IP Law Daily, COPYRIGHT—E.D. Ky.: Photographer awarded $3,500 for photo posted without attribution on radio station website, (Nov 5, 2018)

By Cheryl Beise, J.D.

A media company must pay photographer Larry Philpot $3,500 in damages for posting a copyrighted concert photograph of Willie Nelson on a radio station website without including the required attributions under a Creative Commons license, the federal district court in Lexington, Kentucky, has determined. Given that the defendant reaped no profits from posting the Nelson photograph and would have incurred no expense under the appropriate license, the award was adequate for purposes of deterrence. The court declined to find that the defendant’s infringement was willful because there was no evidence of that the defendant had knowledge of Philpot’s copyright and the photograph could be downloaded from Wikipedia without notice of the Creative Commons license. The facts of the case did not warrant an award of attorney fees and costs (Philpot v. LM Communications II of South Carolina, Inc., October 18, 2018, Boom, C.).

Philpot is a professional concert photographer. On October 4, 2009, he took a photograph of Willie Nelson during a Farm Aid concert in Saint Louis, Missouri. He published the Nelson photograph online on Wikipedia in 2011 and offered a license for online use of Nelson photograph free of charge, provided the user comply with the terms of the Creative Commons Attribution 2.0 Generic License ("Creative Commons license"). These terms included proper attribution to Philpot, that the licensee reference the Creative Commons license, and that the licensee provide attribution to the copyright holder in the manner specified, including name, title, and uniform resource identifier, all of which were provided in connection with the photograph file shared on Wikipedia. Philpot registered the Nelson photograph with the United States Copyright Office in September 2012.

Defendant LM Communications II of South Carolina, Inc. ("LM Communications"), is a small media company solely owned by Lynn Martin. In February 2014, LM Communications posted a copy of the Willie Nelson photograph—without the required Creative Commons license attributions—on 1055thebridge.com, a radio station website, to promote or announce a then-upcoming concert by Nelson and Allison Krauss. LM Communications did not otherwise copy or publish the photograph.

Philpot sent a cease and desist letter to LM Communications in November 2014 and filed suit in 2017, seeking relief for copyright infringement, removal of copyright management information and contributory copyright infringement under Section 1202(b)(3) of the Digital Millennium Copyright Act. In July 2018, the court granted summary judgment to Philpot on the issue of copyright infringement, but denied the motion as to the other claims. The court also denied both parties’ motions for sanctions. Philpot withdrew his DMCA claims and the court held a bench trial on damages.

Statutory damages. Under Section 504(c)(2) of the Copyright Act, a court may award statutory damages of between $750 and $30,000 for each copyright infringed, as the court considers just. If the infringement is willful, the statute authorizes damages up to $150,000.

Willful infringement. Although the Sixth Circuit has not squarely addressed whether "actual knowledge" is required for a finding of willfulness, it has held that a defendant’s "reckless disregard" for a plaintiff’s copyright may support a finding of willfulness, the court noted. Under either standard, however, Philpot failed to prove that LM Communications’ actions were "willful," according to the court.

First, there was no record evidence that LM Communications possessed actual or constructive knowledge of Philpot’s copyright in the Willie Nelson photograph or that LM Communications acted in reckless disregard for Philpot’s copyright interest. At trial, Philpot admitted that anyone viewing the Wikipedia article who right-clicked on the image was able to copy the image to the user’s desktop without seeing any information regarding Philpot’s copyright or how to comply with the Creative Commons license. The Creative Commons license information appeared only if the user left-clicked on the image. Philpot testified that he took no steps to "right-click protect" the Nelson photograph to prevent copying by innocent viewers.

It was true that LM Communications lacked formal controls and written policies regarding the use of potentially copyrighted materials at the time of the infringement, However, LM Communications had just launched its 1055thebridge.com website, only had four or five employees, and did not have a sophisticated IT department. "There is nothing in the record establishing that, under these facts, defendant acted in reckless disregard of Philpot’s property interests, or that defendant clearly failed to follow industry norms for a company of this size," the court said (footnote omitted).

Fee award. The defendant argued only that damages should be at least $30,000, given LM Communications’ wealth and experience in the radio industry. The court found that an award of $3,500 was sufficient under § 504(c)(1) to serve the goals of the Copyright Act. First, LM Communications reaped no profits from publishing the Nelson photograph. "The gross compensation LM Communications received from AEG Live, the concert promoter, for promoting the concert via on-air radio advertising was a paltry $500.00," the court said. Second, LM Communications saved no expense by using the Willie Nelson photograph because compliance with the Creative Commons license would have cost it nothing. Third, Philpot failed to provide any evidence of any license fee he typically charged for use of the Willie Nelson photograph, likely because there was no charge for a Creative Commons license. Further, Philpot offered no evidence of any opportunities lost as a result of LM Communications’ infringement. As a result, the court had no way to estimate actual damages, as a baseline for then assessing the appropriate amount of statutory damages. Nevertheless, the court the court considered that the defendant’s owner, Martin, owned several radio stations and had experience with copyright and licensing issues. The court decided to award statutory damages in the amount of $3,500 as fair compensation and as a deterrent to wrongful conduct.

Attorney fees. Section 505 of the Copyright Act provides that a court may award a reasonable attorney's fee to the prevailing party. The court determined Philpot was not a clearly "prevailing party," given the amount of claims he lodged and the relatively small amount awarded. The Fogerty factors also weighed against an award of attorney fees to Philpot, according to the court. While Philpot’s lawsuit was not frivolous, "Philpot’s claims throughout this case suffered underdeveloped evidence and discovery," the court observed. Even though Philpot originally pursued the case pro se, he was no novice litigant since he had filed many lawsuits to enforce his copyright. Both parties filed numerous discovery and sanctions-type motions, necessitating the court’s constant involvement and oversight. At one point, Philpot was ordered to show cause for failing to appear for a telephonic status conference. Under the facts of the case, the court declined to award attorney fees and costs. "Such an award would serve no deterrent value, consistent with the principles of the Copyright Act, but instead might incentivize the kinds of acrimonious and unreasonable litigation conducted in this case," the court said.

This case is No. 5:17-cv-00173-CHB-EBA.

Attorneys: James Stephen Smith (Graydon, Head & Ritchey, LLP) for Larry G. Philpot. William W. Allen (Gess Mattingly & Atchison, PSC) for LM Communications II of South Carolina, Inc.

Companies: LM Communications II of South Carolina, Inc.

Cases: Copyright TechnologyInternet KentuckyNews