Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 1 of 20. PageID #: 433
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`Plaintiff,
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`v.
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`Defendant.
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`Case No. 1:22-cv-973
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`MAGISTRATE JUDGE
`THOMAS M. PARKER
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`MEMORANDUM OPINION
`AND ORDER
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`MICHAEL STOKES,
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`BRINOR, INC.,
`doing business as
`LEATHER STALLION SALOON
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`This is a copyright-infringement action commenced by plaintiff Michael Stokes against
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`defendant Brinor, Inc. (“Brinor”), which does business as Leather Stallion Saloon (“LSS”),
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`because Brinor displayed on LSS’s Facebook page a flyer containing an altered version of a
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`photograph over which Stokes owns a copyright. The parties have cross-moved for summary
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`judgment on the issues of liability and damages. ECF Doc. 17; ECF Doc. 18.
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`For the reasons that follow, each motion is GRANTED IN PART and DENIED IN
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`PART.
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`I.
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`Procedural History
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`On June 7, 2022, Stokes filed a complaint against Brinor, asserting a single claim of
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`copyright infringement under the Copyright Act, 17 U.S.C. §§ 106, 501. ECF Doc. 1. The
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`complaint alleged that Brinor reproduced and displayed a copyrighted photograph, which Stokes
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`authored, on LSS’s Facebook page without license or permission. See ECF Doc. 1 at 3, 6–7. As
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`relief, the complaint sought: (i) the greater of either actual or statutory damages; (ii) an
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`injunction against infringing use of Stokes’s “works”; (iii) costs and reasonable attorney fees;
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`and (iv) pre-judgment interest. ECF Doc. 1 at 8.
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`On August 3, 2022, Brinor filed its answer. ECF Doc. 7. The answer asserted various
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`affirmative defenses, including that Stokes’s complaint was time-barred and that a third party
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`was responsible for any damages incurred. See ECF Doc. 7 at 3–4. The parties subsequently
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`consented to magistrate judge jurisdiction. ECF Doc. 11.
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`On March 20, 2023, Stokes filed a motion for summary judgment on the issues of
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`liability and damages, pursuing only statutory damages. ECF Doc. 17. Brinor cross-moved for
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`summary judgment on the same issues, including on the issue of actual damages. ECF Doc. 18.
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`The parties filed opposition briefs to the other’s motion, in which Stokes emphasized he “is
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`seeking an award of statutory damages only.” ECF Doc. 20; ECF Doc. 21; see ECF Doc. 20 at
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`19. And on May 3, 2023, Stokes filed a reply brief in support of his motion for summary
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`judgment.1 ECF Doc. 22.
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`II.
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`Facts and Evidence2
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`Stokes is a California-based professional photographer. ECF Doc. 17-3 at 1 (declaration
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`of Stokes). His work often features nude and semi-nude models, which he compiles into books.
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`Id. at 2–3. Among his works is a September 22, 2014 photograph of model Bryant Wood in
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`baseball paraphernalia:
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`1 Stokes’s reply brief was filed without leave of court, as required by the Case Management Order. ECF
`Doc. 13 at 2. Despite the violation, the court has considered Stokes’s reply brief in reaching its decision.
`2 The facts recited in this section are undisputed or established by Rule 56 evidence.
`2
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 3 of 20. PageID #: 435
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`ECF Doc. 1-1 (original photograph); ECF Doc. 17-3 at 4. Stokes registered the photograph with
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`the U.S. Copyright Office on September 24, 2014, under Registration No. VAu 1-185-837. ECF
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`Doc. 17-3 at 4; see ECF Doc. 17-4 at 2 (certificate of registration).
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`LSS is an Ohio pub that caters to and supports Cleveland, Ohio’s gay community. ECF
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`Doc. 18-2 at 1 (declaration of Kenneth Myers, Jr.); ECF Doc. 18-3 at 1 (declaration of Michael
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`Dominguez). This includes sponsoring local sports teams and hosting special events during the
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`weekend of Pride, an annual celebration of the LGBTQ community. ECF Doc. 18-1 at 1; ECF
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`Doc. 18-2 at 1. And LSS promotes the events it hosts on its Facebook page. ECF Doc. 18-3 at
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`2.
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`In 2016, LSS agreed to hold a fundraiser for the benefit of an amateur men’s softball
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`team known as the “Cleveland Mustangs” over the weekend of that year’s Pride (the 13th and
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`14th of August) weekend. ECF Doc. 18-2 at 1–2; ECF Doc. 18-3 at 2. David Sulik, a graphic
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`designer, created a flyer to promote the event.3 ECF Doc. 18-2 at 2; ECF Doc. 18-3 at 2. Sulik
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`3 The sworn declarations submitted by Brinor both assert that Sulik was “asked” to make a flyer
`promoting the fundraiser without any indication by whom. See generally ECF Doc. 18-2; ECF Doc. 18-
`3.
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`3
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`then sent the flyer to LSS’s then-manager, Michael Dominguez, who, on August 9, 2016,
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`published it on LSS’s Facebook page:
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`ECF Doc. 1-2 (Facebook post); ECF Doc. 18-2 at 2; ECF Doc. ECF Doc. 18-3 at 2. LSS’s only
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`input in the creation of the flyer was in providing information relevant to the actual fundraiser
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`(i.e., date, time of year, prizes, and the sale of gummy bear shots). ECF Doc. 18-3 at 2.
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`During the fundraiser, members of the Cleveland Mustangs raised funds by selling
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`gelatin and gummy bear shots. ECF Doc. 18-2 at 3. According to Brinor’s owner, Kenneth
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`Myers, Jr.: (i) third-party fundraiser sales equated to a loss in alcohol sales for LSS; (ii) LSS did
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`not “make any funds from the 2016 Cleveland Mustangs fundraiser;” and (iii) LSS “most likely
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`lost money” by allowing the fundraiser. ECF Doc. 18-2 at 2–3. And according to Dominguez,
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`the gross receipts on the Sunday of 2016’s Pride weekend ($2,491.50) were the lowest since
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`2013 ($2,588.75). ECF Doc. 18-3 at 2–3.
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`On March 27, 2022, Stokes came across LSS’s Facebook page, and the August 9, 2016
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`post promoting the fundraiser. ECF Doc. 17-3 at 4–5. Stokes recognized the image of the
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`baseball player on the flyer as the September 2014 photograph of Wood. Id. However, Stokes
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`never granted LSS a license or permission to use the photograph. ECF Doc. 17-3 at 5–7.
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`4
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`III.
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`Summary Judgment Standard
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`Summary judgment is proper when “the movant shows that there is no genuine dispute as
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`to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). A genuine dispute of fact exists when “there is sufficient evidence favoring the
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`nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc.,
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`477 U.S. 242, 249 (1986). The moving party bears the initial burden of establishing the absence
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`of a genuine dispute of fact, either by pointing to evidence so establishing or by pointing out an
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`absence of evidence to support the nonmovant’s case. Fed. R. Civ. P. 56(c)(1)(A)-(B); Celotex
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`Corp. v. Catrett, 477 U.S. 317, 324–25 (1986). The burden then shifts to the nonmovant to show
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`that there is a genuine dispute of fact. Anderson, 477 U.S. at 248–50. To do so, the nonmovant
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`may not rely on his pleadings; he must set forth “specific facts showing that there is a genuine
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`issue for trial.” Celotex Corp., 477 U.S. at 324. The relevant question at all times is “whether
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`the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
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`one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
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`In determining whether a genuine issue of fact exists, “the evidence is construed, and all
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`reasonable inferences are drawn, in favor of the nonmoving party.” Burgess v. Fischer, 735 F.3d
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`462, 471 (6th Cir. 2013). When, as here, both parties have moved for summary judgment, we
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`“must evaluate each party’s motion on its own merits, taking care in each instance to draw all
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`reasonable inference against the party whose motion is under consideration.” Craig v. Bridges
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`Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016). The Sixth Circuit has cautioned that
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`summary judgment, particularly in favor of the defendant, should be “used sparingly” in
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`copyright-infringement cases. RJ Control Consultants, Inc. v. Multiject, LLC, 981 F.3d 446, 453
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`(6th Cir. 2020) (internal quotation marks omitted).
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`5
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 6 of 20. PageID #: 438
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`A.
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`Statute of Limitations
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`Brinor argues that it is entitled to judgment as a matter of law because Stokes’s complaint
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`is barred by the Copyright Act’s three-year statute of limitations. See ECF Doc. 18-1 at 11–14.
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`Although Sixth Circuit precedent has applied the “discovery rule” to copyright-infringement
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`claims, Brinor argues that more recent Supreme Court precedent requires the application of the
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`“occurrence rule,” under which Stokes’s complaint would be untimely.4 ECF Doc. 18-1 at 12–
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`13 (citing, inter alia, Rotkiske v. Klemm, 140 S. Ct. 355 (2019)). Stokes responds that Rotkiske is
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`inapposite to the Copyright Act. See ECF Doc. 20 at 12–13, 15–18 .
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`As an affirmative defense, the defendant carries the burden of showing that the statute of
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`limitations period has expired, after which the burden shifts to the plaintiff to establish that an
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`exception applies. Henry v. Norfolk S. Ry. Co., 605 F. App’x 508, 510 (6th Cir. 2015). Civil
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`claims under the Copyright Act must be brought “within three years after the claim accrued.” 17
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`U.S.C. § 507(b). The established rule in the Sixth Circuit is that a copyright-infringement claim
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`“accrues when a plaintiff knows of the potential violation or is chargeable with such
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`knowledge.” Roger Miller Music, Inc. v. Sony/ATV Publ’g LLC, 477 F.3d 383, 390 (6th Cir.
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`2007). This interpretation of the Copyright Act’s statute of limitations, known as the “discovery
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`rule,” is the applicable accrual date in every jurisdiction to have addressed the issue. 6 William
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`F. Patry, Patry on Copyright § 20:19 (2023) (collecting cases).
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`In Rotkiske, the Supreme Court considered whether the discovery rule applied to the Fair
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`Debt Collection Practices Act’s (“FDCPA”) statute of limitations, which required claims to be
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`brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d);
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`140 S. Ct. at 359–60. The Court prefaced its analysis by stating that interpreting limitations
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`4 Brinor’s damages-related argument are addressed in the “Damages” section below.
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`provisions should begin with and – if unambiguous – end with the statutory text. Rotkiske, 140
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`S. Ct. at 361. But when two plausible constructions of the limitations provision could apply, the
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`Court stated that “we generally adopt the construction that starts the time limit running when the
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`cause of action accrues because Congress legislates against the standard rule that the limitations
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`period commences when the plaintiff has a complete and present cause of action.” Id. at 361
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`(ellipsis omitted; internal quotation marks omitted). In the case of FDCPA, the Court held that
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`the statute was clear that the limitations period began to run from “the date the alleged FDCPA
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`violation actually happened.” Id. And in rejecting plaintiff’s argument that a discovery rule
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`should nevertheless be applied, the Court criticized as a “bad wine of recent vintage” the concept
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`of engrafting a discovery rule into an unambiguous limitations provision. See id. at 360–61
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`(internal quotation marks omitted).
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`After Rotkiske, there have been calls for the Sixth Circuit to revisit the accrual date
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`applicable to claims under the Copyright Act. See Garza v. Everly, 59 F.4th 876, 885–87 (6th
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`Cir. 2023) (Murphy, J., concurring); Everly v. Everly, 958 F.3d 442, 459–68 (6th Cir. 2020)
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`(Murphy, J., concurring). To date, those calls remain unanswered. And district courts within
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`this circuit have continued to apply the discovery rule. E.g., Buell v. Sneaker Bar Det., LLC, No.
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`22-10185, 2022 U.S. Dist. LEXIS 199585, at *4 (E.D. Mich. Nov. 2, 2022); Brunson v. Capitol
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`CMG, Inc., No. 3:20-cv-01056, 2022 U.S. Dist. LEXIS 153033, at *7–11 (M.D. Tenn. Aug. 25,
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`2022); Navarro v. P&G, 515 F. Supp.3d 718, 757–60 (S.D. Ohio 2021).
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`The court disagrees with Brinor that Rotkiske displaced application of the discovery rule
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`to copyright-infringement claims. First, Rotkiske did not interpret the Copyright Act’s statute of
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`limitations. Second, the text of the Copyright Act’s statute of limitations differs from that of the
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`FDCPA. Compare 15 U.S.C. § 1692k(d), with 17 U.S.C. § 507(b). And third, Brinor overreads
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`7
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`Rotkiske, because, although the Court stated that the general approach to an ambiguous
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`limitations provision with two plausible constructions was to adopt the date of occurrence, the
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`Court did not foreclose the possibility that the only plausible construction of an ambiguous
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`statute of limitations might be the discovery rule. See Rotkiske, 140 S. Ct. at 360; see also
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`Martinelli v. Hearst Newspapers, L.L.C., 65 F.4th Cir. 231, 241–42 (5th Cir. 2023).
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`All told, we must apply the discovery rule to Stokes’s copyright-infringement claim. See
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`First Am. Title Co. v. Devaugh, 480 F.3d 438, 457 (6th Cir. 2007) (“[T]o the extent that a Sixth
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`Circuit decision allegedly conflicts with a Supreme Court decision, the district court is obligated
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`to follow the Supreme Court decision.”). But other than arguing for the application of the
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`occurrence rule, Brinor has not attempted to argue in what way Stokes’s claim would be
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`untimely under the discovery rule. Brinor also has not put forward evidence of some event or
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`series events that would have given Stokes any reason to investigate Brinor’s Facebook page or
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`fundraising activities earlier than when he claims to have come upon the page in March 2022.
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`See Design Basics, LLC v. Forrester Wehrle Homes, Inc., 305 F. Supp.3d 788, 794–95 (N.D.
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`Ohio 2018). As the party with the burden, these are fatal to Brinor’s request for judgment as a
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`matter of law on the issue of statute of limitations. See Henry, 605 F. App’x at 510.
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`Brinor’s motion for summary judgment must be DENIED IN PART with respect to its
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`statute of limitations defense.
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`B.
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`Liability
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`Stokes argues that judgment as a matter of law in his favor is warranted on the issue of
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`liability, because there is no material dispute of fact as to whether he owns a valid copyright in
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`the photograph of Wood or that Brinor copied the photograph. See ECF Doc. 17-1 at 11–15.
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`Without addressing the ownership of a valid copyright, Brinor argues that a genuine dispute of
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`8
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`fact exists as to who infringed upon Stokes’s copyright, because the flyer was created by a third-
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`party over whom Brinor had no authority or control. ECF Doc. 21 at 5–6. And Stokes replies
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`that Brinor would nevertheless be liable, either for posting the flyer on its Facebook or for
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`Sulik’s actions on Brinor’s behalf. See ECF Doc. 22 at 7–8.
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`The Copyright Act grants certain exclusive rights to the owner of a copyright, including
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`the right to make copies, prepare derivative works, and publicly display the copyrighted work.
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`17 U.S.C. § 106(1)-(2), (5). Anyone who violates any of these rights is an “infringer” liable to
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`the copyright owner for damages. 17 U.S.C. §§ 501(a), 504(a). Two elements are necessary to
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`establish liability for copyright infringement: “(1) ownership of a valid copyright, and
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`(2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural
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`Tel. Serv. Co., 499 U.S. 340, 361 (1991). “The first prong tests the originality and non-
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`functionality of the work, both of which are presumptively established by the copyright
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`registration. The second prong tests whether any copying occurred (as a factual mater) and
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`whether the portion of the work copied were entitled to copyright protection (as a legal matter).”
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`Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004).
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`1.
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`Ownership of a Valid Copyright
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`Stokes has established the first element of his copyright-infringement claim as a matter of
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`law. Stokes asserts that he registered the photograph of Wood with the U.S. Copyright Office
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`under Registration No. VAu 1-185-837. ECF Doc. 17-3 at 4. He has submitted a Certificate of
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`Registration, granting Stokes a copyright over a work titled “Photographs 2014.” ECF Doc. 17-4
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`at 2. And the certificate date of the copyright (September 24, 2014) makes it presumptively
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`valid. 17 U.S.C. § 410(c). Although the certificate does not specifically describe the Wood
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`photograph, the undisputed record evidence before the court (the photograph, the registration
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`9
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`number, the certificate, and Stokes’s unrefuted sworn statements) is sufficient to tie the two
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`together. Cf. Rosen v. R & R. Auction Co., LLC, No. CV 15-07950, 2016 U.S. Dist. LEXIS
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`187610, at *11 (C.D. Cal. Aug. 31, 2016). Brinor has not attempted to rebut the presumption
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`created by a copyright registration. Thus, the first element is conclusively established.
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`2.
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`Copying
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`Unlawful copying of copyrighted material can be established through direct or indirect
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`evidence. Enchant Christmas Light Maze & Mtk. v. Glowco, LLC, 958 F.3d 532, 536 (6th Cir.
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`2020). Direct evidence includes “party admissions, witness accounts of the physical act of
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`copying, and common errors in the works of plaintiffs and the defendants.” Id. (internal
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`quotation marks omitted). Absent such evidence, the plaintiff “may establish an inference of
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`copying by showing: (1) access to the allegedly infringed work by the defendant(s) and (2) a
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`substantial similarity between the two works at issue.” Id. (internal quotation marks omitted).
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`“Access is essentially hearing or having a reasonable opportunity to view the plaintiff’s
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`work and thus having the opportunity to copy.” Stromback v. New Line Cinema, 384 F.3d 283,
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`293 (6th 2004) (alterations omitted; internal quotation marks omitted). “A lesser showing of
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`access (or even no showing at all) will suffice where the works are strikingly similar, strongly
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`suggesting that copying occurred.” Jones v. Blige, 558 F.3d 485, 491 (6th Cir. 2009) (alteration
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`omitted; internal quotation marks omitted). The latter course requires such striking similarity so
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`as to “preclude the possibility of independent creation.” Murray Hill Publ’ns, Inc. v. Twentieth
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`Century Fox Film Corp., 361 F.3d 312, 317 (6th Cir. 2004).
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`Determining substantial similarity involves two steps. We must first identify which
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`aspects of plaintiff’s work are protectible by copyright; and, second, determine whether there are
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`aspects of the infringing work that are substantially similar to the protectible elements of the
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 11 of 20. PageID #: 443
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`plaintiff’s work. Enchant Christmas Light Maze & Mkt., 958 F.3d at 537. What the Copyright
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`Act protects are creative tangible expressions of an author’s originality. Id. Nearly all works
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`possess some creative spark. Feist Publ’ns, Inc., 499 U.S. at 345. And “[o]riginality in a
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`photograph may be manifested in the posing of subjects, lighting angle, selection of film and
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`camera, evoking the desired expression, and almost any other variant involved.” Fournier v.
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`McCann, 202 F. Supp.2d 290, 295 (S.D. N.Y. 2002) (internal quotation marks omitted).
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`Stokes has also established the second element of his copyright-infringement claim as a
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`matter of law, albeit not on every argument presented. Stokes’s motion for summary judgment
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`relies on an indirect-evidence theory on the copying element of his claim. See ECF Doc. 17-1 at
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`12–13. He argues that Brinor’s access is undisputed, because Brinor admitted that the Wood
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`photograph was readily available on the internet. ECF Doc. 17-1 at 13; ECF Doc. 22 at 7.
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`However, Brinor’s admissions pertain only to the current accessibility of the photographs. ECF
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`Doc. 17-7 at 13 (interrogatory answer stating, “the image is currently available on the internet
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`from several sources”); ECF Doc. 18-2 at 3 (discussing the online availability of the photograph
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`in February 2023). No Rule 56 evidence has been presented regarding whether the Wood
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`photograph was available on the internet on or before August 2016.
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`Stokes alternatively argues that the similarity between the Wood photograph and the flyer
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`is so striking as to establish access. ECF Doc. 22 at 7–8. That argument has legs. Although
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`Wood’s likeness is not protectible, several other features of his photograph are. See Melville B.
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`Nimmer & David Nimmer, 1 Nimmer on Copyright § 1.17 (“The name and likeness [of a person]
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`do not become works of authorship simply because they are embodied in a copyrightable form,
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`such as a photograph.”). Protectible elements would include Wood’s posing, the strategic
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`selection and placement of baseball paraphernalia (i.e., the cap, glove, jersey, umpire leg guards,
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`and baseball shoes), the angle, and the lighting on the photograph, all of which combine to form
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`a particular “concept of feel.” Fournier, 202 F. Supp.2d at 295 (internal quotation marks
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`omitted).
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`That brings us to the necessary comparison between Stokes’s original photograph of
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`wood and the allegedly infringing flyer:
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`See ECF Doc. 1-1; ECF Doc. 1-2.5 The perceptible differences between the two are that: (i) the
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`flyer is mirrored version of the original; (ii) the hue of Wood’s skin in the flyer is paler than the
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`original; (iii) the red color of the baseball cap and jersey and shin guards has been switched to
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`green; and (iv) the baseball jersey in the flyer has no letter embroidery. However, the protectible
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`characteristics of the original remain in place; “[t]he ordinary observer, unless he set out to detect
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`the disparities, would be disposed to overlook them, and regard their aesthetic appeal to be the
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`same.” Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765 (2d Cir. 1991). What’s
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`more, the court finds that a rational trier of fact would be left with no conclusion other than that
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`5 To facilitate comparison, the images displayed on this page are court-cropped versions of the exhibits on
`the docket.
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`12
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`the Wood image depicted in the flyer is but a copy of the original. See Murray Hill Publ’ns,
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`Inc., 361 F.3d at 325.
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`Brinor has not argued against these conclusions; rather, it argues that it was Sulik (not
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`Brinor) who copied the Wood photograph. ECF Doc. 21 at 5–6. Although the argument has
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`some merit, it is insufficient to defeat summary judgment. Liability for direct infringement (the
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`sole claim Stokes has alleged) requires “volitional conduct” by the alleged infringer. Average
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`Joe’s Entm’t Grp., LLC v. Soundcloud, LTD., No. 3:16-cv-3294, 2018 U.S. Dist. LEXIS 225151,
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`at *6–7 (M.D. Tenn. Oct. 17, 2018) (internal quotation marks omitted). Stated differently,
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`“direct liability attaches only to the person who actually presses the button.” Abko Music, Inc. v.
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`Sagan, 50 F.4th 309, 321 (2d Cir. 2022) (internal quotation marks omitted). Here, the
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`undisputed Rule 56 evidence before the court points to Sulik as the only person directly
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`responsible for creating the infringing flyer. And although Stokes argues he could nevertheless
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`succeed on a secondary theory of liability, that is not what he pleaded in his complaint. See ECF
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`Doc. 22 at 8; see generally ECF Doc. 1.6
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`However, an actionable “copying” requires only that Brinor violated one of Stokes’s
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`rights under the Copyright Act. Best Hand Entm’t LLC v. Wideawake-Deathrow Entm’t, LLC,
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`No. 12-cv-12786, 2014 U.S. Dist. LEXIS 43719, at *15 (E.D. Mich. Mar. 31, 2014) (“The term
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`“copying” means infringement of any of a copyright holder’s exclusive rights under 17 U.S.C.
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`§ 106.”). Sulik’s conduct would relate to the infringement of Stokes’s right to reproduce the
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`Wood photograph. See 17 U.S.C. § 106(1)-(2). But it would not affect Brinor’s liability for
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`publicly displaying the infringing work via Dominguez’s act of posting the flyer on LSS’s
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`
`6 Moreover, Stokes’s secondary theory of liability also would not warrant entry of judgment as a matter of
`law, because no Rule 56 evidence has been presented establishing Brinor’s right and ability to supervise
`Sulik’s conduct. See Gordon v. Nextel Communs., 345 F.3d 922, 925 (6th Cir. 2003) (discussing the
`elements of vicarious liability).
`
`
`
`13
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 14 of 20. PageID #: 446
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`Facebook page. 17 U.S.C. § 106(5); ECF Doc. 18-3 at 2. Although Myers and Dominguez
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`disclaim any knowledge of the copyright infringing nature of the flyer, as a strict liability
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`offense, lack of knowledge is no defense. E.g., Microsoft Corp. v. Compusource Distribs., Inc.,
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`115 F. Supp.2d 800, 805 (E.D. Mich. 2000); King Records, Inc. v. Bennett, 438 F. Supp.2d 812,
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`852 (M.D. Tenn. 2006); ECF Doc. 18-2 at 2; ECF Doc. 18-3 at 2
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`
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`Stokes’s motion for summary judgment is GRANTED IN PART on the issue of liability
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`for direct copyright infringement for publicly displaying the Wood photograph.
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`C.
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`Actual Damages
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`Brinor separately moves for summary judgment on the issue of actual damages. Brinor
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`argues that Stokes cannot recover for actual damages beyond the three-year “lookback” period
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`provided by the Copyright Act. ECF Doc. 18-1 at 14–15. Brinor argues that Stokes also cannot
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`recover profit-based damages, because Stokes has not presented evidence attributing any of
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`Brinor’s profits to the infringement. ECF Doc. 18-1 at 15–20. And Brinor argues that Stokes
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`cannot obtain from Brinor profits that may have been earned by a non-defendant (the Cleveland
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`Mustangs). ECF Doc. 18-1 at 20–21.
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`Stokes has declined to respond to Brinor’s arguments, noting that he has elected to pursue
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`statutory damages in lieu of actual damages. See ECF Doc. 20 at 18–19.
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`The Copyright Act gives copyright owners the choice of recovering either “actual
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`damages and any additional profits of the infringer” or statutory damages. 17 U.S.C. § 504(a).
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`This choice can be made at any time before judgment is entered. 17 U.S.C. § 504(c)(1). But
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`once the plaintiff has elected to pursue statutory damages, he “cannot thereafter unelect them.”
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`Patry on Copyright § 22:171.
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`
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 15 of 20. PageID #: 447
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`Stokes has informed the court by way of his motion for summary judgment that he has
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`elected to pursue statutory damages in lieu of actual damages. See ECF Doc. 17-1 at 15–18;
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`ECF Doc. 17-3 at 7; ECF Doc. 20 at 18–19; Patry on Copyright § 22:171 (“Plaintiff may elect
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`by filing a summary judgment motion on damages that seeks only one form of recovery.”).
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`Brinor’s motion for summary judgment is therefore DENIED IN PART as moot with respect to
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`the issue of actual and profit-based damages. See Patry on Copyright § 22:171; see also Home
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`Design Servs. v. Eber, No. 3:08cv257, 2009 U.S. Dist. LEXIS 81563, at *12 (N.D. Fla. July 10,
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`2009), report and recommendation adopted, 2009 U.S. Dist. LEXIS 81558 (N.D. Fla. Sept. 8,
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`2009).
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`D.
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`Statutory Damages
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`Both parties have moved for summary judgment on the issue of statutory damages.
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`Stokes argues that statutory damages should be determined from a starting point of $11,000,
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`representing what a reasonable licensing value for the Wood photograph would have been based
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`on an estimate from Getty Images for the licensing of a professional photograph of Wood. ECF
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`Doc. 17-1 at 17–18. Stokes further argues that Brinor’s conduct was willful, warranting an
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`award of at least $33,000. ECF Doc. 17-1 at 18.
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`Brinor responds that Stokes’s proposed valuation of the Wood photograph is speculative.
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`ECF Doc. 21 at 8–10. Brinor also disputes Stokes’s characterization of its conduct as willful,
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`arguing that it was instead an innocent infringer and only nominal damages should therefore be
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`awarded. ECF Doc. 18-1 at 21–24; ECF Doc. 21 at 9–10. Brinor further argues that Stokes
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`cannot recover statutory damages or attorney fees because he did not register his copyright until
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`“April 28, 2020.” ECF Doc. 18-1 at 24–26.
`
`
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`15
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 16 of 20. PageID #: 448
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`In his reply and opposition briefs, Stokes argues that Brinor has failed to meet its burden
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`of showing that it was an innocent infringer. ECF Doc. 20 at 22–23; ECF Doc. 22 at 12–14. He
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`further argues that he is entitled to costs, including attorney fees. ECF Doc. 20 at 19–21.
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`1.
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`Availability of Damages
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`Statutory damages, costs, and attorney fees are all remedies available for copyright
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`infringement. 17 U.S.C. §§ 504-505. However, they are not available for:
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`(1) any infringement of copyright in an unpublished work before the effective
`date of its registration; or
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`(2) any infringement of copyright commenced after the first publication of the
`work and before the effective date of its registration, unless such registration
`is made within three months after the first publication of the work.
`
`
`17 U.S.C. § 412.
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`
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`Brinor’s timeliness argument rests, in part, on a mistake of fact regarding the date on
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`which Stokes registered his copyright on the Wood photograph. The undisputed Rule 56
`
`evidence before the court indicates that September 24, 2014 was the date when the photograph
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`was registered and the effective date of registration. ECF Doc. 17-3 at 4; ECF Doc. 17-4 at 2.
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`Thus, § 412 does not preclude the availability of statutory damages, costs, or attorney fees.
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`
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`That said, it is necessary to discuss the extent to which relief is available. As part of his
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`statute of limitations argument, Brinor separately argues that Petrella v. MGM, 572 U.S. 663
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`(2014), limits the scope of available statutory damages to harm which accrued within three years
`
`of the date of filing. See ECF Doc. 18-1 at 12–14. There, the Court considered whether laches
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`would bar relief on an otherwise timely copyright-infringement claim, holding that it would not.
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`Petrella, 572 U.S. at 668. In so ruling, the Court made several statements which have created
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`confusion over the scope of available relief. Patry on Copyright § 20:24. The Court stated, “it is
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`undisputed [that § 507(b)] bars relief of any kind for conduct occurring prior to the three-year
`
`
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`16
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`Case: 1:22-cv-00973-TMP Doc #: 23 Filed: 07/18/23 17 of 20. PageID #: 449
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`limitations period.” Petrella, 572 U.S. at 667. The Court further stated the limitations provision
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`“allows plaintiffs . . . to gain retrospective relief running only three years back from the date the
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`complaint was filed.” Id. at 672. And the Court stated, “No recovery may be had for
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`infringement in earlier years. Profits made in those years remain the defendant’s to keep.” Id. at
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`677.
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`
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`The Sixth Circuit has not addressed what impact Petrella had on the scope of relief
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`available for copyright infringement. Courts within this district have arrived at different
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`conclusions. Compare Navarro, 515 F. Supp.3d at 762 (holding that Petrella limited plaintiff’s
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`actual damages to those which arose during the three years before filing suit), with Design
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`Basics, LLC, 305 F. Supp.3d at 794 n.2 (rejecting the argument that that a plaintiff would be
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`foreclosed from recovering for infringements which occurred more than three years from the
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`date of filing), and Mitchell v. Capitol Records, LLC, 287 F. Supp.3d 673, 677–78 (W.D. Ky.
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`2017) (holding that Petrella applies only to damages arising from claims which “accrued” during
`
`the limitations period). And the circuit courts to have addressed the issue have come out
`
`differently. Compare Sohm v. Scholastic Inc., 959 F.3d 39, 52 (2d Cir. 2020) (holding that
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`Petrella limits damages to those “incurred during the three years prior to filing suit”), with Stars
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`Ent., LLC