Philpot v. MyArea Network, Inc.

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

Conlon Aff. at ¶ 2). However, MyArea at times hires

independent contractors to upload content to MyArea’s

websites. (Doc. # 53-1 at Conlon Dep. at 31:11-32:10, 44:18-

25).

MyArea’s “mission is, in part, to support local

residents and businesses to create synergy 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.”

(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. # 60-

1 at Philpot Dep. at 9:4-15). Philpot has worked as a

freelance photographer since approximately 2008. (Id. 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).

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. # 53-

1 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

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

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 43:7-

17). 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). 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 2014-

2016. (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

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 of Willie

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

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. # 53-

1 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 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 50:21-

51:5).

In April 2019, MyArea displayed an event page entitled

“Santana at Al Lang Stadium” on its 727 Website. (Doc. # 51-

1 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

$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).

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.” 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

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–

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, in themselves, warrant the court in

granting summary judgment unless one of the 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

1 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.

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 1271-

72.

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)).

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

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

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

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

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. Factor Two

“The 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

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

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 factor weighed against fair use). Taking the

evidence in the light most favorable to Philpot, the

photographs are minimally creative. This factor weighs

slightly against a finding of fair use.

3. Factor Three

The third fair use factor is “the amount and

substantiality of the portion used in relation to 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).

In analyzing the third factor, courts “must consider

‘not only . . . the quantity of the materials used, but . .

. their quality and importance, too.’” Id. (citation

omitted). “This 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 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.’” WOS, Inc., 2019 WL 1767208, at *6 (citation

omitted)). “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.” 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

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.

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

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 and that even attribution alone provides

value, the fact that he offers the Nelson and 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

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

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

2 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.

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,”

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. Factor Two

“The 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). “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).

Here, a reasonable jury could find that the photographs

are so factual as to be only “marginally creative” given that

Philpot declared the purpose of the photographs was to

identify Nelson and Santana. See Id. (“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 fair use factor is “the amount and

substantiality of the portion used in relation to 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.

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.”).

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:

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 create the two articles and (2) had no

knowledge of the mental state and intentions of the

individuals who created the articles and input the

photographs. (Doc. # 62 at 9-12). Additionally, Conlon

testified that MyArea had no intention to 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 139:14-

20).

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

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. Failure to Sustain Harm Affirmative Defense

In its 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

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

attorney’s fee 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

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-Goldwyn-

Mayer, 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 three-

year 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

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-cv-

704-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

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, 100:5-

18).

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.

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.

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 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.

lagi Or. HMunenby (aiVh

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

46