Philpot v. L.M. Commc'ns II of S.C., Inc.
343 F. Supp. 3d 694
E.D. Ky.2018Background
- Photographer Larry G. Philpot registered a 2009 Willie Nelson concert photograph (the "Nelson photograph") and had posted it on Wikipedia under a Creative Commons Attribution 2.0 license that required attribution but no fee.
- LM Communications II of SC, Inc. (owner of radio station Bridge 105.5) posted the identical Nelson photograph on its community events web page in early 2014 while promoting an upcoming concert; the post lacked the required attribution.
- LM Communications is a small company (4–5 employees); the person who posted the image likely copied it from Wikipedia (possibly an unpaid intern); the company had no formal copyright-use policies.
- Philpot discovered the posting on April 29, 2014, sent a cease-and-desist on November 18, 2014; LM Communications promptly removed the photo and preserved screenshots after receiving notice.
- Philpot sued for copyright infringement and related claims; the court previously granted summary judgment for Philpot on infringement. The bench trial addressed statutory damages under 17 U.S.C. § 504(c) and attorney's fees under § 505.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the infringement willful under § 504(c)(2)? | Philpot argued LM Communications knew or recklessly disregarded his copyright, warranting willful-enhanced damages. | LM Communications argued it had no knowledge of Philpot's copyright and acted without intent or reckless disregard; it promptly removed the image after notice. | Court: Not willful — plaintiff failed to prove actual knowledge or reckless disregard. |
| What statutory damages are appropriate under § 504(c)(1) (non-willful range $750–$30,000)? | Philpot sought substantial damages (argued at least $30,000), pointing to defendant's experience and that attribution was required by the CC license. | LM Communications noted it gained no profit from the posting, saved no expense, and the Creative Commons license required no fee; damages should be modest. | Court: Awarded $3,500 as reasonable deterrent given no profit, no evidence of actual losses, and non-willfulness. |
| Is plaintiff entitled to attorney's fees under § 505? | Philpot sought fees as prevailing party. | LM Communications opposed fees, pointing to mixed results, plaintiffs' procedural issues, and the equities. | Court: Denied fees — plaintiff not a clear prevailing party; Fogerty factors and case history counsel against awarding fees. |
| Liability for removal or alteration of copyright management information (§ 1202) | Philpot alleged removal of CMI and contributory violations. | Defendant disputed such claims; parties later dropped some claims and evidence was insufficient. | Court: Previous orders denied relief under § 1202; not resolved in damages phase. |
Key Cases Cited
- Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (U.S. 1998) (statutory damages are a factfinder determination)
- Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) (willfulness requires knowledge or reckless disregard)
- Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009) (willfulness standard and burden on plaintiff)
- F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228 (U.S. 1952) (statutory damages serve both compensation and deterrence)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (U.S. 1994) (factors for awarding attorney's fees in copyright cases)
- N.A.S. Imp., Corp. v. Chenson Enters., Inc., 968 F.2d 250 (2d Cir. 1992) (recklessness and willfulness analysis)