Howell

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STUDIOROTAN LLC, )

)

Plaintiff, )

)

v. ) Case No. 2:25-cv-20-GMB

)

VICKII J. HOWELL, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Studiorotan LLC has filed a Motion for Preliminary Injunction.

Doc. 28. The motion is fully briefed (Docs. 28-1, 33 & 35) and the court held an

evidentiary hearing on the motion, which has now been transcribed. Doc. 49. For

the following reasons, the court concludes that the motion for preliminary injunction

is due to be denied.

I. RELEVANT BACKGROUND1

A. The Clotilda and Africatown

A team of researchers discovered the wreckage of the Clotilda, the last known

slave ship in the United States, in 2018. See Doc. 1. at 4. The Clotilda “illegally

brought enslaved individuals from Africa into Alabama around 1860, where the ship

1 The court takes much of this background information from the complaint. The court uses these

facts for no other purpose than to provide context for the motion for preliminary injunction.

was scuttled and burned to hide evidence of illegal slave trading.” Doc. 1 at 4. Many

of these slaves returned after the Civil War and founded Africatown near Mobile,

Alabama. Doc. 1 at 4; see also https://nmaahc.si.edu/explore/initiatives/slave-

wrecks-project/africatown-alabama-usa (last visited Oct. 29, 2025).

B. Africatown International Design Competition

Renee Kemp-Rotan, “an internationally regarded urban designer and master

planner,” operates Studiorotan. Doc. 1 at 3. During 2018, Defendant M.O.V.E.

Gulf Coast CDC (“M.O.V.E.”) “invited Studiorotan to Africatown and asked

Studiorotan to be involved in a project that would bring many community-based,

non-coordinated projects into a comprehensive plan, design and development for

Africatown.” Doc. 1 at 4–5. In that vein, Studiorotan, M.O.V.E., and Defendant

Vickii Howell developed a competition—the Africatown International Design

Competition—“for professional architects to submit design boards and essays”

related to the “Clotilda Discovery and furthering preservation and revitalization of

the Africatown community.” Doc. 1 at 5.

According to the complaint, Studiorotan and M.O.V.E. entered into a contract

under which Studiorotan “would provide its skills as a Professional Competition

Advisor in exchange for $100,000.” Doc. 1 at 5. Kemp-Rotan “was the primary

Professional Competition Advisor,” while Howell served as “the Competition

Coordinator for M.O.V.E. and the primary point of contact between Studiorotan and

M.O.V.E.” Doc. 1 at 6. “In furtherance of the Agreement, Studiorotan conducted

the competition, which included programming four sites and 16 venues, creating

design program challenges, and securing sponsorships and funding from national

organizations such as the American Institute of Architects (AIA), National

Organization of Minority Architects (NOMA), and Visit Mobile.” Doc. 1 at 7.

Additionally, Studiorotan “created a significant amount [of] original intellectual

property, including design challenges, framework documents, and animations used

for the Competition.” Doc. 1 at 8.

C. The Complaint

Studiorotan filed its complaint against Howell and M.O.V.E. after the

business relationship soured. Among other things, Studiorotan alleges:

• At Howell’s direction, M.O.V.E. began misappropriating the work

done by Studiorotan. Doc. 1 at 8.

• Howell misrepresented the ownership of the intellectual property by

claiming that the competition results and Studiorotan’s work

belonged to M.O.V.E. exclusively. Doc. 1 at 8.

• Howell disseminated intellectual property created by Studiorotan to

solicit funding for M.O.V.E. Doc. 1. at 8.

• M.O.V.E. used Studiorotan’s intellectual property to pitch a grant

from the Mellon Foundation. Doc. 1 at 9.

• M.O.V.E. directly benefitted from the use of Studiorotan’s

intellectual property in its fundraising efforts and raised “tens of

thousands of dollars” from Studiorotan’s work. Doc. 1 at 9–10.

• Howell disseminated false and defamatory information to

Africatown descendants and representatives from the World

Monuments Fund to discredit Kemp-Rotan and Studiorotan. Doc. 1

at 10–11; see also Doc. 28-2 at 4.

The complaint asserts five claims: (1) breach of contract; (2) copyright

infringement; (3) unjust enrichment; (4) tortious interference with business

relationships; and (5) defamation. In the pending motion, Studiorotan asks the court

to enjoin Howell and M.O.V.E. from (1) infringing on certain copyrighted works

owned or controlled by Studiorotan; (2) using Studiorotan’s registered mark of THE

AFRICATOWN INTERNATIONAL IDEA COMPETITION or “any confusingly

similar designation” in certain designated ways; and (3) “repeating, publishing, or

causing to be published any untruthful, inflammatory, defamatory or false-light

statements about Studiorotan or Renee Kemp-Rotan.” Doc. 28 at 2–3. The motion

also asks for other ancillary relief, including the interpleading of funds,

impoundment of products, preservation of records, and a sworn report of compliance

by Howell and M.O.V.E. Doc. 28 at 3–4.

II. FACTUAL FINDINGS

The court makes the following factual findings based on the evidence received

at the hearing and Kemp-Rotan’s affidavit.

1. Kemp-Rotan applied for and received copyright registrations for:

a. The Africatown International Design Idea Competition Why a

Competition and 7 Other Unpublished Works with Registration

Number PAu 4-210-458;

b. Africatown Design Competition Poster 1 with Registration

Number VAu 1-521-715; and

c. Africatown Design Competition Poster 2 with Registration

Number VAu 1-521-718.

Doc. 28-2 at 1–2; Docs. 48-1, 48-2 & 48-3; Doc. 49 at 31–32, 38, 70, 74–81.

2. As components of the copyright for The Africatown International

Design Idea Competition Why a Competition and 7 Other Unpublished Works

compilation, Kemp-Rotan created and submitted nine videos to the copyright office,

including those titled (1) The Africatown International Design Idea Competition;

(2) Why a Competition; (3) Spirit of the Ancestors; (4) Ten Things to Know; (5) 12

Headlines; (6) Meet the Players; (7) Afro-Futurism; and (9) Design the Sites.

Doc. 49 at 50–51, 70, 74–81.

3. Kemp-Rotan also created and designed Competition Poster 1, which

“ended up being really the iconic organizational tool for the competition.” Doc. 49

at 31–32. It was “a very easy way that even a layman could understand what it was

the competition was trying to do.” Doc. 49 at 31.

4. Kemp-Rotan also created and designed Competition Poster 2, which

was a graphic description of the competition submissions and results. Doc. 49 at 38.

5. Kemp-Rotan sent all the works she created to Howell and M.O.V.E.,

including all nine videos and both posters. Doc. 49 at 70, 74–81, 105, 109.

6. Kemp-Rotan introduced evidence at the hearing in the form of a screen

capture of the first page of the Africatown International Design Idea Competition

website. Doc. 48-15; Doc. 49 at 87–88, 90. The website remains active. Doc. 49 at

37. The screenshot depicts the landing page of the competition website, over which

Howell has exclusive control. Doc. 49 at 65, 66. This page features an image of

Competition Poster 1. Doc. 48-15 at 1; Doc. 49 at 67, 90. The screenshot also

contains nine thumbnail images corresponding with the nine copyrighted videos.

Doc. 48-15 at 4; Doc. 49 at 90–91.

7. Kemp-Rotan sent an invoice to Howell and M.O.V.E. for work

completed from April 30 to June 27, 2019. Doc. 48–6; Doc. 49 at 40–41. The total

amount invoiced was $18,300, and this included work for website design, branding,

and other tasks. Doc. 48-6 at 1; Doc. 49 at 41. Kemp-Rotan did not expect the

invoice to be paid in full at that time and requested only that Howell and M.O.V.E.

pay $5,000 of the total. Doc. 48-6 at 1; Doc. 49 at 102. Howell and M.O.V.E. paid

a “marginal amount” of the invoice. Doc. 48-9 at 42. Kemp-Rotan nevertheless

“expect[ed] that as some point [she] would be paid in full.” Doc. 48-9 at 42.

8. The Africatown International Idea Competition held its Juneteenth

Awards Ceremony in June 2023. Doc. 28-2 at 3; see also Doc. 48-13; Doc. 49 at 61.

9. Kemp-Rotan recruited a number of judges for the competition, none of

whom were paid for their work. Doc. 49 at 47.

10. On July 31, 2023, Kemp-Rotan sent an invoice to Howell as CEO of

M.O.V.E. for “5 years of services rendered for the Africatown International Design

Competition.” Doc. 48-12; Doc. 49 at 58, 60. Kemp-Rotan stated on the invoice that

Howell and M.O.V.E. had paid Studiorotan $44,300 to date, and she requested a

commitment to pay the remaining $55,700 according to a fee schedule. Doc. 48-12.

The fee schedule would have required M.O.V.E. to pay Studiorotan $6,962.50 each

month from August 2023 through March 2024. Doc. 48-12. There is no evidence

that Howell or M.O.V.E. made any payments under this schedule.

11. On July 10, 2024, Kemp-Rotan sent Howell and M.O.V.E. a letter

detailing the work Studiorotan had performed for the design competition. Doc. 48-

13 at 1–2; Doc. 49 at 60–62. The letter noted that the competition had ended a year

earlier but Studiorotan was still owed $57,000. Doc. 48-13 at 2; Doc. 49 at 61.

Among other items, Kemp-Rotan detailed Studiorotan’s ownership in the original

works created for the competition, mentioned that they had been copyrighted, and

said that Howell “continue[d] to use [the] works without consent, regard or

payment.” Doc. 48-13 at 3; see also Doc. 49 at 63. Kemp-Rotan then demanded that

M.O.V.E. “immediately stop reproducing, publishing, distributing, transmitting,

displaying, and publicly performing exact copies of materials that incorporate

substantial portions of Studiorotan’s work without permission.” Doc. 48-13 at 3;

see also Doc. 49 at 63–64. She also wrote that M.O.V.E. “must immediately cease

such infringing activity and desist such infringing activity in the future” and must

enter into a licensing agreement with Studiorotan if it wants to use the original

works. Doc. 48-13 at 3; see also Doc. 49 at 64. Kemp-Rotan did not receive a

response to this letter. Doc. 49 at 64.

12. To this day, Howell and M.O.V.E. continue to use the works Kemp-

Rotan created and copyrighted. Doc. 49 at 64, 101.

III. DISCUSSION

A preliminary injunction is an “extraordinary remedy never awarded as of

right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In fact, the

grant of a preliminary injunction is “the exception rather than the rule.” United States

v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983). To obtain a preliminary injunction,

the moving party must: (1) demonstrate “a substantial likelihood of success on the

merits”; (2) show that the preliminary injunction is necessary to prevent irreparable

injury; (3) show that the threatened injury outweighs any harm that might result to

the non-movant; and (4) show that the preliminary injunction is not adverse to the

public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995); Parker v. St. Bd.

of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001); Winter, 555 U.S.

at 20. “The plaintiff bears the ‘burden of persuasion’ on each of these four factors.”

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).

At the outset, the court finds that Studiorotan cannot prevail on its request for

a preliminary injunction against trademark infringement. See Doc. 28 at 2–3. “[A]ny

motion . . . for . . . a preliminary . . . injunction must be based upon a cause of action.”

Alabama v. U.S. Army Corps of Engs., 424 F.3d 1117, 1127 (11th Cir. 2005). In

other words, “injunctive relief must relate to the relief requested in the [operative]

complaint.” Puello v. Mendez, 2020 WL 4004481, at * 4 (M.D. Fla. June 15, 2020).

The complaint does not state a claim for trademark infringement, nor does it mention

the mark referenced in the motion. See Doc. 1. Accordingly, this portion of the

motion is due to be denied.

The court next addresses the request for a preliminary injunction on

Studiorotan’s claims for copyright infringement and defamation.

A. Copyright Infringement

A copyright provides for the exclusive right “to distribute copies . . . of the

copyrighted work to the public by sale or other transfer of ownership, or by rental,

lease, or lending.” 17 U.S.C. § 106(3). “To succeed on its claim of copyright

infringement, [a plaintiff] must prove (1) ownership of a valid copyright, and

(2) copying of constituent elements of the work that are original.” Compulife

Software Inc. v. Newman, 959 F.3d 1288, 1301 (11th Cir. 2020) (internal quotation

marks and citation omitted).

1. Likelihood of Success on the Merits

For the reasons to follow, the court concludes that Studiorotan has a likelihood

of success on the merits as to (1) Competition Poster 1 and (2) the thumbnails of the

competition videos. Studiorotan has not established a likelihood of success on the

merits as to Competition Poster 2 or the content of the competition videos.

a. Ownership of Valid Copyright

Studiorotan presented evidence of three registered copyrights:

1. The Africatown International Design Idea Competition Why a

Competition and 7 Other Unpublished Works with Registration

Number PAu 4-210-458;

2. Africatown Design Competition Poster 1 with Registration

Number VAu 1-521-715; and

3. Africatown Design Competition Poster 2 with Registration

Number VAu 1-521-718.

Docs. 48-1, 48-2 & 48-3. “A copyright registration proves ‘prima facie proof of the

existence of a valid copyright.’” C.B. Fleet Co. v. Unico Holdings, Inc., 510 F. Supp.

2d 1078, 1081 (S.D. Fla. 2007) (citation omitted). Accordingly, “the burden shifts

to the defendant to demonstrate why the claim of copyright is invalid.” Bateman v.

Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996). Although Howell and

M.O.V.E. advance a number of arguments against the validity of the copyrights,

none are persuasive.

Howell and M.O.V.E. first claim that “Plaintiff and Defendant worked jointly

to create intellectual property that Plaintiff has subsequently filed for copyright

registrations.” Doc. 33 at 3. But arguments in a brief are not evidence, and the

defendants did not present any evidence to support this claim. Travaglio v. Am. Exp.

Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (“Statements by counsel in briefs are not

evidence”).

The defendants next argue that the copyrights are invalid because Studiorotan

published the works before the registration. See Doc. 33 at 5; see also Doc. 49 at

124–25. Copyright protection attaches at the time of an author’s creation of an

original work susceptible to copyright. 17 U.S.C. § 102(a). The owner’s cause of

action for infringement of that copyright, however, is unenforceable until

compliance with the formalities of registration, including payment of fees and

deposit of copies of the work. 17 U.S.C. § 411. The statute requires an owner to file

her registration “within five years after first publication of the works.” 17 U.S.C.

§ 410(c). At that point, the certificates of registration for the works “‘constitute

prima facie evidence of the validity of the copyright and of the facts stated in the

certificate.’” Donald Frederick Evans & Assoc., Inc. v. Cont. Homes, Inc., 785 F.2d

897, 903 (11th Cir. 1986) (quoting 17 U.S.C. § 410(c)). Here, Kemp-Rotan filed the

registrations on January 11, 2024—within five years of the first publication of

Competition Posters 1 and 2 and the competition videos. Docs. 48-1, 48-2 & 48-3.

This argument is unavailing.

Finally, the court is not persuaded by the claim that the copyright for the

competition videos is invalid because Kemp-Rotan grouped them in one copyright

registration instead of individual registrations. See Doc. 49 at 124. Howell and

M.O.V.E. did not present any legal support for this argument, and the court can find

none. Instead, the statute permits the registration of multiple works in a single

registration. Under 17 U.S.C. § 408(c)(1), the Register of Copyrights regulates the

way in which works are classified. That section specifically authorizes the Register

to allow “a single registration for a group of related works.” 17 U.S.C. § 408(c)(1).

And, where, as here, the collection is already published, it may be registered as a

single work if “all copyrightable elements . . . are otherwise recognizable as self-

contained works, . . . are included in a single unit of publication, and . . . the copyright

claimant is the same.” 37 C.F.R. § 202.3(b)(4)(i)(A). There is no evidence or

argument that the videos do not meet this standard.

For these reasons, the court concludes that Studiorotan has proven that it owns

valid copyrights for the competition videos and both competition posters.

b. Copying

The second element of copyright infringement, copying, requires “‘two

separate inquiries: (1) whether the defendant, as a factual matter, copied portions of

the plaintiff’s program; and (2) whether, as a mixed issue of fact and law, those

elements of the program that have been copied are protected expression and of such

importance to the copied work that the appropriation is actionable.’” MiTek

Holdings, Inc. v. Arce Eng. Co., Inc. 89 F.3d 1548, 1554 (11th Cir. 1996) (quoting

Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993)).

Most courts describe these two inquiries as factual copying and either legal or

actionable copying. See Newman, 959 F.3d at 1301.

i. Factual Copying

A plaintiff can show factual copying by direct or indirect evidence. Because

direct evidence of copying is rare, a plaintiff may prove copying indirectly by

“‘demonstrating that the defendant had access to the copyrighted work and that there

are probative similarities between the allegedly infringing work and the copyrighted

work.’” Newman, 959 F.3d at 1301 (quoting MiTek, 89 F.3d at 1554). “Access

requires proof of ‘a reasonable opportunity to view’ the work in question.” Corwin

v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007) (quoting Herzog v. Castle

Rock Ent., 193 F.3d 1241, 1249 (11th Cir. 1999)). Probative similarity “‘exists

where an average lay observer would recognize the alleged copy as having been

appropriated from the copyrighted work.’” Leigh v. Warner Bros., Inc., 212 F.3d

1210, 1214 (11th Cir. 2000) (quoting Orig. App. Artworks, Inc. v. Toy Loft, Inc., 684

F.2d 821, 829 (11th Cir. 1982)).

Kemp-Rotan’s testimony establishes that Howell and M.O.V.E. had access to

all of the copyrighted works. She testified that she sent all of the copyrighted videos

to Howell. Doc. 49 at 70, 74–81. She also sent both Poster 1 and Poster 2 to Howell.

Doc. 49 at 105 & 109. Howell does not dispute this testimony.

Despite access, Studiorotan did not present any evidence of factual copying

of the Africatown Design Competition Poster 2—a point that Studiorotan’s counsel

conceded at the hearing. Doc. 49 at 123–24. For this reason, Studiorotan has not

established a likelihood of success on the merits as to Competition Poster 2, and the

motion for preliminary injunction is due to be denied as to this work.

Likewise, Studiorotan did not present evidence of factual copying of the

content of the competition videos. Studiorotan’s counsel argues that Howell and

M.O.V.E. copied the videos, placed them on the competition website, and kept them

there without authorization after Kemp-Rotan demanded their removal. But the only

evidence before the court is a static screen capture of the front page of the

competition website. Doc. 45-15. That image depicts thumbnails of each of the nine

Competition videos under the title “Competition Animations.” Doc. 45-15 at 5.

Kemp-Rotan testified that the nine thumbnails correspond with the nine videos in

the copyright registration. Doc. 49 at 70, 74–90. And she testified that Howell

exclusively controls and maintains the competition website. Doc. 49 at 66. What

Studiorotan did not present, however, is any evidence that the videos themselves are

accessible through the website. In fact, defense counsel claimed that the videos are

not available if a person clicks on the thumbnails. Doc. 49 at 124–25. Regardless,

Studiorotan did not present evidence that Howell or M.O.V.E. copied the content of

the videos—only the thumbnails of each video. On such an incomplete record, the

court can find a substantial likelihood of success only as to the thumbnails.

Finally, the court rejects Howell and M.O.V.E.’s argument that the content of

the Competition Poster 1 and the image on the competition website are not

probatively similar. See Doc. 49 at 125. At the hearing, defense counsel insinuated

that the website may depict an older version2 of Poster 1 that was not copyrighted.

Doc. 49 at 113–18. Because the images on the exhibit capturing the website were

so small, however, Kemp-Rotan could not tell whether the wording had been

changed (Doc. 49 at 117–18), and she “assume[d] it’s the updated version because

we were trying to keep the website current.” Doc. 49 at 118. Regardless of the

version on the website, the court concludes that any slight change in the image does

not result in a material difference to the overall imagery of the poster and that an

“‘average lay observer would recognize the [image on the website] as having been

appropriated from the copyrighted work.’” Leigh, 212 F.3d at 1214 (citation

omitted).

The court therefore finds that Studiorotan has established actual copying as to

Poster 1 and the thumbnails of the nine competition videos.

ii. Legal Copying

“Legal—or actionable—copying occurs when those elements of the

[copyrighted work] that have been copied are protected expression and of such

importance to the copied work that the appropriation is actionable.” Newman, 959

2 One of the 16 venues listed on the poster changed during the competition. Doc. 49 at 113–14.

F.3d at 1302 (quotations omitted). “In most cases, a ‘substantial similarity between

the allegedly offending program and the protectable, original elements of the

copyrighted works’ establishes actionable copying.” Newman, 959 F.3d at 1302

(quoting Bateman, 79 F.3d at 1542, and citing BUC, 489 F.3d at 1149 n.42

(“BellSouth established the ‘substantial similarity’ standard as the default mode of

analysis for compilation copyright claims.”)); Feist Publ., Inc. v. Rural Tel. Serv.

Co., Inc., 499 U.S. 340, 359 (1991). A court must assess “both the quantitative and

the qualitative significance” of the protectible elements that the infringing work

purportedly copies from “the copyrighted work as a whole.” Newman, 959 F.3d at

1302.

Considering this standard, the court finds that Studiorotan has proven legal

copying. Howell and M.O.V.E. do not argue that the thumbnails are not

substantially similar and, for the reasons discussed above, the court also finds that

the image of Competition Poster 1 depicted on the website is substantially similar to

the copyrighted image. Accordingly, the court finds that Studiorotan has shown a

substantial likelihood of success on the merits of her copyright claims as to

Competition Poster 1 and the thumbnail images of the competition videos.

2. Irreparable Harm

The court next considers whether Studiorotan has established that it will be

irreparably harmed if the court does not enter a preliminary injunction as to these

copyrighted items. “A showing of irreparable injury is the sine qua non of

injunctive relief.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (cleaned

up). That showing requires Studiorotan to establish that the irreparable injury is

“neither remote nor speculative, but actual and imminent,” N. Fla. Ch. of the Assoc.

of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990),

and not compensable by monetary damages. See Cunningham v. Adams, 808 F.2d

815, 821 (11th Cir. 1987) (citing Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir.

1983)).

At the hearing, Studiorotan argued that there is an “implied assumption under

the Copyright Act . . . that the continued use of copyrighted material without

permission and without a license is irreparable injury.” Doc. 49 at 127. The court

declines to adopt that assumption. In eBay Inc. v. MercExhange, L.L.C., 547 U.S.

388, 393–94 (2006), the Supreme Court “rejected invitations to replace traditional

equitable considerations with a rule that an injunction automatically follows a

determination that a copyright has been infringed.”3 Instead, the Court instructed

district courts to apply the “traditional four-factor framework that governs the award

of injunctive relief” and eschew “categorical rule[s]” that depart from the usual

3 Although eBay addresses permanent injunctions, “no obvious distinction exists between

permanent and preliminary injunctive relief to suggest that eBay should not apply to the latter.” N.

Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1228 (11th Cir. 2008); see also Amoco

Prod. Co. v. Vill. of Gambell, 480 U.S. 480, 546 n.12 (1987) (“The standard for a preliminary

injunction is essentially the same as for a permanent injunction”).

equitable inquiry. Id. The Supreme Court reiterated this approach in Winter v.

NRDC, Inc., 555 U.S. 7, 32 (2008), observing that an “injunction is a matter of

equitable discretion; it does not follow from success on the merits as a matter of

course.” Id.

After eBay, most courts have concluded that the presumption of irreparable

harm no longer applies to requests for preliminary injunctive relief. See, e.g.,

Bethesda Softworks, LLC v. Interplay Ent. Corp., 452 F. App’x 351, 355 (4th Cir.

2011) (agreeing that eBay applies to requests for permanent and preliminary

injunctions in copyright cases); Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d

1142, 1149 (F. Cir. 2011) (“We take this opportunity to put the question to rest and

confirm that eBay jettisoned the presumption of irreparable harm as it applies to

determining the appropriateness of injunctive relief.”); Flexible Lifeline Sys., Inc. v.

Precision Lift, Inc., 654 F.3d 989, 998 (9th Cir. 2011) (“We conclude that presuming

irreparable harm in a copyright infringement case is inconsistent with, and

disapproved by, the Supreme Court’s opinions in eBay and Winter.”): Tiber Labs.,

LLC v. Hawthorn Pharms., Inc., 527 F. Supp. 2d 1373, 1381 (N.D. Ga. Sept. 12,

2007) (“This Court agrees that eBay does not leave room for a presumption of

irreparable injury in patent cases, whether raised at the preliminary or permanent

injunction phase.”). Although the Eleventh Circuit declined to answer this question4

because “the district court ha[d] not addressed the effect of eBay,” N. Am. Med.

Corp., 522 F.3d at 1228, the reasoning of the courts that have addressed it is

persuasive. This court therefore finds that a presumption of irreparable harm is

inappropriate in this case.

Studiorotan also argues that irreparable harm exists because it has “suffered

monetary loss through breach of a services contract” and “loss of goodwill,

professional relationships, intellectual property rights, and reputational damages.”

Doc. 28-1 at 12–13. But monetary loss is not irreparable harm. See Cunningham,

808 F.2d at 821. The court also rejects Studiorotan’s argument about goodwill and

reputational harm since these damages are better attributed to the defamation claim

than the copyright claim.5 There is no evidence that the continued use of the poster

or videos has damaged Kemp-Rotan’s professional relationships and reputation.

The court is hard pressed to find any evidence of an actual and imminent

injury flowing from the use of Poster 1 and the competition videos that cannot be

compensated by money damages. For example, Studiorotan did not offer any

4 The Eleventh Circuit has suggested that the presumption is a matter of a district court’s discretion

“in light of the historical traditions” of equity. N. Am. Med. Corp., 522 F.3d at 1228. To the extent

this is discretionary, the court declines to apply a presumption of irreparable harm based on the

facts presented here.

5 For example, in her affidavit Kemp-Rotan states that the failure to pay the speakers and judges

she secured “damaged [her] professional relationships” and that “Howell began to interfere with

and undermine [Kemp-Rotan’s] professional reputation and relationships” after the competition.

Doc. 28-2 at 3.

evidence of recent traffic (or any traffic) to the competition website or proof that

Howell or M.O.V.E. are currently using or plan to use the copyrighted poster and

thumbnails in the future beyond their existing placement on the website. And

although the website contains a request for donations (see Doc. 48-15 at 5),

Studiorotan did not present any evidence that Howell or M.O.V.E. received

donations through the website. These omissions are especially telling when the

design competition ended in 2023. Injunctive relief is prospective relief intended to

protect against injury that might occur if the conduct is not stopped. Alabama v. U.S.

Army Corps of Engs., 424 F.3d 1117, 1133 (11th Cir. 2005). In this light,

Studiorotan did not present evidence of any immediate threat of harm stemming

from inappropriate access to Poster 1 or the thumbnails on the website, nor did it

present any evidence of further inappropriate access or use. See Allied Portables,

LLC v. Youmans, 2015 WL 6813669, at *4 (M.D. Fla. Nov. 6, 2015) (finding no

irreparable injury where the alleged violation occurred more than a year before and

the plaintiff presented no other evidence of future harm); see Fla. Atl. Univ. Bd. of

Trs. v. Parsont, 465 F. Supp. 3d. 1279, 1296–97 (S.D. Fla. 2020) (finding irreparable

harm because of retained access to servers hosting proprietary information).

Finally, Studiorotan’s failure to move for a preliminary injunction until more

than ten months after Kemp-Rotan warned Howell and M.O.V.E. that they were

infringing on her copyrights substantially undermines its claim of irreparable harm

and request for emergency relief. Urgency forms the heart of a preliminary

injunction. See Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir.

2016) (“[T]he very idea of a preliminary injunction is premised on the need for

speedy and urgent action to protect a plaintiff’s rights before a case can be resolved

on its merits.”). “[P]reliminary injunctions are generally granted under the theory

that there is an urgent need for speedy action to protect the plaintiff’s rights.” Seiko

Kabushki Kaisha v. Swiss Watch Int., Inc., 188 F. Supp. 2d 1350, 1356 (S.D. Fla.

2002). For this reason, “[a] delay in seeking a preliminary injunction of even only

a few months—though not necessarily fatal—militates against a finding of

irreparable harm.” Wreal, LLC, 840 F.3d at 1248.

Imminent harm includes “a consideration of whether the [p]laintiff[] acted

sufficiently quickly to obtain relief.” Thompson v. Merrill, 2020 WL 3513497, at *3

(M.D. Ala. June 29, 2020). “Two time periods are relevant in determining whether

a plaintiff acts promptly in seeking judicial relief: (1) a plaintiff cannot delay in filing

a complaint after discovering a potential infringer, and (2) a plaintiff must move

quickly in filing a motion for a preliminary injunction once a complaint has been

filed.” Car Body Lab, Inc., v. Lithia Motors, Inc., 2021 WL 2652774, at *12 (S.D.

Fla. June 21, 2021) (citing Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d

734, 771–72 (E.D. Mich. 2003)). “Courts (both in and outside the Eleventh Circuit)

have held that unexplained delays of a few months negate any claim of irreparable

harm on a preliminary injunction motion,” Pals Grp., Inc. v. Quiskeya Trading

Corp., 2017 WL 532299, at *6 (S.D. Fla. Feb. 9, 2017), and “typically decline to

grant preliminary injunctions in the face of unexplained delays of more than two

months.” Gidatex, S.r.L. v. Campaniello Imports, Ltd., 13 F. Supp. 2d 417, 419

(S.D.N.Y. 1998); see, e.g., Apple, Inc. v. Samsung Elecs. Co. (Apple I), 678 F.3d

1314, 1319 (Fed. Cir. 2012) (affirming denial of preliminary injunction in part

because Apple’s two-and-a-half month delay “undermined its claim of irreparable

harm.”); Millennium Funding, Inc. v. 1701 Mgmt. LLC, 2021 WL 3618227, at *9

(S.D. Fla. Aug. 16, 2021) (collecting cases denying injunctive relief when plaintiffs

delayed between two and twelve months); Badillo v. Playboy Ent. Grp., Inc., 2004

WL 1013372, at *2 (M.D. Fla. Apr. 16, 2004) (denying preliminary injunction in

part due to a nine-month delay); Wells Fargo & Co., 293 F. Supp. 2d at 771–72

(finding plaintiffs’ nine-month delay before “seeking a preliminary injunction

undermines their allegation of irreparable harm”); Greenpoint Fin. Corp. v. Sperry

& Hutchinson Co., 116 F. Supp. 2d 405, 408–09 (S.D.N.Y. 2000) (denying

preliminary injunction after four-month delay).

Here, Kemp-Rotan notified the M.O.V.E. directors of her belief that Howell

and M.O.V.E. were infringing on her rights by their continued use of her copyrights

no later than July 10, 2024, when she sent the cease-and-desist letter. See Doc. 48-

13. Studiorotan did not file its complaint until five months later. Doc. 1. And it did

not seek a preliminary injunction until more than ten months later. Doc. 28.

Studiorotan has not justified this delay.

For these reasons, Studiorotan has not demonstrated irreparable future harm

that will result without a preliminary injunction. Because of this conclusion, the

court does not address the remaining elements. See N. Fla. Ch. of the Assoc. of Gen.

Contractors, 896 F.2d at 1285 (“We need not address each element because we

conclude that no showing of irreparable injury was made.”).6 The court will deny

the motion for preliminary injunction as to the copyright claims.

B. Defamation

Ordinarily, the court would begin its analysis of the defamation claim by

considering whether Studiorotan has met its burden with respect to the traditional

elements of a preliminary injunction. But the court must address a threshold issue

instead: the First Amendment to the United States Constitution.

The First Amendment prohibits almost all restraints on future speech. See,

e.g., N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971); Sindi v. El-

Moslimany, 896 F.3d 1, 31–32 (1st Cir. 2018). As the Supreme Court has observed,

the First Amendment generally forbids the government, including the judiciary,

6 The court “cautions Defendant that this is not necessarily a victory” on the ultimate questions at

issue in this lawsuit. Malicious Women Candle Co., LLC v. Cox, 2020 WL 7350399, at *2 (M.D.

Fla. Dec. 14, 2020) (denying motion for preliminary injunction because of delay but observing

that the denial “does not mean that Defendant is absolved of consequences in the interim[; i]t just

means that Defendant may feel damages later rather than sooner”).

“from dictating what we see or read or speak or hear.” Ashcroft v. Free Speech Coal.,

535 U.S. 234, 245 (2002). An injunction that forbids certain communications before

they are made is known as a “prior restraint” on speech. Alexander v. United States,

509 U.S. 544, 550 (1993); McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015)

(“‘Prior restraint’ is just a fancy term for censorship, which means prohibiting

speech before the speech is uttered or otherwise disseminated.”).

A “prior restraint[ ] on speech and publication [is] the most serious and least

tolerable infringement on [a person’s] First Amendment rights.” Neb. Press Assoc.

v. Stuart, 427 U.S. 539, 559 (1976) (collecting decisions). As the Supreme Court

noted, “[a]ny prior restraint on expression comes to this Court with a ‘heavy

presumption’ against its constitutional validity.” Org. for a Better Austin v. Keefe,

402 U.S. 415, 419 (1971). Although prior restraints on speech are not inherently

unconstitutional, courts may impose them only to further “the essential needs of the

public order,” Carroll v. President & Comm. of Princess Anne, 393 U.S. 175, 183

(1968), and any restraint is subject to strict scrutiny under the First Amendment.

Sindi, 896 F.3d at 31–32.

The courts are divided on the question whether prior restraints of defamatory

statements violate the First Amendment. Traditionally, many courts have doubted

the constitutionality of injunctions to enjoin speech under both the common law and

the First Amendment prior restraint doctrine. See, e.g., Alberti v. Cruise, 383 F.2d

268, 272 (4th Cir. 1967); Kinney v. Barnes, 443 S.W. 3d 87, 93–94 (Tex. 2014);

see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev.

157 (2007). More recently, however, six federal circuit courts have concluded that

a narrowly tailored permanent injunction is constitutionally permissible after an

adjudication on the merits. See McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir.

2015); San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d

1230, 1239 (9th Cir. 1997); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st

Cir. 1993); Brown v. Petrolite Corp., 965 F.2d 38, 51 (5th Cir. 1992); Kramer v.

Thompson, 947 F.2d 666, 675 (3d Cir. 1991); Lothschuetz v. Carpenter, 898 F.2d

1200, 1208–09 (6th Cir. 1990) (Wellford, J., concurring in part and dissenting in

part)7; see also 42 Am. Jur. 2d Injunctions § 97. The courts in this “modern” camp

conclude that “once a judge or jury has made a final determination that the speech

at issue is defamatory, an injunction prohibiting the defendant from repeating the

defamatory speech does not constitute a prohibited prior restraint on speech.”

Wagner Equip. Co. v. Wood, 893 F. Supp. 2d 1157, 1161 (D.N.M. 2012) (collecting

cases). The Eleventh Circuit has not weighed in on the issue.

Regardless of this evolving doctrine, it would be extraordinary for a federal

court to enter a preliminary injunction on a defamation claim. See Banks v. Jackson,

7 Judge Hull joined Judge Wellford’s concurring and dissenting opinion, so the dissent became

“the opinion of the court on this issue.” Lothschuetz, 898 F.2d at 1206.

2020 WL 6870739, at *2 (D. Colo. Oct. 2, 2020) (finding that “a preliminary prior

restraint . . . is, in fact, something the court cannot do”). This is because a

preliminary injunction does not follow an adjudication on the merits of the

defamation claim—something all circuits that permit an injunction on prior speech

require before its issuance.®

Here, there has not been a final determination that any of the defendants’

statements are false and defamatory. “[G]ranting a preliminary injunction on this

basis would require this [c]ourt to evaluate [Defendant’s] speech and, at a minimum,

pass judgment on the truth or falsity of that speech and its potential for harm.”

Williams, 458 F. Supp. 3d at 479. The court refuses to do so. For this reason, the

motion for a preliminary injunction on the defamation claim is due to be denied.

IV. CONCLUSION

For these reasons, it is ORDERED that the Motion for Preliminary Injection

(Doc. 28) is DENIED.

DONE and ORDERED on October 31, 2025.

GRAY FED

UNITED STATES MAGISTRATE JUDGE

8 The court did find a few opinions granting motions for preliminary injunctions on defamation

claims, but those courts did not consider the First Amendment implications of this form of relief.

See, e.g., Safex Found., Inc. v. Safeh, Ltd., 531 F. Supp. 3d 285 at 301-14 (D. D.C. 2021);

Muhaisen v. Does I Through 100, 2017 WL 4012132, at *1—3 (D. Colo. Sept. 12, 2017).

26