Photographer Sues for Failure to Provide Creative Commons-Required Attribution–Philpot v. WOS

“Philpot has been a professional photographer, in his view, since 2008.” (“in his view” = ouch). He has not found financial success. For example, “he once earned $0.88 for an image of Prince that he took at a concert he paid $2,000 to attend.” Prints of his photos maybe have generated $100 in revenue. Looking to goose his revenue streams, he has turned to serial copyright litigation–around 50 lawsuits and two blog appearances already (1, 2). The court says “the principal way that Philpot appears to make money from his photography is settlement agreements in copyright lawsuits.”

This lawsuit involves two photos that Philpot uploaded to Wikimedia Commons under a Creative Commons license requiring attribution. The court doesn’t specify the exact CC license at issue; Wikimedia permits variations of CC-BY and CC-BY-SA. The defendant, WOS, published two stories using Philpot’s photos that provided attribution, but not the precise attribution required by the CC license. Philpot sued, seeking $150,000 of statutory damages per photo. WOS admitted revenue of $6 from one photo and $120 from another.

With revenue numbers like that, this case should have settled long ago. WOS surely offered to pay over 100% of its revenues to Philpot without any expense deductions. Instead, this case illustrates how the high end of statutory damages interferes with settlement discussions. Philpot will not get anywhere close to $150k per photo. He’ll be lucky to get the statutory damages minimum of $750 per photo. Yet if WOS offers $1,500 when the plaintiff values the case at $300k plus attorneys’ fees, the parties aren’t likely to reach an out-of-court resolution.

Fair Use

WOS admitted wrongful copying. Both parties requested summary judgment on fair use. Similar to the Philpot v. Alternet ruling, the court rejects both requests and sends the issue to the jury.

* Nature of Use. WOS’s use is commercial because it is a for-profit business, it generated revenues from the pages, and “it fully copied Philpot’s photos to draw attention to articles that had nothing to do with the photos themselves.” Whether WOS’s use is transformative gets sent to the jury. WOS claims transformativeness because the photos were used for news stories that were principally about another subject, not the photos’ subject. That felt like a weak argument.

* Nature of Work. The jury will decide the creativeness of the photos.

* Amount Taken. WOS took the entire photos, which the jury can find weighs against fair use.

* Market Effect. The court starts by saying that WOS’s use is commercial and not transformative, so this factor weighs against it. But then the court says “WOS has introduced significant, unrebutted evidence that there is no actual or potential market for Philpot’s photos,” citing Philpot’s profound lack of economic success as a photographer and the fact he posted the photos for free in Wikimedia Commons.

Philpot argued that the CC-required attribution was valuable advertising to him, but the court calls BS. Philpot only had one prior contact due to attribution that didn’t produce a sale, and “[a]sked if he has ‘any reason to believe’ that he would be contacted by anyone if his work were properly attributed, Philpot responded, ‘No.'” Thus, the fourth factor weighs for WOS.

Removal of CMI. WOS’s CEO says it didn’t realize the photos had metadata attached to them, it doesn’t consider that metadata valuable, and it regularly removes metadata to reduce file sizes (hmm). The court says this evidence demonstrated a lack of intent, so the claim is dismissed.

[There’s like a thousand things wrong with the discussion about CMI, but that area of law is already messed up.]

Breach of Creative Commons License. WOS claims the benefit of the CC license. Philpot argues they breached the license through misattribution. WOS responds that the CC license flexibly permits any reasonable manner of attribution. This issue goes to the jury.

Copyright Misuse. WOS argues that it’s misuse to provide photos for free via CC licenses and then create a copyright enforcement business for those photos. This reminded me a little of how pornographers allegedly seed P2P file sharing networks with their copyrighted works just to create new defendants. However, the court rejects this defense.

Innocent Infringement. The court says this defense goes to the jury.

Implications

This ruling almost certainly is a loss for both parties, because it forces them to invest in trial preparation for a case where the economic value doesn’t support the investment. Still, each party might be willing to invest more if they felt confident of getting a 505 attorneys’ fee shift. My reading of this ruling is that this case is close enough that the judge probably won’t give a fee shift to either side. That leaves both sides’ lawyers as the only possible remaining winners of this case. Even if this case had a maximum damages value of $300k to the plaintiff, the plaintiff likely will spend a big chunk of that in trial preparation–with no guarantee of a win or even covering the trial prep costs. Indeed, if the jury awards a statutory damages minimum of $400 or even $1,500, the plaintiff will lose a lot of money on this case; and if the jury awards so little, the judge might hold that the plaintiff’s failure to achieve its requested damages means the plaintiff lost the case badly enough to warrant a fee shift to the defendant. (I’m ignoring the possible implications of any Rule 68 Offers of Judgment; if I had been on the defense, I would have immediately made a $1,500 offer of judgment to try to start the attorneys’ fee meter running in my direction). Given the economic risks to both sides of proceeding to trial, profit-maximizing litigants should both prefer a settlement.

As this case reminds us, photos on the Internet are not free for the taking, even those in Wikimedia Commons. Wikipedia tries to make attribution easy by literally providing a cut-and-paste attribution option. Nevertheless, sometimes the requested attribution is ridiculous in context; and people in the field don’t always understand how to do attribution properly.

I think this ruling should encourage Creative Commons to consider its complicity. I’m sure CC didn’t intend a CC-BY license to be weaponizable by serial copyright litigants, yet here we are. The CC provision allowing reasonable attribution is helpful, but insufficient. To discourage trolling, Creative Commons should defang its CC-BY license further: perhaps a waiver of statutory damages (or even limiting misattribution claims to injunctive relief only) and a waiver of 1202 claims.

Case citation: Philpot v. WOS, Inc., 2019 WL 1767208 (W.D. Tex. April 22, 2019)