504 F.Supp.3d 503
W.D.N.C.2020Background
- Plaintiff David Oppenheimer owns a registered copyright in a photograph of Harrah’s Cherokee Casino Resort lobby; he sued on January 17, 2019 for copyright infringement.
- Defendant ACL LLC operates iplaycornhole.com; the site used the photograph to promote a 2016 event without a license or authorization.
- Defendant William Stacey Moore is the sole owner and manager of ACL and admitted the photograph was published on the site while he managed it.
- Plaintiff moved for partial summary judgment seeking (a) liability for direct infringement against ACL and Moore and (b) dismissal of five affirmative defenses (fair use, unclean hands/misuse, de minimis use, implied license, failure to mitigate).
- Discovery closed; defendants provided minimal evidence to support several affirmative defenses and argued additional discovery was needed but did not move to compel.
- Court: granted summary judgment for direct infringement as to ACL and Moore; granted summary judgment for plaintiff on de minimis use, implied license, and failure to mitigate; denied summary judgment on fair use and unclean hands/misuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement — ACL | ACL copied and published the registered photograph without license | No serious dispute of copying; suggested photo may have come from the Tribe (act of state implication) | Granted — ACL liable for direct infringement |
| Direct infringement — Moore (individual liability) | Moore admitted he owned/managed ACL and published the photo, so he is personally liable | Moore argued corporate form shields him (no veil piercing shown) | Granted — Moore personally liable for direct infringement |
| Fair use defense | Photo use was not fair; plaintiff sought summary adjudication | Defendants argued commercial promotional use but disputed market effect; contended more discovery could show limited market harm | Denied — genuine issue remains, especially as to market effect (4th fair-use factor) |
| Unclean hands / misuse of copyright | Plaintiff sought judgment rejecting this defense | Defendants alleged plaintiff is a copyright "troll" who monetizes litigation; urged discovery would confirm misuse | Denied — factual issue for trial; defendants' minimal evidence precludes summary disposition |
| De minimis use, implied license, failure to mitigate | Plaintiff argued no evidence supports these defenses | Defendants failed to produce supporting evidence or move to compel discovery | Granted — defenses disposed for lack of factual support |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and genuine-dispute test)
- Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s initial burden on summary judgment)
- Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (copyright exclusive rights and infringement concept)
- CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544 (elements of copyright infringement)
- Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (copyright-registration presumption of validity)
- W.S. Kirkpatrick & Co. v. Env’t Tectonics Corp., 493 U.S. 400 (act of state doctrine scope)
- Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (rationale for act of state doctrine)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (fair use factors guidance)
- A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (application of fair use factors to photographs)
- NXIVM Corp. v. The Ross Inst., 364 F.3d 471 (market effect as key fair-use inquiry)
- Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970 (copyright misuse/unclean-hands doctrine)