Larry Philpot is a freelance concert photographer who photographed musicians Willie Nelson and Carlos Santana and made them available under Creative Commons Licenses. MyArea Network is a social media platform that allows users to post on its platform, and also hires independent contractors to post. The Nelson and Santana photographs appeared in articles on MyArea’s websites, www.512area.com and www.727area.com. Philpot asserted a claim for copyright infringement, alleging that the photos had been used without proper attribution. MyArea filed its answer and affirmative defenses. MyArea moved for summary judgment on its defense of fair use, and Philpot moved for summary judgment because none of the affirmative defenses apply and there was no fair use.
The court held that MyArea is not entitled to summary judgment on its fair use defense because, weighing the factors, a reasonable jury could find that fair use does not apply (although three factors tiled towards Philpot, the most important one tilted towards MyArea). The court also held that Philpot is not entitled to summary judgment because, weighing the factors, a reasonable jury could find that fair use applies. The court denied Philpot’s motion for summary judgment as to the innocent infringer defense because a jury could believe testimony that MyArea did not intend to infringe. The court denied summary judgment for various other affirmative defenses, but granted Philpot’s summary judgment for acquiescence, laches, estoppel, and statute of limitation, and de minimis use.