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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`CIVIL ACTION NO. 3:19-CV-00024-GCM
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`DAVID OPPENHEIMER,
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`Plaintiff,
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`v.
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`THE ACL LLC,
`WILLIAM STACEY MOORE,
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`Defendants.
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`ORDER
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`THIS MATTER comes before the Court upon Plaintiff’s Motion for Summary Judgment
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`[ECF Doc. 13], which was filed on March 23, 2020. Defendants’ Memorandum in Opposition to
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`Plaintiff’s Motion for Summary Judgment [ECF Doc. 16] was filed on May 6, 2020 and Plaintiff
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`filed a Reply on May 13, 2020. This Motion, now being fully briefed, is ripe for consideration
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`and the Court finds the following.
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`I.
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`BACKGROUND
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`This copyright infringement case was brought by Plaintiff David Oppenheimer on January
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`17, 2019 against Defendants William Stacey Moore and the ACL LLC (“ACL”). ECF Doc. 1.
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`The Copyrighted Work is a photograph framing the event center lobby of Harrah’s Cherokee
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`Casino Resort (“Harrah’s”).
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` ECF Doc. 1-1.
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` Defendant ACL operates the website
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`“iplaycornhole.com” and advertised an event to be held at Harrah’s, the “2016 Championship of
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`Bags,” on iplaycornhole.com. ECF Doc. 14-2 at 12. Without having licensed to use, obtained
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`authorization, or in any way compensated Plaintiff for its use of the Copyrighted Work, Defendant
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`ACL used the Copyrighted Work on its website to promote the 2016 Championship of Bags. ECF
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`Doc. 14-2 at 2, 12; ECF Doc. 1-3. Plaintiff attests that his copyrighted photographs display his
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 1 of 12
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`copyright management information (“CMI”) when first published, and the Copyrighted Work
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`displayed his CMI when first published. ECF Doc. 1, ¶ 10; ECF Doc. 14-2 at 2. Because
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`Defendants were on notice or should have been on notice for copyrights, Plaintiff sued Defendants
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`for violating federal copyright law. ECF Doc. 1, ¶¶ 1, 10. Any other relevant facts are set forth
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`in the discussion section below.
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`II.
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`STANDARD OF REVIEW
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`Under the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if
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`the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
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`to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those “that might affect
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`the outcome of the suit under the governing law,” and “the materiality determination rests on the
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`substantive law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
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`considered genuine “if the evidence is such that a reasonable jury could return a verdict for the
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`nonmoving party.” Id. “[T]he mere existence of some alleged factual dispute between the parties
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`will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247–48
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`(alteration in original).
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`The “party seeking summary judgment always bears the initial responsibility of informing
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`the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
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`depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
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`which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
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`Catrett, 477 U.S. 317, 323 (1986). Once the movant has met the initial burden, the burden then
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`shifts to the non-moving party to identify specific facts showing there is a genuine issue of material
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`fact. See Anderson, 477 U.S. at 256. In considering a motion for summary judgment, a Court
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`views all evidence in the light most favorable to the nonmoving party. Id. at 255.
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 2 of 12
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`Where a nonmoving party “shows by affidavit or declaration that, for specified reasons, it
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`cannot present facts essential to justify its opposition, the court may: (1) defer considering the
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`motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)
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`issue any other appropriate order.” Fed. R. Civ. P. 56(d)(1)–(3). Additionally, where “a party fails
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`to properly support an assertion of fact or fails to properly address another party’s assertion of fact
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`as required by Rule 56(c), the court may . . . consider the fact undisputed.” Fed. R. Civ. P. 56(e)(2).
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`It is with these standards in mind that the Court considers the present matter.
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`III. DISCUSSION
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`Plaintiff seeks only partial summary judgment, moving for summary judgment as to: (1)
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`Defendants’ liability for direct copyright infringement and (2) five of Defendants’ affirmative
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`defenses, including fair use, unclean hands, de minimis use, implied license, and failure to mitigate
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`damages. The Court addresses each argument in turn below.
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`a. Defendants’ Liability for Direct Copyright Infringement
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`Plaintiff maintains there is no dispute of material fact and Plaintiff is entitled to judgment
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`as a matter of law as to Plaintiff’s claim for direct copyright infringement. A copyright holder is
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`granted “‘exclusive rights’ to use and to authorize the use of his work in five qualified ways,
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`including reproduction of the copyrighted work in copies.” Sony Corp. of Am. v. Universal City
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`Studios, Inc., 464 U.S. 417, 433 (1984); 17 U.S.C. § 106 (2018). Whoever violates an exclusive
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`right of the copyright holder infringes upon the copyright. 17 U.S.C. § 501(a); Sony Corp. of Am,
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`464 U.S. at 433. To allege copyright infringement, a plaintiff must prove: (1) valid copyright
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`ownership and (2) copying of the original elements of the copyright. CoStar Grp., Inc. v. LoopNet,
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`Inc., 373 F.3d 544, 549 (4th Cir. 2004).
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 3 of 12
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`Plaintiff sets forth that he holds a certificate of copyright registration for the Copyrighted
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`Work issued by the United States Copyright Office. ECF Doc. 1-2. A certificate of registration
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`“shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the
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`certificate.” 17 U.S.C. § 410(c). Thus, Defendants have the burden to overcome the presumption
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`that the copyrights are valid. See Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc.,
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`618 F.3d 417, 429 (4th Cir. 2010). Defendants make no attempt to dispute the validity of the
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`copyrights for the Copyrighted Work. Therefore, Plaintiff has succeeded in establishing valid
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`copyright ownership exists.
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`Next, Plaintiff argues there is no contrary evidence to that establishing Defendants directly
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`copied the Copyrighted Work and published it on the internet without license or authorization.
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`ECF Doc. 1-3 (showing the website post where the Copyrighted Work was copied); ECF Doc. 14-
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`2 at 9, 12 (documenting that Defendant Moore admitted the Copyrighted Work was displayed on
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`iplaycornhole.com); ECF Doc. 14-2 at 11 (explaining that Defendant Moore was responsible for
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`managing iplaycornhole.com and showing that Defendant Moore admitted Defendant ACL ran the
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`website where Plaintiff’s photograph was used); ECF Doc. 14-2 at 15, 18 (explaining in
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`Defendants’ Response to Plaintiff’s First Interrogatories that, although Defendants do not recall
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`whether the Copyrighted Work was acquired from Harrah’s or a Google search, the Copyrighted
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`Work was posted on Defendant ACL’s website on or around November 18, 2015 through
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`December 2016). Again, Defendants do not seek to dispute the validity of this evidence, and by
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`failing to dispute these facts, they have admitted that the Copyrighted Work was copied.
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`Nevertheless, Defendants argue there could be an issue of material fact as to whether the
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`photograph was provided to Defendants by an act of a sovereign state, the Eastern Band of
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`Cherokee Indians and its tribal entities (“the Tribe”), which could bar Plaintiff’s claims. The act
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 4 of 12
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`of state doctrine is applicable where “the relief sought or the defense interposed would [require] a
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`court in the United States to declare invalid the official act of a foreign sovereign performed within
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`its own territory.” W.S. Kirkpatrick & Co. v. Env’t Tectonics Corp., Int’l, 493 U.S. 400, 405
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`(1990). The issue only arises “when a court must decide—that is, when the outcome of the case
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`turns upon—the effect of official action by a foreign sovereign. When that question is not in the
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`case, neither is the act of state doctrine.” Id. at 406 (emphasis in original). The purpose behind
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`the doctrine is that, were the United States to reexamine and possibly condemn the acts of another
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`sovereign state, it could “imperil the amicable relations between governments and vex the peace
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`of nations.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417–18 (1964) (quoting Oetjen
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`v. Cent. Leather Co., 246 U.S. 297, 303–04 (1918)). In considering whether the doctrine should
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`be invoked, the policies underlying the act of state doctrine may be considered. W.S. Kirkpatrick
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`& Co., 493 U.S. at 409.
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`Defendants urge the Court to conclude that because there may be an issue of fact as to
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`whether the Tribe or its entities acted officially by supplying Defendants with the photograph to
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`be used in marketing the event at Harrah’s, summary judgment is improper. According to
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`Defendants, if the Tribe provided the photo to Defendants, granting Plaintiff summary judgment
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`would be an indirect attack on the Tribe’s sovereignty. The Court disagrees. To say that the act
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`of state doctrine applies is to argue that the outcome of this case turns on whether the Tribe validly
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`gave the photo to Defendants in its official capacity and, thereby, made it so that Defendants’
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`copying and posting of the Copyrighted Work was not infringement. This theory is far too
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`attenuated where Defendants, who are not alleged to be part of the Tribe, took the Copyrighted
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`Work and illegally copied it onto their website. Such a conclusion is especially true given that
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`Defendants’ theory in no way serves to promote the rationale behind the act of state doctrine.
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 5 of 12
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`There is no risk of imperiling amicable relationships between the government and the Tribe. The
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`Court finds that the act of state doctrine should not be invoked here, and Defendants have offered
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`no evidence to dispute the validity of the copyrights or to dispute their acts in copying the
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`Copyrighted Work. Therefore, there is no genuine dispute of material fact as to the direct copyright
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`infringement that occurred when Defendants copied and published the Copyrighted Work on their
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`website.1
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`b. Defendant Moore’s Liability
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`While Plaintiff has clearly established direct copyright infringement here on the part of
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`Defendant ACL, it remains for the Court to determine whether Defendant Moore is individually
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`liable for the infringement. Defendants maintain that Defendant Moore is not liable for direct
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`copyright infringement because Plaintiff has not established facts or law piercing the corporate
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`veil and, under North Carolina law, a person is not liable for the obligations of an LLC solely by
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`virtue “of being an interest owner, manager, or other company official.” N.C. Gen. Stat. § 57D-
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`3-30 (2020). Yet, Congress has established that it is illegal to reproduce a copyrighted work in
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`copies or to distribute copies of the copyrighted work. 17 U.S.C. § 106. “Anyone who violates
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`any of the exclusive rights of the copyright owner . . . is an infringer of the copyright.” Id. § 501(a).
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`A direct infringer is “characterized as one who ‘trespasses into [the copyright owner’s] exclusive
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`1 Perhaps of some note is why the Court even considered this defense in its analysis, given that Plaintiff argues
`Defendants waived the defense. Plaintiff first maintains that Defendants waived a defense of sovereign immunity and
`cannot raise the defense now. See, e.g., ECF Doc. 17 at 3 (referring to Defendants’ act of state defense as “Defendants’
`sovereign immunity defense”). “The act of state doctrine, however, although it shares with the immunity doctrine a
`respect for sovereign states, concerns the limits for determining the validity of an otherwise applicable rule of law.”
`Sabbatino, 376 U.S. at 438. Thus, these two theories are distinct and should not be conflated. Plaintiff also argues
`that Defendants waived the act of state defense by failing to properly move to amend their answer to include the
`affirmative defense. ECF Doc. 17 at 4. But a waiver “should not be effective unless the failure to plead resulted in
`unfair surprise or prejudice.” In re FirstPay, Inc., 391 F. App’x 259, 270 (4th Cir. 2010) (quoting S. Wallace Edwards
`& Sons, Inc. v. Cincinnati Ins. Co., 353 F.3d 367, 373 (4th Cir. 2003)) (finding that an affirmative defense was not
`waived even when it was raised for the first time during summary judgment proceedings). Plaintiff had seven days to
`file a reply to Defendants’ Response and could have sought additional time with a motion showing good cause for an
`extension. That Plaintiff did not request additional time to reply or raise unfair surprise or prejudice in his Reply
`indicates there is no reason to invoke a waiver of the affirmative defense here.
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 6 of 12
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`domain’ established in § 106.” CoStar Grp., Inc., 373 F.3d at 549 (quoting Sony, 464 U.S. at
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`433)). Thus, simply because a limited liability company was found directly liable for copyright
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`infringement does not prevent an individual who actually participated in the copyright violation
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`from being personally liable for direct copyright infringement. See Universal Furniture Int’l, Inc.
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`v. Frankel, 835 F. Supp. 2d 35, 49 (M.D.N.C. 2011), aff’d, 538 F. App’x 267 (4th Cir. 2013).
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`Regardless of his role with Defendant ACL, Defendant Moore is personally liable for direct
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`copyright infringement because he violated Plaintiff’s exclusive copyrights based on the
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`undisputed facts set forth in Plaintiff’s Motion. Defendant Moore verified in deposition that he is
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`“the sole owner of the ACL, LLC, which operates iplaycornhole.com.” ECF Doc. 14-2 at 10. He
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`also admitted the Copyrighted Work was published on iplaycornhole.com and that he was the
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`individual who managed the website when it was published. Id. at 11. Defendants do not dispute
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`these facts. Even if Defendant Moore was acting on behalf of Defendant ACL when he copied
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`and pasted the Copyrighted Work to Defendant ACL’s website, he is liable for direct copyright
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`infringement because he personally infringed on Plaintiff’s exclusive copyrights.
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`c. Defendants’ Fair Use and Unclean Hands Affirmative Defenses
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`Plaintiff moves for summary judgment on five of Defendants’ affirmative defenses, but the
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`only affirmative defenses Defendants argue in their Response are those of fair use and unclean
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`hands, the latter of which is apparently argued under the misuse of copyright doctrine. Defendants’
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`predicate for these two defenses is that Plaintiff is an alleged copyright troll. ECF Doc. 16 at 12–
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`13. Defendants argue that Plaintiff has brought hundreds of infringement suits nationwide and
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`brings copyright infringement claims against defendants after paying for a monthly service that
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`scours the web looking for infringing uses of his copyrighted photos. Id. at 12. Apparently, the
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`only supporting evidence Defendants have provided for this theory includes a list of lawsuits
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 7 of 12
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`Defendants believe were filed by Plaintiff and a list of copyrights Defendants believe the Plaintiff
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`has registered with the USPTO, both provided in response to Plaintiff’s request for production of
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`documents supporting Defendants’ affirmative defenses. ECF Doc. 14-2 at 29. Notably,
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`Defendants claim additional evidence is yet to be uncovered in discovery, but they believe it will
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`prove that Plaintiff’s income is derived from photography by way of litigation or threats of
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`litigation over copyright infringement. ECF Doc. 16 at 12–13. However, discovery has long-since
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`closed and Defendants have not filed a motion to compel discovery, supplemented their response
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`to Plaintiff’s request for production, or supplemented their Response to this Motion. Yet, Plaintiff
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`has not offered evidence of the profits he earns from his copyrighted works either, beyond claiming
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`that he is a professional photographer who makes a living from creating photographs and licensing
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`their use for fees. ECF Doc. 14-2 at 1. Under this backdrop, the Court will look to Defendants’
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`affirmative defenses for fair use and unclean hands.
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`1. Fair Use
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`Turning first to the fair use doctrine, Congress has placed certain limitations on the
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`exclusive rights of copyright owners, one of which is the fair use limitation. 17 U.S.C. § 107. To
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`determine whether the use of a copyrighted work is “fair,” courts consider the following factors:
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`(1) the purpose and character of the use, including whether such use is of a
`commercial nature or is for nonprofit educational purposes;
`(2) the nature of the copyrighted work;
`(3) the amount and substantiality of the portion used in relation to the copyrighted
`work as a whole; and
`(4) the effect of the use upon the potential market for or value of the copyrighted
`work.
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`Id. For the first factor, a commercial purpose for the use of a copyrighted work will likely weigh
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`against fair use, while a use for criticism, comment, news reporting, et cetera may favor fair use,
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`depending on whether the goal of the use was to add something new to the work. A.V. ex rel.
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 8 of 12
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`Vanderhye v. iParadigms, LLC., 562 F.3d 630, 638 (4th Cir. 2009). As to the second factor, a use
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`is less likely considered fair when the nature of the work is a creative product, rather than a factual
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`work. Id. at 640. For the third factor, as the amount of the copyright work used increases, so
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`decreases the likelihood of finding the use fair. Id. at 642. Lastly, the fourth factor is considered
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`the “single most important element of fair use,” and looks to “whether the secondary use usurps
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`the market of the original work.” Id. at 643 (quoting NXIVM Corp. v. The Ross Inst., 364 F.3d
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`471, 482 (2d Cir. 2004)) (emphasis in original). Ultimately, the inquiry into whether a use is
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`“fair” must be decided on the facts of each case. Harper & Row Publishers, Inc. v. Nation Enters.,
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`471 U.S. 539, 560 (1985).
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`Applying these factors to the facts of this case, the purpose and character of Defendants’
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`use appear to be of a commercial nature, where Defendants have not argued or presented evidence
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`contrary to them having used the work to promote awareness about their cornhole championship.
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`ECF Doc. 1-3; ECF Doc. 14-2 at 12. Additionally, while the photograph in question is simply one
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`of the Harrah’s lobby, it required some artistic element and creativity to decide the perspective to
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`take, the placement and orientation of the camera, the settings to use, and the timing of the
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`photograph. See U.S. Copyright Office, Circular 42: Copyright Registration of Photographs,
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`https://www.copyright.gov/circs/ (last visited Nov. 19, 2020) (classifying photographs as “visual
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`art works” and explaining why they are classified as such); ECF Doc. 14-2 at 2 (attesting to the
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`care taken when creating the Copyrighted Work). Further, Defendants proceeded to copy the entire
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`work to the website iplaycornhole.com. ECF Doc. 1-3. Nevertheless, when turning to the final
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`factor, it seems that Plaintiff has failed to establish sufficient undisputed facts to support the effect
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`Defendants’ use had upon the potential market for or value of the copyrighted work. While
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`Plaintiff argues he is a professional photographer and his income is derived from licensing his
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 9 of 12
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`works, Defendants argue his income is derived from copyright infringement cases. Without more
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`facts, perhaps those attesting to the value of the photograph, the expected profit from the
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`photograph, or even the value or expected profits derived from similar photographs, the Court
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`cannot make a determination as to the fourth factor of the fair use doctrine. Plaintiff has not
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`established sufficient facts that the secondary use usurped the market for the original work. While
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`the Court acknowledges that these factors are to be examined as a whole and no single factor is
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`determinative, the fourth factor is undoubtedly the most important factor. A reasonable jury could
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`find that Defendants’ use of the work had minimal effect upon the potential market for or value of
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`the copyrighted work and this would be key to analysis of the substantive law. Therefore, summary
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`judgment is not appropriate for this affirmative defense.
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`2. Unclean Hands
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`Plaintiff argues he is entitled to summary judgment upon Defendants’ unclean hands
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`affirmative defense as well, while Defendants seemingly argue that the misuse of copyright
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`doctrine applies to prevent summary judgment on this matter. The Fourth Circuit has established
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`that misuse of copyright is a valid affirmative defense where the use of a copyright is contrary to
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`the public policy upon which copyrights are granted. Lasercomb Am., Inc. v. Reynolds, 911 F.2d
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`970, 977 (4th Cir. 1990). Typically, the defense applies when seeking to avoid anti-competitive
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`behavior, but it can also apply to other scenarios where a copyright owner attempts to extend the
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`copyrights beyond their intended reach. Id.; see also Religious Tech. Ctr. v. Lerma, No. 95-1107-
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`A, 1996 WL 633131 (E.D. Va. Oct. 4, 1996) (listing examples such as attempting to restrain a
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`defendant from using material over which the plaintiff has no rights, distributing the copyright
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`discriminatorily, and refusing to supply a list of copyrighted songs where requested). The
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`underlying policy principles behind copyrights extend from the United States Constitution, with
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 10 of 12
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`the relevant policy here being to promote the “useful arts.” See Lasercomb, 911 F.2d at 977
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`(quoting U. S. Const., Art. I, § 8, cl. 8)). If Plaintiff’s purpose in copyrighting the Copyrighted
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`Work was to license it for use when individuals or companies need a photo of the Harrah’s lobby,
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`then Plaintiff is likely not misusing his copyrights. Yet, a reasonable jury could find Plaintiff is
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`using copyrights to derive an income from infringement suits and this issue is one of fact that the
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`Court should not decide. Surely there are only minimal facts alleged to support this theory but,
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`given that the Court is to construe the facts in favor of Defendants, the Court finds that summary
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`judgment is not appropriate as to this affirmative defense.
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`d. Defendants’ De Minimis Use, Implied License, and Failure to Mitigate
`Affirmative Defenses
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`As to the other defenses upon which Plaintiff seeks summary judgment—de minimis use,
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`implied license, and failure to mitigate—Defendants have made no effort to dispute that Plaintiff
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`is entitled to summary judgment except for claiming they are unable to respond due to incomplete
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`discovery. While Defendants claim they intend to file motions to compel answers and other
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`discovery, they never did so and the close of discovery long ago passed. As noted previously,
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`where a party fails to properly support an assertion of fact, it may be considered undisputed. Fed.
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`R. Civ. P. 56(e)(2). Defendants have raised these affirmative defenses without providing any
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`supporting facts and have failed to offer any theory whatsoever about why the Court should not
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`grant summary judgment upon these matters. The Court finds that, because Defendants failed to
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`provide evidence supporting these affirmative defenses, or even explain what evidence could
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`support these affirmative defenses, Plaintiff is entitled to summary judgment as to these three
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`affirmative defenses.
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 11 of 12
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`IV. ORDER
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`For the aforementioned reasons, the Court finds that Plaintiff’s Motion for Summary
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`Judgment should be GRANTED IN PART.
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`IT IS THEREFORE ORDERED that:
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`1. Plaintiff’s Motion for Summary Judgment as to Defendant ACL’s liability for direct
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`copyright infringement is GRANTED;
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`2. Plaintiff’s Motion for Summary Judgment as to Defendant Moore’s liability for direct
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`copyright infringement is GRANTED;
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`3. Plaintiff’s Motion for Summary Judgment as to the affirmative defenses of de minimis use,
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`implied license, and failure to mitigate is GRANTED; and
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`4. Plaintiff’s Motion for Summary Judgment as to Defendants’ affirmative defenses of fair
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`use and unclean hands is DENIED.
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`SO ORDERED.
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`Signed: December 2, 2020
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`Case 3:19-cv-00024-GCM Document 20 Filed 12/02/20 Page 12 of 12
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