Masterfile v. Gale et al
MEMORANDUM DECISION AND ORDER denying 58 Motion for Partial Summary Judgment; granting in part and denying in part 59 Motion for Partial Summary Judgment. Defendants are ordered to pay damages to the Plaintiff in the amount of $5,400.00, which represents $200.00 for each of the 27 copyright infringements. No attorneys fees are awarded. Signed by Judge Dee Benson on 7/15/13. (jlw)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MARTIN GALE, et al.,
Case No. 2:09-cv-966
Judge Dee Benson
This matter is before the court on plaintiff Masterfile’s Motion for Partial Summary
Judgment (Dkt. No. 58.) against Martin Gale, et al., and defendants Martin and Laurie Gale’s
Cross Motion for Partial Summary Judgment (Dkt. No. 59.). On July 11, 2013, the court heard
oral argument on the motions. Ms. Amber Mettler appeared on behalf of Masterfile. Ms. Billie
Siddoway appeared on behalf of Martin and Laurie Gale and Gale Services. Having considered
the parties’ arguments, memoranda, and the relevant law, the court enters the following
Memorandum Decision and Order.
Masterfile sued Martin and Laurie Gale for copyright infringement of 27 Masterfile
images. These images were uploaded to a website presentation the Gales purchased. The Gales
did not personally maintain the website, or alter or change the presentation from its original
form. Masterfile discovered its 27 images displayed on the Gales’ website approximately five
years after the images were uploaded. Masterfile contacted the Gales in an attempt to resolve the
matter, however, the parties did not reach a resolution and litigation followed. Masterfile filed a
complaint in this court on October 28, 2009. On October 4, 2011, the court granted a partial
summary judgment motion filed by Masterfile, finding that Masterfile owned the copyrights to
the 27 images found in use on the Gales’ website and that the defendants were liable for
On April 2, 2013, Masterfile filed a Motion for Partial Summary Judgment to resolve the
issue of damages. On May 3, 2013, the Gales filed a Cross-Motion for Partial Summary
Judgment, addressing the same issue.
At oral argument, and in its brief, Masterfile conceded that the Gales were innocent
infringers. Mem. in Reply to Def.’s Opp’n to Pl.’s Mot. for Partial Summ. J. on Damages and in
Opp’n to Def.’s Cross-Mot. For Partial Summ. J. at 9. (Masterfile does not dispute that
Defendants were not aware and had no reason to believe that their acts constituted copyright
Pursuant to 17 U.S.C. § 504, copyright infringement damages can be assessed for each
infringement within the broad range of $200.00 to $30,000.00. The $200.00 per infringement
figure is for cases where the court determines that the “infringer was not aware and had no
reason to believe that his or her acts constituted an infringement of copyright[.]” Id. at 504
In this case, the Gales purchased an informational real estate-related website presentation
for $450.00. The presentation featured information related to buying and selling real estate. The
27 images at issue in this case were a part of the purchased presentation and the content of the
presentation was in no way the creation, production, or work of the Gales. The images in the
presentation displayed no indicia of being copyrighted. No “©” symbol or any other type of
notice that may have reasonably informed the Gales of copyright protection were displayed on
any of the photographs. The Gales purchased this product with the reasonable belief that it was
fit for its intended use and purpose and did not contain images that were the subject of
Counsel for the Gales argued that the 27 images are contained within 12 copyrights and
therefore, the court should only assess damages by the number of copyrights–not the number of
images. The court disagrees. The court previously determined this issue in its October 4, 2011
Memorandum Decision and Order and declines to revisit its prior ruling.
In light of the facts of this case, including the plaintiff’s concession that the Gales were
innocent in their infringement, the court finds the low end of the liquidated damages scale to be
appropriate. Accordingly, plaintiff will be awarded $200.00 for 27 violations, totaling
The plaintiff requested attorneys’ fees and costs for the prosecution of its case.
Although the court may award attorneys’ fees and cost to the prevailing party in an action filed
under Title 17 of the United States Code, it declines to do so in this case. The record supports
that the Gales, upon receiving notice of their infringement, immediately requested that the thirdparty remove the images from their website. They were so removed. Plaintiff has conceded that
the Gales were innocent infringers.
For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment is DENIED.
Defendants’ Cross-Motion for Summary Judgment is DENIED in part, and GRANTED in part.
Defendants are ordered to pay damages to the Plaintiff in the amount of $5,400.00, which
represents $200.00 for each of the 27 copyright infringements. No attorneys’ fees are awarded.
DATED this 15th day of July, 2013.
United States District Judge
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