Philpot v. Myarea Network, Inc.

LARRY G. PHILPOT, Plaintiff, v. MYAREA NETWORK, INC., Defendant.

No. 8:20-cv-1239-VMC-TGW

United States District Court, M.D. Florida, Tampa Division

June 28, 2021

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

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, 44:1825).

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. # 531 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 43:717). 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 20142016. (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...