the

Nelson

and

Santana

photographs was commercial. MyArea admits that it earned ad
revenue from the articles including the Nelson and Santana
photographs. (Doc. # 51-1 at Conlon Aff. at ¶¶ 17, 24). The
fact that this ad revenue is small is irrelevant. See WOS,
Inc., 2019 WL 1767208, at *4 (“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. WOS used Philpot’s photos to drive traffic to its
articles about Chesney and Nelson; that traffic earned the
company

revenue.

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
21

from exploitation of the copyrighted material without paying
the customary price’ . . . 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.” (citations and footnote omitted)).
In short, when viewing the evidence in the light most
favorable to Philpot, the first factor weighs against fair
use.
2.
“The

Factor Two

second

fair

use

factor,

‘the

nature

of

the

copyrighted work,’ 17 U.S.C. § 107(2), ‘calls for recognition
that some works are closer to the core of intended copyright
protection than others, with the consequence that fair use is
more

difficult

to

establish

when

the

former

works

are

copied.’” Cambridge Univ. Press, 769 F.3d at 1268 (citation
omitted). “The inquiry under the second factor generally
focuses on two criteria. First, because works that are highly
creative are closer to the core of copyright — that is, such
works contain the most originality and inventiveness — the
law affords such works maximal protection, and hence it is
less likely that use of such works will be fair use.” Id.
(citation and footnote omitted). “In contrast, ‘[t]he law
generally recognizes a greater need to disseminate factual
22

works than works of fiction or fantasy,’ and so it is more
likely that the use of a factual or informational work will
be fair use.” Id. (citations omitted).
“[P]hotographs have varying degrees of creativity” and
may have a “mixed nature of fact and creativity.” Balsley v.
LFP, Inc., 691 F.3d 747, 760 (6th Cir. 2012). “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.”
WOS, Inc., 2019 WL 1767208, at *5.
MyArea argues that this factor weighs “slightly” in
favor of fair use because the photographs, which “merely
capture a moment in time depicting Willie Nelson and Carlos
Santana

performing,”

are

“arguably

more

factual

than

creative.” (Doc. # 51 at 22). Additionally, MyArea emphasizes
that

it

used

the

photographs

“solely

for

identification

purposes.” (Id.).
But Philpot emphasizes the “several creative decisions,
including selecting the subject matter, angle of photography,
exposure, composition, framing, location, and exact moment of
creation,”

he

made

in

taking

the

Nelson

and

Santana

photographs. (Doc. # 53-1 at Philpot Decl. at ¶¶ 8, 17). Thus,
a reasonable jury could find that the Nelson and Santana
23

photographs reflect Philpot’s artistic judgment such that
they are creative works. See WOS, Inc., 2019 WL 1767208, at
*5 (stating that “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,” and
thus finding, when taking all evidence in Philpot’s favor,
that

this

evidence

factor
in

photographs

weighed

the

light

are

against

most

minimally

fair

use).

favorable

creative.

This

the

Philpot,

to

Taking

the

factor

weighs

slightly against a finding of fair use.
3.
The

Factor Three

third

substantiality

fair
of

use

the

factor

portion

is

used

“the

in

amount

relation

to

and
the

copyrighted work as a whole.” 17 U.S.C. § 107(3). “[T]his
third

factor

examines

whether

defendants

have

‘helped

themselves overmuch’ of the copyrighted work in light of the
purpose and character of the use.” Cambridge Univ. Press, 769
F.3d

at

1271

(citation

omitted).

“Thus,

this

factor

is

intertwined with the first factor.” Id. “[T]his factor is
[also]

intertwined

with

the

fourth

factor

and

partly

functions as a heuristic to determine the impact on the market
for the original.” Id. (citation omitted).

24

In analyzing the third factor, courts “must consider
‘not only . . . the quantity of the materials used, but . .
.

their

quality

and

“This

factor

omitted).

importance,
‘weighs

too.’”

less

when

Id.

(citation

considering

a

photograph — where all or most of the work often must be used
in order to preserve any meaning at all — than a work such as
a text or musical composition, where bits and pieces can be
excerpted without losing all value.” Katz v. Google Inc., 802
F.3d 1178, 1183–84 (11th Cir. 2015)(citation omitted).
Taking all evidence in the light most favorable to
Philpot, MyArea copied the Nelson photograph in its entirety.
“While wholesale copying does not preclude fair use per se,
copying an entire work militates against a finding of fair
use.” Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir.
2003)(citation

omitted).

“That

said,

‘the

extent

of

permissible copying varies with the purpose and character of
the use.’”
omitted)).

WOS, Inc., 2019 WL 1767208, at *6
“So,

for

example,

courts

have

(citation

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.” Id. A reasonable jury could conclude that wholesale
copying of the Nelson photograph was not necessary to make a
fair use of the image. See Id. (“A reasonable jury could agree
25

with Philpot that the wholesale copying of his photos is not
necessary to make fair use of the images.”). Thus, this factor
weighs

against

a

finding

of

fair

use

as

to

the

Nelson

photograph.
Regarding the Santana photograph, MyArea cropped the
photograph, such that it did not copy the entirety of the
photograph. However, taking the evidence in the light most
favorable to Philpot, a reasonable jury could find that the
portion of the Santana photograph that MyArea copied is the
heart of the work. See Friedman v. Guetta, No. CV 10-00014
DDP

JCX,

2011

WL

3510890,

at

*7

(C.D.

Cal.

May

27,

2011)(“Defendant downloaded an exact digital copy of the
Photograph and used substantial portions of that photograph,
including the three individuals’ faces. . . . Defendant took
a substantial portion of the Photograph in order to create
each of the Four works, and the portion Defendant took was at
the heart of the Photograph.”). Indeed, MyArea used the
portion of the Santana photograph depicting Santana’s face,
which a reasonable jury could find to be the most important
feature of the photograph.
Thus, taking all evidence in the light most favorable to
Philpot, this factor weighs against a finding of fair use.

26

4.

Factor Four

The fourth fair use factor is “the effect of the use
upon the potential market for or value of the copyrighted
work.”

17

U.S.C.

§

107(4).

Courts

“must

consider

two

inquiries: (1) ‘the extent of the market harm caused by the
particular

actions

of

the

alleged

infringer,’

and

(2)

‘whether unrestricted and widespread conduct of the sort
engaged in by the defendant [] would result in a substantially
adverse impact on the potential market.’” Cambridge Univ.
Press, 769 F.3d at 1275.
“The adverse impact [courts] are ‘primarily concerned
[with]

is

that

of

market

substitution.’”

Id.

(citation

omitted). “Furthermore, ‘[m]arket harm is a matter of degree,
and the importance of [the fourth] factor will vary, not only
with the amount of harm, but also with the relative strength
of the showing on the other factors.’” Id. (citation omitted).
MyArea argues that this factor favors fair use because
“Philpot cannot demonstrate that a market exists for his
photographs or that he enjoyed a revenue stream from licensing
his works.” (Doc. # 51 at 25); see also Field v. Google Inc.,
412 F. Supp. 2d 1106, 1121 (D. Nev. 2006)(“Here there is no
evidence of any market for Field’s works. Field makes the
works available to the public for free in their entirety, and
27

admits that he has never received any compensation from
selling or licensing them. There is likewise no evidence that
by displaying ‘Cached’ links for pages from Field’s site,
Google had any impact on any potential market for those
works.” (citation omitted)).
The Court agrees that, even taking the evidence in the
light most favorable to Philpot, this factor weighs heavily
in favor of fair use. True, “[b]ecause [MyArea’s] use of
Philpot’s photos is commercial, this factor presumptively
weighs in Philpot’s favor.” WOS, Inc., 2019 WL 1767208, at
*6. Nevertheless, while Philpot believes his photographs have
monetary
value,

value

the

and

fact

that

that

he

even

attribution

offers

the

alone

Nelson

and

provides
Santana

photographs for free with attribution undermines a finding of
damage

to

a

potential

market,

thereby

overcoming

the

presumption. See Id. at *7 (“Although the Court accepts that
attribution might lead someone to purchase one of Philpot’s
works, he fails to explain how any amount of advertisement
might lead to being paid for two works that he makes available
for free. So, while it is true that this factor contemplates
not only actual but also potential market damage, there is no
evidence that WOS’s use will have any effect on the market
for the Chesney or Nelson photos. Even viewing the evidence
28

in the light most favorable to Philpot, WOS has overcome the
presumption that this factor weighs against a finding of fair
use. This factor — the most important of the four — weighs in
WOS’s favor.” (citation omitted)).
5.

Weighing the Factors

Viewing the evidence in Philpot’s favor, three of the
four factors tilt in Philpot’s favor, even if only slightly,
while one very important factor weighs heavily in MyArea’s
favor.
Based on this breakdown, a reasonable jury could find
that fair use does not apply. Thus, MyArea is not entitled to
summary judgment on the fair use defense. See WOS, Inc., 2019
WL 1767208, at *7 (“When the evidence is viewed in Philpot’s
favor,

three

of

the

four

factors

tilt

his

direction.

Meanwhile, the most important factor tilts against Philpot.
Perhaps the final factor’s weight is so great that WOS’s use
is fair, but that is not obviously the case — not so obvious,
at any rate, that the Court can conclude that no reasonable
jury could find to the contrary. WOS is not entitled to
summary judgment on its fair use defense.”); see also Philpot
v. Toledo Radio, LLC, No. 3:15CV1401, 2016 WL 5118282, at *2
(N.D. Ohio Sept. 21, 2016)(“After considering these factors
in light of the evidence in the record, I cannot conclude
29

reasonable minds could come to but one conclusion concerning
whether

defendant’s

publication

of

the

Nelson

Photo

constituted fair use. Thus, it is an issue for the trier of
fact to decide.”).
B.

Philpot’s Motion
1.

Fair Use

Philpot also moves for summary judgment on MyArea’s fair
use defense. In analyzing the fair use defense now, the Court
will take all evidence in the light most favorable to MyArea.2
i.

Factor One

Again, “[t]he first fair use factor is ‘the purpose and
character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes.’”
Cambridge Univ. Press, 769 F.3d at 1261 (quoting 17 U.S.C. §
107(1)). “The inquiry under the first factor has several
facets, including (1) the extent to which the use is a
‘transformative’ rather than merely superseding use of the

Philpot asks that the Court grant summary judgment on the
issue of liability for his copyright infringement claim.
(Doc. # 53 at 8-10). However, because the Court finds that
certain of MyArea’s affirmative defenses survive summary
judgment, the Court will not rule at this time on whether
Philpot has otherwise established the elements of his
copyright infringement claim.
2

30

original work and (2) whether the use is for a nonprofit
educational purpose, as opposed to a commercial purpose.” Id.
Viewing the evidence in the light most favorable to
MyArea, a reasonable jury could conclude the parties used the
photographs for different purposes “because it could agree
that [MyArea] used the photos in support of ‘news commentary’”
— albeit not commentary on the photographs themselves — “while
Philpot’s

purpose

was

merely

‘to

depict

the

artists

in

concert.’” WOS, Inc., 2019 WL 1767208, at *9; (Doc. # 51-1 at
Conlon Aff. at ¶¶ 2, 3, 4, 6, 10; Doc. # 53-1 at Conlon Dep.
at

23:13-21,

29:17-18,

29:22-30:4,

140:18-23;

143:3-18).

Based on this evidence, a reasonable jury could conclude that
MyArea’s use of the photographs was minimally transformative
by adding a further purpose for the photographs. See WOS,
Inc., 2019 WL 1767208, at *10 (“[T]he Court agrees with those
courts that have held that when an infringer simply reproduces
a work in a new context, the use is ‘at best minimally
transformative.’” (citation omitted)).
However, even taking the evidence in the light most
favorable to MyArea, MyArea’s use of the photographs was
commercial. Although MyArea allows articles to be posted to
its website in part “to support local residents and businesses
to create synergy between individuals and their community,”
31

MyArea earns ad revenue from its articles, including the
articles featuring the Nelson and Santana photographs. (Doc.
# 51-1 at Conlon Aff. at ¶¶ 3, 17, 24).

Thus, the use of the

Nelson and Santana photographs — while not very profitable —
was commercial.
Considered together, “[a] reasonable factfinder could
conclude that this factor is either neutral or tilts slightly
in either direction, depending on how much weight it gives
[MyArea’s] minimally transformative use.” WOS, Inc., 2019 WL
1767208, at *10.
ii.
“The

second

Factor Two
fair

use

factor,

‘the

nature

of

the

copyrighted work,’ 17 U.S.C. § 107(2), ‘calls for recognition
that some works are closer to the core of intended copyright
protection than others, with the consequence that fair use is
more

difficult

to

establish

when

the

former

works

are

copied.’” Cambridge Univ. Press, 769 F.3d at 1268 (citation
omitted). “Presented with photographs that are ‘not designed
primarily to express [the photographer’s] ideas, emotions, or
feelings,’ courts have found that the impact on the fair-use
inquiry to be neutral.” WOS, Inc., 2019 WL 1767208, at *10
(citation omitted).

32

Here, a reasonable jury could find that the photographs
are so factual as to be only “marginally creative” given that
Philpot

declared

identify

the

Nelson

and

purpose

of

Santana.

the

See

photographs

Id.

was

to

(“Notwithstanding

Philpot’s emphasis on the creative decisions he made crafting
these two photos, a reasonable jury could find that these
photos

—

taken

with

an

admittedly

non-artistic

aim

(to

identify) — are so factual as to be considered ‘marginally
creative.’”

(citation

omitted)).

Therefore,

taking

all

evidence in the light most favorable to MyArea, this factor
is neutral.
iii. Factor Three
The

third

substantiality

fair
of

the

use

factor

portion

used

is
in

“the

amount

relation

to

and
the

copyrighted work as a whole.” 17 U.S.C. § 107(3).
Here, the Nelson photograph was used in nearly its
entirety while the Santana photograph was cropped and had a
banner added to the bottom — changes that did not obscure
Santana’s face. Even taking the evidence in the light most
favorable to MyArea, there is no evidence that MyArea needed
to use the entirety of the Nelson photograph or such a
prominent portion of the Santana photograph.

33

Nevertheless, the Court is mindful that “[t]his factor
‘weighs less when considering a photograph — where all or
most of the work often must be used in order to preserve any
meaning at all — than a work such as a text or musical
composition, where bits and pieces can be excerpted without
losing

all

value.”

Katz,

802

F.3d

at

1183–84

(citation

omitted).
Thus, this factor only weighs slightly against a finding
of fair use.
iv. Factor Four
The fourth fair use factor is “the effect of the use
upon the potential market for or value of the copyrighted
work.” 17 U.S.C. § 107(4). Now, taking the evidence in the
light most favorable to MyArea, the Court again finds that a
reasonable jury could conclude that MyArea’s use of the
photographs has had no effect on the potential market or value
of Philpot’s photographs.
Thus, this factor weighs heavily in favor of fair use.
See WOS, Inc., 2019 WL 1767208, at *10 (“[A] reasonable jury
could conclude that there is no market for the Chesney and
Nelson photos and that WOS’s failure to properly attribute
those photos has not damaged any potential market for those
photos. This factor weighs heavily in WOS’s favor.”).
34

v.

Weighing the Factors

Taking all evidence in the light most favorable to
MyArea, one factor weighs heavily in favor of fair use, while
two are likely neutral, and one factor weighs slightly against
fair use. A reasonable jury could conclude that MyArea’s use
of both the Nelson and Santana photographs was fair under
these circumstances. Thus, Philpot’s Motion is denied as to
the fair use defense.
2.

Innocent Infringer

Section 504(c)(2) provides that
In a case where the infringer sustains the burden
of proving, and the court finds, that such
infringer was not aware and had no reason to believe
that his or her acts constituted an infringement of
copyright, the court in its discretion may reduce
the award of statutory damages to a sum of not less
than $200.
17 U.S.C. § 504(c)(2).
Philpot seeks summary judgment to the extent MyArea may
argue

that

it

is

an

innocent

infringer

under

Section

504(c)(2). (Doc. # 53 at 10). According to Philpot, “MyArea
[]

testified

that

it

had

no

evidence

that

it

acted

accidentally or intentionally when it published both the
Willie Nelson and Carlos Santana Photos.” (Id. at 10-11).
The deposition testimony to which Philpot refers is as
follows:

35

Q:
As you sit here today, you don’t know whether
[Alex Koch’s] posting of the Willie Nelson photo
was accidental or intentional or otherwise?
A:

Yes.

. . .
Q:
. . . [A]s far as your direct knowledge, of
Kris Mangaron’s —
A:
I did not have direct communication with Kris
if that helps to clarify.
Q:
Okay. And so you don’t know directly what was
in her brain when she posted the photos. Is that
correct?
A:

That is correct.

(Doc. # 53-1 at Conlon Dep. at 94:13-16, 96:25-97:7).
But MyArea argues this testimony makes it clear that (1)
MyArea

did

not

knowledge

of

create

the
who

photographs.

(Doc.

mental

individuals

testified

that

the

created
#

MyArea

62
had

two

articles

state
the
at
no

and

(2)

intentions

articles

9-12).

and

and

to

no

of

the

input

the

Additionally,

intention

had

Conlon

infringe

any

copyrights: “We have the intention of — of, you know, sharing
information and being, you know, the source for where to find
things to do in an area. That’s an intention. But certainly
we would not intend to infringe on anybody’s copyrights or —
or — end productions.” (Doc. # 53-1 at Conlon Dep. at 139:1420).

36

Given this testimony, the Court finds that a genuine
issue of material fact exists regarding whether MyArea was an
innocent infringer. Indeed, a reasonable jury could credit
this testimony and find that MyArea innocently infringed.
Thus, the Motion is denied as to this defense.
3.

Failure to State a Claim Affirmative Defense

MyArea’s first affirmative defense listed in its answer
states: “Plaintiff’s Complaint, and each cause of action
therein, fails to state a claim upon which relief may be
granted.” (Doc. # 25 at 7).
Philpot moves for summary judgment, arguing that “the
failure to state a claim upon which relief can be granted is
not an affirmative defense” and, regardless, the complaint
does state a claim for copyright infringement. (Doc. # 53 at
11).
The Court agrees that MyArea’s first affirmative defense
is not an affirmative defense at all as it merely denies
Philpot’s prima facie case. See In re Rawson Food Serv., Inc.,
846 F.2d 1343, 1349 (11th Cir. 1988)(“A defense which points
out a defect in the plaintiff’s prima facie case is not an
affirmative defense.”); Gomez v. Bird Auto., LLC, 411 F. Supp.
3d 1332, 1338 (S.D. Fla. 2019)(“For example, responding that
plaintiff’s complaint fails to state a claim upon which relief
37

may be granted

—

the standard

for dismissal under

Rule

12(b)(6) — . . . does not raise an affirmative defense.”
(citation omitted)).
But, because the failure to state a claim is not an
affirmative

defense,

there

is

no

need

to

grant

summary

judgment on it as though it is an affirmative defense. Rather,
the Court may just treat this as a denial by MyArea that
Philpot will be able to triumph on his claims when the case
proceeds to trial. See Home Mgmt. Sols., Inc. v. Prescient,
Inc., No. 07-20608-CIV, 2007 WL 2412834, at *3 (S.D. Fla.
Aug. 21, 2007)(explaining in the context of a motion to strike
affirmative defenses that, when a defendant labels a negative
averment as an affirmative defense, “the proper remedy is not
[to] strike the claim, but rather to treat is as a specific
denial”).

Accordingly,

the

Motion

is

denied

as

to

this

argument.
4.
In

its

Failure to Sustain Harm Affirmative Defense
second

affirmative

defense,

MyArea

states

“Plaintiff has sustained no harm, irreparable or otherwise,
due to Defendant’s actions.” (Doc. # 25 at 7).
Philpot argues that summary judgment should be granted
on this defense because he incurred actual damages “by losing
out on a $3,500.00 license for each of the photos” and not
38

having his name attributed with the photographs. (Doc. # 53
at 18).
The Motion is denied. Taking the evidence in the light
most favorable to MyArea, genuine issues of material fact
exist regarding the extent and nature of any harm Philpot may
have suffered as a result of MyArea’s use of the photographs.
There is evidence that Philpot was never paid — outside of
the infringement action context — for the Nelson and Santana
photographs. And, indeed, Philpot offers the photographs on
Wikimedia subject to CCLs that require only attribution. The
parties also disagree over the value attribution provides.
Thus, a reasonable jury could conclude that Philpot has
not sustained harm as a result of MyArea’s action. This
affirmative defense must proceed to trial.
5.

Affirmative Defense regarding Attorney’s Fees

Next, Philpot argues that he is entitled to summary
judgment on MyArea’s third affirmative defense, which states
that “[MyArea] has not engaged in any conduct that would make
this an exceptional case or that would entitle [Philpot] to
an award of [his] reasonable attorneys’ fees.” (Doc. # 25 at
7). This is not a true affirmative defense, as it merely
denies

the

complaint’s

request

39

for

attorney’s

fees,

and

summary judgment should not be granted on it as though it
were an affirmative defense.
Furthermore, as liability has not yet been established,
Philpot is not yet a prevailing party in this case. See 17
U.S.C. § 505
attorney’s

fee

(“[T]he court may also award a reasonable
to

the

prevailing

party

as

part

of

the

costs.”). Thus, because he is not entitled to attorney’s fees
at this juncture, any analysis under the exceptional case
standard is premature.
The Motion is denied to the extent it seeks summary
judgment in Philpot’s favor on this supposed affirmative
defense.

As

far

as

Philpot’s

disagreement

over

the

applicability of the exceptional case standard in general, he
may raise this issue later in the case, if necessary.
6.

Affirmative Defense of Acquiescence, Laches,
Estoppel, and Statute of Limitations

In its fifth affirmative defense, MyArea asserts the
affirmative defenses of acquiescence, laches, estoppel, and
the statute of limitations. (Doc. # 25 at 8).
Philpot persuasively argues that none of these defenses
have merit in this case. Regarding acquiescence, Philpot
argues the defense is inapplicable because “Philpot never
offered either the Willie Nelson or Carlos Santana Photos for

40

free — rather, he offered them for a paid license or for a
[CCL] which requires attribution.” (Doc. # 53 at 19); see
Malibu Media, LLC v. Zumbo, No. 2:13-cv-729-JES-DNF, 2014 WL
2742830, at *3 (M.D. Fla. June 17, 2014)(“[A]cquiescence
requires that: (1) [Plaintiff] actively represented that [he]
would not assert a right or a claim; (2) the delay between
the active representation and assertion of the right or claim
was not excusable; and (3) the delay caused the defendant
undue prejudice.”

(citation and internal quotation marks

omitted)).
Next, regarding laches and the statute of limitations,
Philpot argues that he “clearly brought this lawsuit within
the

three-year

statute

of

limitations

period

for

both

photos.” (Doc. # 53 at 20); see Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 667 (2014)(“To the extent that an
infringement suit seeks relief solely for conduct occurring
within the limitations period, however, courts are not at
liberty to jettison Congress’ judgment on the timeliness of
suit.

Laches,

we

hold,

cannot

be

invoked

to

preclude

adjudication of a claim for damages brought within the threeyear window.”). Indeed, Philpot initiated this action on May
29, 2020, a little over a year after MyArea posted the article
with the Santana photograph and just under three years after
41

Philpot discovered the article with the Nelson photograph on
May 30, 2017. (Doc. # 53 at 22-23; Doc. # 53-1 at Philpot
Decl. at ¶ 26); see also Duncanson v. Wathen, No. 6:14-cv704-PGB-KRS, 2016 WL 7319714, at *2 (M.D. Fla. Apr. 14,
2016)(“Under

the

majority

position,

referred

to

as

the

discovery rule, a copyright infringement cause of action
accrues when a copyright owner knew or should have known of
the

alleged

infringement.

Under

the

minority

position,

referred to as the injury rule, the statute of limitations
begins to run when the alleged infringement occurred. While
the

Eleventh

Circuit

has

not

explicitly

adopted

either

position, other Middle District of Florida courts have held
that the discovery rule controls.” (citations and internal
quotation marks omitted)).
Finally, regarding estoppel, Philpot argues that there
is no evidence to support any of the elements of an estoppel
defense. See Thornton v. J Jargon Co., 580 F. Supp. 2d 1261,
1282 (M.D. Fla. 2008)(“In copyright infringement actions, an
alleged infringer may assert the defense of estoppel by
demonstrating that: (1) the copyright owner knew the facts of
the

infringement,

(2)

the

copyright

owner

intended

its

conduct to be acted upon or the copyright owner acted such
that the alleged infringer has a right to believe it was so
42

intended, (3) the alleged infringer is ignorant of the true
facts, and (4) the alleged infringer relies on the copyright
owner’s conduct to his detriment.” (citation and internal
quotation marks omitted)). Specifically, Philpot highlights
Conlon’s deposition testimony that Philpot was not in contact
with MyArea before MyArea used Philpot’s photographs, such
that MyArea did not act in reliance on any representation by
Philpot. (Doc. # 53-1 at Conlon Dep. at 36:25-37:3, 100:518).
MyArea has failed to respond regarding these defenses.
Thus, MyArea has abandoned its fifth affirmative defense. See
Powell v. Am. Remediation & Envtl., Inc., 61 F. Supp. 3d 1244,
1253 n.9 (S.D. Ala. 2014)(“[W]here the non-moving party fails
to address a particular claim asserted in the summary judgment
motion but has responded to other claims made by the movant,
the district court may properly consider the non-movant’s
default

as

intentional

and

therefore

consider

the

claim

abandoned.”), aff’d, 618 F. App’x 974 (11th Cir. 2015).
Because the Court agrees with Philpot that no genuine disputes
of material fact exist as to acquiescence, laches, estoppel,
and the statute of limitations, the Court grants summary
judgment on the fifth affirmative defense.

43

7.

De Minimis Use Affirmative Defense

MyArea’s

sixth

affirmative

defense

states

that

the

complaint “is barred by the doctrine of de [minimis] use.”
(Doc. # 25 at 8).
“There

is

no

infringement

if

the

portion

of

the

copyrighted work actually taken is not entitled to copyright
protection.” EarthCam, Inc. v. OxBlue Corp., 49 F. Supp. 3d
1210, 1232 (N.D. Ga. 2014), aff’d, 703 F. App’x 803 (11th
Cir. 2017). In other words, in “some cases, the amount of
material copied will be so small as to be de minimis, and
will not justify a finding of substantial similarity.” MiTek
Holdings, Inc. v. Arce Eng’g Co., 89 F.3d 1548, 1560 (11th
Cir.

1996)(citation

omitted).

“The

de

minimis

doctrine

provides that the law does not impose legal consequences when
unauthorized

copying

is

sufficiently

trivial.”

EarthCam,

Inc., 49 F. Supp. 3d at 1232.
“In determining whether the allegedly infringing work
falls

below

the

quantitative

threshold

of

substantial

similarity to the copyrighted work, courts often look to the
amount of the copyrighted work that was copied, as well as,
(in cases involving visual works), the observability of the
copyrighted work in the allegedly infringing work.”

Lagassey

v. Roy, No. 14-14303-CIV, 2017 WL 1397410, at *3 (S.D. Fla.
44

Jan. 31, 2017)(citing Ringgold v. Black Ent. Television,
Inc., 126 F.3d 70, 75 (2d Cir. 1997)). “Observability is
determined by the length of time the copyrighted work appears
in the allegedly infringing work, and its prominence in that
work as revealed by the lighting and positioning of the
copyrighted

work.”

Id.

“The

next

step

in

assessing

Defendant’s de minimis defense is to examine the qualitative
significance of the amount copied to the copyrighted work as
a whole.” Id. at *4.
Philpot argues that summary judgment on this affirmative
defense is appropriate because “there is no dispute that
MyArea Network did not copy a qualitatively insubstantial
portion of either the Willie Nelson or Carlos Santana Photos.”
(Doc. # 53 at 25).
Despite MyArea’s arguments to the contrary, the Court
finds that no reasonable jury could conclude that MyArea’s
use of the Nelson and Santana photographs was de minimis.
Even taking all evidence in the light most favorable to
MyArea, the photographs were heavily copied. MyArea made
essentially no changes to the Nelson photograph and used a
cropped but nevertheless recognizable portion of the Santana
photograph, including Santana’s face. Additionally, although
the

photographs

were

used

in
45

conjunction

with

articles

describing upcoming events, the photographs were prominently
featured and observable at the top of the articles. Thus, the
Motion is granted as to the sixth affirmative defense.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

MyArea Network, Inc.’s Motion for Summary

Judgment (Doc. # 51) is DENIED.
(2)

Plaintiff Larry G. Philpot’s Motion for Partial Summary
Judgment (Doc. # 53) is GRANTED in part and DENIED in
part. Summary judgment is granted only on MyArea’s fifth
and sixth affirmative defenses. Summary judgment is
denied in all other respects.
DONE and ORDERED in Chambers in Tampa, Florida, this

28th day of June, 2021.

46