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Philpot v. Media Research Center Inc.

United States District Court, E.D. Virginia, Alexandria Division

January 8, 2018

LARRY PHILPOT, Plaintiff,
v.
MEDIA RESEARCH CENTER INC., Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III, United States District Judge

         The central dispute in this copyright infringement action is whether defendant's use of two of plaintiff's photographs of famous musicians to accompany online articles about those musicians' political views constitutes fair use of the photographs, not impermissible infringement.

         I.

         The following facts are derived from the facts contained in defendant's list of undisputed facts that plaintiff does not oppose. Pursuant to E.D. Va. Local Rule 56(B), “each brief in support of a motion for summary judgment shall include a specifically captioned section listing all material facts” the moving party alleges to be undisputed. In its response, the non-moving party must include “a specifically captioned section listing all material facts as to which it is contended there exists a genuine issue necessary to be litigated” and must cite parts of the record relied on to support the facts alleged. Id. Defendant complied with the requirement and plaintiff, for the most part, did not contest the listed facts, but instead added additional facts. Those additional facts are noted below where relevant and supported by admissible record facts.

         The Parties

         • Plaintiff, Larry Philpot, has worked as a professional photographer since 2007 and 2008.

         • As a part of his work, plaintiff photographs musical artist in concert.

         • Plaintiff posts his photographs on websites like Wikimedia, in part, to achieve greater fame, making his photographs more valuable in the long-term.

         • Defendant, Media Research Center Inc., is an IRS approved 501(c)(3) non-profit organization with its principal place of business in Reston, Virginia.

         • Defendant publishes news and commentary regarding issues of public debate in order to expose and critique media bias against American Judeo-Christian religious beliefs.

         • Defendant operates a website, www.mrctv.org (“MRCTV”), to broadcast conservative values, culture, politics, and liberal media bias and to entertain the public. Plaintiff adds that defendant also owns MRCTV to generate revenue for MRC via donations and advertising revenue.

         Chesney Photograph and Pro-Life Article

         • The Chesney Photograph depicts Kenny Chesney performing in concert.

         • Plaintiff took the Chesney Photograph to depict Chesney performing in concert; plaintiff did not take the photograph to provide commentary on Chesney's political beliefs. Plaintiff adds that plaintiff created the Chesney Photograph for an additional purpose, namely to enhance visually articles about Chesney.

         • Plaintiff owns a copyright for the Chesney Photograph.

         • Plaintiff uploaded the Chesney Photograph to the Wikimedia website, where the photograph was available for use, subject to a Creative Commons attribution license, version 3.0 (“CCL”).

         • The CCL does not require users to provide monetary compensation for use of the Chesney Photograph, but it does require licensees to identify plaintiff as the author of the Chesney Photograph.

         • The only remuneration plaintiff has ever received for the Chesney Photograph is the undisclosed sums plaintiff received in connection with demand letters plaintiff sent to alleged infringers. The record is devoid of any information about the amount of money plaintiff received, and it appears that plaintiff's interest is in artistic attribution, not financial remuneration, for the use of the Chesney Photograph.

         • On or about January 22, 2015, defendant posted an article on MRCTV, entitled “'8 A-List Celebrities That Are Pro-Life” (“Pro-Life Article”), which included pictures of, and stories about, celebrities who are supportive of the pro-life movement.

         • The Pro-Life Article contained plaintiff's Chesney Photograph alongside a discussion of a pro-life song written by Chesney.

         • The Pro-Life Article did not attribute the Chesney Photograph to plaintiff.

         • Defendant did not charge for access to the Pro-Life Article.

         • From January 22, 2015 to September 22, 2017, defendant generated approximately $16.68 in revenue attributable to advertisements run on the webpage displaying the Pro-Life Article.

         • From July 13, 2017 through October 10, 2017, defendant received approximately $50 in donations through the MRCTV website. These donations may have been received through the link located on the webpage displaying the Pro-Life Article.

         Kid Rock Photograph and Senate Article

         • The Kid Rock Photograph depicts Kid Rock performing in concert.

         • Plaintiff took the Kid Rock Photograph to depict Kid Rock performing in concert; plaintiff did not know Kid Rock was running for U.S. Senate when plaintiff took Kid Rock's photograph. Plaintiff adds that plaintiff created the Kid Rock Photograph for an additional purpose, namely to enhance visually articles about Kid Rock.

         • Plaintiff owns a copyright for the Kid Rock Photograph • Plaintiff uploaded the Kid Rock Photograph to the Wikimedia website on or about September 2013, where the photograph was available for use, subject to a CCL.

         • The CCL does not require users to pay to use the Kid Rock Photograph, but it does require licensees to identify plaintiff as the author of the Kid Rock Photograph.

         • The only remuneration plaintiff has ever received for the Kid Rock Photograph is the undisclosed sums plaintiff received in connection with demand letters plaintiff sent to alleged infringers. The record is devoid of any information about the amount of money plaintiff received, and it appears that plaintiff's interest is in artistic attribution, not financial remuneration, for the use of the Kid Rock Photograph.

         • On or about July 13, 2017, defendant posted an article on MRCTV, entitled “Kid Rock Announces 2018 U.S. Senate Bid” (“Senate Article”), which discussed Kid Rock's ...


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