Philpot v. WOS, Inc.

Background information

"Larry Philpot is a freelance photographer who photographed musicians Willie Nelson and Kenny Chesney and made the photographs available under a Creative Commons license. WOS is a media company that operates a website called ""Wide Open Country"" and published two articles using Philpot's photographs of Nelson and Chesney. Philpot's counsel sent WOS a cease and desist letter, and WOS subsequently changed the attribution line for the photo to include just Philpot's username instead of ""Wikimedia Commons"" as it was currently displayed. Philpot then sued WOS, alleging that 1) WOS published the photos without proper attribution and 2) WOS removed copyright management information (CMI) from the photos before publishing by scrubbing the photograph metadata. Philpot sought $150,000 in damages for each photo. Some discovery disputes came before the court, and ultimately the court granted a motion to compel Philpot to produce certain tax records and bank statements. WOS then moved for summary judgment on each of Philpot's claims, claiming that WOS's use constituted fair use. Philpot also moved for partial summary judgment regarding WOS's defenses."

Case summary

The court evaluated the fair use factors and found three in favor of Philpot but the last and most important factor, effect on the potential market/value of the work, in favor of WOS, ultimately deciding that this issue is not appropriate for summary judgment. The court did grant summary judgment in favor of Philpot's CMI-removal claims, finding that Philpot could not prove that WOS knew to download the metadata and therefore could not prove the intent elements needed to succeed on the claims. Finally, the court held that Philpot was not entitled to summary judgment on WOS's fair use or licensing defenses (WOS argued that it fulfilled attribution "in any reasonable manner" as required by the Creative Commons license), but did grant Philpot summary judgment regarding WOS's unclean hands and copyright misuse and invalid copyright defenses.