Background information

Larry Philpot is a freelance photographer who photographed musician Willie Nelson and made the photograph available under a Creative Commons License. Philpot alleged that Emmis infringed his copyright by publishing, copying, and displaying the photograph in an article on their website, www.TexasMonthly.com, without proper attribution to Philpot and his website. Emmis later sold the website and the article with the Philpot photo to a third party. Emmis moved to dismiss Philpot's claims, arguing that (1) the claims are time-barred, (2) Philpot's copyright registration was defective and Emmis properly attributed the phot to him, and (3) the one-satisfaction rule and rule against claim splitting prevent the suit.

Case summary

"The motion to dismiss was denied. It was unclear at this stage in the litigation whether Philpot's copyright registration was defective and whether Emmis properly attributed the photo (the court declined to dismiss the claim based on this affirmative defense). Additionally, the one-satisfaction rule only applies to Texas state tort law, not federal law. While Philpot also filed a similar lawsuit with similar claims against a different defendant, because Emmis is not named in that other litigation, Philpot's case against Emmis is not barred under claim splitting. Around the same time, Emmis defaulted on a responsive pleading by mistake and sought to vacate the technical default, which the court granted in part while also denying in part Philpot's motion for default judgment. Philpot then moved to recover attorney's fees for seeking entry of default and default judgment. The court emphatically denied the request, concluding that Philpot's counsel was ""overly zealous"" and ""overly combative"" in its legal actions regarding default judgment."