Larry Philpot is a freelance photographer who photographs musicians. Alternet Media operates an alternative news website and Facebook page publishing its own content as well as contents from other sources. Alternet posted one of Philpot's copyrighted photos of Willie Nelson with a superimposed quote on the Alternet Facebook page. Alternet did not provide attribution to Philpot on the post. Philpot sent a cease and desist letter to which Alternet did not respond. Philpot filed a complaint against Alternet, alleging that Alternet infringed his copyright and violated the Digital Millennium Copyright Act. Alternet moved to dismiss, arguing that fair use bars Philpot's copyright claim.
The court reviewed the four fair use factors and concluded there were insufficient facts in the record to make a fair use determination at this stage in the litigation. The court did grant (with leave to amend) Alternet's motion to dismiss the Digital Millennium Copyright Act claim, finding that Philpot made conclusory arguments without enough facts to show Alternet had the required mental state.