Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Honorable Marcia S. Krieger
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`Civil Action No. 12-cv-01590-MSK-CBS
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`MICHAEL BOATMAN, an individual,
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`Plaintiff,
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`v.
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`UNITED STATES RACQUETBALL ASSOCIATION, d/b/a USA Racquetball,
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`Defendant.
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`OPINION AND ORDER DENYING
` MOTIONS FOR SUMMARY JUDGMENT
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`THIS MATTER comes before the Court on cross-motions for summary judgment: Mr.
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`Boatman’s Motion for Summary Judgment on All Claims (#26), the Defendant United States
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`Racquetball Association’s Response (#30, 31), and Mr. Boatman’s Reply (#34); and the
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`Defendant’s Motion for Summary Judgment (#27, 28), Mr. Boatman’s Response (#29), and the
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`Defendant’s Reply (#32, 33). Also pending before the Court is the Defendant’s Motion for
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`Leave to Restrict Document (#35), to which no response was filed.
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`I. Facts
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`Having reviewed the record and the submissions of the parties, the Court finds the
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`undisputed facts relevant to the motion to be as follows.
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`Plaintiff Michael Boatman is a professional photographer and racquetball enthusiast. The
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`Defendant United States Racquetball Association (USRA) is a non-profit corporation that
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`promotes racquetball. The Defendant owns six major sporting events, including the U.S. Open
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`Racquetball Championships. Although the Defendant owns the U.S. Open, it hires a third-party
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 2 of 20
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`to manage the operation and running of the tournament. During the times relevant to this action,
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`Ganim Enterprises was the operator of the U.S. Open.
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`Mr. Boatman attended the U.S. Open tournament from 1996 through 2010 and took
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`several photographs during the events. Although Mr. Boatman contends that he never gave up
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`copyright ownership to his photographs, he admits that, over the years, he gave permission to
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`various individuals to use his photographs for certain purposes. Pertinent to this action are three
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`license agreements in particular: (1) an oral agreement between Mr. Boatman and Doug Gamin,
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`the owner of Ganim Enterprises, which was reduced to writing on July 17, 2009 (“the U.S. Open
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`Agreement”); (2) a license granted by Mr. Boatman to the Defendant executed on October 29,
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`2010, (“the USAR License”), and (3) an agreement between Mr. Boatman and the Defendant
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`executed on January 7, 2011, (“the Stock Photography License”).
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`a. The U.S. Open Agreement
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`Since 1996, Mr. Boatman had a standing oral agreement with Doug Ganim, owner of
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`Gamin Enterprises, that his photographs of the tournament could be used by Mr. Ganim for
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`editorial purposes related to the U.S. Open. In exchange, Mr. Boatman received perks at the
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`tournament, such as free entry and food and beverages. Pursuant to this agreement, Mr. Ganim
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`would use Mr. Boatman’s photographs on materials related to the U.S. Open. He would also
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`provide photographs to the Defendant and authorize it to use the photographs for certain
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`purposes.
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`In July 2009, through a series of email exchanges, Mr. Boatman and Mr. Gamin reduced
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`to writing the oral “agreement [they] made so many years ago.” An email from Mr. Boatman
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`states, “US Open [P]hotography Agreement: Same as always images are for the uses of Ganim
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`Enterprises, US Open, and any editorial use per Doug Ganim without restrictions. Photographer,
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`2
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 3 of 20
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`Mike Boatman maintains copyright exclusive ownership and has the right to sell or publish
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`images per his discretion.” Mr. Ganim responded that the terms outlined were acceptable.
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`b. The USAR License1
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`On October 29, 2010, Mr. Boatman wrote to USAR, supplying 58 of his photographs and
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`implicitly licensing USAR to make certain uses of them, subject to the following terms: (i)
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`“copyright notice must be clearly visible in each image published,” along with a specific
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`attribution to Mr. Boatman; (ii) USAR was to make “editorial usage only” of the images; (iii) the
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`use of the photographs with “commercial advertisement or [use] for ads of any type” was
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`expressly prohibited; (iv) the images “may not be distributed, sold, or gifted to any third party”;
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`and (v) the release “is for one-time publication in USA Racquetball Magazine.”
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`c. The Stock Photography License
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`On January 7, 2011, Mr. Boatman and the Defendant entered into an agreement by which
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`Mr. Boatman gave the Defendant permission, beginning on January 6, 2011 and continuing for
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`three years, to make “unlimited print and electronic/web editorial use” of “action photos of
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`racquetball from 2003 to 2009.” The agreement provided for payment of a $1,000 fee in
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`exchange for this license. The license required that USAR include a copyright notice identifying
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`him with each published use of the images, and provided that USAR was not permitted to assign
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`or transfer its rights under the license.2
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`1
`USAR argues that this “agreement” is “null and void as it is unsupported by
`consideration” and was entered into by an unauthorized representative of USAR. This Court
`understands the document to be a conditional license granted by Mr. Boatman to USAR, not a
`bilateral agreement by which USAR assumed certain performance obligations towards Mr.
`Boatman in exchange for the benefits of that license. Thus, questions of consideration given by
`USAR and authorization of the representative who signed the document on USAR’s behalf are
`largely irrelevant.
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` 2
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`The Stock Photography License contains a provision that “any dispute regarding this
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`license” shall, at Mr. Boatman’s discretion, be either subject to arbitration or be “adjudicated in
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`Mr. Boatman alleges that beginning in 2009, the Defendant used his photographs in ways
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`that were not authorized by any of the licenses he issued, and therefore the uses infringed upon
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`his exclusive copyrights in the photos. Specifically, Mr. Boatman alleges that the Defendant
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`used his photographs without authorization in the following six ways:
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`1. Reproducing eight photographs from the 2010 U.S. Open on the Defendant’s website in a
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`“free electronic preview” of the Fall 2010 edition of Racquetball Magazine;
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`2. Reproducing his photograph of racquetball player Kane Waselenchuk,, taken at the 2010
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`U.S. Open, in the Defendant’s 2011 Regional Qualifiers flier;
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`3. Creating a derivative work of his photograph of racquetball player Alvaro Beltran, taken
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`at the 2010 U.S. Open, by reproducing it in a slightly blurred form on the cover of the
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`Defendant’s 2011 Rulebook;
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`4. Creating a derivative work of one photograph from the 2010 U.S. Open and reproducing
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`the photograph in a slightly blurred form in a flyer for the Defendant’s Instructor
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`Program, which was included in the Winter 2011 edition of Racquetball Magazine;
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`5. Reproducing a series of his photographs in a packet advertising sponsorship opportunities
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`for one of the Defendant’s tournaments in 2011;
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`6. Providing copies of five photographs from the 2009 U.S. Open to a third-party, the
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`United States Racquetball Foundation, which photographs then appeared on the third-
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`party’s website and in a live presentation by one of its representatives.3
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`Illinois.” Neither party has requested transfer of this case or otherwise questioned the Court’s
`jurisdiction to consider it, and thus, the Court treats this particular provision as having been
`waived by both parties.
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` 3
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`In his motion, Mr. Boatman appears to allege two additional infringing uses that occurred
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`after the filing of the Complaint in this case: (1) the sale of a photograph on the Defendant’s
`website, and the distribution of a sponsorship packet to third-party, ESPN, Inc. These allegations
`are not part of the Complaint, and no amendment to the Complaint has been made to include
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`Mr. Boatman further alleges that two of the photographs that he provided to the
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`Defendant from the 2010 U.S. Open contained his copyright watermark, and that the Defendant
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`reproduced those two photographs without the copyright watermark.
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`For these alleged acts, Mr. Boatman brings two claims: (1) copyright infringement under
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`the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., and (2) violation of the Digital Millennium
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`Copyright Act (DMCA), 17 U.S.C. §§ 1201 et seq. Mr. Boatman also asserts that he is entitled
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`to enhanced statutory damages under 17 U.S.C. § 504(c)(2) due to the Defendant’s alleged
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`willful infringement of his copyrights. Both parties move for summary judgment in their favor.
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`II. Summary Judgment Standard
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`Although Rule 56 of the Federal Rules of Civil Procedure was recently restyled, its
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`purpose remains the same — to provide for a summary determination when no trial is necessary.
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`See White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Accordingly, Rule 56(a)
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`directs entry of a judgment on a claim or defense, or part thereof, when there is no genuine
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`dispute as to any material fact and a party is entitled to judgment as a matter of law.
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`Substantive law governs which facts are material and what issues must be determined. It
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`also specifies the elements that must be proved for a given claim or defense, sets the standard of
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`proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477
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`U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th
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`Cir. 1989). A factual dispute is “genuine” if the evidence presented in support of and in
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`opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for
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`either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a
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`them. Accordingly, these allegations of infringement are outside the scope of this lawsuit and
`are not addressed in this opinion.
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`court views all evidence in the light most favorable to the non-moving party, thereby favoring
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`the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
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`If the movant has the burden of proof on a claim or defense, the movant must establish
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`every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
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`56(c). Once the moving party has met its burden, to establish a genuine dispute that requires a
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`trial, the responding party must present competent and contradictory evidence as to a material
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`fact. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v.
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`Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999).
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`When the moving party does not have the burden of proof on the pertinent issue, it may
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`point to an absence of sufficient evidence to establish a claim or defense that the non-movant is
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`obligated to prove. Once the movant has done so, the respondent must come forward with
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`sufficient competent evidence to establish a prima facie claim or defense to justify a trial. If the
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`respondent fails to produce sufficient competent evidence to establish its claim or defense, the
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`claim or defense must be dismissed as a matter of law. See Celotex Corp. v. Catrett, 477 U.S.
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`317, 322–23 (1986).
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`This case involves cross-motions for summary judgment. "Because the determination of
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`whether there is a genuine dispute as to a material factual issue turns upon who has the burden of
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`proof, the standard of proof and whether adequate evidence has been submitted to support a
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`prima facie case or to establish a genuine dispute as to material fact, cross motions must be
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`evaluated independently." In re Ribozyme Pharmaceuticals, Inc., Securities Litig., 209 F. Supp.
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`2d 1106, 1112 (D. Colo. 2002); see also Atlantic Richfield Co. v. Farm Credit Bank of Wichita,
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`226 F.3d 1138, 1148 (10th Cir. 2000); Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th
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`Cir. 1979) ("Cross-motions for summary judgment are to be treated separately; the denial of one
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 7 of 20
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`does not require the grant of another.").
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`III. Analysis
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`A. Plaintiff’s Motion
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`Mr. Boatman states that he seeks summary judgment on his claims of copyright
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`infringement and violations of the DCMA. He also seeks a determination as to the willfulness of
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`the Defendant’s conduct for purposes of enhanced statutory damages.
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`1. Copyright Infringement
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`Although it is not clear from the pleadings, Mr. Boatman’s allegations of infringement
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`actually raise two kinds of claims: direct copyright infringement and indirect copyright
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`infringement.
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`a. Direct Infringement
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`The Copyright Act of 1976 provides that “the owner of copyright under this title has the
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`exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted
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`work in copies . . . ; (2) to prepare derivative works based upon the copyrighted work; [and] (3)
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`to distribute copies . . . of the copyrighted work to the public by sale or other transfer of
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`ownership, or by rental, lease, or lending; . . . .” 17 U.S.C. § 106. Anyone who violates any of
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`the exclusive rights of the copyright owner -- that is, “anyone who trespasses into his exclusive
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`domain by using or authorizing the use of the copyrighted work in one of the [] ways set forth in
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`the statute” -- infringes the copyright.” Sony Corp. of Am. V. Universal City Studios, Inc., 464
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`U.S. 417, 433 (1984) (citing 17 U.S.C. § 501(a)).
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`To prevail on a claim of copyright infringement, a plaintiff must establish (1) ownership
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`of a valid copyright, and (2) the defendant’s violation of any one of the exclusive rights granted
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`to copyright owners under 17 U.S.C. § 106. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 8 of 20
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`F.3d 823, 831-32 (10th Cir. 1993). The Defendant does not dispute that Mr. Boatman owns the
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`copyright in the photographs at issue. Thus, the issue is whether the Defendant’s conduct
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`violated any of Mr. Boatman’s exclusive rights under the Copyright Act.
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`The Defendant does not dispute that it reproduced Mr. Boatman’s photographs in the
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`ways discussed above. Instead, it argues that each use was permitted by one or more of the three
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`licenses granted by Mr. Boatman. Generally, a copyright owner who grants a nonexclusive
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`license to use his copyrighted material waives his right to sue the licensee for copyright
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`infringement and can sue only for breach of contract. Jacobsen v. Katzer, 535 F.3d 1373, 1380
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`(Fed. Cir. 2008). If, however, a license is limited in scope and the licensee acts outside the
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`scope, the licensor can bring an action for copyright infringement. Id. A licensee violates the
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`scope of a copyright license by exceeding the specific purpose for which the license was granted.
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`ITOFCA, Inc. v. MegaTrans Logistics, Inc., 322 F.3d 928, 940 (7th Cir. 2003).
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`The existence of a license authorizing the use of copyrighted material is an affirmative
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`defense to an allegation of infringement. Chamberlain Group, Inc. v. Skylink Technologies, Inc.,
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`381 F.3d 1178, 1193 (Fed. Cir. 2004) (citing I.a.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir.
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`1996)); Baisden v. I’m Ready Productions, Inc., 693 F.3d 491, 499 (5th Cir. 2012); Latimer v.
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`Roaring Toyz, Inc., 601 F.3d 1224, 1235 (11th Cir. 2010). However, the defendant only bears
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`the burden of proving the existence of a license granted to it; the plaintiff bears the burden of
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`proving that the defendant’s use of a copyrighted work exceeded the scope of that license.
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`Bourne v. Walt Disney Co., 68 F.3d 621, 630 (2d Cir. 1995).
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`Mr. Boatman does not dispute the existence of any of these licenses. Instead, he argues
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`that the Defendant’s conduct falls outside the scope of the licenses. Thus, in order to prevail on
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`his claims of infringement, he must prove that none of the licenses granted the Defendant
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`permission for the asserted uses.
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`Mr. Boatman asserts that each of the licenses limited the Defendant’s use of his
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`photographs to “editorial use.” None of the agreements of licenses offers an express definition
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`of the term “editorial use.” At best, the USAR License appears to juxtapose the concept of
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`permissible “editorial use” with the prohibition on the use of the photos in “commercial
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`advertisement or for ads of any type.” The parties have submitted deposition transcripts from
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`various witnesses discussing the definition of the term “editorial use,” but the record does not
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`reveal that the parties ever agreed upon a clear and precise definition of that term.
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`James Heiser, USAR’s principal, gave somewhat inconsistent testimony on his
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`understanding of the term. He testified that prior to November 8, 2010, he did not have any
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`particular understanding of the term “editorial” rights as used in the licenses and agreements. In
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`a November 8, 2010 e-mail to Mr. Ganim, he posed the question of “what are editorial rights,”
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`and continued “that to me does not imply the right to use the photographs in any way other than
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`the Open.” He testified that, today, based on having “general conversations” with unspecified
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`individuals, he understands the term “editorial use” to mean “written information that is not for
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`profit, including a non-profit publication.” He later explained that “editorial, to me, means usage
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`of – beyond usage for your own use; giving it to somebody for commercial purposes that will
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`make them money.”
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`Mr. Boatman also submitted his own affidavit and excerpts from his own deposition
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`testimony, but neither document discusses his understanding of the term “editorial use.”
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`In response to Mr. Boatman’s motion, USAR submitted a portion of Mr. Ganim’s
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`deposition testimony. Mr. Ganim stated that his understanding of the US Open Agreement was
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`that “the photographs were licensed to me for the purpose of anything I wanted to do with them
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`with regards to the US Open, so editorial purposes, marketing and promotion of the US Open ,
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`dissemination and use of the US Open photos by my US Open sponsors. . . . that I could use the
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`photographs for, you know, whatever I needed to as long as it related to the US Open.” He
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`testified that he discussed this issue with Mr. Boatman on occasion, and that Mr. Boatman “said
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`he didn’t want the photographs, you know, to be profited from, that we were only interested in
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`promoting racquetball with the photographs.” On other occasions, Mr. Ganim also seemed to
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`juxtapose the notion of “editorial use” with “commercial use”: “I did not distribute the photos to
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`[USAR] for commercial use. I distributed them to them for editorial use.”
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`Enforcing a copyright license “raises issues that lie at the intersection of copyright and
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`contract law.” MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928, 939 (9th Cir.
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`2010) (citation omitted). The scope or purpose of a copyright license is determined through
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`application of normal principles of contract law. Kennedy v. Nat’l Juvenile Det. Ass’n, 187 F.3d
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`690, 694 (7th Cir. 1999) (citing 3 Nimmer, Nimmer on Copyright § 10.08)). The parties have
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`not expressly addressed what state’s law governs the terms of the various licensing agreement,
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`and in the absence of a clear argument as to that point, the Court will apply the typical rules of
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`contract interpretation applied in Colorado. The Court must attempt to give effect to the parties’
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`mutual agreement as to a particular term. Absent a clear indication that the parties intended an
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`idiosyncratic meaning, the Court first assumes that the parties intended their terms to bear their
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`ordinary and common meanings. If there is no plain meaning to a given term, the Court then
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`looks to other extrinsic evidence of the parties’ intend such as details of the parties’ negotiations
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`or their course of dealings. See Level 3 Communications Corp. v. Liebert Corp., 535 F.3d 1146,
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`1154 (10th Cir. 2008).
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`Here, the term “editorial,” or “editorial use,” has no plain and common meaning that is
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`dispositive in the context presented here. Dictionary definitions of “editorial” merely provide
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`that the term is “of or relating to an editor or editing,” and the act of “editing” (as relevant here)
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`is defined as “to prepare [material] for publication.” Merriam-Webster Collegiate Dictionary,
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`10th Ed. (2001). This definition merely provides that any use by USAR of the photographs for
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`publication purposes could be considered “editorial use.”
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`Without a definition derived from plain language, the Court is left to attempt to divine the
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`parties’ mutual intention from other sources, but it is here that the record becomes sufficiently
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`ambiguous as to prevent the granting of summary judgment in Mr. Boatman’s favor. There is
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`some evidence to suggest that the parties understood “editorial use” to be the antithesis of
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`“commercial” or “advertising” use – i.e. that USAR was permitted to make use of the
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`photographs in conjunction with articles about the US Open in particular, or even about
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`racquetball in general, but was not entitled to use the photographs to promote the sale of any
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`products.
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`But even that interpretation does not clearly resolve the issue: the concept of
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`“commercial” use is itself ambiguous. Mr. Ganim’s recitation of discussions with Mr. Boatman
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`suggest that the parties may have understood that “commercial” use equated with “for profit” use
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`– that is, the photographs could be used to advertise products and services provided by USAR or
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`other non-profit entities seeking to advance the statute of racquetball, but that the photographs
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`could not be used by for-profit entities seeking to advertise their products or services. If, by
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`extension, “editorial” use is the opposite of “for-profit” use, then all of USAR’s uses of the
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`photos might be considered “editorial” in nature because USAR is a non-profit company and
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`there is nothing in the record to suggest that its own use of the products was ever for a profit-
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`generating purpose.
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`Ultimately, then, the Court cannot grant Mr. Boatman’s motion for summary judgment
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`on his claims of direct infringement because there is a genuine dispute of triable fact as to
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`whether USAR’s use of the photographs was consistent with the terms of one or more of the
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`licenses or agreements’ grant of permission for USAR to make “editorial” use of them.
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`b. Contributory Infringement
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`Although the Copyright Act does not expressly cover contributory infringement, this
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`doctrine of secondary liability is well established in the law and is grounded in common law
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`principles of secondary liability. See Metro-Goldwyn-MayerStudios, Inc. v. Grokster, Ltd., 545
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`U.S. 913, 930 (2005). Contributory liability attaches when the defendant intentionally induced
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`or encouraged direct infringement by another. Id.
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`To establish contributory infringement, a plaintiff must prove: (1) direct copyright
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`infringement by a third-party; (2) knowledge by the defendant of the direct infringement; and (3)
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`that the defendant intentionally induced, caused, or materially contributed the infringement. See
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`Diversey v. Schmidly, 738 F.3d 1196, 1204 (2013). One way of establishing contributory
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`liability is by showing a defendant “authorized the infringing use.” Id.
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`Mr. Boatman has submitted evidence tending to show that the Defendant distributed five
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`of his photographs to a third-party (the United States Racquetball Foundation) who then used the
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`photographs on its website and in a live presentation. Assuming (without necessarily finding)
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`that such uses by the third-party are infringing, the Court nevertheless finds that summary
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`judgment for Mr. Boatman on his claim of contributory infringement is not appropriate. Mr.
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`Boatman has not come forward with evidence to establish that the Defendant induced or
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`encouraged – much less that it even knew of – the third party’s infringing use of the photos.
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`c. Enhanced Statutory Damages
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`Mr. Boatman seeks a determination that he is entitled to enhanced statutory damages for
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`willful infringement under 17 U.S.C. § 504(c)(2). However, because there are disputed issues of
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`fact regarding liability for infringement, the Court does not reach the issue of willfulness. At
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`trial, if the jury finds that the Defendant is liable for copyright infringement, it will be asked to
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`further determine whether the Defendant acted willfully.
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`2. Violations of the Digital Millennium Copyright Act
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`The DCMA states, in relevant part:
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`No person shall, without the authority of the copyright owner or law —
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`(1) intentionally remove or alter any copyright management information, 4
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`(2) distribute or import for distribution copyright management information knowing that
`the copyright management information has been removed or altered without authority of
`the copyright owner or the law, or
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`(3) distribute, import for distribution, or publicly perform works [or] copies of works . . .
`knowing that copyright management information has been removed or altered without
`authority of the copyright owner or the law,
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`knowing, knowing, or . . . having reasonable grounds to know, that it will induce, enable,
`facilitate, or conceal an infringement of any right under this title.
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`17 U.S.C. § 1202(b).
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`Mr. Boatman asserts that two of the 2010 U.S. Open photographs that he licensed to the
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`Defendant included his copyright watermarks on the photographs, and that the Defendant
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`intentionally removed his copyright information from the photographs. To prove a claim under §
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`4
`17 U.S.C. § 1202(c)(3) defines “copyright management information” to include “the
`name of, and other identifying information about, the copyright owner of the work, including the
`information set forth in a notice of copyright.” The Court will assume that the copyright notice
`included on the five photographs constitutes “copyright management information.”
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 14 of 20
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`1202(b)(1), Mr. Boatman must prove that the Defendant, (i) without authority of Mr. Boatman,
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`(ii) intentionally removed or altered any copyright management information (iii) knowing or
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`having reasonable grounds to know that it would induce, enable, facilitate, or conceal an
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`infringement of the federal copyright laws. See Gordon v. Nextel Communs. & Mullen
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`Advertising, Inc., 345 F.3d 922, 927 (6th Cir.2003).
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`The Defendant disputes that the copyright information was included on Mr. Boatman’s
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`photographs when he sent them. It points to evidence that Mr. Boatman himself was unsure
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`whether the photographs he submitted had his watermarks on them, and that he supplied
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`watermark and copyright information in a separate file “to be added after your designers crop”
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`the images. This implies that the Defendant could not have removed or altered the information
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`from the photographs themselves. The Defendant further disputes that it intentionally removed
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`or altered any copyright information contained on the photographs. The record reflects that an
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`independent contractor is in charge of selecting photographs for the Defendant, and thus the
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`Defendant argues that any removal or alteration cannot be imputed to it. Because there are
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`disputed issues of material fact with regard to the removal of Mr. Boatman’s copyright
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`information and whether the Defendant knew of such removal, the Court finds that summary
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`judgment on Mr. Boatman’s claim for violations of the DCMA is not warranted.
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`B. Defendant’s Motion for Summary Judgment
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`The Court now turns to the Defendant’s Motion for Summary Judgment. The Defendant
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`moves for summary judgment in its favor on all of Mr. Boatman’s claims.
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`1. Copyright Infringement
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`As noted above, to prevail on a claim of copyright infringement, Mr. Boatman must
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`establish: (1) ownership of a valid copyright, and (2) the Defendant’s violation of any one of the
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 15 of 20
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`exclusive rights granted to copyright owners under 17 U.S.C. § 106. Gates Rubber Co. v. Bando
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`Chem. Indus., Ltd., 9 F.3d 823, 831-32 (10th Cir. 1993). Further, Mr. Boatman must prove that
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`the Defendant’s conduct exceeded the scope of the licenses at issue. Bourne, 68 F.3d at 631.
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`USAR contends5 that, to the extent it infringed Mr. Boatman’s copyright, it did so as an
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`“innocent infringement,” such that it is not liable if it can “prove that it was not aware of and had
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`no reason to believe that its acts constituted copyright infringement.” The Court understands this
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`argument to be the mirror image of Mr. Boatman’s argument that USAR’s infringement was
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`willful, such that USAR is liable for enhanced damages under 17 U.S.C. § 504(c)(2), not an
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`argument that USAR is entitled to summary judgment on the substantive direct infringement
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`claim. USAR cites Denenberg v. LED Techs., LLC, 2012 WL 4478970 (D. Colo. Sept. 28,
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`2012) (slip op.), which mentions the concept of “innocent infringement” in the context of
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`discussing the damages: it explains that “if the infringement was innocent, meaning the infringer
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`was not aware of and had no reason to believe that his or her acts constituted an infringement of
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`copyright, the court may reduce the award [of statutory damages] t not less than $ 200 per
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`infringement.” Having reviewed USAR’s argument on this point, the Court finds that there are
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`genuine disputes of fact as to the extent to which USAR knew or should have known that it was
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`making use of Mr. Boatman’s copyrighted images, and doing so in a way that exceeded the
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`scope of any license granted by Mr. Boatman. Although USAR disputes the effectiveness of the
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`document, the 2010 USAR Agreement could be construed to put USAR on notice of both Mr.
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`Boatman’s claim of copyright in various images and his insistence that they not be used for
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`5
`On several occasions, USAR’s motion identifies certain “elements that cannot be proven
`by the Plaintiff,” but offers no material argument or evidence in support of the contention that
`Mr. Boatman cannot establish them. The Court ignores such unsupported contentions and
`adjudicates only those matters for which USAR has offered a meaningful argument. See Fed. R.
`Civ. P. 56(c)(1)(a), (b) (party asserting that a fact cannot be genuinely disputed “must support
`that assertion” with citations to the supporting evidence).
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`Case 1:12-cv-01590-MSK-CBS Document 36 Filed 03/31/14 USDC Colorado Page 16 of 20
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`commercial purposes. The record reflects that USAR thereafter made use of some of the images
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`in a context that, depending on the definition of the term, could be said to be “commercial” in
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`nature. Accordingly, the Court finds that the question of USAR’s knowledge and intent when
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`undertaking any infringing act is a question