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Philpot v. LM Communications II of South Carolina, Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

July 10, 2018

LARRY G. PHILPOT, Plaintiff,
v.
LM COMMUNICATIONS II OF SOUTH CAROLINA, INC., Defendant.

          MEMORANDUM OPINION & ORDER

          CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE EASTERN AND WESTERN DISTRICTS OF KENTUCKY

         This matter is before the Court upon Defendant and Plaintiff's Motions for Sanctions [R. 36, R. 42; Responses at R. 37, R. 53; Replies at R. 47, R. 67; Sur-Reply at R. 75]; Plaintiff's Motion for Attorneys' Fees [R. 39; Response at R. 48; Reply at R. 51]; and Plaintiff's Motion for Summary Judgment [R. 44; Response at R. 52; Reply at R. 66].[1] The Court is sufficiently advised, and these motions are ripe for decision.

         I. Facts and Procedural History

         Plaintiff Philpot is a professional concert photographer. On October 4, 2009, he took a photograph of Willie Nelson during a Farm Aid concert in Saint Louis, Missouri. He published the Nelson photograph online on Wikipedia in 2011 and offered a license to use the Nelson photograph free of charge for any online users that comply with the terms of the Creative Commons Attribution 2.0 Generic License (“Creative Commons license”).[2] These terms include proper attribution to Philpot, that the licensee reference the Creative Commons license, and that the licensee provide attribution to the copyright holder in the manner specified, including name, title, and uniform resource identifier, all of which are provided in connection with the photograph file shared on Wikipedia.

         Philpot then registered the Nelson photograph with the United States Copyright Office on September 5, 2012, and received Certificate of Registration No. VAu 1-132-411 for a collection of works known as “2009 Musician Photos.” [R. 44-1 at pp. 4-5, Page ID#: 472-73.]

         In February 2014, Defendant LM Communications II of South Carolina, Inc. (“LM Communications”), posted a copy of the Nelson photograph on its website, 1055thebridge.com, as part of a promotion or announcement for a then-upcoming concert by Nelson and Allison Krauss.[3] LM Communications had a commercial interest in the concert, having sold on-air advertising to AEG, the promoter of the concert, for the May 8, 2014, event, but was not specifically under contract to provide promotional posts on its website. Nonetheless, in anticipation of that concert, LM Communications posted the Nelson photograph on the community events page of its website along with other notable community events. LM Communications did not otherwise copy or publish the photograph.

         Philpot did not provide permission to LM Communications to use the photograph outside of the scope of the Creative Commons license. There is no evidence that LM Communications posted the photograph on its website with attribution or referenced the Creative Commons license in connection with the photograph posted, even though it is clearly the same image shared on Wikipedia.

         Philpot discovered that LM Communications had used the Nelson photograph on April 29, 2014, when he saw the photograph on its website. While he took a screenshot of the image in use on LM Communications' website, he does not have a digital copy of what he saw on the website that day and does not know whether the image copy used by LM Communications ever had copyright management information associated with it. Nor does he know whether anyone at LM Communications removed any copyright management information before posting the photograph on its website.

         He first contacted LM Communications about his claims concerning the Nelson photograph in a cease and desist letter dated November 18, 2014. In that letter, he asked that LM Communications stop using his photograph on its website and take “immediate steps to assure that information (both in paper and electronically-stored form) relating the use of [his] image is not altered, deleted, or otherwise tampered with” and asked that Defendant “construe this letter as a formal notice of [LM Communication's] continuing legal obligation to preserve all such information until further advised.”[4] [See R. 44-3 at p. 52, Page ID#: 542.]

         Kelly Bazzell, a now-former employee of LM Communications, either deleted the photograph from the website or instructed Intertech Media, LLC, who hosted the website, to do so after the cease and desist letter was received. She made two screenshots of the Nelson photograph and the related items on the computer screen before she did so. LM Communications is not aware of the identity of the individual who originally posted the photograph or from where he or she obtained the photograph but its agents theorized amongst themselves that an intern posted it.[5] LM Communications concedes that the photograph is the same image in which a copyright is claimed by Plaintiff.

         Almost three years after discovering the Nelson photograph on Defendant's website, Plaintiff filed his Complaint [R. 1], pro se, on April 7, 2017, averring that Defendant posted a copy of a photograph of Willie Nelson on its website as part of a promotion or announcement for an upcoming concert by Nelson and Allison Krauss, that he holds the copyright for the Nelson photograph, and that Defendant failed to observe the licensing agreement available to them when it did not provide appropriate attribution of the photograph to him. He claims relief for copyright infringement, 17 U.S.C. § 501; removal of copyright management information and, by extension, contributory copyright infringement under § 1202(b)(3). After Defendant filed its Amended Answer and Counterclaim [R. 11], the Court entered a scheduling order on August 22, 2017 [R. 15], and the parties proceeded to engage in a series of discovery disputes. [See R. 14, R. 16, R. 18-19, R. 21-23, R. 25].

         Attorney Stacy Cole filed a Notice of Appearance on behalf of Plaintiff Philpot on January 3, 2018 [R. 28]. At that time, by counsel, Plaintiff sought a 90-day extension of time for all deadlines that remained in the case and a 30-day extension of time to respond to Defendant's First Set of Interrogatories and Requests for Production of Documents. [R. 29.] Defendant objected. Ultimately, Magistrate Judge Atkins ordered that all answers to outstanding discovery requests be provided by Plaintiff to Defendant no later than January 14, 2018. [January 9, 2018, Minute Entry Order, R. 32.] Judge Hood then ordered that the deadline for fact and opinion discovery be extended for Defendant through January 31, 2018, declined to afford any further relief with respect to the schedule, and advised Plaintiff that any failure to appear for deposition or to respond to discovery might result in dismissal of the case for failure to participate in discovery. [January 10, 2018, Order, R. 33.]

         A deposition of Plaintiff, originally scheduled for January 12, 2018, was cancelled, and LM Communications then sought to depose Philpot on January 26, 2018 [January 12, 2018, Amended Notice, R. 34]. That deposition was cancelled on January 25, 2018 [January 25, 2018, Notice, R. 35] after the attorneys were unable to reach a timely agreement on a proposal for a protective order by Plaintiff and Plaintiff failed to make his final production of documents in advance of the scheduled deposition. Ultimately, however, Plaintiff provided the relevant documents with an agreed protective order in place, [see R. 41], and appeared for the rescheduled deposition on February 21, 2018.

         II. Motions for Sanctions

         A. Defendant's Motion for Sanctions Pursuant to Fed.R.Civ.P. 37

         Federal Rule of Civil Procedure 37 gives the Court broad discretion to impose sanctions for a party's failure to cooperate in discovery, failure to comply with a court order, and other discovery abuses. In its Motion for Sanctions, Defendant seeks dismissal of Plaintiff's claims for his failure to follow the Court's discovery orders and complete discovery by producing documents responsive to requests that were in his possession and to participate in his deposition by the deadline set out in the Court's order modifying the schedule in this matter [R. 15]. He seeks, alternatively, an award of attorney fees for the time and effort necessary to compel discovery.

         Because he failed to timely respond to discovery requests within the time frame provided by the Court, it can be fairly said that Plaintiff did not cooperate in the discovery process as directed by the Court's Order, notwithstanding the scheduling and objections to confidentiality issues encountered by the parties, particularly in the absence of a pending motion for a protective order under Fed.R.Civ.P. 26(c). See Fed. R. Civ. P. 37(d)(2). That said, Defendant cancelled Philpot's deposition in the absence of the production of documents, which means that he did not fail to appear, and immediately sought sanctions from the Court concerning his failure to provide responses and complete discovery in a timely fashion without making the required certification that LM Communications had, in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the response without court action. See Fed. R. Civ. P. 37(d)(1)(B). This alone is reason to deny the motion, for the rule is clear that a motion for sanctions for failing to respond “must include a certification.” Id. Further, there is no dispute that Plaintiff ultimately provided the relevant documents with a protective order in place and appeared for the rescheduled deposition, resulting in only a month's delay in the schedule for his deposition. Defendant has identified no prejudice to its defense as a result of this delay and, notably, did not rely on the documents produced during this period in order to present its objections to Plaintiff's Motion for Summary Judgment.

         It follows that Defendant's Motion for Sanctions will be denied. All of the trouble for these parties might have been avoided had counsel for both acted with more time to spare. Thus, the Court also declines to award Plaintiff the amount of his ...


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