`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`NICHOLAS MCELROY, ET AL
`
`Plaintiffs,
`
`
`
`v.
`COURTNEY AJINÇA EVENTS LLC,
`et al.
`
`
`Defendants,
`
`
`OPINION AND ORDER
`
`Civil Action No.
`1:19-cv-05094-SDG
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`This matter is before the Court on cross-motions for summary judgment
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`[ECF 30 and ECF 38]. After careful consideration of the parties’ briefing, and with
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`the benefit of oral argument, the Court DENIES Plaintiffs’ motion for summary
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`judgment on their claims of copyright infringement; GRANTS Defendants’ cross-
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`motion for summary judgment on Plaintiffs’ claims of copyright infringement; and
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`GRANTS IN PART and DENIES IN PART as moot Plaintiffs’ motion for
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`summary judgment on Defendants’ counterclaims.
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`I.
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`BACKGROUND
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`The material facts in this case are largely undisputed. Plaintiffs Nicholas
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`McElroy and Bryan Flores are independent contractor photographers based in
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 2 of 24
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`Atlanta, Georgia.1 Plaintiffs have worked together a handful of times, twice as
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`independent contractors for Night Owl Post Productions (Night Owl).2 Defendant
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`Courtney Ajinça is the founder and owner of Defendant Courtney Ajinça Events,
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`LLC (CAE), a North Carolina LLC that specializes in designing luxury events
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`primarily catered to celebrities.3
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`In June 2019, CAE, acting through Ajinça, hired McElroy to photograph the
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`Frost Bistro Grand Opening event (the Frost Bistro event).4 CAE and McElroy
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`never entered into a written agreement for this photo shoot.5 After the Frost Bistro
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`event, McElroy sent Defendants the photographs he took and CAE forwarded
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`those photographs to its publicist, Danika Berry.6 The photographs taken by
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`McElroy of the Frost Bistro event were published in Star Magazine.7
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`
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`1 ECF 36, ¶ 1.
`Id. ¶¶ 2–3.
`2
`Id. ¶ 4.
`3
`Id. ¶ 5.
`4
`Id. ¶ 29.
`5
`Id. ¶ 9.
`6
` Although Berry was initially a defendant in this case, she was later dropped as
`a party. ECF 5.
`7 ECF 36, at ¶ 9.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 3 of 24
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`Pleased with McElroy’s services, Ajinça reached out to McElroy via text
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`message on July 24, 2019, to hire him for a second photography job on July 26,
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`2019.8 The text message read:
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`I had such a great experience with you last time and
`wanted to see if I could book you for an event on Friday.
`This one is for real housewives and these pics will be
`everywhere!! Will be the same as before décor shots and
`shots of important people and moments.9
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`The event to be photographed was a wedding engagement between a Real
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`Housewives of Atlanta
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`television star and a Fox Sports Broadcaster
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`(the engagement shoot), which CAE planned.10 McElroy agreed to the engagement
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`shoot and also agreed to bring a “three team crew” to assist with putting together
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`a 1 minute “social media vid” of the event.11 McElroy brought Flores and two
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`videographers from Night Owl to assist.12 Defendants did not know that Flores
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`was going to be photographing the engagement shoot along with McElroy.13
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`
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`Id. ¶¶ 11–12.
`8
`9 ECF 41, ¶ 5.
`10 Id. ¶ 4.
`11 Id. ¶ 6.
`12 ECF 36, ¶ 19.
`13 Id. ¶ 18.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 4 of 24
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`
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`Immediately after the wedding proposal during the engagement shoot,
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`Ajinça and two producers from the Real House Wives of Atlanta requested
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`photographs of the event.14 McElroy handed Ajinça a sim card containing the
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`photographs and Flores transferred his photographs to Defendants via air drop
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`and a link to a webpage.15 Several hours after the event, McElroy texted Ajinça
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`instructions on how to credit the photographs.16 Ajinça informed McElroy: “K I’m
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`trying to get it changed. They put night owl,” and McElroy responded, “No it’s
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`totally fine if it’s already posted. Where can we see it?”17 CAE later notified
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`McElroy that People.com published some of the photographs McElroy and Flores
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`had taken of the engagement, which credited “Night Owl Post Productions Nick
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`McElroy and Courtney Ajinça Events.”18 Four of the nine photographs published
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`by People were taken by McElroy and the other five were taken by Flores, who
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`was not credited.19
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`
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`14 Id. ¶ 24.
`15 Id. ¶¶ 27–29.
`16 ECF 41-3, at 3.
`17 Id.
`18 ECF 36, ¶ 31.
`19 Id. ¶ 33.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 5 of 24
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`Shortly after being notified that the photographs were published on
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`People.com, McElroy exchanged texts with CAE’s publicist, Danika Berry,
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`regarding the photographs.20 Berry requested photographs of different parts of the
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`engagement shoot, and McElroy complied by texting links to the photographs in
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`a Google Drive folder.21 After receiving the photographs, Berry reached out again
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`to see if there were additional photographs because “[a] lot of really good pics of
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`her and him with the ring are blurry . . . I can’t use these for the other outlets.”22
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`McElroy apologized and then asked Flores for additional photographs of the
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`event.23
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`The last conversation between McElroy and CAE regarding the engagement
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`shoot was on July 28, 2019.24 McElroy emailed CAE and Berry a Google Drive link
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`containing a video of the evening, stating, “Let us know if we can make any other
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`changes for you! Thank you again for this incredible opportunity. We look
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`forward to working with you more in the future!”25 The same day, McElroy texted
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`
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`20 ECF 41, ¶ 18.
`21 Id. ¶19–20.
`22 Id. ¶ 21.
`23 Id. ¶ 24.
`24 Id. ¶ 25.
`25 Id.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 6 of 24
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`his soon-to-be brother-in-law: “Didn’t know [the photographs] would be sold to
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`the media lol or else I would have charged a lot more. She probably made bank on
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`them . . . Should have charged her double. She probably made quite a few stacks
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`off those photographs. Lesson learned.”26
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`Following the event, the photographs taken by McElroy and Flores were
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`published in at least thirteen different media outlets.27 On September 26, 2019,
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`Truly Original, LLC, the production company for the Real Housewives of Atlanta
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`emailed McElroy and Flores requesting permission to use the photographs and
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`attaching a release.28 At this point, McElroy and Flores sought the advice of legal
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`counsel.29 On October 24, 2019, Plaintiffs registered the engagement shoot
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`photographs with the Copyright Office.30 Plaintiffs then sent demand letters to the
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`media outlets that had published the photographs, claiming copyright
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`
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`infringement.31
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`26 ECF 36, ¶ 47.
`27 Id. ¶ 48.
`28 Id. ¶ 51.
`29 Id. ¶ 54.
`30 Id. ¶ 55.
`31 Id. ¶ 58.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 7 of 24
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`Plaintiffs filed suit against Defendants on November 8, 2019, alleging
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`copyright infringement under 17 U.S.C. § 501, and amended their Complaint on
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`January 29, 2020.32 Defendants answered the Amended Complaint and asserted
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`seven counterclaims for (1) a declaratory judgment that Defendants had been
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`granted a non-exclusive license to use the engagement shoot photographs;
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`(2) tortious interference with business relations in connection with the demand
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`letters sent by Plaintiffs to media outlets and the filing of the instant lawsuit;
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`(3) breach of contract; (4) libel; (5) slander; (6) punitive damages; and (7) attorneys’
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`fees.33 The parties have cross-moved for summary judgment on the question of
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`Defendants’ liability for copyright infringement and Plaintiffs have moved for
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`summary judgment on Defendants’ counterclaims.34
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`II.
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`LEGAL STANDARD
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`Summary judgment is appropriate when “there is no genuine dispute as to
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`any material fact and the movant is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a). A fact is “material” only if it can affect the outcome of the
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`lawsuit under the governing legal principles. Anderson v. Liberty Lobby, Inc.,
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`32 ECF 1, ¶¶ 36–43; as amended, ECF 5, ¶¶ 36–43.
`33 ECF 8, ¶¶ 102–36.
`34 ECF 30; ECF 38.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 8 of 24
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`477 U.S. 242, 248 (1986). A factual dispute is “genuine . . . if the evidence is such
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`that a reasonable jury could return a verdict for the nonmoving party.” Id.
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`A party seeking summary judgment has the burden of informing the district
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`court of the basis for its motion and identifying those portions of the record that
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`demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
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`477 U.S. 317, 323 (1986). If a movant meets its burden, the party opposing summary
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`judgment must present evidence showing either (1) a genuine issue of material
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`fact or (2) that the movant is not entitled to judgment as a matter of law. Id. at 324.
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`In determining whether a genuine issue of material fact exists, the evidence
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`is viewed in the light most favorable to the party opposing summary judgment,
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`“and all justifiable inferences are to be drawn” in favor of that party. Anderson,
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`477 U.S. at 255; see also Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246
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`(11th Cir. 1999). “Credibility determinations, the weighing of the evidence, and the
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`drawing of legitimate inferences from the facts are jury functions,” and cannot be
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`made by the court in evaluating summary judgment. Anderson, 477 U.S. at 255.
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`See also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).
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`Summary judgment for the moving party is proper “[w]here the record taken as a
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`whole could not lead a rational trier of fact to find for the non-moving party.”
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 9 of 24
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`III. ANALYSIS
`a.
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`Plaintiffs’ Claims for Copyright Infringement
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`To prevail on a claim of copyright infringement, Plaintiffs must show
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`“(1) ownership of a valid copyright, and (2) copying of constituent elements of the
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`work that are original.” Montgomery v. Noga, 168 F.3d 1282, 1288 (11th Cir. 1999)
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`(quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). However,
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`the existence of a license to copy and distribute the copyrighted work is an
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`affirmative defense to a claim for infringement. Latimer v. Roaring Toyz, Inc., 601
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`F.3d 1224, 1235 (11th Cir. 2010). Therefore, “[w]hether the copyright owner of an
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`original work of authorship has granted a license . . . is a threshold question that
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`must be answered.” Id. Defendants do not dispute that Plaintiffs own a valid
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`copyright of their photographs or that Defendants distributed the photographs,
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`but argue that Plaintiffs granted an implied license to distribute the photographs
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`to the various media outlets.
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`i.
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`Defendants Did Not Waive the Implied License Affirmative
`Defense.
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`Plaintiffs argue that Defendants have waived their implied license defense
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`by not asserting it as an affirmative defense in their Answer pursuant to Rule 8(c)
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`of the Federal Rules of Civil Procedure. According to Plaintiffs, Defendants
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`needed to explicitly claim an implied license as an affirmative defense, as opposed
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 10 of 24
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`to the asserted affirmative defense of “Plaintiffs’ Complaint is barred because CAE
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`holds a valid license to the subject photographs.”35
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`“[I]t is plain that the purpose of Rule 8(c)—’simply to guarantee that the
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`opposing party has notice of any additional issue that may be raised at trial so that
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`he or she is prepared to properly litigate’—was satisfied here.” Bergquist v. Fid.
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`Info. Servs., Inc., 197 F. App’x 813, 815 (11th Cir. 2006) (citing Hassan v. U.S. Postal
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`Serv., 842 F.2d 260, 263 (11th Cir. 1988)). A party does not waive an affirmative
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`defense where the opposing party “has notice that an affirmative defense will be
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`raised at trial,” and, therefore, “the defendant's failure to comply with Rule 8(c)
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`does not cause the plaintiff any prejudice. And, when the failure to raise an
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`affirmative defense does not prejudice the plaintiff, it is not error for the trial court
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`to hear evidence on the issue.” Hassan, 842 F.2d at 263.
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`The Court finds that Defendants have not waived the affirmative defense of
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`implied license. Plaintiffs’ argument that the absence of the word “implied” in
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`Defendants’ affirmative defenses waives Defendants’ right to assert the existence
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`of an implied license is unpersuasive. Considering the undisputed facts, the central
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`issue of the entire dispute is whether Defendants, by implication, had permission
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`35 ECF 8, ¶ 44.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 11 of 24
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`to distribute Plaintiffs’ photographs to media outlets. Plaintiffs have admitted that
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`“McElroy granted Defendants a verbal non-exclusive license to use his
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`Photographs for social media only.”36 None of the conversations between Plaintiffs
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`and Defendants mention a license, however, and McElroy repeatedly refers to his
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`“understanding” of the license granted,37 meaning the license Plaintiffs concede
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`existed as to social media use was itself an implied license. Indeed, at oral
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`argument, counsel for Plaintiffs cited Latimer v. Roaring Toyz, Inc., a case involving
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`implied licenses, as authority for the proposition that Plaintiffs could verbally limit
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`the scope of the license granted to Defendants. 601 F.3d at 1235. The remaining
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`question is what that implied license permits, which has been briefed by the
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`parties. Plaintiffs, therefore, are not prejudiced by Defendants’ assertion of this
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`defense. See Bergquist, 197 F. App’x at 816 (finding no waiver of affirmative defense
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`given that the basis for the defense “was a central issue of dispute between the
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`parties”).
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`
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`36 ECF 30, at 10.
`37 ECF 30-2, at 11 (“So my understanding was that it was going to be the same as
`last time and that that—they would be posted on social media . . . I mean,
`there’s some understanding here, but there’s also some understanding from
`our verbal conversation the first time she hired me.”).
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 12 of 24
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`ii.
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`Plaintiffs Granted Defendants a Non-Exclusive Implied
`License.
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`Although the Copyright Act requires all exclusive transfers of copyright to
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`be in writing, 17 U.S.C. § 204(a), “non-exclusive licenses are exempt from this
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`writing requirement, 17 U.S.C. § 101, and may be granted orally, or may even be
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`implied from conduct.” Latimer, 601 F.3d at 1235 (internal citation and punctuation
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`omitted). “An implied license is created when one party (1) creates a work at
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`another person’s request; (2) delivers the work to that person; and (3) intends that
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`the person copy and distribute the work.” Id. The existence of an implied license
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`is a question of law for the Court. See Wilchcombe v. Teevee Toons, Inc., 515 F. Supp.
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`2d 1297, 1304 (N.D. Ga. 2007), aff'd sub nom., 555 F.3d 949 (11th Cir. 2009) (finding
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`implied license as a matter of law on motion for summary judgment). The party
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`claiming an implied license has the burden of establishing the necessary elements.
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`Latimer, 601 F.3d at 1235.
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`1.
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`Intent of the Parties
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`The grantor of an implied license may limit its scope “and a defendant who
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`exceeds the scope of an implied license commits copyright infringement.” Id.
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`“[A]n implied license will be limited to a specific use,” however, “only if that
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`limitation is expressly conveyed when the work is delivered.” Id. “Courts focus on
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`objective evidence revealing the intent of the parties to determine if an implied
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 13 of 24
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`license exists.” Id. In Latimer, for example, the Eleventh Circuit found that an artist
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`specializing in custom motorcycle paint granted an implied license when he
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`delivered a painted motorcycle to a manufacturer, by way of the company that
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`hired the artist, and knew the manufacturer sought as much media exposure as
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`possible. Thus, the court held, “it is reasonable to infer that [the artist] intended
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`that his artwork be photographed and distributed by [the manufacture and the
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`third party] and the media. At a minimum, [the artist] granted [the manufacture
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`and the third party] an implied license to copy and distribute his original work.”
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`Id.
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`It is undisputed that McElroy created work at CAE’s request, delivered the
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`work to CAE, and intended CAE to copy and distribute the work.38 McElroy,
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`therefore, granted CAE an implied license. Whether Flores granted an implied
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`license to use his photographs is a closer question. Flores was never in direct
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`contact with Defendants except for when he was at the engagement shoot. Instead,
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`McElroy served as a middleman between Flores and CAE, and also followed up
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`with CAE on Flores’s behalf to secure payment.39 The undisputed facts show,
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`however, that Flores was aware his photographs would be used by CAE, and,
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`38 See, e.g., ECF 30, at 16.
`39 ECF 41, ¶ 10.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 14 of 24
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`while he was at the event, he delivered his photographs to CAE.40 Therefore, the
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`undisputed evidence demonstrates that Flores granted an implied license to CAE
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`to use the photographs from the engagement shoot.
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`2.
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`Scope of the Implied Licenses
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`Turning to scope, the objective evidence revealing the intent to grant an
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`implied license “also reveals the scope of the license.” Latimer, 601 F.3d at 1235.
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`Plaintiffs make much of the fact that they believed the photographs were only
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`going to be used on social media, but Plaintiffs misunderstand the nature of the
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`intent requirement. The Court must make an objective inquiry into whether the
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`party granting the implied license intended the license to be limited to a certain
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`use. Id. In other words, what the Plaintiffs actually intended is irrelevant.
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`Here, there is ample evidence from before and after the engagement shoot
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`showing that Plaintiffs did not intend to limit their implied licenses to social
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`media. First, when Ajinça first reached out to McElroy regarding the engagement
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`shoot she informed him “these pics will be everywhere!!”41 Again, whether
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`McElroy subjectively understood this to mean “everywhere on social media” is
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`irrelevant. “Everywhere” is an expansive term and, by agreeing to have his
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`40 ECF 36, ¶¶ 17, 29.
`41 Id. ¶ 12.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 15 of 24
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`photographs “everywhere,” McElroy agreed to broad use of his photographs.
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`Second, Plaintiffs continued to send photographs from the engagement shoot to
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`Defendants and CAE’s publicist after (1) they knew some photographs had been
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`published on People.com,42 (2) publicist told McElroy “all mags need diff pics,”43
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`and (3) the publicist requested non-blurry pictures “for the other outlets.”44 The
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`Court does not need to parse out which photographs were delivered after which
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`communication to determine that Plaintiffs intended the scope of the implied
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`license for the photographs to be broader than for use in social media.
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`Specifically concerning Flores, although he did not communicate directly
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`with Defendants, his intent can be inferred through his willingness to deliver his
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`photographs to Defendants without limitation and through his communications
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`with McElroy. Both Plaintiffs testified that McElroy communicated the purpose of
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`the event to Flores, and that Flores knew his photographs were going to be used
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`by CAE for publicity.45 Flores’s position parallels the custom paint artist in Latimer,
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`who was found to have granted an implied license to the motorcycle manufacturer
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`
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`42 ECF 41, ¶ 15.
`43 Id. ¶ 16.
`44 Id. ¶ 21.
`45 ECF 36, ¶ 17; ECF 30-3, at 14-15.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 16 of 24
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`even though his only communications were with the motorcycle customization
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`company that hired him. 601 F.3d at 1236. The Eleventh Circuit found that the
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`artist “constructively delivered” his artwork to the manufacturer through the
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`company and that his dealings with the company evidenced his granting an
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`implied license to both the company and the manufacturer. Id. Flores delivered his
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`work directly to Defendants and constructively delivered his work to defendants
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`through McElroy, all while knowing that the photos would be used for publicity.
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`By contrast, the only objective evidence Plaintiffs offer reflecting their
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`understanding of the scope of the license is a text message McElroy sent days after
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`the event, which only indicates that McElroy “didn’t know [the Photographs]
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`would be sold to the media,”46 not that he intended for the use of the photographs
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`to be limited only to social media. This situation differs from Latimer, where the
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`Eleventh Circuit found, separately from the issue of whether the artist granted an
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`implied license, that there was an issue of material fact as to whether the
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`manufacturer and the company exceeded the scope of the implied license granted
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`by the plaintiff, who photographed the custom motorcycle. 601 F.3d at 1238. In
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`Latimer, the plaintiff presented testimony that he expressly told an intermediate
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`46 Id. ¶ 47.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 17 of 24
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`that his work was not to be “leaked” or published in a way other than what was
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`discussed, and further testified that he marked photographs with metadata
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`containing his contact information and stating “all rights reserved.” Id. All
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`Plaintiffs can point to here is their subjective understanding of the scope of the
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`implied license, which is insufficient to preclude summary judgment. Indeed, any
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`consideration given to McElroy’s so-called “smoking gun” text message with his
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`about-to-be brother-in-law (who was not involved in the engagement shoot) is
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`tempered by the other communications between McElroy and Defendants after
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`the photos were delivered and published online, none of which reflect displeasure
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`in the photos being published.47 McElroy’s text message fails to raise a question of
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`material fact as to his intent. Plaintiffs have also not pointed to any evidence that
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`they “expressly conveyed” that they were limiting the scope of the implied license
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`to use in social media “when the work [was] delivered.” Id. at 1235.
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`Given the expansive scope of the implied license, Defendants did not
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`infringe on Plaintiffs’ copyright by distributing the photographs to media outlets.
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`Had Plaintiffs wanted to more fully protect, and profit from, their photography,
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`47 McElroy thanked Defendants for the “incredible opportunity” and, seemingly
`on behalf of himself and Flores, expressed an interest in working with them
`again. ECF 41, ¶ 25.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 18 of 24
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`they should have been explicit about their intentions. As McElroy put it, “[l]esson
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`learned.”48 The Court grants summary judgment in favor of the Defendants and
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`dismisses Plaintiffs’ claims for copyright infringement.49
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`b. Defendants’ Counterclaims
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`Plaintiffs have also moved for summary judgment as to each of Defendants’
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`counterclaims, which include (1) declaratory judgment; (2) tortious interference
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`with business relations; (3) breach of contract; (4) libel; (5) slander; (6) punitive
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`damages; and (7) attorneys’ fees. Defendants conceded at oral argument that, if
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`the Court granted their motion for summary judgment on the issue of liability,
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`which it has done, the counterclaims for declaratory judgment and breach of
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`contract would be mooted. Those claims are, therefore, dismissed as moot. The
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`Court now considers Plaintiffs’ motion for summary judgment on the remaining
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`counterclaims.
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`
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`48 ECF 36, ¶ 47.
`49 Since the Court is dismissing Plaintiffs’ claims against Defendants, it will not
`determine whether Ajinça would have been personally liable for CAE’s
`copyright infringement. The Court notes, however, that a corporate officer will
`be held liable, jointly and severally, with her company for copyright
`infringement if “the officer has the right and ability to supervise the infringing
`activity and also has a direct financial interest in such activities.” Broad. Music,
`Inc. v. Ga. Rib Co., Inc., 166 F. Supp. 3d 1329, 1333 (N.D. Ga. 2014).
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 19 of 24
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` Defendants failed to materially address Plaintiffs’ motion for summary
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`judgment, arguing instead that the issues are neither fully briefed nor properly
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`before the Court because Plaintiffs improperly sought dismissal of the
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`counterclaims.50 The Court is perplexed by Defendants argument, for which they
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`cite no authority, that the Court cannot dismiss the Defendants’ counterclaims as
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`a matter of law on a motion for summary judgment. It is clear to the Court that
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`Plaintiffs seek summary judgment as to Defendants’ counterclaims.
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`Summary judgment is appropriate “if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as
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`a matter of law.” Fed. R. Civ. P. 56(a). The difference between a motion to dismiss
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`and a motion for summary judgment is not the relief sought, which is often
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`dismissal of claims at issue, but the standard applied. See Massie v. Cobb Cnty., Ga.,
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`255 F. Supp. 3d 1302, 1307 (N.D. Ga. 2017) (“Because Defendants’ motion was filed
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`after the close of discovery and both parties have fully briefed the motion as one
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`for summary judgment (i.e., by submitting the statements of material facts
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`required by Local Rule 56.1 and basing their arguments on the substantive
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`evidence rather than Massie’s allegations), the Court will analyze it as such.”);
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`50 ECF 38.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 20 of 24
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`Steadman v. Calhoun Cnty. Bd. of Educ., No. CV 04-BE-1148-E, 2006 WL 8437346, at
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`*1 (N.D. Ala. Jan. 10, 2006) (“A motion to dismiss assumes Plaintiff’s allegations to
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`be true, while a motion for summary judgment tests the sufficiency of the actual
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`evidence.”). The parties have submitted statements of material facts,51 and the only
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`reason summary judgment as to Defendants’ counterclaims is not fully briefed is
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`because Defendants have declined to address Plaintiffs’ arguments on the merits.
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`Initially, the Court notes that it is acting within its discretion to rule on these
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`counterclaims even though the federal causes of action have been dismissed.
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`Defendants’ counterclaims are sufficiently related to Plaintiffs’ copyright claims
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`for the Court to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367. A
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`district court may decline to exercise supplemental jurisdiction, however, where
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`“it has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
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`§ 1367(c)(3). In deciding whether to exercise jurisdiction, the Court considers
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`“judicial economy, convenience, fairness, and comity.” Bio-Med. Applications of Ga.,
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`Inc. v. City of Dalton, Ga., 685 F. Supp. 2d 1321, 1340 (N.D. Ga. 2009) (declining to
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`exercise jurisdiction over plaintiff’s state law claims and defendant’s counterclaim
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`after granting summary
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`judgment on the only federal claim). Here, in
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`51 ECF 30-1; ECF 37.
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 21 of 24
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`consideration of these factors, the Court finds that it is appropriate to exercise
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`jurisdiction because this case has been pending for over a year, discovery is
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`complete, and the issues to be resolved are not complicated.
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`As noted, Defendants have entirely failed to respond to Plaintiffs’
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`arguments for summary judgment as to Defendants’ counterclaims. “[A] non-
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`movant’s failure to respond to a defendant’s motion for summary judgment is not
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`fatal; rather, the court must determine if the facts in the record illustrate that the
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`movant is entitled to summary judgment.” Ogwo v. Miami Dade Cnty. Sch. Bd., 702
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`F. App’x 809, 810 (11th Cir. 2017) (citing Dixie Stevedores, Inc. v. Marinic Maritime,
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`Ltd., 778 F.2d 670, 673 (11th Cir. 1985)). However, “when the non-movant fails to
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`properly address a party’s factual assertions, the court may consider those facts
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`undisputed and grant summary judgment if the facts in the record—including
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`those considered undisputed—illustrate that the movant is entitled to judgment
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`in its favor.” Id. (citing Fed. R. Civ. P. 56(e)). In consideration of the undisputed
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`facts, the Court finds that Defendants’ counterclaims should be dismissed.
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`i.
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`Tortious Interference with Business Relations, Libel, and
`Slander
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`Defendants’ counterclaims for tortious interference with business relations,
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`libel, and slander relate either to this litigation or Plaintiffs’ other efforts to enforce
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`their copyright interests in the engagement shoot photographs. These claims fail
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 22 of 24
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`because Plaintiffs are not subject to liability for actions taken in good faith to
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`protect their legal interests.
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`As for the claim for tortious interference with business relations, there is no
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`evidence that Plaintiffs attempted to enforce “sham” or baseless rights, and,
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`therefore, sending demand letters to the media outlets and filing this lawsuit are
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`actions shielded from liability. Miracle 7, Inc. v. Halo Couture, LLC, No. 13-61643-
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`CIV, 2014 WL 11696708, at *4 (S.D. Fla. Jan. 17, 2014) (“Courts routinely reject
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`tortious-interference claims based on good-faith efforts to enforce intellectual
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`property rights.”) (collecting cases); Autumn Vista Holdings, LLC v. Timbercreek
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`Autumn Vista, L.P., No. 1:17-CV-03038, 2019 WL 3997147, at *5 (N.D. Ga. Aug. 23,
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`2019) (under Georgia’s “court filings privilege” tortious interference claim cannot
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`arise from threatening or filing allegedly improper lawsuits).
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`Further, under Georgia law, “[s]tatements made in the good faith
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`performance of a legal or moral duty” and “allegations . . . contained in regular
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`pleadings filed in a court of competent jurisdiction” are privileged and cannot
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`form the basis of a claim for libel or slander. O.C.G.A. §§ 51-5-7(2), -8. See H&R
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`Block E. Enters., Inc. v. Morris, 606 F.3d 1285, 1296 (11th Cir. 2010) (“In Georgia, a
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`statement generally may support a claim for defamation only if it is false,
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`published, and unprivileged.”) FieldTurf USA Inc. v. TenCate Thiolon Middle E., 945
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 23 of 24
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`F. Supp. 2d 1379, 1392 (N.D. Ga. 2013) (granting summary judgment as to libel
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`claim because allegedly libelous letters repeated allegations in lawsuit and were
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`therefore privileged).
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`Plaintiffs’ motion for summary judgment as to Defendants’ tortious
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`interference, libel, and slander claims is granted. Moreover, Defendants’ cause of
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`action for punitive damages is predicated on the tortious interference, libel, and
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`slander claims, and so the Court will grant Plaintiffs’ summary judgment as to
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`Defendants’ request for punitive damages as well. Lewis v. Meredith Corp., 293 Ga.
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`App. 747, 750 (2008) (“Under Georgia law, a plaintiff cannot recover punitive
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`damages when the underlying tort claim fails.”).
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`ii.
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`Attorneys’ Fees
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`In Georgia, attorneys’ fees may be awarded “where the defendant has acted
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`in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary
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`trouble and expense.” O.C.G.A. § 13-6-11. “A refusal to pay in bad faith means a
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`frivolous and unfounded denial of liability. If there is any reasonable ground to
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`contest the claim, there is no bad faith.” Jeff Goolsby Homes Corp. v. Smith, 168 Ga.
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`App. 218, 221 (1983) (internal citation and punctuation omitted). Further,
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`“stubborn litigiousness and causing the plaintiff unnecessary trouble and expense
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`Case 1:19-cv-05094-SDG Document 48 Filed 01/12/21 Page 24 of 24
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`refer to a defendant’s forcing of the plaintiff to sue where no bona fide controversy
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`exists.” Id. (internal citation and punctuation omitted).
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`Defendants have failed to come forward with any evidence that Plaintiffs
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`acted in bad faith in seeking to enforce their copyright interests in the engagement
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`shoot phot