Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 1 of 21 PageID 566
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`FORT MYERS DIVISION
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`PETER ROSKOVENSKY,
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`Plaintiff,
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`v.
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`Case No.: 2:22-cv-602-JLB-NPM
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`SANIBEL CAPTIVA ISLAND VACATION
`RENTALS, LLC,
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`Defendant.
`_______________________________________/
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`ORDER
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`This cause comes before this Court upon the Parties’ Cross-Motions for
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`Summary Judgment. (Docs. 36, 49). The Court is fully briefed on the matter.1 For
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`the reasons discussed below, Defendant Sanibel Captiva Island Vacation Rentals,
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`LLC’s (“Sanibel”) Motion for Summary Judgment (Doc. 36) is GRANTED in part
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`and DENIED in part, and Plaintiff Peter Roskovensky’s Motion for Summary
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`Judgment (Doc. 49) is DENIED.
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`1 Mr. Roskovensky responded to Sanibel’s Motion for Summary Judgment (Doc. 44).
`Sanibel also responded to Mr. Roskovensky’s Motion for Summary Judgment (Doc.
`54).
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`1
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`BACKGROUND2
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`This is a copyright infringement case. Mr. Roskovensky is a professional
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`photographer. (Doc. 50 at ¶ 4). Mr. Roskovensky’s photography work includes
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`creating images of properties in Florida, which he licenses to third parties. (Doc. 50
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`at ¶ 4).
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`Sanibel is in the business of marketing vacation rental properties. (Doc. 36
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`at 1; Doc. 50-4 at 1). To that end, Sanibel operates a website and a Facebook
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`account where it posts pictures of the properties that it manages. (Doc. 49 at 3–4).
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`2 In Mr. Roskovensky’s response to Sanibel’s Motion for Summary Judgment (Doc.
`44), Mr. Roskovensky correctly points out that Sanibel’s Motion for Summary
`Judgment (Doc. 36) fails to comply with this Court’s rules governing statements of
`material facts. Critically, Sanibel’s Statement of Facts includes very few citations
`to the record and no pinpoint citations. See Salas v. AMC E. Communities, LLC,
`No. 8:20-CV-688-T-33CPT, 2020 WL 13228407, at *1 (M.D. Fla. Apr. 30, 2020)
`(“When resolving a motion for summary judgment, the Court has no independent
`duty to search and consider any part of the record not otherwise referenced and
`pinpoint cited in the statement of material facts and response thereto. See Fed. R.
`Civ. P. 56(c)(3) (‘The court need consider only the cited materials, but it may
`consider other materials in the record.’)”). Mr. Roskovensky urges the Court to deny
`Sanibel’s Motion for Summary Judgment on this basis alone. (Doc. 44 at 1—2).
`While the Court agrees that Sanibel’s Statement of Facts is non-compliant, it will
`still consider Sanibel’s Motion. However, the Court’s decision will be based only
`upon competent record evidence. See Tippens v. Celotex Corp., 805 F.2d 949, 952
`(11th Cir. 1986) (“The District Court shall consider all evidence in the record when
`reviewing a motion for summary judgment—pleadings, depositions, interrogatories,
`affidavits, etc. . . .”); Macuba v. Deboer, 193 F.3d 1316, 1322—23 (11th Cir. 1999)
`(“The general rule is that inadmissible hearsay cannot be considered . . . .”) (footnote
`and internal quotation marks omitted).
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`2
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`Mr. Roskovensky Photographs the Property for the First Time
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`On April 8, 2019, Mr. Roskovensky took a series of photographs (the “Pre-
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`existing Images”) of 1175 Sand Castle Road, Sanibel, Florida (the “Property”). (Doc.
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`50 at ¶ 7). The Pre-existing Images included images of both the Property’s interior
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`(the “Pre-existing Interior Images”) and the Property’s exterior. (Doc. 50 at ¶ 7;
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`Doc. 50-1 at 1–133). Mr. Roskovensky created these Pre-existing Images so that VIP
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`Realty Group of Sanibel, Florida (“VIP”), a non-party in these proceedings, could
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`use them to market the Property. (Doc. 50 at ¶ 9).
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`Also on April 8, 2019, Mr. Roskovensky applied to the United States
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`Copyright Office (the “USCO”) to register the Pre-existing Images, which were
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`ultimately registered under Registration No. VA 2-159-469. (Doc. 50 at ¶ 8; Doc.
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`50-2).
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`Sanibel Requests Permission to Use the Pre-existing Images
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`Sometime after Mr. Roskovensky created the Pre-existing Images for VIP,
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`Sanibel began managing the Property. (Doc. 50-4 at 1). To that end, on August 15,
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`2019, Sanibel’s Owner Relations Concierge, Sue Plein, contacted VIP and asked if
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`Sanibel could use the Pre-existing Images4 such that it could “quickly” market the
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`3 Mr. Roskovensky has only provided the Court with the Pre-existing Interior
`Images and has not provided the Pre-existing Images that capture the Property’s
`exterior.
`4 Specifically, Ms. Plein emailed VIP to ask about using a subset of the Pre-existing
`images—only those photos that capture the “exterior” of the Property. There is no
`evidence that Mr. Roskovensky was copied on this email.
`3
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`Property. (Doc. 50 at ¶ 11; Doc. 50-4 at 1–2). VIP said that it “had to ask [Mr.
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`Roskovensky] first.” (Doc. 50-4 at 2).
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`Thereafter, on August 16, 2019, Mr. Roskovensky wrote to Ms. Plein and told
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`her that he was “more than happy to allow the usage of the images.” (Doc. 50-4 at
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`3).5 Mr. Roskovensky offered to allow Sanibel to use the “the images” for a duration
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`of “90 days” in exchange for a payment of $75.00. (Doc. 50-4 at 3). Ms. Plein
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`thanked Mr. Roskovensky for his offer. (Doc. 50-4 at 3). A few days later, on
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`August 22, 2019, Mr. Roskovensky sent an email to Ms. Plein providing her a “link
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`to the photo downloads.”6 (Doc. 50-4 at 4). When Mr. Roskovensky provided Ms.
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`Plein with the link to the photographs, he told her that she could “start using the
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`photos,” and that he would send her an invoice that would “include usage until
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`November 30th, 2019.” (Doc. 50-4 at 4).
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`Mr. Roskovensky has provided a copy of an invoice, which he created dated
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`August 22, 2019 (the “Invoice”). (Doc. 50-6). Mr. Roskovensky construes the Invoice
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`5 While Mr. Roskovensky testified that Ms. Plein “requested permission to use
`certain exterior pictures” of the Property (Doc. 50 at ¶ 11), the record does not
`support that Ms. Plein’s request to Mr. Roskovensky was quite so narrow. Indeed,
`in his writing to Ms. Plein, Mr. Roskovensky did not distinguish between the Pre-
`existing Images of the Property’s exterior and the Pre-existing Interior Images.
`(Doc. 50-4 at 3–4). And while Ms. Plein did ask VIP Realty to specifically use
`exterior photos of the Property, the Court does not find that Ms. Plein and Mr.
`Roskovensky’s written communications were limited to a discussion of the exterior
`photos. (Compare Doc. 50-4 at 1 with Doc. 50-4 at 3–4). Further, while the Court
`acknowledges that Ms. Plein’s October 25, 2019 email to Mr. Roskovensky expressly
`states that Mr. Roskovensky granted Sanibel the right to use the exterior images of
`the Property, Ms. Plein’s email is silent as to Sanibel’s rights to use the Pre-existing
`Interior Images. (Doc. 50-4 at 8).
`6 The link that Mr. Roskovensky sent to Ms. Plein has not been made accessible to
`the Court.
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`4
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`as a “copy of the temporary license” that he provided to Sanibel. (Doc. 50 at ¶ 12).
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`The Invoice described that Mr. Roskovensky was providing Sanibel with a license
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`for “temporary use of images” of the Property and again provided an “images
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`download link.” (Doc. 50-6).7 The Invoice does not distinguish between use of the
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`exterior and interior Pre-existing Images of the Property available at the download
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`link. (Doc. 50-6). The Invoice also defines the term length of the “temporary use” in
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`two seemingly contradictory ways. First, the Invoice states that the “images may be
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`used for marketing purposes until November 30th, 2019,” and second, the Invoice
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`purports to grant Sanibel a “license” to use the images for “six months,” which
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`would ostensibly permit a license to use the images until February 22, 2020. (Doc.
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`50-6). In all events, Sanibel paid the $75.00 fee. (Doc. 50-6).
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`At the time that Mr. Roskovensky provided the temporary license to Sanibel
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`on August 22, 2019, he anticipated that Sanibel would engage him to take
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`additional photographs of the Property’s interior; but Sanibel had not yet hired him
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`7 Here again, the link that Mr. Roskovensky included in the Invoice has not been
`made accessible to the Court. However, the Parties seem to agree that the link
`contained in the Invoice provided Sanibel with access to the Pre-existing Interior
`Images. For Sanibel’s part, it asserts that the Invoice’s “download link [contained]
`unrestricted access” to the Pre-existing Interior Images. (Doc. 54 at 2). And Mr.
`Roskovensky agrees that “the email communications submitted with [his]
`Complaint” demonstrate that Sanibel “had access to the Pre-Existing Images.” (Doc.
`49 at 10). The Court presumes that Mr. Roskovensky is referring to the email
`available at Doc. 50-4 at 4, which contains a link that is identical to the one
`contained in the Invoice (Doc. 50-6). Based on this, the Court concludes that it is
`undisputed that the link contained in the Invoice provided Sanibel with access to
`the Pre-existing Interior Images.
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`5
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`to do so and had merely inquired about his rates “for future info.” (Doc. 50 at ¶ 14;
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`Doc. 50-4 at 3).
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`Mr. Roskovensky Photographs the Property for a Second Time
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`On October 25, 2019, Ms. Plein wrote to Mr. Roskovensky to “schedule a
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`reshoot for the interior photos” of the Property because the interior had been
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`improved since the Pre-existing Images were taken by Mr. Roskovensky. (Doc. 50
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`at ¶ 17; Doc. 50-4 at 8). Consequently, on November 20, 2019, Mr. Roskovensky
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`“authored a new set of photographs, consisting of both interior and exterior
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`captures” (the “Second Set of Images”). (Doc. 50 at ¶ 18; Doc. 50-1 at 14–47). The
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`Second Set of Images included “a total of 40 new photos.” (Doc. 50-4 at 11).
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`Also on November 20, 2019, Mr. Roskovensky wrote to Ms. Plein to inform
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`her that the Second Set of Images were “finished and ready for use.” (Doc. 50-4 at
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`11). In this same email, Mr. Roskovensky provided Sanibel with access to the
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`Second Set of Images through an internet download link. (Doc. 50-4 at 11). Mr.
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`Roskovensky explained the fee structure for use of the photographs and that
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`Sanibel would also have to pay $500 to purchase “Image Licensing,” for the use of
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`the Second Set of Images for three years. (Doc. 50-4 at 11).8 Neither Ms. Plein, nor
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`8 In this same email, Mr. Roskovensky asserted that Sanibel had impermissibly
`used photographs from the Pre-Existing Images of the Property’s interior. (Doc. 50-
`4 at 11). Mr. Roskovensky asserted that he and Sanibel “had an agreement that
`[Sanibel] may use the exterior photos” of the Property, not the interior photos,
`demanding an additional $250.00 for Sanibel’s use of the interior photographs.
`(Doc. 50-4 at 11).
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`6
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`any other Sanibel employee, responded to Mr. Roskovensky’s email. (Doc. 50 at
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`¶¶ 23–25).
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`About two months later, on January 14, 2020, Mr. Roskovensky followed up
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`with Ms. Plein, informing her that he had deactivated the download link for the
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`Second Set of Images and demanding payment on or before January 17, 2020. (Doc.
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`50-4 at 12). Mr. Roskovensky’s email did not request that Sanibel cease or desist
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`using the Second Set of Images and did not warn Sanibel that continued use of the
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`images would constitute copyright infringement. (Doc. 50-4 at 12). Instead, Mr.
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`Roskovensky informed Sanibel that he would charge “additional fees” for the “non
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`authorized use of images.” (Doc. 50-4 at 12). Ms. Plein also did not respond to this
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`email and Sanibel did not render payment. (Doc. 50 at ¶¶ 23–25, 28).
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`On January 7, 2020, the Second Set of Images were registered by the USCO
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`under Registration No. VA 2-186-855. (Doc. 50 at ¶ 19). Thereafter, on January 17,
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`2020, Mr. Roskovensky sent Ms. Plein another email demanding payment for the
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`Second Set of Images by January 20, 2020. (Doc. 50-4 at 13). Again, neither Ms.
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`Plein nor anyone from Sanibel responded to Mr. Roskovensky’s email. (Doc. 50 at ¶¶
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`23–25, 28).
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`Sanibel Uses the Second Set of Images
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`According to Mr. Roskovensky, on January 22, 2020,9 he viewed Sanibel’s
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`website and discovered that Sanibel had posted photographs from the Second Set of
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`9 While Mr. Roskovensky’s declaration asserts that he observed Sanibel’s use of the
`Second Set of Images on January 22, 2020 (Doc. 50 at ¶ 29), the screenshots that
`7
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 8 of 21 PageID 573
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`Images to its website. (Doc. 50 at ¶ 29; Doc. 50-5 at 14–47). Sanibel also posted
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`photographs from the Second Set of Images on its Facebook page. (Doc. 50-5 at 48–
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`49).
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`Mr. Roskovensky also observed that Sanibel “continued to display images
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`from the set of Pre-existing Images on its Website, despite the fact that the
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`temporary license [he] granted [Sanibel] expired on November 30, 2019.” (Doc. 50
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`at ¶ 30). In support of this statement, Mr. Roskovensky directs the Court to a
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`single photograph of a bathroom––located in the interior of the Property––that
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`appears to have been displayed on Sanibel’s website on January 13, 2020. (Doc. 50
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`at ¶ 30; Doc. 50-5 at 1210).11 Mr. Roskovensky does not allege that he contacted
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`Sanibel again after he discovered that Sanibel was using the Second Set of Images
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`on January 22, 2020. He ultimately alleges that Sanibel’s violation of his copyrights
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`was willful. (Doc. 50 at ¶ 31).
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`Mr. Roskovensky points to in support of his statement (Doc. 50-5 at 14–47) are
`dated January 13, 2020.
`10 The screen capture provided to the Court appears to bear the date “1/13/2020” in
`the bottom righthand corner.
`11 There appears to be a tension between Mr. Roskovensky’s declaration and other
`positions that he has taken throughout this litigation. This is because the
`photograph from the Pre-existing Images that Sanibel continued to display after
`November 30, 2019 (Doc. 50-5 at 12) is an interior photograph and Mr. Roskovensky
`has always claimed that the Pre-existing Interior photographs were not subject to
`the temporary license in the first place (see, e.g., Doc. 1 at ¶ 42; Doc 50 at ¶ 14).
`8
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`The Claim
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`Mr. Roskovensky alleges one count for direct copyright infringement against
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`Sanibel, based on Sanibel’s use of Pre-existing Interior Images and the Second Set
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`of Images. (Doc. 1 at ¶¶ 22, 27, 35, 65–72).
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`SUMMARY JUDGMENT STANDARD
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`Summary judgment is appropriate when the movant can show that there is
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`no genuine issue of material fact and the movant is entitled to judgment as a matter
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`of law. Fed. R. Civ. P. 56(a). “A district court must grant a motion for summary
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`judgment only if the pleadings, depositions, answers to interrogatories, and
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`admissions on file, together with the affidavits, if any, show that there is no genuine
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`issue as to any material fact and that the moving party is entitled to a judgment as
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`a matter of law.” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292,
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`1299 (11th Cir. 2018) (citation and internal quotation marks omitted). An issue is
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`“genuine” if a rational trier of fact, viewing all of the record evidence, could find in
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`favor of the nonmoving party. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.
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`2014). And a fact is “material” if, “under the applicable substantive law, it might
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`affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
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`1259–60 (11th Cir. 2004). “[W]here the material facts are undisputed and do not
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`support a reasonable inference in favor of the non-movant, summary judgment may
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`properly be granted as a matter of law.” DA Realty Holdings, LLC v. Tenn. Land
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`Consultants, LLC, 631 F. App’x 817, 820 (11th Cir. 2015).
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`9
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`A. Copyright Infringement
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`DISCUSSION
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`To establish a prima facie case of copyright infringement, a plaintiff must
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`prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of
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`the work that are original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S.
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`340, 361 (1991). To satisfy the first prong, “a plaintiff must prove that the work ...
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`is original and that the plaintiff complied with applicable statutory formalities.”
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`Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir. 1996) (quoting Lotus
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`Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st Cir. 1995)) (internal quotation
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`marks omitted). In a judicial proceeding, a “certificate of a registration made before
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`or within five years after first publication of the work shall constitute prima facie
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`evidence of the validity of the copyright and of the facts stated in the certificate. 17
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`U.S.C. § 410(c). Once the plaintiff produces a certificate of registration, “the burden
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`shifts to the defendant to demonstrate why the claim of copyright is invalid.”
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`Bateman, 79 F.3d at 1541.
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`The parties here do not dispute that Mr. Roskovensky had valid copyrights
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`for all of the images at issue here. Rather, Sanibel argues that it possessed a
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`nonexclusive license to use all of the Pre-existing Interior Images and the Second
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`Set of Images. (Doc. 36 at 3).
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`B. License to use Copyrighted Material
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`The existence of a license to use copyrighted material is an affirmative
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`defense to a claim of copyright infringement, insofar as “a copyright owner who
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`10
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 11 of 21 PageID 576
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`grants a nonexclusive license to use his copyrighted material waives his right to sue
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`the licensee for copyright infringement.” Fodere v. Lorenzo, No. 09-CV-23120, 2011
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`WL 465468, at *4 (S.D. Fla. Feb. 4, 2011) (quoting Sun Microsystems, Inc. v.
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`Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999)) (internal quotation marks
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`omitted), aff'd, 441 F. App’x 666 (11th Cir. 2011).
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`However, because a nonexclusive license does not transfer ownership of the
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`copyright, the licensor can bring suit for copyright infringement if the licensee’s use
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`goes beyond the scope of the nonexclusive license. See Latimer v. Roaring Toyz,
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`Inc., 601 F.3d 1224, 1235 (11th Cir. 2010). That is, “[i]mplied licenses may be
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`limited and a defendant who exceeds the scope of an implied license commits
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`copyright infringement.” Id. (citing Atkins v. Fischer, 331 F.3d 988, 992 (D.C. Cir.
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`2003)). Because a license is an affirmative defense, “the alleged infringers have the
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`burden of establishing an implied license.” Id. (internal quotation marks omitted).
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`Whether a copyright owner has granted a nonexclusive license is determined
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`by state contract law, not federal copyright law. Foad Consulting Group, Inc. v.
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`Musil Govan Azzalino, 270 F.3d 821, 827 (9th Cir. 2001) (“[S]tate law determines
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`whether a copyright holder has granted [a nonexclusive] license.”). “A nonexclusive
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`license to use copyrighted material may be granted orally or implied from conduct.”
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`Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 956 (11th Cir. 2009).
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`C. Sanibel’s License to use the Pre-existing Interior Images
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`The parties agree the Invoice “memorialized the terms of the temporary and
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`limited agreement in a license” for Sanibel to use at least some of the Pre-existing
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`11
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`Images. (Doc. 49 at 6; Doc. 36 at 4–5). However, the parties disagree over two
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`terms of the agreement: (1) the scope of the images that were subject to the license;
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`and (2) the duration of the license. The Court must therefore attempt to interpret
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`the terms of the Invoice by applying Florida state contract law. The interpretation
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`of a contract presents a question of law, as does the determination of whether a
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`contract is ambiguous. See Alliance Metals, Inc., of Atlanta v. Hinely Indus., Inc.,
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`222 F.3d 895, 900 (11th Cir. 2000) (“Interpretation of a contract poses a question of
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`law.”); Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1360 (11th Cir. 1988) (“the
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`question of whether a contractual ambiguity exists is also a question of law”).
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`Turning first to the scope of images that were subject to the license, Mr.
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`Roskovensky claims that he only authorized Sanibel to use the Pre-existing
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`Images—“exterior captures”––of the Property and did not authorize Sanibel to use
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`the Pre-existing Interior Images. (Doc. 50 at ¶ 14). In support of his position, Mr.
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`Roskovensky argues that the terms of the license are ambiguous and that the Court
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`should rely on parol evidence to interpret the license’s scope. (Doc. 44 at 10).
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`Sanibel construes the license more broadly and urges the Court to interpret the
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`term “images” to encompass all of the Pre-existing Images as well as the Second Set
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`of Images. (Doc. 36 at 3).12
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`12 While Mr. Roskovensky claims that Sanibel “admitted it was not authorized to
`use or display the interior captures from the Pre-Existing Images identified in
`Plaintiff’s Complaint,” the Court cannot find, and Mr. Roskovensky has not
`supplied, any support for that proposition within the record. (Doc. 49 at 11). The
`Court surmises that Mr. Roskovensky is relying on a set of Requests for Admission
`(“RFAs”) that Sanibel failed to respond to and has therefore been deemed admitted.
`(See Doc. 47 at 2). Specifically, the Court believes Mr. Roskovensky is drawing from
`12
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`To decide this issue, the Court must first determine if there is any ambiguity
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`on the face of the contract. Acceleration Nat’l Serv. Corp. v. Brickell Fin. Servs.
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`Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 3d DCA 1989) (“In the absence of an
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`ambiguity on the face of a contract, it is well settled that the actual language used
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`in the contract is the best evidence of the intent of the parties, and the plain
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`meaning of that language controls.”). This is because when a contract is
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`unambiguous, the parol evidence rule bars the consideration of extrinsic evidence.
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`Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011).
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`Here, the Court finds that the terms of the Invoice were unambiguous with
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`respect to the scope of the images subject to the license. The Invoice states as
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`follows:
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`Sanibel’s admission that the Invoice “provided for the use of a subset of the
`photographs from the Pre-Existing Images collection until November 30, 2019.”
`(Doc. 49 at 5; Doc. 38-1 at 10–11). However, these admissions are so vague that the
`Court cannot agree with Mr. Roskovensky’s interpretation that Sanibel has
`admitted that it was not allowed to use the Pre-existing Interior Images.
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`13
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`(Doc. 50-6).
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`Ambiguities exist when a document can reasonably be interpreted as having
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`more than one meaning. Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007).
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`Here, the Invoice clearly states that Sanibel is entitled to “temporary use of images”
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`of the Property until November 30, 2019. (Doc. 50-6). While Mr. Roskovensky
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`argues that the term “images” is “clearly an ambiguous term reasonably susceptible
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`to more than one interpretation,” this argument fails when the Invoice is construed
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`as a whole. (Doc. 44 at 10). See Orange & Blue Constr., Inc. v. HDI Glob. Specialty
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`SE, No. 19-CV-81707, 2020 WL 6343332, at *3 (S.D. Fla. June 18, 2020) (“Courts
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`cannot determine the meaning of a contract by looking at only a part of the contract,
`14
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 15 of 21 PageID 580
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`but instead must construe it as a whole.”) (citation and internal quotation marks
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`omitted); DeMarco v. T.D. Bank, N.A., No. 16-80442-CIV, 2017 WL 2892255, at *4
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`(S.D. Fla. Apr. 26, 2017) (“a court should read the contract as a whole, giving effect
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`to each of the various provisions of the agreement if it can reasonably be done”).
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`Indeed, the Invoice plainly modifies the term “images” by providing an “images
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`download link.” (Doc. 50-6). The Court therefore finds that the term “images,” as
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`used in the Invoice, meant the images available at that download link, which the
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`parties agree provided access to all of the Pre-existing Images. (Doc. 36 at 2; Doc.
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`49 at 10; Doc. 50-4 at 4; Doc. 50-6).
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`While Mr. Roskovensky urges the Court to look beyond the four corners of the
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`Invoice in order to find a narrower definition of the term “images,” doing so would
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`be inappropriate because “[p]arol evidence is inadmissible to contradict, vary, or
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`modify terms which are unambiguously contained within a written agreement.”
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`Prime Homes, Inc. v. Pine Lake, LLC, 84 So. 3d 1147, 1152 (Fla. 4th DCA 2012).
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`The Court therefore rejects Mr. Roskovensky’s argument and finds that the Pre-
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`existing Interior Images were subject to the license created by the Invoice.
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`That is not, however, the end of the Court’s inquiry because Mr. Roskovensky
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`also claims Sanibel committed copyright infringement when it acted outside the
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`scope of the license by continuing to use the Pre-existing Images after November 30,
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`2019.13 Specifically, Mr. Roskovensky identifies one of the Pre-existing Interior
`
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`13 Mr. Roskovensky’s argument on this point is muddled. In his brief, Mr.
`Roskovensky suggests that Sanibel committed copyright infringement when it used
`the exterior photographs after November 30, 2019. (Doc. 49 at 11). However, Mr.
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 16 of 21 PageID 581
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`Images, a photograph of the Property’s bathroom (Doc. 50-5 at 12), which Sanibel
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`continued to display on its website through at least January 2020. (Doc. 50 at
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`¶¶ 29-30). The Court must therefore attempt to determine the duration of the
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`license’s term.14
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`Mr. Roskovensky is correct that the Invoice expressly states that Sanibel was
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`permitted to use the images “until November 30th, 2019.” (Doc. 50-6). However, as
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`Sanibel points out, the Invoice also purports to provide a “license . . . for six
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`months.” (Doc. 50-6; Doc. 54 at 4). Neither party attempts to reconcile this inherent
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`inconsistency—Mr. Roskovensky’s briefing avoids it while Sanibel’s merely points it
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`out in passing. (Doc. 54 at 4).
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`Here, the two conflicting license durations result in patent ambiguity. Crown
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`Mgmt. Corp. v. Goodman, 452 So. 2d 49, 52 (Fla. 2d DCA 1984) (“[A] patent
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`ambiguity is that which appears on the face of the instrument and arises from the
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`use of defective, obscure, or insensible language.”); Nationstar Mortg. Co. v. Levine,
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`216 So. 3d 711, 716 (Fla. 4th DCA 2017) (holding internal contradiction constituted
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`a patent ambiguity because it appeared on the face of the agreement). Because the
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`ambiguity is patent, the Court may not consider parol evidence to interpret the
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`Roskovensky has not supplied any proof that Sanibel used the exterior Pre-existing
`Images after November 30, 2019, and in fact has not even produced any of the
`exterior Pre-existing Images to the Court. (See Doc. 50-1 at 1—13). The Court will
`therefore consider whether any use of the Pre-existing Interior Images, after
`November 30, 2019, constitutes copyright infringement.
`14 The Court rejects Sanibel’s argument (Doc. 36 at 4–7) that Mr. Roskovensky
`cannot state a claim for copyright infringement if Sanibel possessed a license to use
`the images because, as explained above, a copyright infringement claim could still
`lay if Sanibel exceeded the scope of the license.
`16
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 17 of 21 PageID 582
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`license. USAA Gen. Indem. Co. v. Snow, No. 8:19-CV-944-T-33TGW, 2020 WL
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`5960665, at *4 (M.D. Fla. Oct. 8, 2020) (applying Florida law); Bd. of Regents, Univ.
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`of S. Fla. Bd. of Trustees v. Rowsey, 320 So. 3d 954, 962 (Fla. 2d DCA 2021).
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`Because the Court does not find any of the rules of construction in Florida
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`contract law (i.e., “custom and usage,” or public policy) applicable in this case, the
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`Court must therefore rely on the “established Florida law that any ambiguity in a
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`contract must be construed against the drafting party,” Mr. Roskovensky. MDS
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`(Canada), Inc. v. Rad Source Techs., Inc., 822 F. Supp. 2d 1263, 1306 (S.D. Fla.
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`2011), aff'd in part, question certified, 720 F.3d 833 (11th Cir. 2013), certified
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`question answered, 143 So. 3d 881 (Fla. 2014), and aff'd, 579 F. App’x 700 (11th Cir.
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`2014); Cost Recovery Servs. LLC v. Windstream Corp., No. 1:02-CV-00131-MP-AK,
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`2010 WL 11515513, at *2 (N.D. Fla. May 3, 2010) (“Under the doctrine of contra
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`proferentem, the patent ambiguity must be construed against the drafter of the
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`contract”); see also Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1247 (11th
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`Cir. 2002) (listing Florida’s rules of textual construction).
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`As a result, the Court concludes that the license granted Sanibel a six-month
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`term from the date it was issued—August 22, 2019. Specifically, Sanibel had a
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`temporary license to use the Pre-existing Images through at least February 22,
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`2020. Because Mr. Roskovensky has not claimed, let alone proven, that Sanibel
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`used the Pre-existing Interior Images after February 22, 2020, the Court will
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`GRANT Sanibel’s Motion for Summary Judgment with respect to the interior
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`images contained as part of the Pre-existing Images.
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 18 of 21 PageID 583
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`D. Sanibel’s License to use the Second Set of Images
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`Sanibel also claims that the Invoice provided it with a nonexclusive license to
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`use the Second Set of Images. (Doc. 36 at 2). Mr. Roskovensky rebuts this
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`argument, pointing out that at the time the Invoice was created, the Second Set of
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`Images did not exist and Sanibel had not yet even hired Mr. Roskovensky to create
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`them. (Doc. 44 at 5, 11; Doc. 50 at ¶ 14; Doc. 50-4 at 3).15 Based on its construction
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`of the Invoice’s term above, the Court agrees with Mr. Roskovensky that the Second
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`Set of Images were not subject to the license created by the Invoice because they
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`were not available through the download link contained in the Invoice.
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`However, the Court finds that there is a genuine dispute of material fact as to
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`whether Mr. Roskovensky provided Sanibel with an implied license to use the
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`Second Set of Images. An implied license is created when: “(1) a person (the
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`licensee) requests the creation of a work, (2) the creator (the licensor) makes that
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`particular work and delivers it to the licensee who requested it, and (3) the licensor
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`intends that the licensee copy and distribute his work.” Thornton v. J Jargon Co.,
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`580 F. Supp. 2d 1261, 1281 (M.D. Fla. 2008) (quoting Nelson–Salabes, Inc. v.
`
`
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`15 Mr. Roskovensky also claims that Sanibel admitted “it did not have a license or
`other authorization to utilize the [Second Set of Images].” (Doc. 49 at 14). Again,
`Mr. Roskovensky does not provide a citation for this statement, but the Court
`presumes that Mr. Roskovensky is drawing from the RFAs, specifically the
`admission that “Defendant was not authorized to use, post or distribute images
`created or owned by Plaintiff in the United States at the time of the uses alleged in
`the Complaint.” (Doc. 49 at 5; Doc. 38-1 at 10). The Court finds that this admission
`is too overly broad and non-specific to support a finding that Sanibel did not have a
`license to use the Second Set of Images.
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`
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`Case 2:22-cv-00602-JLB-NPM Document 62 Filed 03/15/24 Page 19 of 21 PageID 584
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`Morningside Dev., LLC, 284 F.3d 505, 514 (4th Cir. 2002)) (internal quotation
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`marks omitted); see Hoeltzell v. Caldera Graphics, No. 11-21245-CV, 2012 WL
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`13012954, at *4 (S.D. Fla. June 11, 2012). An implied license m